Case 97-cv-00063-HC Document 170 Filed 03/28/2003 " Page 1 of 22

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LUFKIN DIVISION

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MARY THOMAS (WILLIAMS), on her §

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EDDIE K. MASK, on his own

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and ROALD MARK, on his own

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Plaintiffs

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Case 97-cv-00063-HC Document 170 Filed 03/28/2003 Page 2 of 22

v. LUFKIN INDUSTRIES,
Defendant

§ CIVIL ACTION NO. 9:97cv063
§ § § §

SECOND AMENDED SUPPLEMENTAL COMPLAINT

NOW COME the Plaintiff Class Representatives, Sylvester

McClain, Buford Thomas, Patrick Ross, Mary Thomas (Williams), Eddie

K. Mask, Leroy Garner, Sherry Calloway Swint, John Doe (a/k/a II A" ) ,

Florine Thompson (a/k/a John Doe II a/k/a liB"), John Doe III

(a/k/a "C"), Clifford Duirden, Earl Potts and Roald Mark, on their

own behalf and on behalf of a class of similarly situated persons,

who for their Second Amended Supplemental Complaint state as

follows:

1.

Introduction

1. Plaintiff Class Representatives Sylvester McClain, Buford

Thomas, Patrick Ross, Mary Thomas (Williams), Eddie K. Mask, Leroy

Garner, Sherry Calloway Swint, John Doe, a/k/a "A", Florine

Thompson, a/k/a John Doe II, a/k/a "B", John Doe III, a/k/a "C",

Clifford'Duirden, Earl Potts, Roald Mark, and a certified class of

similarly situated persons (collectively "Plaintiffs"), pursue this

action under 42 U.S.C. § 1981, as amended ("§ 1981"), which in

relevant part provides that all persons in the United States shall

have the same right to make and enforce contracts as is enjoyed by

white citizens. Plaintiffs also pursue causes of action for race

discrimination in employment pursuant to Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. ("Title

2

Case 97-cv-00063-HC Document 170 Filed 03/28/2003 Page 3 of 22
VII If), which in relevant part prohibits discrimination in the terms and conditions of employment on account of race. The Court certified the plaintiff class on March 31, 1999, pursuant to Rule 23 (b) (2), F.R.C.P.
2. More specifically, Plaintiffs claim they have been employed by Defendant Lufkin Industries who has discriminated against them on account of their race in hiring, job assignments, training, evaluations, promotions, demotions, discipline, compensation, layoffs, recalls, rehires, terminations and other terms and conditions of employment.
3. Plaintiffs bring this cause of action to vindicate their rights guaranteed by Title VII and § 1981. Plaintiffs seek the full measure of available declaratory and equitable relief, on their own behalf and on behalf of members of the Plaintiff Class, along with an award of costs and statutory attorney fees, pursuant to Title VII and 42 U.S.C. § 1988.
II. Jurisdiction 4. This Court has jurisdiction over the Plaintiffs' claims pursuant to 28 U.S.C. § 1331, which creates original jurisdiction for this Court over all civil actions arising under the Constitution, laws, or treaties of the United States, and 28 U.S.C. § 1343(4), which creates original jurisdiction for this Court over civil actions to secure equitable relief under any Act of Congress providing for the protection of civil rights. This Court also has jurisdiction over the Plaintiffs' Title VII causes of action
3

Case 97-cv-00063-HC Document 170 Filed 03/28/2003 Page 4 of 22
pursuant to 42 U.S.C. § 2000e(5) (f) (3).
III.
Parties Plaintiffs:
5. Plaintiff Class Representative Sylvester McClain is a citizen of the United States, a resident of Angelina County, Texas, and a person within the jurisdiction of the United states.
6. Plaintiff Class Representative Buford Thomas is a citizen of the United States, a resident of Angelina County, Texas, and a person within the jurisdiction of the United States.
7. Plaintiff Class Representative Patrick Ross is a citizen of the United States, a resident of Angelina County, Texas, and a person within the jurisdiction of the United states.
8. Plaintiff Class Representative Mary Thomas (Williams) is a citizen of the United States, a resident of Angelina County, Texas, and a person within the jurisdiction of the United States.
9. Plaintiff Class Representative Eddie K. Mask is a citizen of the United States, a resident of Angelina County, Texas, and a person within the jurisdiction of the United States.
10. Plaintiff Class Representative Leroy Garner is a citizen of the United States, a resident of Angelina County, Texas, and a person within the jurisdiction of the United States.
11. Plaintiff Class Representative Sherry Calloway Swint is a citizen of the United States, a resident of Dallas County, Texas, and a person within the jurisdiction of the United States.
4

Case 97-cv-00063-HC Document 170 Filed 03/28/2003 Page 5 of 22

12. Plaintiff Class Representative John Doe, a/k/a "A", is a

citizen of the United States, a resident of Angelina County, Texas,

and a person within the jurisdiction of the United States.

13. Plaintiff Class Representative Florine Thompson, previously

known as John Doe II and/or "B", is a citizen of the United States,

a resident of Angelina County, Texas, and a person within the

jurisdiction of the United States.

14. Plaintiff Class Representative John Doe III, a/k/a "C", is a

citizen of the United States, a resident of Angelina County, Texas,

and a person within the jurisdiction of the United States.

15. Plaintiff Class Representative Clifford Duirden is a citizen

of the United States, a resident of Angelina County, Texas, and a

person within the jurisdiction of the United States.

16. Plaintiff Class Representative Earl Potts is a citizen of the

United States, a resident of Houston County, Texas, and a person

within the jurisdiction of the United States.

17. Plaintiff Class Representative Roald Mark is a citizen of the

United States, a resident of Harris County, Texas, and a person

within the jurisdiction of the United States.

Plaintiff Class:

18. The Court has certified a Plaintiff Class consisting of:

All Black persons employed for any period of time by

defendant Lufkin Industries on or after March 6, 1994, to

date, whose compensation, remuneration, benefits, job

assignments,

promotional

opportunities,

career

advancement and other terms and conditions of employment

have been, may have been, or may become, adversely

affected by defendant Lufkin Industries' past or present

systems of administering hiring, wages, salaries, job

assignments, training, evaluations, promotions,

demotions, terminations, layoffs, recalls, and rehires.

5

Case 97-cv-0006~HC Document 170 Filed 03/28/2003 Page 6 of 22

Defendant:

19. Defendant Lufkin Industries, Inc. is a Texas corporation

licensed to do business in the State of Texas and located within

the jurisdiction of the United States District Court for the

Eastern District of Texas. Defendant Lufkin Industries can be

served through its Secretary, C. James Haley, Jr., 601 So. Raguet,

Lufkin, TX 75901.

IV.

Procedural History

20. Plaintiff Class Representative McClain timely filed a charge

of discrimination in employment with the United States Equal

Employment Opportunity Commission and received his right-to-sue

letter on or about December 4, 1996.

Plaintiff Class

Representative McClain has therefore satisfied all prerequisites to

suit for the Plaintiff Class Representative Class' Title VII claims

and there remain no unfulfilled exhaustion requirements.

V.

Facts

21. All of the Plaintiffs have been employed by Defendant Lufkin

Industries at some time since March 6, 1994 and are entitled to the

protections from employment discrimination offered by Title VII and

§ 1981.

22. At all times relevant hereto Defendant Lufkin Industries is

and was an employer as that term is defined by Title VII, and is

and was subject to the prohibitions against race discrimination

contained in Title VII and 42 U.S.C. § 1981.

6

Case 97-cv-00063-HC Document 170 Filed 03/28/2003 Page 7 of 22
23. Plaintiff Class Representative Sylvester McClain is a black, African American and resident of Angelina County, Texas.
24. Defendant Lufkin Industries hired Plaintiff Class Representative McClain on or about February 16, 1972, paying him approximately $2.22 per hour to work as a "helper."
25. Throughout his tenure, Plaintiff Class Representative McClain has actively opposed race discrimination in employment at Lufkin Industries.
26. Plaintiff Class Representative McClain worked in many capacities, up to and including the Quality Assurance Manager for Defendant's Trailer Division.
27. At all times relevant hereto, Plaintiff Class Representative McClain has been a loyal, competent, qualified, hard working employee for Defendant Lufkin Industries.
28. From approximately 1990 until June 8, 1996, Plaintiff Class Representative McClain served Defendant Lufkin Industries as its Trailer Division Quality Assurance Manager.
29. While Plaintiff Class Representative McClain was a Quality Assurance Manager, Defendant Lufkin Industries not only refused to treat him in a manner comparable to the manner it treated similar white employees, but Defendant Lufkin Industries refused to consider Plaintiff Class Representative McClain for promotions because of his race.
30. As Quality Assurance Manager Plaintiff Class Representative McClain was not given the compensation, support, authority, equipment or training provided to white employees with similar
7

Case 9:97-cv-00063-HC Document 170 Filed 03/28/2003 Page 8 of 22
responsibili ties. As a result, Plaintiff Class Representative McClain had to work considerably longer hours and harder than did white employees with similar responsibilities.
31. In January, 1995, higher management employees at Lufkin Industries attempted to terminate and/or demote Plaintiff Class Representative McClain solely because of his race. When Plaintiff Class Representative McClain complained about this proposed discrimination, he was only able to delay the action.
32. In January, 1996, Defendant Lufkin Industries demoted Plaintiff Class Representative McClain from his position as Quality Assurance Manager to his present position of Inspector. This demotion was the resul t of Defendant Lufkin Industries' racial hostility and in retaliation for Plaintiff Class Representative McClain's having opposed race discrimination in the workplace.
33. As a direct and foreseeable result of the Defendant Lufkin Industries' actions complained of above, Plaintiff Class Representative McClain suffered and continues to suffer lost pay and compensation.
34. As a direct and foreseeable result of Defendant Lufkin Industries' actions and inactions described above, Plaintiff Class Representative McClain suffered and continues to suffer lost promotional opportunities.
35. As a direct and foreseeable result of the Defendant Lufkin Industries' actions and inactions described above, Plaintiff Class Representative McClain has been required to work a great many more hours than white employees are required to work, without
8

Case 97-cv-00063-HC Document 170 Filed 03/28/2003 Page 9 of 22
compensation. 36. Plaintiff Class Representative Buford Thomas is a black,
African-American and resident of Angelina County, Texas. 37. From May, 1979 until May 17, 1996 Plaintiff Class
Representative Buford Thomas was an employee of Defendant Lufkin Industries.
38. Plaintiff Class Representative Buford Thomas worked in many capacities, starting as a Sales Trainee, and most recently working as a Quality Assurance Technician.
39. From approximately 1984 until May 17, 1996, Plaintiff Class Representative Buford Thomas served Defendant Lufkin Industries as a Quality Assurance Techni,cian.
40. As a Quality Assurance Technician, Plaintiff Class Representative Buford Thomas was required by Defendant Lufkin Industries to perform the work of white employees, who received full credit for Plaintiff Class Representative Buford Thomas' efforts. White employees were not similarly required to perform work for Plaintiff Class Representative Buford Thomas or other black African Americans.
41. While a Quality Assurance Technician, Defendant Lufkin Industries refused to consider Plaintiff Class Representative Buford Thomas for promotions to other positions because of his race.
42. Throughout his tenure, Plaintiff Class Representative Buford Thomas sought training opportunities and opportunities for advancement. While white employees were often afforded these
9

97-cv-00063-HC Document 170 Filed 03/28/2003 Page 10 22
opportunities, Plaintiff Class Representative Buford Thomas was rarely afforded these opportunities because of his race.
43. On the rare occasions that Plaintiff Class Representative Buford Thomas was provided with training, he never received additional responsibilities or promotions to utilize the skills obtained. For instance, in 1986 Plaintiff Class Representative Buford Thomas received supervisory training, but he was never given an opportunity to supervise other employees. Defendant Lufkin Industries denied Plaintiff Buford Thomas these opportunities and responsibilities because of his race.
44. On or about May 17, 1996, because Plaintiff Class Representative Buford Thomas was required to do the work of others without the opportunity for promotion, he was overworked, undercompensated, and reasonably felt compelled to resign his position because of the discrimination he was subject to.
45. As a direct and foreseeable result of the Defendant Lufkin Industries' actions and inactions described above, Plaintiff Class Representative Thomas suffered lost promotional opportunities.
46. As a direct and foreseeable result of the Defendant Lufkin Industries' actions complained of above, Plaintiff Class Representative Thomas has suffered lost pay and compensation.
47. Plaintiff Class Representative Patrick Ross is a black African American and resident of Angelina County, Texas.
48. In 1997 Plaintiff Class Representative Ross applied for employment at Defendant Lufkin Industries.
10

97-cv-00063~HC Document 170 Filed 03/28/2003 Page 11 22
49. Defendant Lufkin Industries offered Plaintiff Class Representative Ross employment, but only in the relatively undesirable position of Chipper Grinder in the Foundry Cleaning Room.
50. The work required of a Chipper Grinder in the Foundry Cleaning Room is physically difficult and requires the use of heavy and noisy machines under very hot, dusty and dirty conditions, considered to be the least desirable at Defendant Lufkin Industries.
51. Defendant Lufkin Industries assigned Plaintiff Class Representative Ross to work as a Chipper Grinder in the Foundry, as opposed to assigning him to a more desirable position, because of his race.
52. The working conditions were so onerous that Plaintiff Class Representative Ross resigned after only a few weeks. If Defendant Lufkin Industries has given Plaintiff Class Representative Ross a different work assignment with better working conditions he would have continued to work at Defendant Lufkin Industries.
53. As a direct and foreseeable result of Defendant Lufkin Industries' actions towards Plaintiff Class Representative Ross, Plaintiff Class Representative Ross lost, and continues to lose, valuable compensation and employment opportunities.
54. Plaintiff Class Representative Mary Thomas (Williams) is a black African American and a resident of Angelina County, Texas.
55. Defendant Lufkin Industries hired Plaintiff Class Representative Mary Thomas in May, 1994.
11

97-cv-00063-JjC Document 170 Filed 03/28/2003 Page 12 22
56. Defendant Lufkin Industries employed Plaintiff Class Representative Mary Thomas in different capacities at both hourly and salaried positions.
57. Defendant Lufkin Industries initially assigned Plaintiff Class Representative Mary Thomas to work in the Trailer Division under physically demanding and less desirable work conditions because of her race.
58. Defendant Lufkin Industries denied Plaintiff Class Representative Mary Thomas training, transfers and other employment opportunities because of her race.
59. Defendant Lufkin Industries laid off Plaintiff Class Representative Mary Thomas in 1996 and passed her over for recall because of her race.
60. Defendant Lufkin Industries refused to rehire Plaintiff Class Representative Mary Thomas into a bargaining unit position after the 1996 layoff, but instead only offered her a lower paying, nonbargaining unit position as a security guard where she was again denied training and transfers to better paying and more desirable positions, because of her race.
61. As a direct and foreseeable result of Defendant Lufkin Industries' actions, complained of above, Plaintiff Class Representative Mary Thomas suffered and continues to suffer lost compensation.
62. Plaintiff Class Representative Eddie Mask is a black African American and a resident of Angelina County, Texas.
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97-cv-00063-=-HC Document 170 Filed 03/28/2003 Page 13 22
63. Defendant Lufkin Industries employed Plaintiff Class Representative Mask from 1964 until 1969 and from 1973 until the present in both hourly and salaried positions.
64. Defendant Lufkin Industries has deprived Plaintiff Class Representative Mask promotional and training opportunities throughout his tenure because of his race.
65. As a direct and foreseeable result of Defendant Lufkin Industries' actions, complained of above, Plaintiff Class Representative Mask has suffered, and continues to suffer, lost compensation and employment opportunities.
66. Plaintiff Class Representative Leroy Garner is a black African American and a resident of Angelina County, Texas.
67. Defendant Lufkin Industries employed Plaintiff Class Representative Garner from 1963 until 1998, when he retired.
68. Defendant Lufkin Industries denied Plaintiff Class Representative Garner training and promotional opportunities throughout his tenure because of his race.
69. Defendant Lufkin Industries' actions, complained of above, caused Plaintiff Class Representative Garner to lose compensation and employment opportunities.
70. Plaintiff Class Representative Sherry Calloway Swint is a black African American and resident of Dallas County, Texas.
71. Defendant Lufkin Industries employed Plaintiff Class Representative Swint from 1990 until 1995 in salaried and hourly positions.
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97-cv-00063-tlC Document 170 Filed 03/28/2003 Page 14 22
72. Defendant Lufkin Industries denied Plaintiff Class Representative Swint training and promotional opportunities during her tenure because of her race.
73. When Plaintiff Class Representative Swint complained of discrimination, Defendant Lufkin Industries subjected her to retaliation, including assignment to onerous and undesirable working conditions resulting in constructive discharge.
74. As a direct and foreseeable result of Defendant Lufkin Industries' actions, complained of above, Plaintiff Class Representative Swint lost, and continues to lose, compensation and employment opportunities.
75. Plaintiff Class Representative John Doe, a/k/a "A", is a black African American and resident of Angelina County.
76. Defendant Lufkin Industries has denied Plaintiff Class Representative John Doe training and promotional opportunities because of his race.
77. Defendant Lufkin Industries has demoted Plaintiff Class Representative John Doe because of his race.
78. Defendant Lufkin Industries assigned Plaintiff Class Representative John Doe to work in its Trailer Division under hot, dirty, physically demanding, undesirable working condi tions because of his race.
79. Defendant Lufkin Industries' actions, complained of above, have directly and foreseeably caused Plaintiff Class Representative John Doe to lose valuable compensation and employment opportunities.
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97-cv-00063-HC Document 170 Filed 03/28/2_003 Page 15 22
80. Plaintiff Class Representative Florine Thompson is an African American and resident of Angelina County.
81. Defendant Lufkin Industries employed Plaintiff Class Representative Florine Thompson in hourly and salaried positions since 1984.
82. Defendant Lufkin Industries has deprived Plaintiff Class Representative Florine Thompson training and promotional opportunities because of her race.
83. Defendant Lufkin Industries has demoted Plaintiff Class Representative Florine Thompson and assigned her to onerous and undesirable job assignments because of her race.
84. Defendant Lufkin Industries gave Plaintiff Class Representative Florine Thompson a lower job classification than white employees doing the same work, just because of her race.
85. Defendant Lufkin Industries refused and failed to give raises to Plaintiff Class Representative Florine Thompson because of her race.
86. Defendant Lufkin Industries subjected Plaintiff Class Representative Florine Thompson to retaliation, including a cut in pay, and demotion, because she complained about discrimination.
87. Defendant Lufkin Industries' actions, complained of above, directly and foreseeably caused, and continues to cause, Plaintiff Class Representative Florine Thompson to lose compensation and employment opportunities.
88. Plaintiff Class Representative John Doe III, a/k/a IICII, is a black African American and resident of Angelina County, Texas.
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Case 9:97-cv-00063...::HC Document 170 Filed 03/28/2003 Page 16 of 22
89. Defendant Lufkin Industries has employed Plaintiff Class Representative John Doe III since 1971.
90. Defendant Lufkin Industries has deprived Plaintiff Class Representative John Doe III of training and promotional opportunities because of his race.
91. Defendant Lufkin Industries has subjected Plaintiff Class Representative John Doe III to disciplinary action because of his race.
92. Defendant Lufkin Industries' actions, complained of above, have directly and foreseeably caused, and continue to cause, Plaintiff Class Representative John Doe III to lose compensation and employment opportunities.
93. Plaintiff Class Representative Clifford Duirden is a black African American and a resident of Angelina County, Texas.
94. Defendant Lufkin Industries has employed Plaintiff Class Representative Duirden since 1987.
95. Defendant Lufkin Industries initially assigned Plaintiff Class Representative Duirden to the Foundry Division, to work under dirty, noisy, physically onerous and undesirable conditions because of his race.
96. Defendant Lufkin Industries has denied Plaintiff Class Representative Duirden training and promotional opportunities because of his race.
97. Defendant Lufkin Industries' actions, complained of above, have directly and foreseeably caused, and continue to cause, Plaintiff Class Representative Duirden to lose compensation and
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97-cv-00063-HC Document 170 Filed 03/28/2003 Page 17 22
employment opportunities. 98. Plaintiff Class Representative Earl Potts is an African-
American citizen residing in Houston County, Texas. 99. Defendant Lufkin Industries has employed Plaintiff Class
Representative Potts since 1989. 100. Defendant Lufkin Industries has denied Plaintiff Class Representative Potts training and promotional opportunities because of his race. 101. Defendant Lufkin Industries has required Plaintiff Class Representative to endure various forms of race discrimination, including racial slurs. 102. Defendant Lufkin Industries assigned Plaintiff Class Representative Potts to work in the cleaning booth, the dirtiest, noisiest and physically hardest, lease desirable working conditions in the Power Transmission Division because of his race and because he actively opposed discrimination. 103. Defendant Lufkin Industries' actions, complained of above, have directly and foreseeably caused, and continue to cause, Plaintiff Class Representative Potts to lose valuable compensation and employment opportunities. 104. Plaintiff Class Representative Roald Mark is a black African American and a resident of Harris County, Texas. 105. Defendant Lufkin Industries hired Plaintiff Class Representative Mark in April, 1995, initially assigning him to work in the Foundry because of his race.
17

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106. Defendant Lufkin Industries assigned Plaintiff Class Representative Mark to work in the Foundry cleaning room, under the dirtiest, noisiest, most physically demanding and least desirable working conditions at Defendant Lufkin Industries because of his race. 107. Defendant Lufkin Industries required Plaintiff Class Representative Mark to endure different forms of race discrimination, including racial slurs being used by his supervisor. 108. Defendant Lufkin Industries has also retaliated against Plaintiff Class Representative Mark because he has opposed race discrimination. The retaliation included reassignment from a production job to cleaning particularly filthy bathrooms, refusal to schedule Plaintiff Class Representative Mark for work, reassigning him to a non-bargaining unit position, subjecting him to trumped-up and exaggerated discipline, and laying him off on January 7, 1999 even though he had more departmental seniority than employees who were retained and continued to do the work that Plaintiff Class Representative Mark had been doing before the layoff. 109. The actions of Defendant Lufkin Industries, described above, have directly and foreseeably caused, and continue to cause, Plaintiff Class Representative Mark to lose valuable compensation. 110. Defendant Lufkin Industries exercises its subjective discretion to discriminate against the Plaintiffs in job assignments, training, promotional opportunities, compensation, demotions,
18

97-cv-00063-HC Document 170 Filed 03/28/2003 Page 19 22
layoffs, recalls, terminations, discipline and other terms and conditions of employment. 111. Defendant Lufkin Industries fails or refuses to provide promotional opportunities for its black, African-American employees into salaried and management level positions on the same basis that it is willing to provide promotional opportunities into salaried and management level positions for its white employees. 112. Defendant Lufkin Industries is less likely to hire qualified black African Americans than whites. 113. Defendant Lufkin Industries has assigned disproportionately more black African American class members to difficult and unpleasant jobs and disproportionately fewer black African American class members to less strenuous and more desirable positions. 114. Defendant Lufkin Industries fails or refuses to provide training and promotional opportunities to black African American class members on the same basis as it does its white employees. 115. Defendant Lufkin Industries has disproportionately included more black African American class members than whites in layoffs. 116. Defendant Lufkin Industries compensates black African Americans at disproportionately lower rates than it does whites. 117. Defendant Lufkin Industries disproportionately terminates more black African Americans for cause than it does whites. 118. Defendant Lufkin Industries' refusal to employ AfricanAmericans on the same basis that it is willing to employ whites constitutes a refusal to contract with black, African-Americans on the same basis that it is willing to contract with whites, in
19

97-cv-00063-HC Document 170 Filed 03/28/2003 Page

22

violation of 42 U.S.C. § 1981, as amended. 119. Defendant Lufkin Industries' refusal to employ black, AfricanAmericans under the same terms and conditions of employment that it is willing to employ whites constitutes race discrimination in employment, in violation of Title VII. 120. Defendant Lufkin Industries' subjective decision-making process resulting in discrimination against black African Americans is not reasonably divisible to permit analysis of more specific or discrete employment practices, and must be analyzed as one employment practice. 121. Defendant Lufkin Industries' acts and omissions, complained of above, were undertaken intentionally and willfully. 122. As a direct and foreseeable result of Defendant Lufkin Industries' actions and omissions, complained of above, the named Plaintiffs and members of the Plaintiff Class have been, continue to be, and will in the future be, irreparably harmed and have lost substantial income and promotional opportunities. 123. The named Plaintiffs and members of the Plaintiff Class Representative class have no plain or adequate remedy at law, except for this suit which is their only means of securing redress.
VI. Causes of Action First Cause of Action: 124. Defendant's acts and omissions, set forth above, constitute employment discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seg., for which
20

97-cv-00063-HC Document 170 Filed

Page 21 22

Plaintiffs seek the full measure of equitable remedies,
individually and on behalf of members of the class.
Second Cause of Action:
125. Defendant's acts and omissions, set forth above, constitute
violations of 42 U.S.C. § 1981, for which Plaintiffs seek the full
measure of equitable relief.
VII.
Prayer for Relief
WHEREFORE, Plaintiffs pray that this Honorable Court:
a. Enter declaratory judgment against Defendant Lufkin Industries and in favor of Plaintiffs recognizing that Defendant discriminated against them on the basis of their race in violation of Title VII and 42 U.S.C. §1981;
b. Enter a permanent injunction against Defendant Lufkin Industries and in favor of Plaintiffs, enjoining Defendant from discriminating against them on the basis of race in the future;
c. Enter judgment for equitable relief against Defendant Lufkin Industries and in favor of Plaintiffs providing all available appropriate relief reasonably necessary to make them whole, including, but not limited to, granting back pay, front pay, retroactive seniority, promotions, priority placements, equal access to training and promotional opportuni ties, and any other equitable relief appropriate to make the class members whole;
d. Enter judgment and an Order against Defendant Lufkin Industries and in favor of Plaintiffs providing for reasonable attorney's fees and taxable costs;
e. Grant any and all other additional relief to which Plaintiffs appear to be entitled.

21

97-cv-00063-HC Document 170 Filed 03/28/2003 Page

22

Respectfully submitted,

By:

Stuckey & Garrigan Law Office 2803 North St., P.O. Box 631902 Nacogdoches, Texas 75963-1902 409/560-6020 FAX: 409/560-9578

Teresa Demchak California Bar No. 123989 Linda M. Dardarian California Bar No. 131001 Darci E. Burrell California Bar No. 180467

Saperstein, Goldstein, Demchak & Baller
300 Lakeside Drive, Suite 1000 Oakland CA 94612-3534 (510) 763-9800 FAX: (510) 835-1417

CERTIFICATE OF SERVICE

I hereby certify that I have served all counsel of record in this case, including the following, with a true and correct copy of the foregoing Second Amended Supplemental Complaint by sending same via United States certified (return receipt requested) mail, postage prepaid:

John H. Smither/Christopher V. Bacon

Vinson & Elkins

2806 First City Tower

1001 Fannin

Houston TX 77002-6760

11J- on this

day of i:l1c...u- ~ / , 2000.

22

 
 Case 97-cv-00063-HC Document 174 Filed 04/08/2003 Page 1 of 15

IN TIlE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION

uF.IsL. EDlDSiR-ICCTLCEORURKT
03 APR -8 PH 2: 28

SYLVESTER MCCLAIN, on his own

§

behalf and on behalf of a class of similarly §

situated persons, et aI.,

§

§

Plaintiffs,

§

vs.

§

§

LUFKIN INDUSTRIES,

§

§

Defendant.

§

TX EASTERrg:ONT
BY
CIVIL ACTION NO. 9:97-CV-063

DEFENDANT'S AMENDED ANSWER

Lufkin Industries ("Lufkin") answers Plaintiffs' Second Amended Supplemental

Complaint as follows:

1. Defendant admits that Plaintiff Class Representatives (hereinafter "Plaintiffs")

purport to bring an action under 42 U.S.C. § 1981 and Title VII of the Civil Rights Act.

Defendant denies having violated any laws or the existence of a class of similarly situated

persons. While Defendant admits that the Court certified a class under Fed. R. Civ. P. 23(b)(2)

on March 31, 1999, Defendant denies that the Court certified a class under 42 U.S.C. § 1981 and

further denies that a class is properly certified.

2. Defendant admits that Plaintiffs have been employed by Lufkin Industries.

Defendant denies the remaining allegations contained in Paragraph 2 of Plaintiffs' Second

Amended Supplemental Complaint.

3. Defendant admits that Plaintiffs purport to bring an action under 42 U.S.C. §

1981 and Title VII and they seek declaratory and equitable relief. Defendant denies having

violated any laws and denies that Plaintiffs are entitled to relief. Defendant denies the remaining

allegation in Paragraph 3 of Plaintiffs' Second Amended Supplemental Complaint.

Case 97-cv-00063-HC Document 174 Filed 04/08/2003 Page 2 of 15
4. Defendant admits that this Court has jurisdiction over all civil actions arising under the Constitution, laws or treaties of the United States including claims brought under 42 U.S.C. §1981 and Title VII of the Civil Rights Act.
5. Defendant has insufficient knowledge to either admit or deny the allegations contained in Paragraph 5 of Plaintiffs' Second Amended Supplemental Complaint.
6. Defendant has insufficient knowledge to either admit or deny the allegations contained in Paragraph 6 of Plaintiffs' Second Amended Supplemental Complaint.
7. Defendant has insufficient knowledge to either admit or deny the allegations contained in Paragraph 7 of Plaintiffs' Second Amended Supplemental Complaint.
8. Defendant has insufficient knowledge to either admit or deny the allegations contained in Paragraph 8 of Plaintiffs' Second Amended Supplemental Complaint.
9. Defendant has insufficient knowledge to either admit or deny the allegations contained in Paragraph 9 of Plaintiffs' Second Amended Supplemental Complaint.
10. Defendant has insufficient knowledge to either admit or deny the allegations contained in Paragraph 10 of Plaintiffs' Second Amended Supplemental Complaint.
11. Defendant has insufficient knowledge to either admit or deny the allegations contained in Paragraph 11 of Plaintiffs' Second Amended Supplemental Complaint.
12. Defendant has insufficient knowledge to either admit or deny the allegations contained in Paragraph 12 of Plaintiffs' Second Amended Supplemental Complaint.
13. Defendant has insufficient knowledge to either admit or deny the allegations contained in Paragraph 13 of Plaintiffs' Second Amended Supplemental Complaint.
14. Defendant has insufficient knowledge to either admit or deny the allegations contained in Paragraph 14 of Plaintiffs' Second Amended Supplemental Complaint.
2

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15. Defendant has insufficient knowledge to either admit or deny the allegations contained in Paragraph 15 of Plaintiffs' Second Amended Supplemental Complaint.
16. Defendant has insufficient knowledge to either admit or deny the allegations contained in Paragraph 16 of Plaintiffs' Second Amended Supplemental Complaint.
17. Defendant has insufficient knowledge to either admit or deny the allegations contained in Paragraph 17 of Plaintiffs' Second Amended Supplemental Complaint.
18. Defendant admits that this Court has certified a class but denies that a class of similarly situated Plaintiffs exists or that certification was proper.
19. Defendant admits the allegations set forth in Paragraph 19 of Plaintiffs' Second Amended Supplemental Complaint.
20. Defendant has insufficient knowledge to either admit or deny the allegation that McClain received his Right-to-Sue letter on or about December 4, 1996. Defendant denies the remaining allegations contained in Paragraph 20 in Plaintiffs' Second Amended Supplemental Complaint.
21. Defendant admits that all of the Plaintiffs have been employed by Defendant at some time since March 6, 1994. Defendant denies the remaining allegations contained in Paragraph 21 of Plaintiffs' Second Amended Supplemental Complaint.
22. Defendant admits the allegations contained in Paragraph 22 of Plaintiffs' Second Amended Supplemental Complaint.
23. Defendant admits that Plaintiff McClain is a black, African-American but denies, for lack of knowledge, the remaining allegations in Paragraph 23 of Plaintiffs' Second Amended Supplemental Complaint.
3

Case 97-cv-00063-HC Document 174 Filed 04/08/2003 Page 4 of 15
24. Defendant admits the allegations contained in Paragraph 24 of Plaintiffs' Second Amended Supplemental Complaint.
25. Defendant denies the allegation contained of Paragraph 25 of Plaintiffs' Second Amended Supplemental Complaint.
26. Defendant admits the allegations contained in Paragraph 26 of Plaintiffs' Second Amended Supplemental Complaint.
27. Defendant denies the allegations contained in Paragraph 27 of Plaintiffs' Second Amended Supplemental Complaint.
28. Defendant admits that Plaintiff McClain served as a Quality Assurance Manager from 1991 through 1996. Defendant denies the remaining allegations in Paragraph 28 of Plaintiffs' Second Amended Complaint.
29. Defendant denies the allegations contained in Paragraph 29 of Plaintiffs' Second Amended Supplemental Complaint.
30. Defendant denies the allegations contained in Paragraph 30 of Plaintiffs' Second Amended Supplemental Complaint.
31. Defendant denies the allegations contained in Paragraph 31 of Plaintiffs' Second Amended Supplemental Complaint.
32. Defendant admits that in January of 1996, Plaintiff McClain was reassigned from the position of Quality Assurance Manager to the position of Inspector. Defendant denies the remaining allegations contained in Paragraph 32 of Plaintiffs' Second Amended Supplemental Complaint.
33. Defendant denies the allegations set forth in Paragraph 33 of Plaintiffs' Second Amended Supplemental Complaint.
4

Case 97-cv-00063-HC Document 174 Filed 04/08/2003 Page 5 of 15
34. Defendant denies the allegations set forth in Paragraph 34 of Plaintiffs' Second Amended Supplemental Complaint.
35. Defendant denies the allegations set forth in Paragraph 35 of Plaintiffs' Second Amended Supplemental Complaint.
36. Defendant admits that Plaintiff Thomas a black, African-American, but denies for lack of knowledge, the remaining allegations contained in Paragraph 36 of Plaintiffs' Second Amended Supplemental Complaint.
37. Defendant admits the allegations contained in Paragraph 37 of Plaintiffs' Second Amended Supplemental Complaint.
38. Defendant admits the allegations contained in Paragraph 38 of Plaintiffs' Second Amended Supplemental Complaint.
39. Defendant denies the allegations contained in Paragraph 39 of Plaintiffs' Second Amended Supplemental Complaint.
40. Defendant denies the allegations contained in Paragraph 40 of Plaintiffs' Second Amended Supplemental Complaint.
41. Defendant denies the allegations contained in Paragraph 41 of Plaintiffs' Second Amended Supplemental Complaint.
42. Defendant denies the allegations contained in Paragraph 42 of Plaintiffs' Second Amended Supplemental Complaint.
43. Defendant admits that Plaintiff Thomas received supervisory training but denies the allegations contained in Paragraph 43 of Plaintiffs' Second Amended Supplemental Complaint.
5

Case 97-cv-00063-HC Document 174 Filed 04/08/2003 Page 6 of 15
44. Defendant denies the allegations contained in Paragraph 44 of Plaintiffs' Second Amended Supplemental Complaint.
45. Defendant denies the allegation contained on Paragraph 45 of Plaintiffs' Second Amended Supplemental Complaint.
46. Defendant denies the allegation contained in Paragraph 46 of Plaintiffs' Second Amended Supplemental Complaint.
47. Defendant admits that Plaintiff Ross is a black, African-American, but denies, for lack of knowledge, the remaining allegations in Paragraph 47 of Plaintiffs' Second Amended Supplemental Complaint.
48. Defendant admits the allegation contained in Paragraph 48 of Plaintiffs' Second Amended Supplemental Complaint.
49. Defendant admits that it offered Plaintiff Ross employment in the foundry but denies the remaining allegations in Paragraph 49 of Plaintiffs' Second Amended Supplemental Complaint.
50. Defendant denies the allegations contained in Paragraph 50 of Plaintiffs' Second Amended Supplemental Complaint.
51. Defendant denies the allegation contained in Paragraph 51 of Plaintiffs' Second Amended Supplemental Complaint.
52. Defendant denies that the working conditions in the foundry are "onerous." Defendant denies, for lack of knowledge, the remaining allegations in Paragraph 52 of Plaintiffs' Second Amended Supplemental Complaint.
53. Defendant denies the allegations contained in Paragraph 53 of Plaintiffs' Second Amended Supplemental Complaint.
6

Case 97-cv-00063-HC Document 174 Filed 04/08/2003 Page 7 of 15
54. Defendant admits that Plaintiff Mary Williams is a black, African-American, but denies, for lack of knowledge, the remaining allegations in Paragraph 54 of Plaintiffs' Second Amended Supplemental Complaint.
55. Defendant admits the allegation contained in Paragraph 55 of Plaintiffs' Second Amended Supplemental Complaint.
56. Defendant admits the allegations contained in Paragraph 56 of Plaintiffs' Second Amended Supplemental Complaint.
57. Defendant admits that it initially assigned Mary Thomas to work in the trailer division but denies the remaining allegations contained in Paragraph 57 of Plaintiffs' Second Amended Supplemental Complaint.
58. Defendant denies the allegations contained in Paragraph 58 of Plaintiffs' Second Amended Supplemental Complaint.
59. Defendant denies the allegations contained in Paragraph 59 of Plaintiffs' Second Amended Supplemental Complaint.
60. Defendant denies the allegations contained in Paragraph 60 of Plaintiffs' Second Amended Supplemental Complaint.
61. Defendant denies the allegations contained in Paragraph 61 of Plaintiffs' Second Amended Supplemental Complaint.
62. Defendant admits that Eddie Mask is a black, African-American, but denies, for lack of knowledge, the remaining allegations in Paragraph 62 of Plaintiffs' Second Amended Supplemental Complaint.
63. Defendant admits the allegations contained in Paragraph 63 of Plaintiffs' Second Amended Supplemental Complaint.
7

Case 97-cv-00063-HC Document 174 Filed 04/08/2003 Page 8 of 15
64. Defendant denies the allegations contained in Paragraph 64 of Plaintiffs' Second Amended Supplemental Complaint.
65. Defendant denies the allegations contained in Paragraph 65 of Plaintiffs' Second Amended Supplemental Complaint.
66. Defendant admits that Leroy Gamer is a black, African-American, but denies, for lack of knowledge, the remaining allegations contained in Paragraph 66 of Plaintiffs' Second Amended Supplemental Complaint.
67. Defendant admits the allegations contained in Paragraph 67 of Plaintiffs' Second Amended Supplemental Complaint.
68. Defendant denies the allegations contained in Paragraph 68 of Plaintiffs' Second Amended Supplemental Complaint.
69. Defendant denies the allegations contained in Paragraph 69 of Plaintiffs' Second Amended Supplemental Complaint.
70. Defendant admits that Sherry Calloway Swint is a black, African-American, but denies, for lack of knowledge, the remaining allegations in Paragraph 70 of Plaintiffs' Second Amended Supplemental Complaint.
71. Defendant admits the allegations contained in Paragraph 71 of Plaintiffs' Second Amended Supplemental Complaint.
72. Defendant denies the allegations contained in Paragraph 72 of Plaintiffs' Second Amended Supplemental Complaint.
73. Defendant denies the allegations contained in Paragraph 73 of Plaintiffs' Second Amended Supplemental Complaint.
8

Case 97-cv-00063-HC Document 174 Filed 04/08/2003 Page 9 of 15
74. Defendant denies the allegations contained in Paragraph 74 of Plaintiffs' Second Amended Supplemental Complaint.
75. Defendant denies, for lack of knowledge, the allegations contained in Paragraph 75 of Plaintiffs' Second Amended Supplemental Complaint.
76. Defendant denies the allegations contained in Paragraph 76 of Plaintiffs' Second Amended Supplemental Complaint.
77. Defendant denies that the allegations contained in Paragraph 77 of Plaintiffs' Second Amended Supplemental Complaint.
78. Defendant denies the allegations contained in Paragraph 78 of Plaintiffs' Second Amended Supplemental Complaint.
79. Defendant denies the allegations contained in Paragraph 79 of Plaintiffs' Second Amended Supplemental Complaint.
80. Defendant admits that Florine Thompson is an African-American, but denies, for lack of knowledge the remaining allegation in Paragraph 80 of Plaintiffs' Second Amended Supplemental Complaint.
81. Defendant admits the allegation contained in Paragraph 81 of Plaintiffs' Second Amended Supplemental Complaint.
82. Defendant denies the allegation contained on Paragraph 82 of Plaintiffs' Second Amended Supplemental Complaint.
83. Defendant denies the allegations contained in Paragraph 83 of Plaintiffs' Second Amended Supplemental Complaint.
84. Defendant denies the allegation contained in Paragraph 84 of Plaintiffs' Second Amended Supplemental Complaint.
9

97-cv-00063-HC Document 174 Filed 04108/2003 Page 10 15
85. Defendant denies the allegation contained in Paragraph 85 of Plaintiffs' Second Amended Supplemental Complaint.
86. Defendant denies the allegations contained in Paragraph 86 of Plaintiffs' Second Amended Supplemental Complaint.
87. Defendant denies the allegations contained in Paragraph 87 of Plaintiffs' Second Amended Supplemental Complaint.
88. Defendant denies, for lack of knowledge, the allegations contained in Paragraph 88 of Plaintiffs' Second Amended Supplemental Complaint.
89. Defendant denies, for lack of knowledge, the allegation contained in Paragraph 89 of Plaintiffs' Second Amended Supplemental Complaint.
90. Defendant denies the allegations contained in Paragraph 90 of Plaintiffs' Second Amended Supplemental Complaint.
91. Defendant denies the allegations contained in Paragraph 91 of Plaintiffs' Second Amended Supplemental Complaint.
92. Defendant denies the allegations contained in Paragraph 92 of Plaintiffs' Second Amended Supplemental Complaint.
93. Defendant admits that Clifford Duirden is a black, American-American, but denies, for lack of knowledge, the remaining allegations in Paragraph 93 of Plaintiffs' Second Amended Supplemental Complaint.
94. Defendant admits that Clifford Duirden was hired in 1987 but denies that he remains employed by Lufkin Industries.
10

97-cv-00063-HC Document 174 Filed 04108/2003 Page 11 15
95. Defendant admits that it initially assigned Duirden to the foundry but denies the remaining allegations contained in Paragraph 95 of Plaintiffs' Second Amended Supplemental Complaint.
96. Defendant denies the allegations contained in Paragraph 96 of Plaintiffs' S Amended Supplemental Complaint.
97. Defendant denies the allegations contained in Paragraph 97 of Plaintiffs' Second Amended Supplemental Complaint.
98. Defendant admits that Earl Potts is an African-American, but denies, for lack of knowledge, the remaining allegations contained in Paragraph 98 of Plaintiffs' Second Amended Supplemental Complaint.
99. Defendant admits that Earl Potts was hired in 1989 but denies that he remains employed by Lufkin Industries.
100. Defendant denies the allegations contained in Paragraph 100 of Plaintiffs' Second Amended Supplemental Complaint.
101. Defendant denies the allegations contained in Paragraph 101 of Plaintiffs' Second Amended Supplemental Complaint.
102. Defendant admits that it assigned Potts to jobs in the Power Transmission Division, but denies the remaining allegations contained in Paragraph 102 of Plaintiffs' Second Amended Supplemental Complaint.
103. Defendant denies the allegations contained in Paragraph 103 of Plaintiffs' Second Amended Supplemental Complaint.
11

97-cv-00063-HC Document 174 Filed 04108/2003 Page 12 15
104. Defendant admits that Roald Mark is a black, African-American, but denies, for lack of knowledge, the remaining allegation contained in Paragraph 104 of Plaintiffs' Second Amended Supplemental Complaint.
105. Defendant admits that it hired Mark in April, 1995 and that it assigned him to work in the foundry, but Defendant denies the remaining allegation contained in Paragraph 105 of Plaintiffs' Second Amended Supplemental Complaint.
106. Defendant denies the allegations contained in Paragraph 106 of Plaintiffs' Second Amended Supplemental Complaint.
107. Defendant denies the allegations contained in Paragraph 107 of Plaintiffs' Second Amended Supplemental Complaint.
108. Defendant denies the allegations contained in Paragraph 108 of Plaintiffs' Second Amended Supplemental Complaint.
109. Defendant denies the allegations contained in Paragraph 109 of Plaintiffs' Second Amended Supplemental Complaint.
110. Defendant denies the allegations contained in Paragraph 110 of Plaintiffs' Second Amended Supplemental Complaint.
Ill. Defendant denies the allegations contained in Paragraph III of Plaintiffs' Second Amended Supplemental Complaint.
112. Defendant denies the allegations contained in Paragraph 112 of Plaintiffs' Second Amended Supplemental Complaint.
113. Defendant denies the allegation contained in Paragraph 113 of Plaintiffs' Second Amended Supplemental Complaint.
12

97-cv-00063-HC Document 174 Filed 04108/2003 Page 13 15
114. Defendant denies the allegations contained in Paragraph 114 of Plaintiffs' Second Amended Supplemental Complaint.
115. Defendant denies the allegations contained in Paragraph 115 of Plaintiffs' Second Amended Supplemental Complaint.
116. Defendant denies the allegations contained in Paragraph 116 of Plaintiffs' Second Amended Supplemental Complaint.
117. Defendant denies the allegations contained in Paragraph 117 of Plaintiffs' Second Amended Supplemental Complaint.
118. Defendant denies the allegations contained in Paragraph 118 of Plaintiffs' Second Amended Supplemental Complaint.
119. Defendant denies the allegations contained in Paragraph 119 of Plaintiffs' Second Amended Supplemental Complaint.
120. Defendant denies the allegations contained in Paragraph 120 of Plaintiffs' Second Amended Supplemental Complaint.
121. Defendant denies the allegations contained in Paragraph 122 of Plaintiffs' Second Amended Supplemental Complaint.
122. Defendant denies the allegations contained in Paragraph 122 of Plaintiffs' Second Amended Supplemental Complaint.
123. Defendant denies the allegations contained in Paragraph 123 of Plaintiffs' Second Amended Supplemental Complaint. Defendant also denies that Plaintiffs' are entitled to any relief requested in Paragraph 123.
13

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124. Defendant denies the allegations contained in Paragraph 124 of Plaintiffs' Second Amended Supplemental Complaint. Defendant also denies that Plaintiffs' are entitled to any relief requested in Paragraph 124.
125. Defendant denies the allegation contained in Paragraph 125 of Plaintiffs' Second Amended Supplemental Complaint. Defendant also denies that Plaintiffs' are entitled to any relief requested in Paragraph 125.
126. Defendant denies that Plaintiffs' are entitled to the relief requested in their Prayer for Relief in Section VII of Plaintiffs' Second Amended Supplemental Complaint.
AFFIRMATIVE DEFENSES By way of the affirmative defenses, Defendant would further show as follows: 1. Plaintiffs' claims, in whole or in part, are barred by limitations. 2. Plaintiffs have failed to state a claim upon which the lease may be granted. 3. Plaintiffs have failed to exhaust their administrative remedies. 4. On information and belief Plaintiffs have failed to mitigate their losses, if any. 5. Plaintiffs' claims may be preempted, at least in part, by the Labor Management Relations Act. 6. For those Plaintiffs who are represented by unions, their assignments, professional opportunities, demotions, layoffs, recalls, and terminations are dictated by the terms of the collective bargaining agreement and a bona fide seniority system. 7. For those Plaintiffs who are represented by unions, their claims may be barred by their failure to grieve Lufkin's decisions under the terms of the collective bargaining agreement, to the extent that their claims raise issues that are within the scope of the collective bargaining agreement.
14

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8. Plaintiff Mark's claims, in part, are barred by res judicata. Respectfully submitted,

S:~v~~

State Bar No. 08818300 CHRISTOPHER V. BACON State Bar No. 01493980 2300 First City Tower 1001 Fannin Houston, Texas 77002-6760 (713) 758-1148 (Telephone) (713) 615-5014 (Telecopy) ATTORNEYS FOR DEFENDANT LUFKIN INDUSTRIES

OF COUNSEL:

VINSON & ELKINS, L.L.P. 1100 First City Tower Houston, Texas 77002-6760

CERTIFICATE OF SERVICE

~ay 7~ I certify that on this

of

2003, a correct copy of the foregoing

Defendant Lufkin Industries' Amended Answer was forwarded to counsel for Plaintiffs by

telecopy or by placing same in the United States mail, certified, return receipt requested, with

proper postage affixed and addressed as follows:

Timothy B. Garrigan Stuckey & Garrigan 2803 North Street Nacogdoches, Texas 76961

Teresa Demchak Saperstein, Goldstein, Demchak & Baller
300 Lakeside Drive, Suite 1000 Oakland, California 94612

~.~~
Attorney for Defendant

15

 
 Case 9:97-cv-00063-RHC Document 552 Filed 08/29/2005 Page 1 of 39

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION

SYLVESTER MCCLAIN, on his own

§

behalf and on behalf of a class of similarly §

situated persons, et al.

§

Plaintiff

§

§

V.

§ Case No. 9:97-CV-063

§ Judge Howell Cobb

LUFKIN INDUSTRIES,

§

§

Defendant

§

AMENDED FINAL JUDGMENT I. Introduction
Plaintiff class members sued Lufkin Industries, alleging disparate impact employment discrimination in Lufkin’s initial assignments to jobs, promotions, and compensation. After reviewing the anecdotal and statistical evidence presented by both sides, the court concludes that plaintiffs have proven their case and are entitled to back pay and injunctive relief. Having received suggested findings of fact and conclusions of law from both parties, the court will not file a separate findings of fact. In lieu thereof, the following memorandum and order will serve as findings of fact and conclusions of law. II. Factual Scenario
A. Background Several ago, plaintiffs Sylvester McClain and Buford Thomas sued Lufkin Industries for employment discrimination. The plaintiffs’ claims were certified as a class action in 1999. McClain v. Lufkin Indus., 187 F.R.D 267 (E.D. Tex. 1999). The court also designated eleven additional class representatives. The case was closed from 2001-2003 while the parties

Case 9:97-cv-00063-RHC Document 552 Filed 08/29/2005 Page 2 of 39
attempted mediation, but that mediation failed. Between filing and trial, a number of claims
were dropped with prejudice, including plaintiffs’ general claim of disparate treatment. Only the
claims of discrimination in initial assignments, promotions, and compensation went to trial.1
Lufkin Industries is a publicly traded corporation headquartered in Lufkin, Texas. It is
headed by Chief Executive Officer Doug Smith. Smith is also Chairman of the eight-member
1In its proposed pretrial order, Lufkin submitted a list of 96 witnesses that it intended to call before the court. Because the court was of the opinion that the testimony of so many witnesses would be duplicative, redundant, and largely irrelevant to the issues raised by a claim of disparate impact, it limited each party to 20 hours each in which to present its case. Lufkin protested the limitations when they were imposed and renewed its objection numerous times thereafter. After the close of trial, Lufkin submitted offers of proof on behalf of more than a dozen witnesses that it stated it would have called but for the court’s time constraints. The court, having reviewed those offers of proof, finds that they contained no probative information and would not have affected the court’s ruling even if the witnesses had testified.
With one exception, the offers can be divided into two groups: those on behalf of Lufkin management and those on behalf of class members. Lufkin called most of its representatives at trial and elicited testimony on Lufkin’s formal policies and procedures. The offers of proof did not contradict that testimony, nor did they supplement it in any meaningful form. The offers from Richard Gilley, David Jinkins, Larry Long, and Steve Reynolds all included the same information and followed the same format, reiterating the statements Lufkin made at trial. The different individual information offered, such as which jobs are supposed to be posted and which jobs are awarded on the basis of ability, is not new evidence to the issues before the court.
The offers on behalf of the class members would have been probative, had the plaintiffs retained their claim for disparate treatment. After reviewing those offers of proof, the court remains satisfied that many Lufkin managers and supervisors are not racists, that blacks have the opportunity to advance (at least to a certain level) at Lufkin Industries, and that many of the class members appreciate the jobs they hold at Lufkin. Similar statements were offered at the class certification hearing and at trial. The court was convinced of those facts before reading the offers of proof and none of the proposed testimony contained therein is particularly probative to a claim of disparate impact.
The one exception to those two categories is the offer of proof for Lisa Dungan, an employee of plaintiffs’ counsel who supervised a review of the first database used by Lufkin’s expert on statistics, Dr. Mary Baker. That database was riddled with flaws and inaccuracies and Lufkin produced a second, revised database on the eve of trial. The court accepts arguendo the proposition that Lufkin’s new database is more accurate than the initial database it produced. Ms. Dungan, however, never saw the second database. As that would be the extent of her testimony, the court does not consider it particularly relevant that Lufkin “lacked the time” to recall Ms. Dungan to say so.
2

Case 9:97-cv-00063-RHC Document 552 Filed 08/29/2005 Page 3 of 39
Board of Directors. The company is divided into four production divisions: Foundry, Trailer, Oilfield, and Power Transmission. Each division is run by a vice-president and/or general manager with considerable policy-setting authority. The corporate sector manages the general affairs and internal workings of the company. In the more than 100 years that Lufkin Industries has been in business, no woman or person of color has ever been on the Board of Directors or headed a division.2
Each production division performs different tasks. The Foundry takes molten metal and shapes it into castings for commercial sale and use in Lufkin’s other divisions. The Trailer division’s products - freight vans, flatbeds, and floats - can be seen throughout the nation’s highways. The Oilfield division makes oil pumping units and services and repairs those units. The Power Transmission division uses high-tolerance machines to produce heavy industrial gearing; some of its equipment can hold tolerances of a few microns.3
The working conditions in the various divisions differ greatly. The Foundry’s work environment combines sweltering heat, deafening sound, and a thick layer of dirt and soot. The work is heavy and physically demanding. In contrast, workers in the Power Transmission division use sophisticated machinery in a clean, air-conditioned environment. The workers in the Foundry are disproportionately black and Hispanic; the workers in Power Transmission are disproportionately white. The Oilfield and Trailer divisions constitute a middle ground of desirability between the Foundry and Power Transmission. Every division offers career
2Paul Perez, a person of Hispanic origin, has been in charge of Lufkin’s Human Resources and Legal departments
3A micron is 1/1000th of a milimeter 3

Case 9:97-cv-00063-RHC Document 552 Filed 08/29/2005 Page 4 of 39
opportunities and the potential for advancement, but there is a general hierarchy of pay that corresponds to working conditions.
B. Initial Assignments Entry-level jobs in Lufkin’s workforce are available solely through the Texas Workforce Commission (“TWC”). The TWC maintains a database of job applicants, which it consults when Lufkin submits a job requisition. After the TWC receives a job requisition, it creates a work order for the requested positions. The TWC checks its database and selects applicants who meet the stated minimum eligibility requirements for a job (such as a high school diploma or prior industrial experience). Some of Lufkin’s entry-level positions, particularly in the Power Transmission and Oilfield divisions, now require a high school-level education.4 Approximately 91% of blacks and 90% of whites hired by Lufkin meet that minimum qualification. In the Foundry, 90% of blacks and 85% of whites have a GED, high school diploma, and/or some posthigh school education. Once the TWC has assembled a group of qualified applicants, it refers them to the Lufkin personnel assigned to make the hiring decision. Once a TWC client is referred to Lufkin, the TWC steps out of the picture. The TWC has no input as to whether an individual applicant is hired for any given position. Hiring decisions are made by a Lufkin representative - normally, Mr. Viron Barbay - or group of representatives, who travel to the TWC’s offices to interview job applicants. Mr. Barbay interviews the applicants in the order in which they submit their application forms to the TWC reception. At the beginning of the class period, Barbay would make a first cut of the
4Lufkin defines this as a high school diploma or GED. 4

Case 9:97-cv-00063-RHC Document 552 Filed 08/29/2005 Page 5 of 39
applicants, referring selected candidates to the Lufkin production managers for a second and decisive interview. But for some time now, Mr. Barbay has had sole authority to make the hiring decisions. At various times during the class period, Barbay was assisted or supplemented by other Lufkin HR employees, but Barbay testified that he was responsible for most of the hiring decisions during the class period. When Barbay did receive assistance, the other Lufkin HR personnel were invariably white. In theory, each applicant was always referred by the TWC for the specific job for which he or she applied
C. Promotions 1. Hourly Jobs
Advancement through the ranks of hourly workers at Lufkin Industries is putatively governed by the Collective Bargaining Agreement (“CBA”) between Lufkin and the three unions that represent the hourly workers. Seniority is the main criterion, but ability is also a necessary qualification. Once a worker moves past the entry-level unskilled jobs, that worker usually needs training to get the skills needed for more advanced positions. That training often comes on the job, as workers are assigned daily tasks that develop skills and abilities. Lufkin also makes additional training available outside the work day and provides tuition reimbursement for employees who choose to attend Angelina College.
All qualified employees5 are eligible to bid on new job openings. The company must post bid sheets for each new hourly opening, then give interested workers several days to sign their name. After two to three days (depending on the division), the bid sheets are taken down
5“Qualified” employees must have, at a minimum, satisfactory attendance/discipline record and at least 90 days working for Lufkin.
5

Case 9:97-cv-00063-RHC Document 552 Filed 08/29/2005 Page 6 of 39
and the job is to be awarded to the most senior bidder. According to the CBA, Lufkin need not award the job to the most senior bidder if the new job would constitute a lateral move or demotion. In theory, the posting process is a rigid and inflexible system that ensures the promotion of the most senior qualified person interested in the job.
Although seniority is the paramount qualification listed in the CBA, Lufkin has established several other rules that affect promotions. For some positions, Lufkin requires an “objective” test that generally involves a demonstration of basic math, literacy, and competence with the relevant machinery. Some of the criteria are objectively verifiable, such as math skills or reading ability. Other criteria are left to the satisfaction of individual managers.
To ensure that competent workers occupy all positions, the company has also inserted an “ability” clause in the CBA that allows Lufkin to fill positions on the basis of ability and regardless of seniority. The ability clause appears to trump all other considerations.
The “bypass” rule is an exception to the seniority rule. It states that an employee will not receive a position on first shift (i.e., the most-desired daytime shift) unless that employee has spent at least two years on a nighttime shift or has twice been “bypassed” for promotion by lesssenior employees with the nighttime shift qualification.
2. Salaried positions Salaried jobs are sometimes posted, but they are not governed by the CBA and can be filled by anyone deemed suitable by Lufkin management. Lufkin has complete discretion to promote from within or hire from outside the company. Salaried positions do not necessarily pay more than hourly positions; in some cases, a worker at the top of the pay range for an hourly position would be taking a pay cut to accept a salaried position. However, salaried positions are
6

Case 9:97-cv-00063-RHC Document 552 Filed 08/29/2005 Page 7 of 39
often less physically demanding and offer the potential for advancement up the corporate ladder to the lucrative positions in management. III. Legal Issues
A. Maintaining Class Standing To maintain their class certification, plaintiffs had the burden to show that they met the four requirements of Rule 23(a): numerosity, commonality, typicality, and adequacy of representation. Fed. R. Civ. P. 23(a). Because the case has gone forward under Rule 23(b)(2), the plaintiffs must also show that Lufkin has acted on grounds generally applicable to the class. For the same reasons discussed in the class certification motion, the court finds that each requirement has been satisfied. McClain, 187 F.R.D. at 277-82. The plaintiffs’ decision not to pursue individual damages ensures that injunctive relief - rather than monetary relief predominates. See Allison v. Citgo, 151 F.3d 402, 413 (5th Cir. 1998). Lufkin has entered a motion challenging the adequacy of representation by each of the class members other than Sylvester McClain and Buford Thomas. The court is of the opinion that, given the length of the trial, the court’s decision to proceed in Beaumont rather than Lufkin, and the demands of the representatives’ respective jobs at Lufkin’s facility in Angelina County, all named class members have maintained themselves as adequate representatives. B. Exhaustion of administrative remedies As this court has already decided, Sylvester McClain’s January 29, 1995 letter to the EEOC was sufficient to exhaust administrative remedies on the class claims of discrimination in initial assignments, promotions, and compensation. See McClain, 187 F.R.D. at 271; Orders entered 3/31/1999, Dkt #309 (denying Lufkin’s motion for summary judgment on plaintiffs’
7

Case 9:97-cv-00063-RHC Document 552 Filed 08/29/2005 Page 8 of 39
initial assignment claim as being outside the scope of McClain’s EEOC charge). As long as an EEOC investigation could reasonably be expected to grow out of the initial charge, the requirement for exhaustion of administrative remedies is satisfied. Fine v. GAF Chem. Corp., 995 F.2d 576, 578 (5th Cir. 1993). An EEOC charge is to be construed liberally, particularly when it is prepared by a layperson. See Clark v. Kraft Foods, Inc., 18 F.3d 1278 (5th Cir. 1994) (“[L]iberal construction [is] accorded EEOC charges, especially those by unlawyered complainants.” Id. at 1280 n.7, quoting Fellows at 451; Price v. Southwestern Bell Tel. Co., 687 F.2d 74, 78 (5th Cir. 1982) (“Consistent with the remedial purposes underlying Title VII, we construe employment discrimination charges with the ‘utmost liberality,’ bearing in mind that such charges are generally prepared by laymen untutored in the rules of pleading.”), quoting Terrell v. U.S. Pipe & Foundry Co., 644 F.2d 1112 (5th Cir. 1981); see also Anjelino v. New York Times Co., 200 F.3d 73, 93-95 (3d Cir. 1999) (allowing sexual harassment claims to proceed even though the allegations were not specifically pled in the EEOC charges; plaintiffs’ use of the term “abusive atmosphere” was sufficient to put defendant on notice). When the EEOC charge complains of systemic or widespread abuses, as McClain’s 1995 charge did, it can reasonably be expected to produce a class-wide investigation. See Richardson v. Byrd, 709 F.2d 1016, 1020 n.4 (5th Cir. 1983) (rejecting argument that the class claim was barred because of failure to complain of class-wide discrimination in the EEOC complaint, and holding, “a class action may be based upon an EEOC complaint of individual discrimination as long as an ‘EEOC investigation of class discrimination . . . could reasonably be expected to grow out of [the] allegations in [the] initial EEOC charge.’ ”) quoting Fellows v. Universal Restaurants, 701 F.2d 447, 451-52 (5th Cir. 1983)). EEOC procedural regulations provide that a “charge is sufficient”
8

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when it “identif[ies] the parties and … describe[s] the action or practices complained of.” See Foster v. Ruhrpumpen, 365 F.3d 1191, 1196 (10th Cir. 2004) (“Because the charges as filed ‘identify the parties’ and ‘describe generally the action or practices complained of,’ 29 C.F.R. § 1601.12(b), they satisfy the requirements set forth in the EEOC regulations.”).
The administrative exhaustion requirement also exists to help the EEOC act effectively as an investigator and mediator. Clayton v. Rumsfeld, 2004 WL 1739465, *3 (5th Cir. 2004) (unpublished). If the EEOC is given no reason to investigate particular claims, it has no chance to resolve the underlying problems Id. In Lufkin’s case, however, McClain’s EEOC’s charge was written while the OFCCP was investigating claims similar to those now before the court. The EEOC and OFCCP share overlapping enforcement responsibilities, see 64 Fed. Reg. 17664 (1999), and it seems only reasonable to take into account on-going federal investigations when considering what an agency might have known. Given the broad scope of McClain’s claims and the obvious facial disparities in initial assignments, promotions, and compensation, it would be reasonable to expect an investigation into those issues to arise out of McClain’s initial EEOC charge.
The court, having heard and considered all of the evidence presented at trial, reaffirms its previous finding that McClain successfully stated a charge that went beyond his own personal grievances and encompassed the claims now before the court. McClain therefore exhausted his administrative remedies before filing suit. There is no need for other class members to do so; they may “piggyback” onto McClain’s efforts. Albemarle Paper Co. v. Moody, 422 U.S. 405, 414 n.8 (1975).
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C. Satisfying the Legal Requirements for a Claim of Title VII Disparate Impact Plaintiffs have the burden to identify an employment practice that is facially fair but produces discriminatory results. Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971). “[T]he necessary premise of the disparate impact approach is that some employment practice, adopted without a deliberately discriminatory motive, may in operation be functionally equivalent to intentional discrimination.” Watson v. Fort Worth Bank & Trust Co., 487 U.S. 977, 987 (1985). Plaintiffs establish a prima facie case of disparate impact by (1) identifying the specific employment practices being challenged, (2) establishing the disparate impact of the practices on the protected group, and (3) demonstrating that the disparity is the result of one or more of the employment practices identified. Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642, 656-57 (1989). Plaintiffs are generally required to show that each challenged employment practice “causes” a disparate impact. 42 U.S.C. § 2000e-2(k)(l)(B)(I). However, if plaintiffs can demonstrate that the elements of an employer’s decision making process are not capable of separation for analysis, then the entire decision making process may be analyzed as a single employment practice. Id.; see also McClain, 187 F.R.D. at 273; Munoz v. Orr, 200 F.3d 291, 304 (5th Cir. 2000) (“where a promotion system uses tightly integrated and overlapping criteria, it may be difficult as a practical matter for plaintiffs to isolate the particular step responsible for observed discrimination.”); Malave v. Potter, 320 F.3d 321, 327 (2d Cir. 2003) (“a decisionmaking process may be analyzed as a single employment practice if the complaining party can demonstrate to the court that the elements of [the employer’s] decisionmaking process are not capable of separation for analysis.”) (internal quotation marks and citation omitted);
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Bannister v. Dal-Tile Int’l, Inc., No. Civ. A. 3:02-CV-2498, 2003 WL 21145739, at *2 (N.D. Tex. 2003) (plaintiff can bypass the requirement of pinpointing the specific employment practice or practices that caused the alleged disparate impact by showing that “the factors of [a defendant’s] decision-making process are so interwoven that they are incapable of separation.”); Stender v. Lucky Stores, Inc., 803 F. Supp. 259, 335 (N.D.Cal. 1992) (“[w]here the system of promotion is pervaded by a lack of uniform criteria, criteria that are subjective as well as variable, discretionary placements and promotions, the failure to follow set procedures and the absence of written policies or justifications for promotional decisions, the court is not required to ‘pinpoint particular aspects of [the system]’ that are unfavorable to women,” and finding “that the elements of [the employer’s] subjective and ambiguous decision making processes are not separable for the purposes of analysis, and therefore may be analyzed as one employment practice.”); Butler v. Home Depot, Inc., 984 F. Supp. 1257, 1264 (N.D. Cal. 1997); Schallop v. New York State Dept. of Law, 20 F. Supp. 2d 384, 402 (N.D. N.Y. 1998) (“[Plaintiff] contends that because it would be impossible to isolate one particular aspect of the reappointment process, the entire process may be characterized as a single employment practice. When employment decisions are made based on variable, subjective criteria, this approach is appropriate under Title VII.”); 137 Cong. Rec. S15276 (daily ed. Oct. 25, 1991) (explanation of § 2000e-2(k)(1)(B)(I) in the legislative history, that “When a decision-making process includes particular, functionallyintegrated practices which are components of the same criterion, standard, method of administration, or test … the particular, functionally-integrated practices may be analyzed as one employment practice.”), quoted in Appleton v. Deloitte & Touche L.L.P., 168 F.R.D. 221, 226 (M.D. Tenn. 1996).
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The causal element is satisfied with respect to discretionary and subjective employment decision making practices where an employer lacks objective criteria or guidelines for making those decisions, and leaves the decision making to the discretion of members of the majority group. See Stender, 803 F. Supp. at 320-21 (listing cases supporting that proposition). The mere presence of subjectivity does not raise an inference of discrimination. Watson, 487 U.S. at 990. But when discretionary, subjective decision making is supplemented by evidence that subconscious stereotypes and prejudice operate in a vacuum created by the absence of objective, validated criteria, causation can be found. See Id.; Stender, 803 F. Supp. at 321; Butler, 984 F. Supp. at 1264
Once plaintiffs establish a prima facie case of disparate impact, the burden shifts to the employer to show that the challenged employment practice is job related for the position(s) in question and consistent with business necessity. 42 U.S.C. § 2000e-2(k)(1)(A)(I); see Carpenter v. Stephen F. Austin State Univ., 706 F.2d 608, 621 (5th Cir. 1983); EEOC v. Premier Operator Servs, Inc., 113 F. Supp. 2d 1066, 1075 (N.D. Tex. 2000). Under Griggs, in order to prove business necessity, an employer must show that its selection criteria bears “a manifest relationship to the employment in question.” Griggs, 401 U.S. at 432. In Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642, 650 (1989), the Supreme Court lowered this standard, requiring only the employer show that the challenged practice, “serves, in a significant way, the legitimate employment goals of the employer.” Id. at 659. The 1991 Civil Rights Act overruled this aspect of Wards Cove, see Stender, 803 F. Supp. at 321 & n. 20, underscoring the principle that the business necessity standard is once again an exacting one. See Watkins v. Scott Paper Co., 530 F.2d 1159, 1168 (5th Cir. 1976) (business necessity requires that the employment
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practices “must not only directly foster safety and efficiency … but also be essential to those goals.”).
Even if an employer successfully mounts a business necessity defense, a plaintiff may overcome that defense by demonstrating the existence of an alternative employment practice which serves the employer’s business necessity without causing the adverse impact, and which the employer had refused to adopt, 42 U.S.C. § 2000(e)(k)(1)(B)(ii); see also Premier Operating Servs., 113 F. Supp. 2d at 1075; Stender, 803 F. Supp. at 322.
D. Supporting a claim of disparate impact with statistical evidence Anecdotal evidence of discrimination against individuals brings the cold statistics to life and may buttress the showing of class wide discriminatory practice. See Int’l Bhd. of Teamsters, 431 U.S. 324, 339 (1977). However, plaintiffs need not prove any individual case of discrimination to prevail on a pattern or practice disparate impact claim. Id. at 342, n. 24; Bernard v. Gulf Oil Corp., 841 F.2d 547, 568 (5th Cir. 1988). The essence of a pattern or practice claim lies in the absence of evidence; while no individual has a clear-cut claim, the group as a whole has presented evidence establishing the unquestioned presence of discrimination. Statistical proof alone can make out a prima facie case of disparate impact. Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642, 650 (1989); Teamsters, 431 U.S. at 339. To establish causation, statistics must be “of a kind and degree sufficient to show that the practice in question has caused the exclusion of applicants for jobs or promotions because of their membership in a protected group.” Watson, 487 U.S. at 994. However, “[a] plaintiff in a Title VII suit need not prove discrimination with scientific certainty; rather, his or her burden is to prove discrimination
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by a preponderance of the evidence.” Bazemore v. Friday, 478 U.S. 385, 400 (1986). “[A]s long as the court may fairly conclude, in light of all the evidence, that it is more likely than not that impermissible discrimination exists, the plaintiff is entitled to prevail.” Id. at 400-401; Siler-Khodr v. Univ. of Texas Health Science Ctr. San Antonio, 261 F.3d 542, 547 (5th Cir. 2001), quoting Bazemore.
As this court has previously held in this case, “There are no bright-line rules regarding what degree of statistical disparity is necessary to support a disparate impact claim. Traditionally, the statistics must show a ‘gross disparity’ in how the different races are affected. … A deviation greater than three standard deviations is sufficient to support a prima facie case.”). Class Certification Order, 187 F.R.D. at 276 (citations omitted). See Thomas v. Deloitte Consulting LP, No. 3-02-CV-0343-M, 2004 WL 1960097, at *5 (N.D. Tex. 2004) (“The Fifth Circuit has never adopted a ‘bright line’ test for statistical significance. Indeed, most courts have rejected the arbitrary application of a 5% threshold.”) (internal citation omitted); Rendon v. AT & T Technologies, 883 F.2d 388, 397-98 (5th Cir. 1989) (rejecting argument that there is a strict legal benchmark requiring a particular number of standard deviations to demonstrate that data has statistical significance). Moreover, “[w]hether a given [test result] should be regarded as statistically significant must be determined on a case by case basis since the value signifying statistical significance is dependent upon sample size.” Overton v. City of Austin, 871 F.2d 529, 544 (5th Cir. 1989) (Jones, J., concurring).
A disparity of 1.96 or more standard deviations is a generally accepted metric for statisticians looking to establish statistical significance. Palmer v. Shultz, 815 F.2d 84, 96 n.9 (D.C. Cir. 1987) (adopting a threshold of 1.96 standard deviations as sufficient to raise an
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inference of discrimination based on the Supreme Court’s language in Castenada and Hazelwood); Albemarle Paper Co., 422 U.S. at 431. Even statistical disparities falling just short of the traditional standard of 2 (or 1.96) standard deviations may sometimes be meaningful, since consistent shortfalls in every category are probative of a pattern of discrimination, especially when other evidence confirms allegations of discrimination. See e.g., E.E.O.C. v. Am. Nat’l Bank, 652 F.2d 1176, 1192 (4th Cir. 1981), cert. denied, 459 U.S. 923 (1982) (rejecting employer’s argument that the plaintiff’s statistics were not probative unless they exceeded two or three standard deviations, holding that “well short of three standard deviations, the probability levels for chance as explanation have already dropped far below the point at which courts of law concerned with proof by the ‘greater weight’ or ‘preponderance’ of the evidence would presumably have discarded the hypothesis of chance.”); Malave v. Potter, 320 F.3d 321, 327 (2d Cir. 2003) (courts generally consider a statistically significant disparity of two standard deviations to be sufficient to warrant an inference of discrimination in a prima facie case of disparate impact.) See also Kadas v. MCI Systemhouse Corp., 255 F.3d 359, 362, 363 (7th Cir. 2001); Thomas, 2004 WL 1960097, at * 5; Payne v. Travenol Laboratories, Inc., 673 F.2d 798, 821 (5th Cir. 1982).
Despite the necessary primacy of statistical evidence, proof of intent remains relevant to a claim of disparate impact employment discrimination. “The distinguishing features of the factual issues that typically dominate in disparate impact cases do not imply that the ultimate legal issue is different than in cases where disparate treatment analysis is used. . . . Rather, the necessary premise of the disparate impact approach is that some employment practices, adopted without a deliberately discriminatory motive, may in operation be functionally equivalent to
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intentional discrimination.” Watson, 487 U.S. at 987 (citation omitted). Evidence of discriminatory intent can buttress and bolster statistical data, while also serving to rebut a defense of business necessity.
E. Establishing Damages Plaintiffs who prove their claims of discrimination remain entitled to injunctive relief. That relief includes back pay and is limited to those who can demonstrate that they were at least “potential victims.” Teamsters, 431 US at 367. Back pay is not automatically awarded simply because a plaintiff has proven racial discrimination. U.S. v. Ga. Power Co., 474 F.2d 906, 922 (5th Cir. 1973). It is to be awarded only when “properly owing to the plaintiffs.” Id. However, when it is properly owing, the court should not confuse the impossibility of precise ascertainment with the impossibility of relief. Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 260 (5th Cir. 1974). When plaintiffs have demonstrated that they are owed back pay, relief must also be crafted to avoid a “quagmire of hypothetical judgments.” Id. Any uncertainty is to be settled in favor of the prevailing plaintiffs and against the discriminating employer. Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364, 1380 n. 53 (5th Cir. 1974).
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The preferred Teamsters method requires each class member to establish damages individually, but a departure from that approach is justified when subjective employment practices, including lack of objective hiring criteria and word-of-mouth recruitment, “make[] it difficult to determine precisely which of the claimants would have been given a better job absent discrimination, but it is clear that many should have.” Domingo II, 727 F.2d at 1444; Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 167, 176 (N.D.Cal 2004). As the Domingo court further explained: ‘When the class size or the ambiguity of promotion or hiring practices or the illegal practices continued over an extended period of time calls forth [a] quagmire of hypothetical judgment ... a class-wide approach to the measure of back pay is necessitated.’” Id. quoting Pettway , 494 F.2d at 261; See also EEOC v. O & G Spring & Wire Forms Spec. Co., 38 F.3d 872, 879-880 & n. 9 (7th Cir.1994) (approving district court's use of formula approach); Hameed v. Int'l Ass'n of Bridge Workers, Local 396, 637 F.2d 506, 520, 521 & n. 18 (8th Cir.1980) (same) (and cases cited therein); Stewart v. Gen’l Motors Co., 542 F.2d 445, 452-53 (7th Cir.1976) (same) (and cases cited therein); EEOC v. Chicago Miniature Lamp Works, 668 F. Supp. 1150, 1151-52 (N.D. Ill.1987); Green v. United States Steel Corp., 640 F. Supp. 1521, 1525-26 (E.D. Pa.1986), aff'd in part and vacated in part on other grounds, 843 F.2d 1511 (3rd Cir.1988), vacated in part on other grounds, 490 U.S. 1103, 109 S. Ct. 3151, 104 L. Ed.2d 1015 (1989).
The Fifth Circuit has approved the use of racially drawn, class-wide formulas, but only as a last resort. U.S. Steel, 520 F.2d at 1055-56. Using a formula generates a windfall for some employees who were never actually harmed by discrimination. Stewart, 542 F.2d at 452-453; Pettway, 474 F.2d at 262; O & G Spring & Wire Forms, 38 F.3d at 879. Hameed, 637 F.2d at
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519-20. As a corollary, a formula undercompensates the genuine victims of discrimination by forcing them to share their award with their undeserving brethren. Id. Unfortunately, that result is inevitable when an employer’s specific employment decisions do not allow a precise reconstruction of the effects of discrimination. Pettway, 474 F.2d at 262; see also Johnson, 491 F.2d at 1380.
Formulas are to be used only after the court has considered and rejected all alternative methods of superior certainty. Id. At a minimum, the court should attempt to distinguish subgroups of the class who were injured to a greater or lesser extent. See Id. at 1056 (rejecting approach that would have used an “indiscriminate black-white averaging approach . . . absent at least a precise breakdown of subgroups from the standpoint of plant age); Pettway, 474 F.2d at 262. Even when the court can not isolate the effects of discrimination on any given individual, the court may still be able to identify subgroups who were especially hard-hit by the discriminatory policy. Conversely, there may also be subgroups who suffered relatively little harm. Identifying those subgroups is one way to ensure that back pay is awarded to those who are most deserving.
A prevailing plaintiff is also entitled to pre-judgment interest in most cases. Prejudgment interest “should” be included in back pay, absent good reasons not to award it. Gloria v. Valley Grain Prod., Inc. 72 F.3d 497, 499 (5th Cir. 1996). The Fifth Circuit has consistently approved awards of pre-judgment interest in Title VII cases so as to make whole the injured party. Sellers v. Delgado Cmty. Coll., 839 F.2d 1132, 1140 (5th Cir. 1988); Thomas v. Tex. Dep’t of Criminal Justice (5th Cir. 2002). The federal rate of interest set by 28 U.S.C. § 1961 is appropriate, but is not the only acceptable rate. Williams v. Trader Pub. Co., 218 F.3d 481, 488
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(5th Cir. 2000). The decision as to where to set the rate of interest is generally left to the sound discretion of the trial court. Valdez v. Church’s Fried Chicken, 683 F. SUPP. 596, 636 (W.D. Tex. 1988); Odom v. Frank, 782 F. SUPP. 50, 52 (N.D. Tex. 1991). IV. Factual Application
A. Initial Assignments Lufkin’s subjective practices and policies disparately impacted its black employees. If Lufkin’s claims were to be believed, there is no way for racism to influence any aspect of its initial assignment process or promotions. According to Lufkin’s description of its practices and procedures, the TWC controls the flow of applicants to each division; there is thus no way for an applicant to find work in a position other than one he himself selected. Lufkin also claims that its promotions process is entirely governed by the CBA and objective tests of ability and skill, with no significant subjective component. Lufkin’s official policies describe lay out a colorblind process with no room for individual bias. Unfortunately, the evidence and testimony given before the court do not support Lufkin’s claims. The testimony of Tami Poulan satisfies the court that Lufkin’s account of its process for initial assignments is not entirely accurate. Ms. Poulan is an employee of the TWC and an uninterested witness not affiliated with either party; the court thus gives substantial weight to her testimony and the business records produced by the TWC. Those records show that the TWC sometimes receives job requisitions from Lufkin that may lack a specific job title or department location. In those circumstances, there is no way that the TWC could refer applicants for a specific job. Even when Lufkin’s requisition does specify a specific job position, there are instances of
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applicants who are willing to accept “any work” or “industrial work.” The records list almost 400 workers who were hired for positions other than the ones for which they were referred. When Lufkin is looking to fill multiple positions at the same time, nothing prevents it from picking and choosing among the applicants for all positions. Applicants who are interested in clerical jobs or positions in the Power Transmission or Oilfield divisions may nevertheless be willing to accept a position in the Foundry or Trailer divisions if that is all they are offered. When Lufkin’s hiring personnel are allowed to exercise their discretion, discriminatory intent becomes relevant.
Evidence of discriminatory intent was offered by class member Vivian Crain. Ms. Crain testified that Viron Barbay, the man largely responsible for initial assignments during the class period, allegedly used racial slurs, told racist jokes, and spoke poorly of minority applicants. Mr. Barbay’s conduct during the actual interviews has also been called into conduct by other class members.
The testimony of class member Kelvin Pope is also probative. Mr. Pope testified at trial that he was discouraged from applying as a welder. According to Pope, he was told by Viron Barbay that if he applied as a welder and was unable to pass a stick, bend, x-ray, and stress test, then he would be unable to reapply as a welder for 60 days. Pope said that Barbay told him to apply as a basic helper in the trailer division, crossing out his application for a position as machinist helper or forklift operator. When Pope subsequently took the actual welding test, it was much easier than the test described by Barbay and required none of the techniques that Barbay had mentioned.
The testimony offered by class members at trial does not alone establish discrimination
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on Lufkin’s part; it merely demonstrates the considerable discretion possessed by Viron Barbay and raises questions about his use of that discretion. However, that testimony must also be considered in light of the TWC’s records showing an abundance of workers assigned to positions other than the ones for which they were referred. Thus, despite Lufkin’s contentions that the TWC’s rules and its own procedures make channeling impossible, black applicants can be channeled into less-desirable positions. The statistical evidence discussed below offers more reason to believe that they have been.
B. Promotions 1. Hourly positions
The evidence before the court also shows that white employees have a significant advantage in gaining the skills and abilities needed to qualify them for promotion.6 Because workers’ day-to-day assignments are not governed by the CBA, supervisors have broad latitude to schedule workers as they see fit. No one checks or oversees that process and there is no right in the CBA to a specific position within a job classification. White employees can be, and are, selected and groomed for further advancement and managerial roles. Black employees are more likely to be placed in dead-end positions and left to seek training on their own, outside of regular work hours.
Class member Leroy Garner testified at the class certification hearing that the ability clause overrode seniority for many of the better jobs. Promoted African-Americans are held to a higher standard and given just two weeks to demonstrate proficiency at a new job. In contrast,
6Although the specific claim for class-wide discrimination in training is no longer before the court, the availability of training remains relevant in assessing Lufkin’s claim that its promotions are color-blind and not influenced by discriminatory policies and decision-making.
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whites are given more leeway and time to learn the intricacies of their new jobs while at work. Class member Calvin Deason testified at trial that he was bypassed for a storekeeper
position even though he was the most senior bidder. Deason said that he was told by Lufkin management that “we don’t want to let experienced people out of the cleaning room.” The job was instead given to a white probationary employee with two weeks’ tenure. Lufkin claims that Deason was denied the job because it would be a demotion and he was thus not an eligible bidder, but Lufkin eventually gave the job to a probationary employee. Under the CBA, probationary employees are not eligible bidders. Lufkin notes that the CBA does not govern postings when there are no eligible bidders, but the incident demonstrates the reality of Lufkin’s subjective decision-making; when confronted with a unfettered choice between a black employee and a white employee interested in the same job, it gave the job to the white employee. Even when blacks do get additional training or education (by their own initiative or otherwise), they are discouraged from applying for better positions. Plaintiffs allege that some, though by no means all, of Lufkin’s managers and supervisors actively discouraged black employees who had bid on better jobs. The effects of that discouragement are a potential variable unreflected in the statistics of Lufkin’s expert, Dr. Baker.
Lufkin has many “objective” requirements that it cites as binding rules, but the evidence before the court demonstrates that Lufkin’s managers have considerable discretion in applying or ignoring those rules. Attendance bookkeeping, availability of leave time, extra job training, and preferential day-to-day job assignments are all subject to flexibility and manipulation. Those rules have direct and/or indirect effects on an employee’s prospects for promotion. The unions, which are supposed to act as watchdogs, are called in only when a worker is directly
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disadvantaged. When a white worker receives an unfair advantage that hurts no one else specifically, such as an absence that is not marked or a chance to train on a new machine, the unions have no leverage.
Lufkin’s requirement that personnel for some jobs be “qualified” allows subjectivity and personal bias to influence the promotion process directly. As Kelvin Pope testified, class members can be told that they are unlikely to pass a required test, or flunked if the components of test are sufficiently subjective. Because managers and supervisors at Lufkin give whites preferential treatment, blacks are less likely to gain the necessary skills. Even positions awarded to the senior bidder regardless of qualification can be influenced when supervisors are discouraging blacks from applying black advancement. It is thus not surprising that blacks are hesitant to bid and may choose to withdraw their bids even if selected.
2. Salaried positions The evidence shows that class members in salaried positions also face difficulties; class members Florine Thompson and Sylvester McClain testified that they were demoted despite taking advantage of Lufkin’s education/tuition reimbursement program to further their education. Both had expressed discontent with aspects of Lufkin’s race-related policies; both were demoted from salaried positions to hourly positions. Ms. Thompson has earned two associate degrees, but was demoted from her salaried position and now works as a security guard. She testified that her demotion occurred shortly after she raised concerns about a hostile working environment with Lufkin management. It took Mr. McClain years to get promoted to a salaried position and, according to his testimony, required the direct intervention of a former Lufkin CEO, Frank Stevenson. Shortly after Mr. Stevenson left, McClain was demoted to an
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hourly position and told “You will never be able to move up in management again. This is the only job we have for you. So don’t even try.”
C. Statistical Evidence Though anecdotal evidence is useful to provide a context, a lawsuit based on a theory of disparate impact generally requires statistical evidence to document and substantiate claims of discrimination. Both sides presented voluminous data supporting their points. The plaintiffs’ statistical case was presented by Dr. Richard Drogin, while Lufkin’s rebuttal was offered by Dr. Mary Baker. Dr. Drogin found evidence of significant statistical disparities in both the initial assignment of blacks to the Foundry as well as promotion of blacks throughout Lufkin Industries.
1. Statistical Evidence on Initial Assignments During the class period, blacks were disproportionately assigned to the Foundry. Of all African-Americans hired for entry-level jobs at Lufkin, 51.8% were assigned to the Foundry. In contrast, only 24.3% of similarly situated whites were assigned to the Foundry. As a necessary corollary, black employees were far less likely to be assigned to positions in the other divisions. As a result of this pattern of initial assignments, African-Americans make up more than a quarter of the Foundry’s workers and a slightly smaller proportion of the employees in the Trailer and Oilfield division, but in the Power Transmission division and Corporate sector, black employees make up just 7% to 10% of the workforce. In contrast, white employees constitute more than 70% of the Trailer and Oil Field divisions and almost 90% of the Power Transmission division and Corporate sector. In the Foundry, where the hottest, dirtiest, noisiest, and most physically demanding jobs are to be found, whites make up little more than a third of the
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workforce.7 If the rate of initial assignment of black workers to the Foundry had mirrored the
representation of black employees throughout the company, Dr. Drogin testified that he would have expected 65 fewer black employees being assigned to the foundry. The actual outcome was statistically significant at almost nine standard deviations; in other words, the possibility that the pattern of initial assignments occurred solely by random chance was less than one in one hundred billion. That figure is well beyond the widely accepted standard of three standard deviations. See McClain,187 F.R.D. at 276. Dr. Drogin also testified that 44 black workers would be expected in the other divisions. Their absence is statistically significant at more than five standard deviations. The explanation that random chance allowed resulted in that pattern is less than one in one million.
Not surprisingly, Lufkin has attacked Dr. Drogin’s methodology and results. Lufkin claims that Dr. Drogin’s assumptions were flawed, that his statistical models were poorly constructed, and that his results are therefore useless in describing the actual situation at Lufkin Industries. Lufkin claims that it hires only those individuals referred to it by the TWC, and that those individuals are referred for specific positions only. As such, Lufkin claims that there is no way for it to channel black employees into the Foundry or away from other divisions. Lufkin also criticized Dr. Drogin’s decision not to control for the possibility that Lufkin’s high school degree requirement had a disparate impact on blacks. However, Lufkin’s own data indicate that its black employees are more likely to possess a high school diploma or GED equivalent and more likely to possess additional schooling beyond the high school level. Over
7Hispanic workers make up the remainder of the Foundry’s employees. 25

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90% of the African-Americans hired by Lufkin have a high school education, meaning that almost all of Lufkin’s black employees meet the minimum criteria for Lufkin’s entry-level jobs. Lufkin has offered no evidence that individual qualifications explain any of the disparities.
As part of Lufkin’s defense, Dr. Baker testified that her statistical analysis showed that Lufkin’s initial assignments to the Foundry correlate closely with the pools of actual applicants available to Lufkin, and that Lufkin’s decisions are statistically race-neutral given the actual people who applied. Dr. Baker claimed that Dr. Drogin’s statistical models did not match the actual processes used by Lufkin, that her models were based on the actual processes used, and that her analyses were thus more relevant to the issues before the court. For the reasons discussed above, the court has already found that Lufkin’s initial assignment processes may or may not have matched their claims. Dr. Drogin’s statistical models are reasonably valid, given the uncertainty about the actual processes and the actual makeup of the applicant pools.
Dr. Baker’s statistical claims are also undercut by her curious decision not to analyze the assignment of workers to any division other than the Foundry. Her decision not to do so, in light of the plaintiffs’ Second (and final) Amended Complaint makes little sense. In their Complaint, plaintiffs alleged that “Defendant, Lufkin Industries, has assigned disproportionately more black African American class members to difficult and unpleasant jobs and disproportionately fewer black African American class members to less strenuous and more desirable positions.” Plas. Second Amended Compl. ¶113. The court’s March 31, 1999 Order certifying the case as a class action also included the underassignment claim. McClain, 187 F.R.D. at 273 (“Plaintiffs assert (and their statistics support) that African-Americans are over represented in difficult and unpleasant jobs, and under represented in less strenuous positions. This channeling process is
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not guided by any objective standards or procedures of reviewing them.”). At trial, Dr. Baker’s testimony and attempted defense of her methodology was singularly unconvincing and offered little additional credence to her rationale. Even if the court chose to accept Dr. Baker’s contention that the actual applicant pools do not show any overassignment of black new hires to the Foundry, the court would of necessity accept the corollary presented by Dr. Drogin: that Lufkin underassigns black workers to all other divisions.
Since Lufkin claims that there are no objective criteria that would disproportionately disadvantage African-Americans, the logical conclusion to be drawn from the testimony and evidence presented to the court is that Lufkin’s subjective procedures are responsible for the concentration of black employees in the Foundry. After considering the expert testimony of both sides, the court sees no alternative to the conclusion that Lufkin is discriminating in its initial hiring.
2. Promotion Statistics a. Hourly Promotion Statistics
Plaintiffs have also provided statistical evidence of discrimination in promotions. Overall, Dr. Drogin found that from March 6, 1994 through 2002, there were 2,326 promotions within the hourly wage (EEO-6 to -8) levels; 1,325 of which went to whites and 476 to African Americans. African Americans received 127 fewer promotions than expected from their representation in the availability pools in each year during 1994-2002. This disparity has a Zvalue of –7.61, indicating a statistically significant under-promotion of African Americans with a one in one hundred million chance of occurrence by random fluctuation.
The pattern of African American shortfalls in promotions is consistent across years. The
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disparities found by Dr. Drogin are statistically significant in 5 out of the 8 years for which complete year data is shown. The total shortfall of African American promotions would occur by chance less than one time in ten trillion events.
Dr. Drogin also analyzed rates of promotions of African Americans in each of the EEO categories 6, 7 and 8 separately, noting that these three categories include the jobs held by 90% of Lufkin’s African American employees. African Americans received 77.84 fewer promotions then expected out of EEO-8 positions, 24.51 fewer promotions than expected from EEO-7 jobs, and 24.80 fewer promotions than expected from EEO-6 jobs. The shortfall was statistically significant for each of these categories, with levels of significance ranging from -2.68 to -6.17 standard deviations.
Dr. Drogin found that for the ten hourly jobs with at least 50 promotions into them, there was a shortfall in African American promotions into 9 out of the 10 jobs. That shortfall was statistically significant for 5 of the 10 jobs.
Dr. Baker’s rebuttal was unpersuasive. Her promotion analysis relies, as her initial assignment analysis relies, on the information she was given by Lufkin’s management. The court is not persuaded that the information is accurate or reliable. Dr. Baker claims that her use of the actual bid sheets is a superior metric, but that argument ignores a substantial part of the plaintiffs’ argument. Because African-Americans are systematically discouraged from bidding on jobs, are discouraged from taking promotions awarded through the bid process, and have difficulty getting assignments that will help them acquire the skills needed for further promotions, analyzing the actual bid sheets merely incorporates several tainted variables. The parties have also debated whether all bid sheets have been produced and whether Lufkin’s
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resulting database is accurate. Though there is some dispute as to whether so-called “automatic” promotions listed in the CBA should be counted, there is sufficient evidence to find discrimination in promotions regardless. After considering the evidence in its totality, the court finds Dr. Baker’s reliance on tainted data in support of questionable conclusions unconvincing.
b. Salaried Promotion Statistics In addition to the promotion disparity in the hourly ranks, a statistically significant shortfall in promotions to the salaried workforce also exists. Between 1994 and 2002, Lufkin awarded 386 promotions from hourly positions to salaried jobs. Based solely on the proportion of African-Americans in the workforce, blacks would be expected to have received 42.85 promotions. In actuality, Black workers received only 34 promotions. The shortfall of 8.85 promotions is statistically significant at the .05 level. Drs. Drogin and Baker again disagreed on the appropriate model; Dr. Drogin looked at all salaried workers, while Dr. Baker looked at each division separately. The statistical significance is not as robust here, but that is in part an artifact of the smaller sample size. Dr. Drogin’s decision to aggregate the data serves his ends, just as Dr. Baker’s decision to refine the data serves hers. After hearing the testimony offered at trial, the court finds Dr. Drogin’s analysis more persuasive.
3. Compensation (Income) Statistics The net result of Lufkin’s discriminatory practices is a significant shortfall in income for black employees. According to Dr. Drogin, the average pay of blacks for every EEO category and almost every year is below the relevant average pay of whites. That pattern holds true even after controlling for seniority, EEO category, part-time/full-time status, and shift. Given the court’s finding above that Lufkin discriminates in its initial assignment and promotion processes,
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any other conclusion would be surprising. As an example, blacks in skilled craftsman positions8 are disproportionately concentrated in the lower-paying jobs. They hold 24% of the positions that pay less than the category average of $13.31 an hour, but only 7.8% of the positions paying more than $13.31 an hour.
Dr. Drogin found shortcomings in most every time period, EEO category, and division, even after controlling for year, time in job, shift, full-time/part-time status, EEO category, and end-of-year employment status. Those aggregate numbers were 21 cents/hour in both 1994 and 1995; 23 cents/hour in 1996; 28 cents/hour in 1997; 34 cents/hour in 1998; 38 cents/hour in 1999; 42 cents/hour in 2000; 45 cents/hour in 2001; and 54 cents/hour in 2002.
Dr. Baker criticized Dr. Drogin’s decision not to control for job classification. According to Dr. Baker, once job classification is considered, the compensation disparity disappears. That finding is absolutely correct and fundamentally meaningless. Essentially, Lufkin claims that workers in the same job classification get the same pay.
That conclusion is utterly unsurprising; it simply means that employees performing exactly the same job were paid exactly the same wage. Plaintiffs have never claimed nor suggested otherwise. What plaintiffs actually argue, and what this court finds, is that Lufkin’s discrimination in initial assignments and promotions has concentrated blacks in lower-paying jobs. Job classification is thus a variable that is tainted by the discrimination already found in initial assignments and promotions. Dr. Baker’s criticism is not relevant to that finding, much less dispositive. Dr. Baker’s decision to incorporate job classification into her analysis renders her results largely irrelevant to the claims before the court.
8EEO category 6, the highest level of blue-collar production jobs at Lufkin 30

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D. Calculating Back Pay 1. Relevant Considerations
In order to maintain their class status under Rule 23(b)(2), plaintiffs have abandoned all individual claims and compensatory damages. Plaintiffs have not addressed, and the court need not consider, individual claims for damages. However, because plaintiffs proved their claim of disparate impact employment discrimination, class members are entitled to back pay. Although the court is convinced that Lufkin discriminated against black employees with regard to initial assignments and promotions, there is no way for the court to identify individual employees deserving of back pay. It is impossible for this court to say which Foundry employees should have been assigned to a better division, or whether an employee assigned to the Trailer division actually deserved a spot in Power Transmission. There is no practical way to separate the employees who were discouraged from bidding on a job from those who were simply not interested. There is no efficient way to decide which employees were encouraged not to accept a promotion from the employees who decided that they did not want a new job. There is no way at all to determine which employees were harmed by a lack of promotion-enhancing on-the-job training
The court is mindful of the Fifth Circuit’s admonition to avoid uniform class-wide remedies whenever possible. But in this case, given the facts before it, the court finds that a formula-driven approach is necessary. The number of class members and the inherent uncertainty of the individual claims contraindicates the use of a special master or “mini-
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hearings.” However, the court need not resort to a single per-capita award for all class members. There are a few objective qualifications that will serve to increase or decrease each class member’s award of back pay.
The plaintiffs’ claim based on initial assignment states that workers in the Foundry were injured by being channeled away from the more lucrative opportunities in the Trailer, Oilfield, and Power Transmission production divisions. Obviously, those black employees who were assigned to the Power Transmission division (which holds the highest-paying jobs with the best general working conditions) can have no cause for complaint. The statistical evidence does not support a claim that workers were channeled into the Trailer or Oilfield divisions (nor do plaintiffs make such a claim). Black employees assigned to the Foundry are thus a distinct subgroup of the class, and their back pay should reflect the fact that they were harmed by discrimination in both initial assignments and promotions. More than 90% of Lufkin’s black Foundry workers met the “minimum” qualifications to work in other divisions and the court will not attempt to differentiate workers who were qualified to work in other divisions; the evidence produced at trial indicates that the requirements to work in the other divisions have been flexible over the class period. The court thus cannot say with any reasonable degree of certainty whether or not any given individual would have been suitable for employment in another division.
Just as Foundry workers were particularly harmed, some employees could not have been injured during the class period. Some workers presumably reached the absolute top of the pay scale for their respective division for their entire tenure during the class period. The court wishes to make clear that it suspects the group of affected employees is relatively small. It is not sufficient that the worker was merely at the top of the pay scale for a given job classification; the
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evidence suggests that many promotions resulted in a temporary pay cut, as employees at the top of a classification’s pay range to take jobs with lower immediate pay but higher maximum pay. The court is referring to those workers making more than any other hourly worker in each division, regardless of category. For those employees, there was nowhere higher to go. Even after the effects of discrimination, those employees had reached the pinnacle of the ladder; for the period in which they occupied those positions and that pay grade, they could not have been harmed by discrimination within the hourly ranks. Those employees were affected by discrimination in promotion to salaried positions. Sylvester McClain is an example; according to the court’s perusal of the CBA,9 the position of Inspector pays as much as any other position in the Trailer division. Mr. McClain in particular has been harmed by being demoted from a salaried position, but plaintiffs’ theory of disparate impact does not allow the court to make special allowances for individual plaintiffs. The court can only include Mr. McClain in the group of employees entitled to receive some recompense for discrimination in promotions to salaried positions.
2. Numerical data The court is of the opinion that some of the disparities in hourly compensation are the result of discrimination in initial assignment, while others are the result of discrimination in promotions. The income disparities found by Dr. Drogin after controlling for EEO category, time in job, shift, full-time/part-time status, and active/non-active status represent suitable calculations for the effects of discrimination. Because there is no data on the period after 2002,
9The court’s reading of the CBA may be incomplete or inaccurate and is not meant as an authoritative statement.
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the court chooses to use the 2002 numbers. This decision may be unfair to the plaintiffs, since the trend of disparities was uniformly upwards, but the court sees no alternative given the data before it. There is also a probability that Lufkin cleaned up its act in 2003 and there is no longer any income disparity, but the court considers that conclusion unlikely. Pre-judgment interest is to be awarded in the amount of 5%, compounded annually.
The court orders that back pay is to be awarded in the following manner: Foundry workers, who constitute about a third of the class members, are entitled to back pay equal to 133% of the disparities found by Dr. Drogin, as listed below. That sum will compensate them for discrimination in both initial assignments and promotions. All other employees will receive 83 1/3% of the disparities found by Dr. Drogin. That sum will compensate them for discrimination in hourly promotions.
The disparity in salaried promotions resulted in an absence of one such promotion per year. The average salaried workers earns more money than the average hourly worker, with greater potential for advancement and different working conditions. There is no way to say which workers should have been promoted into which positions; a worker earning a promotion to secretary might gain nothing in monetary terms, but at least one white hourly worker received a promotion to a position that paid a six-figure salary. Since the court can not value the missing promotions with any significant precision, it finds that each missing salaried promotion was worth an additional 2 cents/hour to each class member who worked during the year that the promotion was not awarded.
Class members with salaried positions will receive $ 600 per year. Salaried class members receive a smaller percentage of the relevant income disparity and a single value for
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each year to reflect the lesser statistical significance of the relevant regression analysis. The court is less certain that it can gauge the effects of discrimination on salaried employees. Although the court is convinced that discrimination occurred in both the hourly and salaried ranks, that compensation disparity may result in part from independent variables other than racism such as education, training, and prior experience. In the absence of evidence that those variables are not partially responsible for the compensation disparity, the court chooses to limit the award made to salaried employees to an amount roughly comparable to that received by the hourly employees.
The court offers these numbers as its calculations of the formulas described above (these numbers do not include interest). For employees in the Foundry: _30_ cents per hour worked in 1994. _30_ cents per hour worked in 1995 _63_ cents per hour worked in 1996 _39_ cents per hour worked in 1997 _47_ cents per hour worked in 1998 _53_ cents per hour worked in 1999 _58_ cents per hour worked in 2000 _62_ cents per hour worked in 2001 _74_ cents per hour worked in 2002 _74_ cents per hour worked in 2003 _74_ cents per hour worked in 2004
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_74_ cents per hour worked between January 1, 2005 and [date of judgment] 2005
For class members in hourly positions in all other divisions: _20_ cents per hour worked in 1994. _20_ cents per hour worked in 1995 _21_ cents per hour worked in 1996 _25_ cents per hour worked in 1997 _30_ cents per hour worked in 1998 _34_ cents per hour worked in 1999 _37_ cents per hour worked in 2000 _40_ cents per hour worked in 2001 _47_ cents per hour worked in 2002 _47_ cents per hour worked in 2003 _47_ cents per hour worked in 2004 _47_ cents per hour worked between January 1, 2005 and January 13th, 2005
The court considered and rejected the possibility of allowing a special master to determine damages; the size of the class and the complexity of the issues weigh against “minihearings” for each class member. Any gains in precision would likely be dwarfed by the expense and difficulty of individual hearings for more than 700 plaintiffs. V. Relief For the Plaintiff Class
The factual data forms a probative symmetry with the statistical data, leaving the court convinced that Lufkin Industries discriminated against African-American employees when
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awarding initial assignments and promotions. That discrimination resulted in a corresponding shortfall in African-American wages and salaries. To remedy that discrimination, the court orders back pay to the groups listed above and in the amounts listed above.
The court also enjoins and orders Lufkin Industries to cease and desist all racially biased assignment and promotion practices. Specifically, the court orders Lufkin Industries to: cease and desist any and all channeling of black applicants to the Foundry or Trailer divisions; make formal training equally available to all employees regardless of race and ensure that formal training is not unreasonably withheld; create and implement a program to ensure that black employees receive more on-the-job training through daily work assignments equal to all white employees without exception which will develop the skills and abilities needed for promotions; and create and implement a program to ensure that black employees receive an equitable proportion of promotions in keeping with their representation in the Lufkin Industries work force. Promotions must be without regard to race, consistent with this order and the Collective Bargaining Agreement with the various unions. The court finds that increased training in human resources and equal employment opportunity law would be a very well-advised first step. As it has discussed with the parties, the court will probably appoint a monitor to oversee Lufkin’s compliance efforts and ensure the smooth implementation of the listed requirements.
The court can enjoin racially based practices, but it realizes that an individual’s beliefs, feelings, and privately held racial animus are beyond the reach of the law. The court can therefore do no more - and no less - than to order that initial assignments, promotions, and other benefits must not be based thereon. Lufkin Industries is to take all necessary steps to remedy the effects of its past discrimination and ensure that discrimination does not taint its future decisions
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on hiring, status of pay, assignment, rates of pay, and promotions.
Damages The plaintiffs having prevailed, it is ordered adjudged and decreed that the class receive $3,400,139 in back pay, plus post-judgment interest on that amount beginning from January 1, 2005. Post-judgment interest is to be assessed at the ordinary federal rate. Attorney’s Fees The plaintiffs having prevailed, they are entitled to an award of attorney’s fees. 42 U.S.C. § 2000e-5(k). Plaintiffs’ counsel has made a request for an amount in excess of $6,000,000 in attorney’s fees involving hour rates of $550 per hour for partners in the Goldstein Demchak firm for recovering a well-deserved judgment of $3,400,000 for the class. Ms. Demchak has submitted logs showing (according to her) that she expended in excess of 3700 hours in this case. However, the court finds that the hours logged by her time keeper are excessive and not necessary, nor do they show the usual and customary cost for employment discrimination cases in the Eastern District of Texas’s Lufkin division (a city of less than 35,000 people) or Beaumont division (a city of less than 115,000 people). The fees which are approved and ordered are as follows: no fee is awarded for time spent in the unsuccessful mediation, nor is any fee awarded for Mr. Garrigan’s attendance at plaintiff Roald Mark’s separate suit against Lufkin Industries. Once that time is removed, the remaining billable hours of all plaintiffs’ attorneys are to be reduced by 25%. Ms. Demchak and Mr. Baller are to receive $350 an hour. Attorneys Burrell, Konecky, and Borgen are to receive $300 an hour. Ms. Rabin is to receive $250 an hour. Paralegal hours are to be billed at $60 an hour.
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Case 9:97-cv-00063-RHC Document 552 Filed 08/29/2005 Page 39 of 39 Case clerk hours are to be billed at $50 an hour. Mr. Garrigan is to receive $250 an hour. Mr. Garrigan’s paralegal, Ms. Davis, is to receive $75 an hour. Plaintiffs’ attorneys are awarded $127,658.60 in taxable costs. Plaintiffs’ attorneys are also awarded $840,129.72 in litigationrelated expenses. VI. Conclusion
Because plaintiffs have proven their case for employment discrimination, it is hereby ORDERED that plaintiffs receive all relief stated in this opinion.
SIGNED at BEAUMONT, Texas, on this the 29 day of August, 2005. _______________________________ HOWELL COBB UNITED STATES DISTRICT JUDGE
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 Case 9:97-cv-00063-RC Document 633 Filed 04/20/2009 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION

SYLVESTER MCCLAIN, on his own

§

behalf and on behalf of a class of similarly §

situated persons, et al.,

§

§

Plaintiffs,

§

vs.

§

§

LUFKIN INDUSTRIES, INC.,

§

§

Defendant.

§

CIVIL ACTION NO. 9:97-CV-063 JUDGE CLARK

DEFENDANT LUFKIN’S AMENDED POSITION ON DISPUTED ISSUES FOR CALCULATION OF MONETARY RELIEF
Since their Final Report, the Parties have further narrowed the issues in dispute regarding the calculation of back wages to two issues: (1) which time periods should be included in an award, and (2) what rate of prejudgment interest should apply. Along with this Position Statement, Lufkin is filing a Motion for Partial Summary Judgment with respect to Plaintiffs’ claim of disparate impact in salaried promotions on grounds that there is no evidence of a statistically significant disparity in promotions to salaried positions during any time period relevant to the Thomas charge of discrimination, which is now the operative charge since the Fifth Circuit found that Sylvester McClain failed to exhaust administrative remedies with respect to the class claims of promotion discrimination.

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The Parties have agreed to stipulate to the calculation of back wages for each time period

as follows:

Year

Hourly

Salaried

1994-1995 $483,340

$109,868

1996-2002 $1,901,417 $128,055

2003-2004 $487,756

$0

2004-2007 $159,412

$0

As set forth in the above chart, Plaintiffs seek $3,031,925 in back pay for hourly employees for 1994 through 2007 and $237,923 in back pay for salaried employees for 1994 to 2007. 1 While stipulating to the method of calculation for all time periods, Lufkin agrees only that the back wage award of $1,901,417 for hourly employees between 1996 and 2002 is appropriate. Lufkin objects to any back wages being awarded for promotions in 1994 and 1995, because they precede the statute of limitations.2 Lufkin also objects to any back wages being awarded for salaried employees for 1996 through 2002 because there is no evidence of a statistical disparity for this time period, although this argument is briefed in the companion Motion for Partial Summary Judgment. Finally, Lufkin objects to back wages being awarded for the periods after 2002 because no evidence was heard with respect to this time period and that as a result of Lufkin’s improved recordkeeping, if evidence were taken, Lufkin would establish that
1 However, Plaintiffs concede that there are no back wages owed to salaried employees for the period following 2002, even employing the methodology used by their expert. 2 The statute of limitations would also exclude any promotions between January 1, 1996 and April 2, 1996. However, it may be difficult to ascertain with complete accuracy which promotions occurred during that time period because Plaintiffs’ expert grouped promotions on a year-to-year basis.
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excessive subjectivity is not present in the process, which is almost entirely objective; that using an appropriate analysis there is no disparate impact on African Americans in promotions; and, to the extent any disparity exists, it is justified by legitimate business reasons.
ARGUMENTS A. The Court should not include the 1994 through 1995 time period in the damages
calculation. In finding that Sylvester McClain’s charge of discrimination was the operative charge of discrimination upon which the class’ claims were based, Judge Cobb found that the statute of limitations extended back to March 6, 1994, 300 days before Sylvester McClain complained to the EEOC.3 The Fifth Circuit, however, held that McClain failed to exhaust EEOC remedies with respect to any of the class claims, finding instead that the class claims of promotion discrimination were exhausted by the EEOC charge filed by Buford Thomas on February 24, 1997.4 Because Thomas’ charge is now the operative charge, the statute of limitations now extends back to only April 2, 1996, 300 days before it was filed. Promotions occurring before 1996 cannot give rise to liability since they are time barred, and they should not be included in the damages calculation. See Frank v. Xerox Corp., 347 F.3d 130, 136 (5th Cir. 2003) (finding that district court correctly determined date for timeliness was 300 days before charge was filed, and that any prior “bad conduct” is time barred). The Supreme Court has established that relief or compensation for time-barred conduct is prohibited. United Air Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977) (a “discriminatory act which is not made the basis for a timely charge is the legal equivalent of a discriminatory act which occurred before the
3 Amended Final Judgment at 7-9, Dkt. 552. 4 See McClain v. Lufkin Industries, 519 F.3d 264, 274 (5th Cir. 2008) (“McClain’s letter failed to identify any neutral employment policy” but Thomas’s complaint “presents a close question of exhaustion directed at a discriminatory, albeit neutral, company policy authorizing subjective promotion decisions”).
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statute was passed”). As Evans instructs, any promotion disparities occurring before April 2, 1996, are without legal consequence, are not to be viewed as unlawful, and cannot support an award of damages.
While Title VII does allow courts to consider accrual of back pay to two years prior to the filing of a charge with the Commission, 42 U.S.C. § 2000e-5(g)(1), which in this case would be back to February 24, 1995, because the damages flowing from any promotion decision begin at the time the decision is made, not before, no damages accrue for promotion disparities not made the basis of a timely charge. Moreover, even if damages had accrued (and they have not), accrual would only apply to those class members who could have filed a claim or promotion discrimination within the 300-day statute of limitations period set by Thomas’ charge. For example, class members whose employment terminated prior to April 2, 1996 would not have any promotion claim that could have been timely filed within the period of the Thomas charge and, thus, no damage. Similarly, Plaintiffs offer no proof that those class members who had timely promotion claims within the 300-day statute of limitations also lost promotions outside of the 300-day period but within the two years prior to the filing of the charge.5 Plaintiffs cannot recover damages for promotions outside of the 300-day statute of limitations without a showing that the same class member who was denied a promotion during the 300-day period also suffered promotion losses within the two year period. To allow otherwise, would circumvent the statute of limitations because only those Lufkin employees who could have filed a timely charge when Thomas did are entitled to be members of the class. Williams v. Owens-Ill., Inc., 665 F.2d 918, 923-24 (9th Cir. 1982), cert. denied, 459 U.S. 971 (1982) (noting that employees who were no longer employed during 300 day period could not have filed a claim).
5 Plaintiffs no doubt recognized that it would not be appropriate to seek back wages beyond 300-days, when they only sought damages for promotions within 300 days before Sylvester McClain’s charge at trial and took no appeal on this issue.
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The continuing violation doctrine does not apply to discrete discriminatory actions, such as promotions, that are time barred, even if those acts are related to acts alleged as happening in the liability period. National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002); Celestine v. Petroleos de Venezuela SA, 266 F.3d 343, 352 (5th Cir. 2001). In Morgan, the Supreme Court established that, “Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify. Each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable ‘unlawful employment practice.’” Id. at 114.
In Celestine, more than two hundred African Americans alleged a pattern or practice of racial discrimination in promotions and training by their employer. Id. at 348. The court of appeals affirmed the district court’s refusal to consider events occurring outside of the liability period. Id. at 351. The court of appeals denied the plaintiffs’ attempt to introduce past incidents under the continuing violation doctrine, holding that plaintiffs’ claims of racial discrimination for failure to promote and train were discrete events based on the conclusion that “[a]n employee who claims to be the victim of racially motivated failure to promote or train is put on notice that his rights have been violated at the time the adverse employment decision occurs, and must therefore bring the claim within 180 days of the adverse decision.” Id. at 352 (citing Huckabay v. Moore, 142 F.3d 233 (5th Cir. 1998)). Thus, the Plaintiffs’ class claim on disparate impact on promotions is not appropriate for the application of the continuing violation doctrine.
Plaintiffs may argue that the law of the case doctrine precludes the Court from considering this issue. Conway v. Chemical Leaman Tank Lines, Inc., 644 F.2d 1059, 1061 (5th Cir. 1981) (the doctrine “operates to preclude a reexamination of issues decided on appeal…”). However, “the law of the case established by a prior appeal does not extend to preclude
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consideration of issues not presented or decided…” by the court of appeals. Id. (internal quotations omitted).
On appeal Lufkin did ask the court of appeals to consider whether McClain’s charge properly exhausted administrative remedies and whether that charge could support the class. Lufkin, however, never asked the court of appeals to establish Thomas’s charge as the operative charge, and, lacking knowledge that the court of appeals would make that determination, Lufkin could not have presented an issue related to the modified limitations period. For whatever reason, the court of appeals did not address the finding’s impact on the liability findings on promotions or the damages calculations. In fact, Plaintiffs conceded that the court of appeals left unresolved the consequences of its finding with respect to the calculation of damages for promotions.6
In Lufkin’s petition for panel rehearing it argued that the court of appeals should have remanded the case to this Court for a new finding on liability, because Judge Cobb had predicated his findings on the liability period established by McClain’s charge rather than Thomas’s charge.7 The court of appeals denied Lufkin’s motion for rehearing, but that denial does not amount to an express decision on the merits of the arguments the motion presented. See Alpha/Omega Insurance Services, Inc., 272 F.3d 276, 281 (5th Cir. 2001) (stating, “Our denial of a motion for panel rehearing does not amount to a decision on the merits”). Because the court of appeals did not do so, this Court is free to address issues related to the affect the exhaustion finding has on the Plaintiffs’ promotion claims, with specific regard to both predicating liability and awarding damages.

6

Plaintiffs-Appellants-Cross-Appellees’ Petition for Panel Rehearing on a Single Issue, p. 2.

7

Defendant-Appellee and Cross-Appellant’s Petition for Panel Rehearing, p. 7-15.

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B. There is No Evidence to Support an Award of Damages after 2002. The record on which Judge Cobb made his findings of liability did not contain any
statistical evidence for the period following 2002. The record similarly lacks any anecdotal evidence of promotion discrimination after 2002. The shortfall 127 hourly promotions and 9 salaried promotions found by Judge Cobb all occurred prior to 2003. Given that there is no evidence in the record, it is not proper to award damages for this period. See Payne v. Travenol Laboratories, Inc., 673 F.2d 798, 824 (5th Cir. 1982) (trial court erred in awarding damages for 1971 to 1976 when the statistical evidence introduced at trial only covered time period from 1971 to 1974).
The only way that the court could justify awarding damages for the period after 2002 would be to reopen the evidence and allow another full-fledged trial on the period after 2002. Not only should Plaintiffs’ expert justify his failure to use actual applicant data when such data was clearly available since 2002, but Plaintiffs should be required to provide evidence that the Lufkin’s promotion practices continued to be influenced by unfettered subjective decisionmaking. If Lufkin can show that its decision-making processes were largely objective in the post 2002 period (and Lufkin believes that it can prove that), justice requires that Lufkin have an opportunity to make its case before damages are awarded. Moreover, in requesting that the Court reopen the evidence, Lufkin should have the opportunity to prove whether there is a statistically significant disparity in hourly or salaried promotions for the entire time period and use the actual applicant data as available for the post-2002 period.
At this juncture, there is no justification for reopening this case when this case has been fully tried. When the case ended in October 2004, Plaintiffs made no effort at that time to introduce evidence from 2003 or early 2004. When Judge Cobb entered his judgment in August
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2005, he only considered the statistical evidence through 2002 because that is what Plaintiffs had offered. Similarly, in remanding this case to this court, there is nothing in the Fifth Circuit’s mandate that suggests that it intended for this court to restart the trial and take evidence for the period after 2002. In fact, the Fifth Circuit made it clear that this court should only award damages with respect to those promotions that occurred prior to 2003:
On remand, the district court will be dealing solely with damages attributable to approximately 127 lost promotions in hourly pay grades and nine lost salaried employment promotions. 519 F.3d 264, 281 (5th Cir. 2008). Plaintiffs may argue that the court could reopen this case without conducting an evidentiary hearing. They may argue that the court could allow their statistical expert to analyze Lufkin’s date for the period after 2002, by using the same methodology that he applied to the pre-2003 data. This assumes, however, the same methodology would be appropriate for this time period. Lufkin believes that it would not because Plaintiffs’ expert failed to use the actual applicant pool data for each promotion even though such data was readily available for the post 2002 time period.8 The law is clear. Actual applicant flow data is superior to other data and should be used when available. See Teamsters, 431 U.S. at 342 n. 23; Anderson, 26 F.3d at 1286-87 n. 14 (“we agree with the district court that [the] actual applicant flow was the best measure of [the employer’s] performance . . . .”); Malave v. Potter, 320 F.3d 321, 326-27 (2d Cir. 2003) (holding it permissible to use alternatives to the preferred methodology only if actual data “are ‘difficult’
8 For most jobs, Lufkin posts the job and selects from the bidders. The bid sheets define with certainty the percentage of black applicants for each promotion. Plaintiffs’ expert ignored this data. EEOC v. Chicago Miniature Lamp Works, 947 F.2d 292, 302 (7th Cir. 1991) (The identification of a relevant labor market – the key issue in a class-based Title VII case – means not only identifying qualified potential applicants for the job at issue but also identifying interested potential applicants) (emphasis added).
- 8 -

Case 9:97-cv-00063-RC Document 633 Filed 04/20/2009 Page 9 of 12
or ‘impossible’ to obtain”); Stout v. Potter, 276 F.3d 1118, 1123 (9th Cir. 2002) (“In the context of promotions, the appropriate comparison is between the composition of candidates seeking promotion and the composition of those actually promoted.”); Powers v. Alabama Dept. of Educ., 854 F.2d 1285, 1298 (11th Cir. 1988) (“[A]pplicant statistics were available, and the plaintiffs should have employed them.”). A proper statistical analysis is based only on a “qualified applicant pool.” Johnson v. Uncle Ben’s, Inc., 965 F.2d 1363 1369 (5th Cir. 1992); see also Wards Cove, 490 U.S. at 647-55 (requiring comparison with pool of qualified job applicants); New York Transit Authority v. Beazer, 440 U.S. 568, 584-587 (1979); Frazier v. Garrison I.S.D., 980 F.2d 1514, 1524 (5th Cir. 1993) (“The specific holding of Wards Cove was that statistical proof used by the court of appeals was an accurate measure of statistical disparity because it did not take into account the ‘qualified’ versus ‘unqualified’ workforce.”).
Judge Cobb excused Plaintiffs’ expert from using actual bid data in his analysis of the pre-2003 data only because Judge Cobb gave credence to the expert’s claim that many of the bid sheets prior to 2003 were illegible. The Fifth Circuit deferred to Judge Cobb’s finding. Judge Cobb, however, made no such finding with respect to the bid data since 2002, because those bid sheets were not in evidence. Because Lufkin took much more care with maintaining its bid sheet data after this lawsuit was filed, Lufkin believes that the Court would find that the bid data since 2002 is reliable and should be used. Moreover, Plaintiffs’ statistical case was supported by anecdotal evidence of promotion discrimination that predated 2003. There is no such evidence for the more recent period. If Plaintiffs want to recover damages for this time period, then they must offer evidence that supports their claims that they were denied promotions because Lufkin those procedures were governed by excessive subjectivity. Conversely, Lufkin must have the opportunity to counter this evidence with testimony about the practices that Lufkin has
- 9 -

Case 9:97-cv-00063-RC Document 633 Filed 04/20/2009 Page 10 of 12
implemented during this time period. In short, if damages are to be awarded for this period, Lufkin is entitled to a trial on the merits for this new time period. Obviously, this was not the intent of the Fifth Circuit when it remanded this case to this court to resolve discrete issues.
Because there is no evidence to support a finding of liability for the period beyond 2002 and because it would be unreasonable to conduct another full fledged trial on the 2002 through 2009 time period, no damages for this period should be awarded, except for the continuing losses for the shortfall promotions in the earlier periods which have already been taken into account in the 1996 through 2002 period. C. The Court is free to Reconsider Judge Cobb’s Award of 5% Prejudgment Interest.
Because the Fifth Circuit remanded the case for a redetermination of damages, the Court is free to reconsider the trial court’s prior award of 5% prejudgment interest. Adams v. Lindblad Travel, Inc., 730 F.2d 89, 93 (2d Cir. 1984) ("Despite the fact that Adams neglected at trial to ask the district court for an award of prejudgment interest, he is not precluded from doing so on remand. . . . Since we are remanding this case for a redetermination of damages, the parties have no legitimate expectation that the issues relating to the ultimate award have been finally decided."); In re Department of Energy Stripper Well Exemption Litigation, 821 F. Supp. 1432, 1434-37 (D. Kan. 1993) (party who fails to challenge rate of post judgment interest in previous appeal may raise issue for first time on remand; while party should have raised issue on appeal, law of the case does not preclude court from reconsidering issue on remand).
In determining the prejudgment interest rate that should apply, Lufkin would urge the Court to consider the treasury rates during the length of the case and award prejudgment interest at a rate that reflects the varying rates from the time the lawsuit was filed in February 1997 through the present. While the 5 percent awarded by Judge Cobb might have been reasonable
- 10 -

Case 9:97-cv-00063-RC Document 633 Filed 04/20/2009 Page 11 of 12

for the first four years of this case, the treasury rate in the last 8 years has more often been under 5 percent and often it has been considerably below 5 percent. For example, between April 27, 2001 and September 30, 2005 and since October 26, 2007, the treasury rate has been below 4 percent. The purpose of awarding prejudgment interest is to make Plaintiffs whole not to give them a windfall to which they would ordinarily not be entitled.
In the event that the Court decides to use the Texas rate of interest, which appears to have been used by Judge Cobb,9 Lufkin would urge the Court to order that it be computed as simple interest as required under Texas law. Tex. Fin. Code Ann. §304.104.

OF COUNSEL:
VINSON & ELKINS L.L.P. 1001 Fannin Street Houston, Texas 77002-6760

Respectfully submitted,
_______/s/______________________ DOUGLAS E. HAMEL Attorney-In-Charge dhamel@velaw.com State Bar No. 08818300 CHRISTOPHER V. BACON Of Counsel State Bar No. 01493980 2300 First City Tower 1001 Fannin Street Houston, Texas 77002-6760 (713) 758-2036 (Telephone) (713) 615-5388 (Telecopy)
ATTORNEYS FOR LUFKIN INDUSTRIES, INC.

9 The Texas rate of postjudgment interest is five percent a year if the prime rate as published by the Board of Governors of the Federal Reserve is less than five percent. Tex. Fin. Code Ann. §304.004. Other provisions of the Texas Finance Code require the postjudgment rate of interest to be used for prejudgment interest in certain types of cases. Tex. Fin. Code Ann. §304.103. The prime rate was 3.88% at the time Judge Cobb entered his judgment.
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Case 9:97-cv-00063-RC Document 633 Filed 04/20/2009 Page 12 of 12
CERTIFICATE OF SERVICE I certify that on this 20th day of April 2009, a copy of the foregoing document was filed electronically through the Court’s CM/ECF System and was automatically copied to Plaintiffs through the Court’s electronic filing system.
________/s/_____________________ Attorney for Defendant

Houston 3970912v.1

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 Case 9:97-cv-00063-RC Document 632 Filed 04/20/2009 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION

SYLVESTER MCCLAIN, on his own

§

behalf and on behalf of a class of similarly §

situated persons, et al.,

§

§

Plaintiffs,

§

vs.

§

§

LUFKIN INDUSTRIES,

§

§

Defendant.

§

CIVIL ACTION NO. 9:97-CV-063 JUDGE CLARK

DEFENDANT LUFKIN’S AMENDED MOTION FOR PARTIAL SUMMARY JUDGMENT
Reversing Judge Cobb’s finding that Sylvester McClain’s charge of discrimination exhausted administrative remedies for the class,1 the Fifth Circuit found that the class administrative remedy was first exhausted by the EEOC charge filed by Buford Thomas on February 24, 1997. Because Thomas’ charge is now the operative charge, promotion claims occurring before April 2, 1996, 300 days before the Thomas charge was filed, are barred by limitations. 42 U.S.C. § 2000e-5(e)(i). As a matter of law, the change in the limitations period precludes a finding of disparate impact in salaried promotions because there is no time period from April 2, 1996 forward in which a significant statistical disparity in the number of AfricanAmerican promotions to salaried positions exists. 2 United Air Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977) (“A discriminatory act which is not made the basis for a timely charge is the

1 See McClain v. Lufkin Industries, 519 F.3d 264, 274 (5th Cir. 2008) (“McClain’s letter failed to identify any neutral employment policy” but Thomas’s complaint “presents a close question of exhaustion directed at a discriminatory, albeit neutral, company policy authorizing subjective promotion decisions”). See also Thomas EEOC Charge, attached as Exhibit A.
2 While Lufkin still disagrees with Plaintiffs’ expert’s approach, Lufkin respects that the Fifth Circuit found that Judge Cobb did not abuse his discretion in accepting this methodology and, therefore, Lufkin does not challenge this methodology with respect to the data introduced at trial.

Case 9:97-cv-00063-RC Document 632 Filed 04/20/2009 Page 2 of 7
legal equivalent of a discriminatory act which occurred before the statute was passed. It may constitute relevant background evidence in a proceeding in which the status of a current practice is at issue, but separately considered, it is merely an unfortunate event in history which has no present legal consequences.”); Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 619 (2007).
While the impact on total back pay award is small – the parties have agreed that the lost pay attributed to salaried promotions for the period 1994-2002 is $237,923 – the absence of disparate impact in salaried promotions is important to the scope of injunctive relief. Therefore, Lufkin moves for summary judgment on Plaintiffs claims of disparate impact discrimination in salaried positions.
STATEMENT OF UNDISPUTED FACTS In analyzing promotions into and within salaried positions for the original liability period of March 6, 1994 through 2002, Plaintiffs’ statistical expert found:
Blacks received 34 out of 386 promotions into salaried positions into salaried positions during the liability period, while they were expected to receive 42.85 promotions based on their availability. This shortfall of 8.85 promotions represents a loss of 20 % of the expected promotions. The Z-value for this disparity is -2.02, indicating a statistically significant shortfall of black promotions into salaried positions. Plaintiff’s Trial Exhibit 1 at 24, attached as Exhibit B without exhibits. Both the trial court and the Fifth Circuit held that this discrepancy was statistically significant. Amended Final Judgment at 29, DKT 552; 519 F.23d at 280 (5th Cir. 2008). If Plaintiffs’ expert had applied his same methodology to any period (including time periods to 2007) but excluded those salaried promotions barred by limitations, there would have been no statistically significant shortfall in African-American promotions to or within salaried
-2-

Case 9:97-cv-00063-RC Document 632 Filed 04/20/2009 Page 3 of 7
positions in any time period.3 Applying the same methodology the Plaintiffs’ expert applied on the 1994 through 2002 period, Lufkin’s expert analyzed the time period that would be established by the Thomas charge and found no statistically significant discrepancy (at 1.62 standard deviations). See Second Declaration of Mary Baker, attached as Exhibit B (“Baker Declaration”).
ARGUMENT A. Without a Statistically Significant Disparity there can be no disparate impact
discrimination. As is required, the lynchpin of Plaintiffs proof was statistical evidence. Judge Cobb did not require the Plaintiffs to prove any individual case of discrimination so long as they had sufficient statistical proof to make out a case of disparate impact. Amended Final Judgment at 13, DKT 552 (Aug. 29, 2005). However, in addition to challenging Plaintiffs’ statistical expert’s methodology, Lufkin urged the trial court to be cautious in drawing inferences from 2.02 standard deviations on grounds that it was a borderline statistic.4 See, e.g., EEOC v. Federal Reserve Bank of Richmond, 698 F.2d 633, 651 (5th Cir. 1983) (rejecting standard deviation of 2.07), rev’d on other grounds, 467 U.S. 867 (1984). Finding that the district court did not abuse its discretion in accepting Plaintiffs’ statistical methods or statistical significance at 2.02 standard deviations, the Fifth Circuit affirmed the finding of disparate impact. Because the trial court erroneously found the class was defined by McClain’s charge, it did not consider whether the statistical significance of the disparity was driven by promotions
3 Although Lufkin does not believe the post 2002 period relevant to this case as no statistical evidence was taken with respect to that period at trial, new data shows whether one examines salaried promotions from 1996 to 2002 or 1996 to the present, or even 1994 to 2007, there is not a statistically significant disparity in salaried promotions. See Baker Declaration. 4 As shown by new data, any inference drawn from the 1994-2002 data evaporates as there is no statistically significant disparity in salaried promotions in any time period from 1994 to 2007 except for the particular period 1994-2002. For example, the disparity from 1994-2007 is not significant (at 1.61 standard deviations), nor is the disparity from 1996-2007 (at 1.21 standard deviations). See Baker Declaration at Table 1.
-3-

Case 9:97-cv-00063-RC Document 632 Filed 04/20/2009 Page 4 of 7
outside of the limitations period established by the Thomas charge. In fact, no evidence was taken on this issue. Had such evidence been taken, Plaintiffs’ statistical analysis would have concluded that there was no statistically significant adverse impact (at 1.62 standard deviations) during the period from 1996 through 2002; that is, any discrepancy between expected and observed number of salaried promotions may be nothing more than mere chance. See, e.g. Castaneda v. Partida, 430 U.S. 482, 496 n. 17 (1977), and Hazelwood School District v. United States, 433 U.S. 299, 309 (1977).
Disparate impact discrimination requires proof by “statistical evidence of a kind and degree sufficient to show the practice in question has caused the exclusion of applicants for jobs or promotions because of their membership in a protected group.” Watson v. Ft. Worth Bank and Trust, 487 U.S. 977, 994 (1988). As a result of the Fifth Circuit’s ruling on the McClain charge, the “practice in question” is whether Lufkin’s excessive subjectivity during the period April 2, 1996 to 2002 created a statistically significant disparity in promotions awarded AfricanAmericans.
The two-standard deviations test is roughly comparable to a 0.05 level of statistical significance, the conventional threshold of statistical significance in the social sciences which has been accepted by the courts.5 REFERENCE MANUAL ON SCIENTIFIC EVIDENCE (Fed. Judicial Center, 2d ed. 2000) at 380. Disparities of less than two-standard deviations, which may by the product of chance, cannot establish the requisite causation for disparate impact discrimination as they are consistent with the outcome of a race-neutral process. See Baker Declaration at ¶ 6.
In Hazelwood, the Supreme Court stated that statistics should be limited to the relevant time period. 433 U.S. at 309. Promotions outside of the relevant time period are not relevant.
5 To be more precise, 0.05 level of statistical significance is equal to 1.96 standard deviations. Palmer v. Shultz, 815 F.2d 84, 92 (D.C. Cir. 1987).
-4-

Case 9:97-cv-00063-RC Document 632 Filed 04/20/2009 Page 5 of 7
Movement for Opportunity & Equality v. General Motors Corp., 622 F.2d 1235, 1245 (7th Cir. 1980) (employment decisions made more than 300 days before filing of EEOC charge should be excluded from statistical comparison); Eubanks v. Pickens-Bond Constr. Co., 635 F.2d 1341, 1348 (8th Cir. 1980) (in promotion case, focus should not be on the percentage of African Americans in job in question, but on number of African Americans selected for promotion during the relevant time period); Ste. Marie v. Easter R.R. Ass’n, 650 F.2d 395, 401-02 (2d Cir. 1981) (statistics purporting to demonstrate discrimination in promotion must exclude those promotions prior to liability period). While courts have considered evidence predating the statute of limitations in cases involving “continuing violations,” the Supreme Court’s recent decision in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), precludes the application of the continuing violation theory to discrete acts such as promotions. B. This Court is Not Precluded by the Fifth Circuit’s Mandate or the Law of the Case
From Granting Summary Judgment on the Salaried Promotion Claims Because This Issue Was Not Considered by the Fifth Circuit. The law of the case doctrine does not prevent the trial court from granting partial summary judgment because the Court of Appeals has never addressed the issues presented in this motion for partial summary judgment. Conway v. Chemical Leaman Tank Lines, Inc., 644 F.2d 1059, 1061 (5th Cir. 1981) (“[T]he law of the case established by a prior appeal does not extend to preclude consideration of issues not presented or decided…”). While Lufkin did argue on appeal that Sylvester McClain’s charge did not properly exhaust administrative remedies, Lufkin did not challenge Thomas’ charge because the trial court did not rely on it. Lufkin had no reason to anticipate that the Court of Appeals would rely on Thomas’ charge and, therefore, Lufkin did not address the limitations period that would apply if Thomas’ charge was the operative charge in its original briefing. Moreover, no evidence was
-5-

Case 9:97-cv-00063-RC Document 632 Filed 04/20/2009 Page 6 of 7
presented at trial regarding the statistical significance of the salaried promotion data after the limitations period established by Thomas’ charge.
In its Petition for Panel Rehearing, Lufkin did argue that the case should have been remanded for a new finding on liability on both the hourly and salaried promotions, because Judge Cobb had predicated his findings on the liability period established by McClain’s charge rather than Thomas’s charge.6 The Court of Appeals denied Lufkin’s motion for rehearing, but that denial does not amount to an express decision on the merits of the arguments the motion presented. See Alpha/Omega Ins. Servs, Inc., 272 F.3d 276, 281 (5th Cir. 2001). Therefore, since issues stemming from the finding on exhaustion that affect the promotion claims, with regard to both liability and damages, have not been decided by the Court of appeals, this Court free to do so.
CONCLUSION Even applying Plaintiffs’ statistician’s methodology, Plaintiffs are not able to show a statistically significant disparity for African-American promotions into Lufkin’s salaried jobs after April 2, 1996. Without a statistically significant disparity, there cannot be disparate impact discrimination. Accordingly, summary judgment should be granted on Plaintiffs’ claims of promotion discrimination into salaried jobs.

6

Defendant-Appellee and Cross-Appellant’s Petition for Panel Rehearing, p. 7-15.

-6-

Case 9:97-cv-00063-RC Document 632 Filed 04/20/2009 Page 7 of 7

OF COUNSEL:
VINSON & ELKINS L.L.P. 1001 Fannin Street Houston, Texas 77002-6760

Respectfully submitted,
____________/s/__________________ DOUGLAS E. HAMEL Attorney-In-Charge dhamel@velaw.com State Bar No. 08818300 CHRISTOPHER V. BACON Of Counsel State Bar No. 01493980 2300 First City Tower 1001 Fannin Street Houston, Texas 77002-6760 (713) 758-2036 (Telephone) (713) 615-5388 (Telecopy)
Attorneys for Defendant, LUFKIN INDUSTRIES, INC.

CERTIFICATE OF SERVICE I certify that on this 20th day of April 2009, a copy of the foregoing document was filed electronically through the Court’s CM/ECF System and was automatically copied to Plaintiffs through the Court’s electronic filing system.

____________/s/____________________ Attorney for Defendant

-7-
Houston 3935335v.6

 
 Case 9:97-cv-00063-RC Document 630 Filed 04/17/2009 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION

SYLVESTER MCCLAIN, on his own

§

behalf and on behalf of a class of similarly §

situated persons, et al.,

§

§

Plaintiffs,

§

vs.

§

§

LUFKIN INDUSTRIES,

§

§

Defendant.

§

CIVIL ACTION NO. 9:97-CV-063 JUDGE CLARK

DEFENDANT LUFKIN’S MOTION FOR PARTIAL SUMMARY JUDGMENT Reversing Judge Cobb’s finding that Sylvester McClain’s charge of discrimination
exhausted administrative remedies for the class,1 the Fifth Circuit found that the class
administrative remedy was first exhausted by the EEOC charge filed by Buford Thomas on
February 24, 1998. Because Thomas’ charge is now the operative charge, promotion claims
occurring before April 2, 1996, 300 days before the Thomas charge was filed, are barred by
limitations. 42 U.S.C. § 2000e-5(e)(i). As a matter of law, the change in the limitations period
precludes a finding of disparate impact in salaried promotions because there is no time period
from April 2, 1996 forward in which a significant statistical disparity in the number of AfricanAmerican promotions to salaried positions exists. 2 United Air Lines, Inc. v. Evans, 431 U.S.
553, 558 (1977) (“A discriminatory act which is not made the basis for a timely charge is the
legal equivalent of a discriminatory act which occurred before the statute was passed. It may
1 See McClain v. Lufkin Industries, 519 F.3d 264, 274 (5th Cir. 2008) (“McClain’s letter failed to identify any neutral employment policy” but Thomas’s complaint “presents a close question of exhaustion directed at a discriminatory, albeit neutral, company policy authorizing subjective promotion decisions”). See also Thomas EEOC Charge, attached as Exhibit A. 2 While Lufkin still disagrees with Plaintiffs’ expert’s approach, Lufkin respects that the Fifth Circuit found that Judge Cobb did not abuse his discretion in accepting this methodology and, therefore, Lufkin does not challenge this methodology with respect to the data introduced at trial.

Case 9:97-cv-00063-RC Document 630 Filed 04/17/2009 Page 2 of 7
constitute relevant background evidence in a proceeding in which the status of a current practice is at issue, but separately considered, it is merely an unfortunate event in history which has no present legal consequences.”); Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 619 (2007).
While the impact on total back pay award is small – the parties have agreed that the lost pay attributed to salaried promotions for the period 1994-2002 is $237,923 – the absence of disparate impact in salaried promotions is important to the scope of injunctive relief. Therefore, Lufkin moves for summary judgment on Plaintiffs claims of disparate impact discrimination in salaried positions.
STATEMENT OF UNDISPUTED FACTS In analyzing promotions into and within salaried positions for the original liability period of March 6, 1994 through 2002, Plaintiffs’ statistical expert found:
Blacks received 34 out of 386 promotions into salaried positions into salaried positions during the liability period, while they were expected to receive 42.85 promotions based on their availability. This shortfall of 8.85 promotions represents a loss of 20 % of the expected promotions. The Z-value for this disparity is -2.02, indicating a statistically significant shortfall of black promotions into salaried positions. Plaintiff’s Trial Exhibit 1 at 24, attached as Exhibit B without exhibits. Both the trial court and the Fifth Circuit held that this discrepancy was statistically significant. Amended Final Judgment at 29, DKT 552; 519 F.23d at 280 (5th Cir. 2008). If Plaintiffs’ expert had applied his same methodology to any period (including time periods to 2007) but excluded those salaried promotions barred by limitations, there would have been no statistically significant shortfall in African-American promotions to or within salaried
-2-

Case 9:97-cv-00063-RC Document 630 Filed 04/17/2009 Page 3 of 7
positions in any time period.3 Applying the same methodology the Plaintiffs’ expert applied on the 1994 through 2002 period, Lufkin’s expert analyzed the time period that would be established by the Thomas charge and found no statistically significant discrepancy (at 1.62 standard deviations). See Second Declaration of Mary Baker, attached as Exhibit B (“Baker Declaration”).
ARGUMENT A. Without a Statistically Significant Disparity there can be no disparate impact
discrimination. As is required, the lynchpin of Plaintiffs proof was statistical evidence. Judge Cobb did not require the Plaintiffs to prove any individual case of discrimination so long as they had sufficient statistical proof to make out a case of disparate impact. Amended Final Judgment at 13, DKT 552 (Aug. 29, 2005). However, in addition to challenging Plaintiffs’ statistical expert’s methodology, Lufkin urged the trial court to be cautious in drawing inferences from 2.02 standard deviations on grounds that it was a borderline statistic.4 See, e.g., EEOC v. Federal Reserve Bank of Richmond, 698 F.2d 633, 651 (5th Cir. 1983) (rejecting standard deviation of 2.07), rev’d on other grounds, 467 U.S. 867 (1984). Finding that the district court did not abuse its discretion in accepting Plaintiffs’ statistical methods or statistical significance at 2.02 standard deviations, the Fifth Circuit affirmed the finding of disparate impact. Because the trial court erroneously found the class was defined by McClain’s charge, it did not consider whether the statistical significance of the disparity was driven by promotions
3 Although Lufkin does not believe the post 2002 period relevant to this case as no statistical evidence was taken with respect to that period at trial, new data shows whether one examines salaried promotions from 1996 to 2002 or 1996 to the present, or even 1994 to 2007, there is not a statistically significant disparity in salaried promotions. See Baker Declaration. 4 As shown by new data, any inference drawn from the 1994-2002 data evaporates as there is no statistically significant disparity in salaried promotions in any time period from 1994 to 2007 except for the particular period 1994-2002. For example, the disparity from 1994-2007 is not significant (at 1.61 standard deviations), nor is the disparity from 1996-2007 (at 1.21 standard deviations). See Baker Declaration at Table 1.
-3-

Case 9:97-cv-00063-RC Document 630 Filed 04/17/2009 Page 4 of 7
outside of the limitations period established by the Thomas charge. In fact, no evidence was taken on this issue. Had such evidence been taken, Plaintiffs’ statistical analysis would have concluded that there was no statistically significant adverse impact (at 1.62 standard deviations) during the period from 1996 through 2002; that is, any discrepancy between expected and observed number of salaried promotions may be nothing more than mere chance. See, e.g. Castaneda v. Partida, 430 U.S. 482, 496 n. 17 (1977), and Hazelwood School District v. United States, 433 U.S. 299, 309 (1977).
Disparate impact discrimination requires proof by “statistical evidence of a kind and degree sufficient to show the practice in question has caused the exclusion of applicants for jobs or promotions because of their membership in a protected group.” Watson v. Ft. Worth Bank and Trust, 487 U.S. 977, 994 (1988). As a result of the Fifth Circuit’s ruling on the McClain charge, the “practice in question” is whether Lufkin’s excessive subjectivity during the period April 2, 1996 to 2002 created a statistically significant disparity in promotions awarded AfricanAmericans.
The two-standard deviations test is roughly comparable to a 0.05 level of statistical significance, the conventional threshold of statistical significance in the social sciences which has been accepted by the courts.5 REFERENCE MANUAL ON SCIENTIFIC EVIDENCE (Fed. Judicial Center, 2d ed. 2000) at 380. Disparities of less than two-standard deviations, which may by the product of chance, cannot establish the requisite causation for disparate impact discrimination as they are consistent with the outcome of a race-neutral process. See Baker Declaration at ¶ 6.
In Hazelwood, the Supreme Court stated that statistics should be limited to the relevant time period. 433 U.S. at 309. Promotions outside of the relevant time period are not relevant.
5 To be more precise, 0.05 level of statistical significance is equal to 1.96 standard deviations. Palmer v. Shultz, 815 F.2d 84, 92 (D.C. Cir. 1987).
-4-

Case 9:97-cv-00063-RC Document 630 Filed 04/17/2009 Page 5 of 7
Movement for Opportunity & Equality v. General Motors Corp., 622 F.2d 1235, 1245 (7th Cir. 1980) (employment decisions made more than 300 days before filing of EEOC charge should be excluded from statistical comparison); Eubanks v. Pickens-Bond Constr. Co., 635 F.2d 1341, 1348 (8th Cir. 1980) (in promotion case, focus should not be on the percentage of African Americans in job in question, but on number of African Americans selected for promotion during the relevant time period); Ste. Marie v. Easter R.R. Ass’n, 650 F.2d 395, 401-02 (2d Cir. 1981) (statistics purporting to demonstrate discrimination in promotion must exclude those promotions prior to liability period). While courts have considered evidence predating the statute of limitations in cases involving “continuing violations,” the Supreme Court’s recent decision in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), precludes the application of the continuing violation theory to discrete acts such as promotions. B. This Court is Not Precluded by the Fifth Circuit’s Mandate or the Law of the Case
From Granting Summary Judgment on the Salaried Promotion Claims Because This Issue Was Not Considered by the Fifth Circuit. The law of the case doctrine does not prevent the trial court from granting partial summary judgment because the Court of Appeals has never addressed the issues presented in this motion for partial summary judgment. Conway v. Chemical Leaman Tank Lines, Inc., 644 F.2d 1059, 1061 (5th Cir. 1981) (“[T]he law of the case established by a prior appeal does not extend to preclude consideration of issues not presented or decided…”). While Lufkin did argue on appeal that Sylvester McClain’s charge did not properly exhaust administrative remedies, Lufkin did not challenge Thomas’ charge because the trial court did not rely on it. Lufkin had no reason to anticipate that the Court of Appeals would rely on Thomas’ charge and, therefore, Lufkin did not address the limitations period that would apply if Thomas’ charge was the operative charge in its original briefing. Moreover, no evidence was
-5-

Case 9:97-cv-00063-RC Document 630 Filed 04/17/2009 Page 6 of 7
presented at trial regarding the statistical significance of the salaried promotion data after the limitations period established by Thomas’ charge.
In its Petition for Panel Rehearing, Lufkin did argue that the case should have been remanded for a new finding on liability on both the hourly and salaried promotions, because Judge Cobb had predicated his findings on the liability period established by McClain’s charge rather than Thomas’s charge.6 The Court of Appeals denied Lufkin’s motion for rehearing, but that denial does not amount to an express decision on the merits of the arguments the motion presented. See Alpha/Omega Ins. Servs, Inc., 272 F.3d 276, 281 (5th Cir. 2001). Therefore, since issues stemming from the finding on exhaustion that affect the promotion claims, with regard to both liability and damages, have not been decided by the Court of appeals, this Court free to do so.
CONCLUSION Even applying Plaintiffs’ statistician’s methodology, Plaintiffs are not able to show a statistically significant disparity for African-American promotions into Lufkin’s salaried jobs after April 2, 1996. Without a statistically significant disparity, there cannot be disparate impact discrimination. Accordingly, summary judgment should be granted on Plaintiffs’ claims of promotion discrimination into salaried jobs.

6

Defendant-Appellee and Cross-Appellant’s Petition for Panel Rehearing, p. 7-15.

-6-

Case 9:97-cv-00063-RC Document 630 Filed 04/17/2009 Page 7 of 7

OF COUNSEL:
VINSON & ELKINS L.L.P. 1001 Fannin Street Houston, Texas 77002-6760

Respectfully submitted,
____________/s/__________________ DOUGLAS E. HAMEL Attorney-In-Charge dhamel@velaw.com State Bar No. 08818300 CHRISTOPHER V. BACON Of Counsel State Bar No. 01493980 2300 First City Tower 1001 Fannin Street Houston, Texas 77002-6760 (713) 758-2036 (Telephone) (713) 615-5388 (Telecopy)
Attorneys for Defendant, LUFKIN INDUSTRIES, INC.

CERTIFICATE OF SERVICE I certify that on this 17th day of April 2009, a copy of the foregoing document was filed electronically through the Court’s CM/ECF System and was automatically copied to Plaintiffs through the Court’s electronic filing system.

____________/s/____________________ Attorney for Defendant

-7-
Houston 3935335v.6

 
 Case 9:97-cv-00063-HC Document 484-1 Filed 02/23/2005 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION

SYLVESTER MCCLAIN, on his own

§

behalf and on behalf of a class of similarly §

situated persons, et al.,

§

§

Plaintiffs,

§

vs.

§

§

LUFKIN INDUSTRIES,

§

§

Defendant.

§

CIVIL ACTION NO. 9:97-CV-063 JUDGE COBB

DEFENDANT LUFKIN INDUSTRIES, INC.’S MOTION FOR PROTECTION FROM PLAINTIFFS’ FIFTH REQUEST FOR
PRODUCTION OF DOCUMENTS
Defendant Lufkin Industries, Inc. (“Lufkin”) moves for protection from Plaintiff’s Fifth

Request for Production of Documents, which seeks information about Lufkin’s attorneys’ fees

and costs. The Fifth Circuit has held that a non-prevailing party’s attorneys’ fees are not relevant

to the prevailing party’s entitlement (or lack of entitlement) to attorneys’ fees. The only

conceivable purpose for Plaintiffs’ discovery request was to coerce Lufkin to agree to stipulate to

the reasonableness of Plaintiffs’ billing rates and the time spent by Plaintiffs’ counsel on this

case. This Motion is being filed simultaneously with Lufkin’s Response to Plaintiffs’ Request to

Shorten Time Within Which Defendant Lufkin Industries, Inc. Must Respond to Plaintiffs’

Request for Production of Documents.

A. The Fifth Circuit Has Determined that a Fee Opponents’ Fee and Cost Records are Irrelevant to the Inquiry into Whether a Fee and Cost Request is Reasonable.
Plaintiffs must first satisfy the threshold requirement of relevance to its claim of

attorneys’ fees and costs in order to obtain discovery of Lufkin’s fee and cost records. FED. R.

CIV. P. 26(b)(1) (“Parties may obtain discovery regarding any matter, not privileged, that is

relevant to the claim or defense of any party”). In Harkless v. Sweeny Indep. School Dist., 608

Case 9:97-cv-00063-HC Document 484-1 Filed 02/23/2005 Page 2 of 7
F.2d 594, 598 (5th Cir. 1979), the Fifth Circuit stated explicitly that the fact “[t]hat defense counsel spent significantly less on this case than did counsel for the Plaintiffs is irrelevant so long as all compensated work was necessary and performed in an expeditious manner.” (emphasis added).1 Harkless is directly on point as Defendant’s attorneys’ fees are significantly less than the “fair estimate” filed by Plaintiff.2
Subsequent Fifth Circuit district courts have followed Harkless. For example, the Eastern District of Louisiana in Grantham v. Moffett, C.A. No. 93-4007 Section “N”(3), 1996 WL 3750, at *10-11 (E.D. La. Jan. 3, 1996), held that the difference between a defendant’s and plaintiff’s proposed rates “have little relevance when determining an appropriate basis upon which to set Plaintiff’s counsel’s rates” (citing Mirabel v. General Motors Acceptance Corp., 576 F.2d 729, 731 (7th Cir. 1978) and Brooks v. Georgia State Bd. of Elections, 997 F.2d 857, 869 (11th Cir. 1993)).3
Harkless has also been held controlling in Texas state courts. A Texas court of appeals cited Harkless in granting mandamus remedying a trial courts’ abuse of discretion in ordering discovery of defendant’s fee records in support of plaintiffs’ fee applications. See MCI Telecomm. Corp. v. Crowley, 899 S.W.2d 399, 404 n.4 (Tex. App.—Forth Worth 1995, rehearing denied) (“And in any event, the Fifth Circuit, which we would look to for controlling
1 Harkless was a race discrimination case brought under 42 U.S.C. § 1988 by several black school teachers against Sweeny Independent School District alleging racial discrimination in the School District’s decision not to rehire them for the 1966-67 school year, the first in which the School District desegregated its schools. 2 Because Plaintiffs sought expedited discovery, Defendant’s counsel conducted a preliminary review of fees. Defendant’s total fees are approximately $2 million less than Plaintiffs’ “fair estimate” amount. 3 Grantham was a disability discrimination case brought under Title II of the Americans with Disabilities Act by Nadelle Grantham against several administration officials at Southeastern Louisiana University alleging that the officials dismissed her from the elementary education program at the University because she is deaf.
-2-

Case 9:97-cv-00063-HC Document 484-1 Filed 02/23/2005 Page 3 of 7
authority if state law did not provide an answer, has indicated that a defendant’s attorneys’ fees are irrelevant to a prevailing plaintiff’s” (citing Harkless)).4
The Fifth Circuit is not alone in holding that that the non-prevailing party’s fees are not relevant to a prevailing party’s request for fees. The Seventh Circuit in Mirabel, in rejecting the plaintiff’s request to be awarded a fee based on what the opposing side spent in time and money, held that “the amount of fees which one side is paid by its client is a matter involving various motivations in an on-going attorney-client relationship and may, therefore, have little relevance to the value which petitioner has provided to his clients in a given case.” Mirabel, 576 F.2d at 731. Similarly, the Eleventh Circuit in Brooks, in rejecting a district court panel’s hourly rate determination, determined that “the hourly rate at which opposing counsel was paid is of little or no relevance.” Brooks, 997 F.2d 857, 869.
Also, in Samuel v. University of Pittsburgh, 80 F.R.D. 293 (W.D. Pa. 1978), in denying the plaintiffs’ motion to compel discovery of the billing rates and hours charged by defendants’ counsel, the district court held that “the number of hours required by opposing counsel to defend a claim has little relevance to the reasonableness of the number of hours which plaintiffs’ counsel devoted to pursuing a cause of action on behalf of a plaintiff,” and similarly, “the hourly rate of defense counsel is not relevant to the reasonableness of the hourly rate sought by a plaintiff’s counsel.” Id. at 294-96.
4MCI was a sexual harassment and sex discrimination case brought under Texas law by two female employees of MCI against MCI. Interrogatories were served on MCI asking for the names and billing rates of all attorneys (inhouse and outside counsel) and paralegals who had represented MCI in the case; the number of hours that those attorneys and paralegals had worked on the case; and the total amount of legal fees and expenses incurred by MCI in the case. See MCI, 899 S.W.2d at 401-402.
-3-

Case 9:97-cv-00063-HC Document 484-1 Filed 02/23/2005 Page 4 of 7
In contrast, Plaintiffs not only ignore the Fifth Circuit’s precedential decision, but cite no other appellate decision. Instead, Plaintiffs rely solely on a few district court decisions from other circuits. (See Plaintiffs’ Motion at 4). B. In Addition, a Non-prevailing Party’s Attorneys’ Fees Is Not One of the Factors the
Fifth Circuit Considers In Evaluating the Reasonableness of a Proposed Fee Award. Fee applicants have the burden of demonstrating the reasonableness of the hours expended and the prevailing market nature of the rates requested. Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984). The Fifth Circuit uses the “lodestar method” to calculate attorneys’ fees; and, in assessing the reasonableness of attorneys’ fees, it has stated that “a district court must examine the factors set out in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974).” Riley v. City of Jackson, 99 F.3d 757, 760 (5th Cir. 1996). Those factors are: (1) the time and labor required, (2) the novelty and difficulty of the issues, (3) the skill required to perform the legal services properly, (4) the preclusion of other employment, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the undesirability of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases. Johnson, 488 F.2d at 717-19. It is noteworthy that a non-prevailing party’s attorneys’ fees is not included as one of the factors in this list. Coupled with the Fifth Circuit’s decision in Harkless, as well as the decisions from other appellate courts, it is clear that a fee opponents’ fee and costs records are irrelevant to the inquiry into whether a fee and cost request is reasonable, and as such, discovery of those records, as governed by FRCP 26(b)(1), should not be permitted.
-4-

Case 9:97-cv-00063-HC Document 484-1 Filed 02/23/2005 Page 5 of 7
C. The Purpose for Plaintiffs’ Request Was to Coerce a Stipulation that Plaintiffs’ Billing Rates and the Time Expended on This Case Have Been Reasonable. In a letter to Lufkin on January 27, 2005, Plaintiffs warned Lufkin that “if Lufkin intends
to challenge the reasonableness of either plaintiffs’ counsel’s hours or hourly rates, it may be necessary for plaintiffs to conduct discovery on the total hours Lufkin’s counsel billed to this matter and your firm’s billing rates.” (See Plaintiffs’ Motion, Exhibit 1 at n.1). In their February 2, 2005 letter to Lufkin seeking Lufkin’s fee and cost records – after Lufkin expressed its belief that Plaintiffs’ counsel’s hourly rates and hours billed were unreasonable – Plaintiffs again warned Lufkin that “in the event Lufkin declines to disclose the information voluntarily, plaintiffs will seek production of the information on a expedited basis.” (See Plaintiffs’ Motion, Exhibit 3 at 2).
Lufkin responded to Plaintiffs in a letter on February 7, 2005 informing Plaintiffs that the Fifth Circuit has held that a non-prevailing party’s attorneys’ fees are not relevant in determining the reasonableness of a fee applicants’ request. (See Plaintiffs’ Motion, Exhibit 4 at 2). Nevertheless, the next day, Plaintiffs both served on Lufkin their request for production seeking Lufkin’s fee and cost records and filed a motion to shorten time. The requests are inappropriate and serve no purpose in this litigation. Given that Fifth Circuit law is clear that a non-prevailing party’s attorneys’ fees are irrelevant to a prevailing party’s claim for fees, the request should be denied and the Court should enter an order preventing Plaintiffs from seeking discovery of this information.
-5-

Case 9:97-cv-00063-HC Document 484-1 Filed 02/23/2005 Page 6 of 7

Respectfully submitted,

OF COUNSEL:
VINSON & ELKINS L.L.P. 1001 Fannin Street Houston, Texas 77002-6760

____________/s/__________________ DOUGLAS E. HAMEL Attorney-In-Charge dhamel@velaw.com State Bar No. 08818300 CHRISTOPHER V. BACON Of Counsel State Bar No. 01493980 2300 First City Tower 1001 Fannin Street Houston, Texas 77002-6760 (713) 758-2036 (Telephone) (713) 615-5388 (Telecopy)
Attorneys for Defendant, LUFKIN INDUSTRIES, INC.

CERTIFICATE OF SERVICE
I certify that on this 23rd day of February, 2005, a copy of the foregoing Defendant Lufkin Industries, Inc.’s Motion for Protection from Plaintiffs’ Fifth Request for Production of Documents was filed electronically through the Court’s CM/ECF System and was automatically copied to Plaintiffs through the Court’s electronic filing system.

_____________/s/________________ Attorney for Defendant

-6-

Case 9:97-cv-00063-HC Document 484-1 Filed 02/23/2005 Page 7 of 7 CERTIFICATE OF CONFERENCE
Pursuant to FRCP 26(c) and Local Rule CV-7(h), Lufkin’s counsel has conferred with Plaintiffs’ counsel in a good faith attempt to resolve the matter without court intervention. Plaintiffs’ counsel communicated their opposition to this motion.
_____________/s/________________ Attorney for Defendant
2101083_4.DOC
-7-

 
 Case 9:97-cv-0006~-HC Document 263 Filed 09/2912003 Page 1 of 19

IN THE UNITED STATES DISTRICT COURT FiLED - CLt:R K FOR THE EASTERN DISTRICT OF TEXASJ.S. [Il;~ T" Ie"!" COURT

LUFKIN DIVISION

SYLVESTER MCCLAIN, on his own

§

behalf and on behalf of a class of similarly §

situated persons, et aI.,

§

P"1 "): 5I "f;',,'3 ,:r P " .......~

v t- i

'L1

0
i

I :J

TX EAST[f~l'~ ~

-~ BY _ _

§

Plaintiffs,

§

CIVIL ACTION NO. 9:97-CV-063

vs.

§

§

JUDGE COBB

LUFKIN INDUSTRIES,

§

§

Defendant.

§

DEFENDANT LUFKIN INDUSTRIES' MOTION FOR PARTIAL SUMMARY JUDGMENT

Defendant Lufkin Industries, Inc, moves for partial summary judgment on Plaintiffs'

initial assignment claims, which are based solely on the factually unsupported allegation that

there is a statistically significant over-assignment of African-American employees to the entry level position of General Foundryman. 1 Plaintiffs' initial assignment allegations do not state a

claim because they were not included in the EEOC charge of either Sylvester McClain or Buford

Thomas, on which this lawsuit is predicated.

I.

Plaintiff Fails To State A Timely Initial Assignment Claim.2

Plaintiffs' class initial assignment claims proceed solely on the basis of the EEOC

charges of the named Plaintiffs - Sylvester McClain and Buford Thomas. Sylvester McClain

was hired by Lufkin Industries on February 16, 1972 in its Trailer division. On August 12, 1996,

Plaintiffs also challenge Lufkin's employment processes with respect to (i) promotions and advancement for hourly jobs, and (ii) pay rates of hourly employees. This motion is limited to Plaintiffs' initial assignment claim.

2

Contrary to Plaintiffs' claims from time to time, this is not a hiring case. The Court has never

certified a class of applicants and has specifically rejected past attempts by Plaintiffs to add additional

class representatives to represent an applicant class. (Order of March 31, 1999, denying Plaintiffs'

Motion for Leave to File First Amended Supplemental Complaint Adding Eric Knighton As A Plaintiff).

Case 97-cv-00063-=HC Document 263· Filed 09/29/2003 Page 2 of 19
McClain filed a charge of race discrimination with the EEOC, complaining about his demotion from Quality Manager to Inspector on January 6, 1996 and alleging that "[s]ince January of 1995 and continuing, I have been subjected to different terms and conditions of employment by being denied comparable training, access to supplies and equipment needed to do a satisfactry [sic] job; given unsatisfactory evaluations." (Ex. 1, McClain EEOC Charge). McClain further complained about "low pay" in other documents submitted to the EEOC. (/d. at Intake Questionnaire).
Buford Thomas' charge is no different. (Ex. 2, Thomas EEOC Charge). Buford Thomas was hired by Lufkin Industries in May 1979 in its Power Transmission Division. (/d.). Following his resignation in May 1996, on February 24, 1997, Thomas filed a charge of race discrimination with the EEOC, alleging constructive discharge, denial of promotional and training opportunities, and being "required to not only do my own work, but also that of my white colleagues." (Id.).
Notably missing from McClain's and Thomas' EEOC charge and other correspondence is any allegation or complaint about initial assignment generally, much less initial assignment to the Foundry division as alleged in this lawsuit. Furthennore, both McClain and Thomas would have been statutorily time-barred from asserting an initial assignment claim based on their own employment experience. See Huckabay v. Moore, 142 F.3d 233, 238 (5th Cir. 1998). At the time McClain and Thomas complained to the EEOC, more than 15 years had passed since Thomas' hiring and initial assignment to Power Transmission, and more than 20 years had passed since McClain's hiring and initial assignment to Oilfield and rehire and initial assignment to Trailer. (Ex. 1 & Ex. 2).
While it is not disputed that class members may "piggyback" on the EEOC charge of a named plaintiff, to enjoy the benefits of the "single filing rule," class members must be similarly
2

Case 97-cv-00063:HC Document 263 Filed 09/29/2003 Page 3 of 19
situated to the person or persons actually filing the EEOC complaint. See Bettcher v. Brown Schs., Inc., 262 F.3d 492, 494 (5th Cir. 2001); Allen v. United States Steel Corp., 665 F.2d 689, 695 (5th Cir. 1982) ("[I]n a multiple-plaintiff, non-class action suit, if one plaintiff has filed a timely EEOC complaint as to that plaintiffs individual claim, then co-plaintiffs with individual claims arising out of similar discriminatory treatment in the same time frame need not have satisfied the filing requirement.").
Applying the well-established principles articulated in Allen and other "single filing" cases, the only issues that may be brought in this action by class members "piggybacking" on McClain's and Thomas's EEOC charges are those practices properly asserted by McClain and Thomas in their EEOC charges and reasserted in the complaint. Oatis v. Crown Zellerbach Corp., 398 F.2d 496, 499 (5th Cir. 1968). Because McClain and Thomas did not assert - and could not have properly asserted - hiring or initial assignment claims, these issues may not be considered in this action. Id; see also Allen, 665 F.2d at 696 ("[P]laintiffs ... who have not themselves filed timely EEOC complaints, cannot rely upon the EEOC complaint of another, when the latter complaint itself is not timely as to the filing party's own individual claims.").
Nor is Plaintiffs' class initial assignment claim saved by the reasonable expectation rule announced in Sanchez v. Standard Brand, Inc., 431 F.2d 455 (5th Cir. 1970), which addresses the scope of judicial complaints brought by an individual who filed a timely EEOC charge. In such cases, the judicial complaint is limited to the scope of the EEOC investigation which can reasonably be expected to grow out of the charge. (Id.) The reasonable expectation rule requires that the scope of allegations made in a judicial complaint be "like or related" to allegations made in the EEOC charge. (Id.) Plaintiffs may not bootstrap a proper claim, however, simply through the intervention of class representatives. Unless the other class representatives filed charges with
3

Case 9:97-cv-0006~HC Document 263 Filed 09/29/2003 Page 4 of 19
"
the EEOC, they and other class members must proceed "within the periphery of the issues which [the named plaintiffs] could assert." Vuyanich v. Republic Nat'l Bank ofDallas, 723 F.2d 1195, 1201 (5th Cir. 1984) (citing Oatis, 398 F.2d at 499). Because McClain and Thomas did not file a charge asserting an initial assignment claim and any such charge would have been untimely as to McClain and Thomas, it is not a claim which they "could assert," and therefore neither can the class.
It is also beyond cavil that Thomas' and McClain's charges would not reasonably be expected to initiate an investigation of hiring and initial assignment in Lufkin's Foundry. Since Thomas and McClain were hired and assigned to divisions other than Foundry, there would have been no basis to investigate a claim that black entry-level employees are relegated to the Foundry division as alleged in this lawsuit. There is likewise no basis to suggest that the EEOC would have investigated employment and assignment decisions accruing 15 or 20 years before a charge was filed. Thomas, who was initially hired in Power Transmission, makes no mention of the Foundry in his charge. McClain, who was initially hired in Oilfield and, when rehired in 1972, assigned to the Trailer division, specifies that the organization charged in his complaint is "Lufkin IndustrieslTrailer Division." (Ex. 1, Intake Questionnaire) (emphasis added).
The McClain and Thomas EEOC charges simply will not support Plaintiffs' class initial assignment claims. See, e.g., Evans v. US. Pipe & Foundry Co., 696 F.2d 925, 929 (lIth Cir. 1983) (holding that district court did not err in denying class certification on initial job assignmentlhiring claims because EEOC charge only alleged discrimination in promotions, unspecified terms and conditions of employment, harassment, and union representation); Dennis v, County of Fairfax, 55 F.3d 151, 156 (4th Cir. 1995) (affirming district court's dismissal of hiring claim as a matter of law because EEOC charge only alleged "disparate disciplinary
4

Case 97-cv-00063.:HC Document 263 Filed 09/29/2003 Page 5 of 19

treatment"); Hyatt v. CNG Producing Co., No. 91-4654 §G, 1992 U.S. Dist. LEXIS 17017, at **12-13 (E.D. La. Oct. 28, 1992) (dismissing as a matter oflaw discriminatory job assignment claim because EEOC charge alleged only discriminatory discharge) Gustafson, Inc. v. Bunch, No. 3:97-CV-2102-D, 83 Fair Empl. Prac. Cas. (BNA) 375, 1999 U.S. Dist. LEXIS 7107, at **21-22 (N.D. Tex. May 7, 1999) (dismissing as a matter of law claim that employer "unlawfully discriminated by failing to hire [the plaintiff] for other jobs" because EEOC charges alleged only "discrimination arising from Gustafson's decision not to hire him for the Northeast Territory TSR position" and retaliation); Simmons v. Iberville Operating Co., No. 89-3483, 1990 U.S. Dist. LEXIS 1336, at **10-12 (E.D. La. Feb. 2, 1990) (dismissing as a matter oflaw claims regarding "discrimination resulting from allegedly segregated job classifications, job assignments, [and] refusals to hire" because EEOC charges only alleged discriminatory demotion, harassment, suspension, and retaliatory discharge). Cf Thomas v. Capital Sec. Servs., 836 F.2d 866, 884 (5th Cir. 1988) (discussing possible Rule 11 sanctions based on plaintiffs' counsel's "expansion of the judicial complaint beyond the EEOC complaint," in that the EEOC charges alleged discriminatory layoff but the complaint included "shotgun allegations" such as hiring, promotion, and on-the-job treatment claims).3

3

See also Hubbard v. Rubbermaid, Inc., 436 F. Supp. 1184, 1187 (D. Md. 1977) (granting

employer's motion to dismiss as a matter oflaw "recruitment, job classification, hiring, [and] assignment"

claims because EEOC charge only alleged discrimination in wages, benefits, and terms and conditions of

employment); Jackson v. Ohio Bell Tel. Co., 555 F. Supp. 80, 83 (S.D. Ohio 1982) (dismissing as a

matter of law job assignment claim because EEOC charge only alleged discrimination in termination and

discipline); Grant v. Morgan Guar. Trust Co. ofNY, 548 F. Supp. 1189, 1191-92 (S.D.N.Y 1982)

(dismissing as a matter oflaw assignment claim because EEOC charge only alleged failure-to-promote);

Combs v. C.A.R.E., Inc., 617 F. Supp. 1011, 1011-13 (E.D. Ark. 1985) (dismissing as a matter oflaw

hiring and placement claims because EEOC charge only alleged discriminatory discharge); Harris v.

Caterpillar Tractor Co., No. S-Civ.-78-3037, 1978 U.S. Dist. LEXIS 16232, at **2-4 (S.D. Ill. Aug. 1,

1978) (same); Plaisance v. Travelers Ins. Co., 880 F. Supp. 798, 805-07 (N.D. Ga. 1994) (dismissing job

assignment claim as a matter of law because EEOC charge only alleged failure-to-promote and

retaliation), aff'd, 56 F.3d 1391 (l1th Cir. 1995), cert. denied, 516 U.S. 931 (1996).

5

Case 9:97-cv-00063-=:HC Document 263 Filed 09/29/2003 Page 6 of 19

Because McClain and Thomas did not make, and could not have made, timely hiring or initial assignment claims in their EEOC charges, Plaintiffs' initial assignment claims must be dismissed as a matter oflaw.

OF COUNSEL:
VINSON & ELKINS, L.L.P. First City Tower Houston, Texas 77002-6760

T7UbffiittOO,
DOJ':~fE.~
Attomey-In-Charge dhamel@velaw.com State Bar No. 08818300 CHRISTOPHER V. BACON Of Counsel State Bar No. 01493980 MICHELLE MAHONY Of Counsel State Bar No. 24002516 2300 First City Tower 1001 Fannin Street Houston, Texas 77002-6760 (713) 758-2036 (Telephone) (713) 615-5388 (Telecopy)

CERTIFICATE OF SERVICE

I certify that on this 23rd day of September, 2003, a copy of the foregoing Defendant

Lufkin Industries' Motion for Partial Summary Judgment was forwarded to Plaintiffs by

facsimile transmission (without attachments) and by Federal Express as follows: Timothy B.

Garrigan, 2803 North Street, Nacogdoches, TX 75963-1902, (936) 560-9578, and Teresa

Demchak, Saperstein, Goldstein, Demchak & Baller, 300 Lakeside Drive, Suite 1000, Oakland,

CA 94612, (510) 835-1417.

6

Case 97-cv-00063-HC Document 263 Filed 09/29/2003 Page 7 of 19 '.
EXHIBIT
1

Case 97-cv-00063..::HC Document 263' Filed 09/29/2003 Page 8 of 19

u.s. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Houston District Office

1919 Smith St, 7th Floor

Houston, TX 77002-8049

212010] - Copies to:

PH: (713) 209-3320 TDD: (713) 209-3439 FAX: (713) 209-3381

Paul Perez

LEGAL: (713) 209-3401

John H. Smither

Douglas E. Harne] Christopher V. Bacon

CERTIFICATION OF DOCUMENTS

M. Michelle Mahony

I, Javier Chacon, Deputy Director of the Houston District Office of the Equal Employment Opportunity Commission ("Commission"), certify that:
As Deputy Director, all administrative files in the Houston District Office are under my custody, care and control;
An administrative file was prepared in the regular course ofbusiness in the Houston District Office of the Commission pertaining to Charge Number 330-96-3069, Sylvester McClain v. Lufkin Industries, Inc.;
The documents attached hereto are true and accurate copies from the above noted administrative file. I declare under penalty of perjury that the foregoing is true and correct.

JAVIER CHACON, DEPUTY DIRECTOR

I : I:~
Sworn to and Subscribed before me this _ _-'-'-,.J...-L-_ _ _ day of February

,2001.

PATRICIA P. ZUNIGA
MY COMMISSION EXPIRES
March 9, 2004

case 97-c~A~COF DlSCil1tiM:IB3f~OlNled 09/29/20031 AG1!I§ge S Of~tfGE NUMBER

ThIS 10rm 15 affected by tl completing thIS form.

'h ,

.
of 1974; See Privacy Act Sta

nt • ,

0 fEPA .KJ EEOC

110 or,. 1,(1(,,0

Texas Commission on Human Rights <'tate or local Agency, if any

and EEOC

NAME (IndIcate Mr .• Ms .• Mrs.)
Mr. Sylvester McClain
STREET ADDRESS

CITY, STATE AND ZIP CODE

HOME TEL EP H0 NE fIncl ude Area Code)
(409) 6lQ.~ l+Ob'
DATE Of BIRTH

P. O. Box 1'14 Lufkin TX 1'5901

11/11/11

NAMED IS THE EMPLOYER, LABOR ORGANIZATION, EMPLOYMENT AGENCY APPRENTICESHIP COMMITTEE,

I I STATE OR LOCAL GOVERNMENT AGENCY WHO DISCRIMINATED AGAINST ME fIr more than one list belo~.)

NAME

NUMBER OF EMPLOYEES, MEMBERS TE~~~~N~ (I~c~;~;r;a1~Ode)

Lufkin Industries

Cat A (12-100)

STREET ADDRESS

CITY, STATE AND ZIP CODE

COUNTY

Highway 69 South Lufkin TX 1'5901
NAME

005
TELEPHONE NUMBER (Include Area Code)

STREET ADUAESS

CITY, STATE AND ZIP CODE

COUNTY

CAUSE OF DISCRIMINATION BASED ON (Check appropriate box(es))

00 RACE

OCOLOR

OSEX

o RELIGION

o NATIONAL ORIGIN

o RETALIATION

OAGE

o o DISABILITY

OTHER (Spec try)

DATE DISCRIMINATION TOOK PLACE

EARLIEST

LATEST

01/06/96

01/06/96

0 CONTINUING ACTION

THE PARTICULARS ARE (Ir additional space Is needed, attach extra sheet(s)):
Since January of 1995 and continuing, I have been subjected to different terms and conditions of employment by being denied comparable training,
access to supplies and equipment needed to do a satisfactry job; given
unsatisfactory evaluations. On JanuarY-46, 1996 I was demoted from my position as Quality Manager to Inspector. Respondent is foundry that
employs more than twenty employees.

I believe that I am being discriminated against because of my race, Black, in violation of Title VII of the Civil Rights Act of 1964, as amended.

-

..

c

~ I want thls charge flIed wlth both the EEOC and the State or NOTARY· (When necessary for State and Local Requlrements)

local Agency, If any. I wl11 advlse the agencles If I change my

address or telephone number and cooperate fully wlth them In the I swear or afflrm that I have read the above charge and that

processlng of my charge In accordance with thelr procedures.

It is true to the best 01 my knOWledge, Informatlon and belle1.

I declare under penalty of perjury that the foregolng Is true and correct.

SIGNATURE OF COMPLAINANT

!

q ~J1)tak;J r1- If V

Voate
:1:0C

~ -
tORM

t
5

(Rev.

06/92)

V

ChargIng Part

(Signature;

SUBSCRIBED AND SWORN TO BEFORE ME THIS DATE
(Day, month, and year)

FILE COPY

97-cv-00063:HC Document 263' Filed 09/29/2..903 Page 10 19

"

-

EEOC USE ONLY

INTAKE QUESTIONNAIRE

Name (Intake Officed

This form is affected by the Privacy Act of 1974; see Privacy Act Statement on reverse before com letin thi s form.
Please answer the following questions, telling us briefly why you have been discriminate against in employment. An

officer of the EEOC will talk with you after you complete this form.

(Please Print)

NAME ADDRESS

5'1\V.Qf.h", f.F irs !)
e. 0- 60'1.. 1b:f

(Middle NamL: Of Initial)

V\c.,cla,O ~~ DATE
(Las!) (\e"D

IJ 5 TELEPHONE NcQj\'~Snctl,Oude(\area ~(ld.feC) ql (~Z/l

.' Lb.)

CITY kuft4-{)

'1510 ZIP CODE

I

COUNTY

P lease provide the name of an individual at a different address who is In the local area and who would know how to reach
you.

NAME

REDACTED

HONE _____________

ADDRESS

What harm, if any, was caused to you or others in

o you elieve this action was taken against you because of: (Check the one(s) that apply and specify your race, sex, age,

religij" OT enthnic identity.)

5lJ RACE

D SEX

0 RELIGION

..
0 NATIONAL ORIGIN

0 AGE

[J RETALIATION

~OLOR

o OTHER, EXPLAIN BRIEFLY BELOW

I W-? DISCRIMINATED AGAINST BY: (Check the one(s) that apply)

56 EMPLOYER

[J UNION (Give Local No.)

[J EMPLOYMENT AGENCY

[J 0 THE R (SpecifY)

ADDRESS

WHA WAS THE MOS RECENT DATE THE HARM YOU AL GED

Answer below.

, f o e CURRENT POSITION Ill.SM(

OR; I WAS EMPLOYED AS NO; I APPLIED FOR ---c(""P:-O-SI:-.U:-.on-):-----

(Position)

ON

UNTIL _ _ __

I WAS

(Date)

(Laid off. fired. elt:.)

Normally. yridentity will be disclosed to the organization which allegedly discriminated against you.

IY1 Do you

consent or D not consent to such disclosure?

Have you sought assistance about the action you think was discriminatory from any Government agency. from your union.

an attorney. or from any other source?

[J No

[~Yes (if answer is yes, complete below)

NAME OF SOURCE OF ASSIST ANCE

DATE

RESULT, IF ANY;
f~
Have you filed an EEOC Charge in the past?

[JNO

~ Yes (If answer is yes, complete below)
CHARGE NUMBER (IF KNOWN)

.

. , ,- ... ,

- ...

97-cv-00063--He 0 ocument 263' Filed 09/29/2003 Paae 11 J;lf 19

WORMATION SHEET

,

n.e EEOC bas the responsibiJity for enforcing four laws covering employment disaimination because of your
p~edlWUS:

or or Tille VB the Ciril Ri,hts JJ64, as amended (whicb COYCtS cliffermce ill trcatmcDl because of nee,
nliJiOD, D&tiooal orip. ea. or color).

Aae DiscrimiDatioa ID Employment Ad • eovaqe for pcnoDI .co yean or olcler.

Americ:ms with Disabilities Act • procec:tIlboie penoaI with diabilities.

Equal Pa, Ad • diff'cnace ill . . , . for abe lime job fuDcUaas bued GIl ICX.

PLEASE ANSWER THE FOlLOWING QUES110NS. 11IE ENlIRE PACKAGE TO mE RECEPl10NIST.

,UPON

COMPL.E110N, SIGN, DATE AND RETURN
.

1. Bow have :you beea harmed? Discharged/F"ued

• Demoted ~~

Denied. Promotion
i.e.s SUbjected to unequal treatment
Wages 'i--e~
Other:

Denied Employment
"

Suspended

.

Matemity

..

::h Who caused lIle hum: J)e,mO ,~

Date of harm: l- (g-~u.

. Title or lIle perIOD (also iDclude the race, su. lie. 'Dltional orip., etc.)

2.

au What reason ~ given for the harm? ~'''± ~ ~t£J.
-x:&SflI'f'\. ~~ hil iil ~ ~

~I~[~'h~ ~:f

e 3. Who lDformed JOU of this reason? Oc,~ ~'I' ),id»c:.

.t.

lb, Wby do you believe the harm or action tUeu llainst you was discriminatory?
1bea~S;!"a,,:!:loos. ~'€i";Q ;o:::IaQI I~I~ U2~JQ A-w1~~;)ta~~

~:Dlo6

upUO ~f\&c'll; Iso-r. ~il~:J ~ cl~~±;;f" to ~ ba.s~d fl.f,2 £>~ 1.& o±:.uib. Sa f4 rvl

5\40d~cOdS aH-Ack->

G"i 9 9;1,'=4 0 Oil \o+e~~\~,-'I'

5. lDcJude Information on othen of. different nee, sex, IWional oriIin. etc., who were created JDOre favorably

p=h osrc~bieCiU)cI-r~rthciahfn.>f'£yCou~ ID lIle

LsaLmnfedfoir s'+im-4i1la~ 1r s~it>ua'tti£onIb.1.~s±+heuy{e(IYII)<a:"A'Y'r\CQlli W0mf!rO'o0rtx.l0

ho ? til Uw h Q:C f' b~- bW~ lO of' (f..U "

"

+9 or ' -\-=ro.1~ b~Y\~ ~~~ cJt>-.s.<-d

<' UJ~t'Y1 CU~db

B- ~~'~r(t~"r+~..hD(.%~1.rI'uC ,t-)a~". vr "0".Y+\t~ at-t ".4"10~-I"zr",'IS~4Y<c~\,~.oI.,efII~"_f4:":f'f'c»a0qm, -5 ~Mr)l-'u~nj,.U,&,6.~Ui@nJI"-€".- :l

Sipature

Date

97-cv-00063:-_HC Document 263 ' Filed 09/29/2_003 Page 12 of 19

;(~~18. L l:.;lo,\';o0nt ;,~D,JOrtulll t'/ '~O,!I'iss.i')11

') 'l',j ~

1:1C' S J;' / :,llvosti ,ative ilssistant

l'his is to ac L:novIlw1ge late receipt of the Chari..-:e of Lliscri'ninatioYl pape:cs neec1in _: 11'/ si ',,:nature of 'Nhich T am now ;~ivinc as pro:npt attention as ti lIe would allow as ',dell as the extreme stressfLll comli tions
under which ~ am worJdng. This is also to inform fOU that there is much ~lOce Jeptll 0" ,:ac ts an,; int'orillatio,l to ])e'isc1.osed and investi-
ated cr):lC9,'r')j;! 111~ "01Ii.8J 0:.' eq1l81 oopo:-,t1ulit'J, pay and treatment to 1'10: bv ',ui'ldn 'l')'ailet' !)jvision / l,uf'ldn rndustries rncorpoI'atecl.
!'he ~, LSC1' imina t ion complaint that I subrni tted to you Jan. e, 199,';
consisted of discriminatory actions of unequal pay, opportunity and treatinent throu~h viciou~ slanderous attacks upon my ability and inte~ritfhased upon untruths with the deliberate intent to sterotype rne as a black jna~. The Charge of Discrimination papers that I sifned do address some of issues oL' employment discrimination practices by the
lnanagenent 0 f l;\l'ckint'railer Division that .r have suffered from as well
as Coporate ,nanagement of c.,ul.'kin Industries through their condoninG and support of thL3e discriminatory actions commltted against me.
I am as;i:.ing fOl~ a thorough investi::!o;ation into these irllmoral, unjust and illegal conditions of employment discrimination that I have sufferthrough as Nell as my family, which has caused irreoarable 11ar~,: to me anrl my family. Although many might would have give up because of the anguish and lnental fati~ue of dealing with the unfair and unjust discri,ninatory practiceR and racial sterotyping in the work place daily,
I' refuse to even entertain the thought of giving up and I am determined to stand up for justice an0 equality and for all that are oppressed also.
If you Ilave any questions or I can be of any further help please let Ine know.

97-cv-00063-HC Document 263 Filed 09/29/20P3 Page 13 19

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Case 9:97-cv-00063-I-iC -Document 263 Filed 09/29/20,03 Page 14 19

L-',...i..:.....T.~.-·.

JOB f.'ER.!'lJRMF.NCE REVIEW

Lufkin Ill.justri~s emi:;;l')ym<dIlL poiicy states tlldt Lufkin i:; an ~qua.1 OPfYX-

t-lJ.nlty .;;.nd .;lfflrmatiY';' adi·.:;.n .;mrA'=-l.;r, pl.;.dg..;,j t.) ';".:{ij.ctl t...r,,;,.::.tm';'f1t v'::' ':'8.·.:11

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my super'lisor. I as a black rnaIlag~r hd'{~ t~en the r.e-dpi~nt of th~ most

fUtlll.;;.SS a.nd vidvus attd~k3 upvn my Iflt;.:grity and pr.Jie-:~sivndlism tl1a.t I

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tj·)US an(! r?cia! sterotyping t·!! i!Y!pHcaUr')flS of inferi0r at·ility ~d aC!'l19YS'-

m~nts. l..~r. jink!fJs as rrq (.t)ss tn 196(- pri(.r to tn'=" Cbir?f Inspr?(tor jot. p0";t-

m~, alter [ had filled m and pertormed t.he lob SflUstacwry ior se/er",l mon-

ths u-ied to den'" me eouaJ opportunity when tile lob '(...-as DOst.ed and i ap-

I

•

.. ...

•

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punt It wok tile inwrveIltioIl of Nil' Frank Swvensen.lli€- Pr;-JSid€-ut and CEO

t.) pr.;;.v.;;.nt a unjust act w.~d u~)n prejudice against me as a bldck man de.-l·'n·· Jan .~... t·O '-rnl ·'o··:.;.y:j. 'fWoA yo:;;" 1 IDA0:;;" '~C' qua~1 opr:l.~;V'4l-\A".·.Uru·~b1? +..-.,U"-V'AI".."l'6t.l..l l'a~"''la' l y "'~ :;~ '~, A-, '1'~>"~t,';""1a.44-'.'1~n _ TU~~ ~.

1995, Mr. Jinkins took the unprecedent?d action of trying to h3.ve me demo-

t~ or fir~ b~us<;? of unsatisfactory work ~rformance by two of tt!~ nine

inSpf?ct(lrS that! supervis-? 0i W111(h I h::t.d n(l kno~."l1;?g~ of ~.n(j T~€-n ! di.-:\ I

took approp13r.e eorrectjve aetton to prevent It from nappemng agam I nave

had u......,... '''... and t1'H' .... _.... .h.".",.'.,n~~,7'/ t:ru.~...,t'"l_"v",,",-r..-..+_"v"..f,"l"~'.• ~_ b1_ 11t•v ~d ~·..'.. hi~v'7.~v:ne-v:lr.-."" "'1 ".·~ v_'Iooo6.v_ .... _

rkiku1~u beyond all r~aS011 b€-f<)re ail lliat ilas cause me to suHer pain dlld

anguish ·jf wtlich I would like n·j other human ~ing tv hay.;. tv g'~ tl"lfijUgh.

It has b<e-~n ,)Il!;? my fai~~ and uu:;t in God that ha:; :;u:;tail'l;;d and carrie-d m.e-

through this painful and agOnizing ordeal of suffering I have been made to

go through.

Smce I have been in this poSltJOn Tnave contmually aSl(ed for more training and equipm~nt(computer Iprinter) for recording oi statistical quality data, a
valuable tool lhat would help rn~ and others in solvillg problems. All dl"OUIlU me I S€-~ ott.l~fS getting all kind of new compu~rs, print&rs and otllH eqUipment and training '~ithout cost being be a factor y~t all I get are eAcu~s, double Sb.,d3Id5, bias evaluations, f3.ci31 ~terotyping and IO\~'cr pay, all of Which contribute to th~ d~!lia1 0f ~ual opportunity. Th~ used compu~.er 3.!ld print!?!' I r'="('i~vE>d SE>v~r:31 yE>~.rs Jg'} V\~.S obs()!E>te thHl anfJ never h(i.d thE> processmg or pnnung capabhty nF.t:"oed The recent demal of access t.o t.he

Case 9:97-cv-00063-HC Document· 263 . Filed 09/29/20.93 Page 15 19

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as a resD.. onsible black man who has worked ior tilis (:OIlloD6a.n"v ior 22 y, ears

dud d i~d.ji;'I ill lh~ <;;01!JIIlt.lI1ity at idl ~t' witt) [01 Lh~ id,:;L ~wd v~ Y>;'dI ~ hd~

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Jllst prior to 3t1 tlllS t;lkmg placp. Mr Jmkms hOllght. to my at.t.entl()n a memo

dated bad~. in l':r~ I tilat e:..rpressed concern ab~ut th~fts in the ix-out offke

wllidl $Uppo:)$;;-;jly was ~viu<;idt'llUy was Idt in hi~ iW'::0min~ offic.;- in-llliiil

tv}: ,juring tlli:; tJfii";' an·.j ·.A "ri1ih:l1 I o.:pl.;.:;t.k,n.;.·.:! 1'1im. "rli1cl.t. did t.his 11;;\S";' t.),)

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}:w)tenti8.1 fault or t?ffa')r that IS n(·t prpJif':>(1 of ;::'_!!;1 ottlH Sllf'l?pTls.-:..r (lr m.3.fl-

ger repr€-sent..ed a dei1~ratr. att.;:mpt. t,() <:rear.e imposSlble con<imons t.hat

- would

.i)rev~nt

me

from

bein2-'

a.ble

U:)

2et

tlie

job
~

done

c0ffedlv, .

YY~hen 1

responded to Ulis dlall;;-uge by wOlkillg' 12 to 15 hour days and 6 tv '{ da ys a

-n-- ,- r-r'l-'--n"- +-·!·nl- ""a" --ur- T"'-r" a''''''''' -f- ~TT-'I::."ttA.., \AI

"h- 15 (Jtl-1- U,! I.. u, 'I:: it V

ilV

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io:xv£. 'J ,~,'-::-:'.O-::U''l'l.:':'.d'w'''·-.~,1;'n4

\¥"as simpl,~ an at+...&mpt at distvrtion and a refusal t...) give m~ credit for ~~e

doo1cation I have for getting th~ jeb done, seeing l~at I do not r0cier,.~ over

time pay. Last, but not least, to a~~uso€' me haVing a defensive attit1.!(lo€' ~.A.'1'"!e!!

I am just r~spr:'nding nghtilJ.lly so ti) grr)ss mist..r~8.tm~nt ior ra.-:ial ri3-~.sN}S is

just. an attempt to trY' to cover up tl1e discnmmat,()ry tIeatmf1nt thaT. [ have

ooen recieving ior some time.

Therefon: aft:;.r much mind an,j svui Si-ar..::hlng I hav~ dedded that ~n'Jligh is

€-nougn and that mora affort ffi<l$t t.& mad;a. ~ corr~ct thi;7s.7 unju$t ~"1d uniair

u.o b ............~~cr..;. ~ f'ni ... atot'.T.. TI ac"<""":"," .. rram~~t· ill'~"

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unfair disdr·1in~fY ~:'?rite Up ~:'?it:..l}(·'-lt f!'.y !:no~I'.1!€'dgS':i!".!(! 1.0.tllC·1.lt justJ.fkation

and ,Antt! t(\t8.! (hsr~g::l.!"(t r~f'.r f'(-'f'[lP;:-'.!"!? r'f',Wy ;:'!fl-1 -Ill.'=:' prf'·(Pss ~,A[tlY:'n r Al'lt!tl€-ri

97-cv-00063-H-C Document 263 Filed 09/29/20P3 Page 16 19

'-iin !o by t!lSo !'::~~;\1 Z!!!':! c(:\n:ti!1J~i(:·'r!. I

'3..::t..,!()~....,~s-.:!g-:- ~r!:3.~ [l'"17 :!.-:-~:'·l ::1J.pS-fT!!::'::'f,

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~.t;:)nds tOf (lnd I t()("r~ t0fW'(1\ci I,() ~s ;:J (p.lflltty ;=md v~";}n3nty TE3m v.rOrlong to-

eeti1er iot" me qr,)od r')1 ali. Yee i must sa..., mat i.lle dama2'e to me Dersonallv

_'

~

r..J...

~

ctUdr':;'I;;.[essioud,liy has bo:~!l d0I!~ .:lIld Ule sufft'IiUi?- of haviIl~ tv go UlIvugil

lids f-'alflful ~)f.j02a.l ·,:,:;.ntinu.,;.s 02;;.,;.n wlvugll1Ylr. jintlns is gVlrlg v) f02tif02 Mafch

•.• A""'Ar t...A ",,_A "'At ........ .. •.• M11·t'"".1J''''''' t1.,,.~,.,:.,.~..~,~."L'...;l..:....Ul

l .. .11

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A~

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U.'i7.1.,tJ'lJ.J.c,

corr-..mit tlH~se and othl?f discriIrli:!atcry acts ag3.L.'1st me as 3. black managE.'r.

It is :3. cultural pfoNOS-rr! that must. be addre:s~d to prevent (!iscrimmatory pr~H~ti(€-s in Lulkl!1 Tr~.i!€-r D!~?!5i0n or any (At!€-r p3.rt of Lu.ikin Indnstri€-s,

especlaUy by t.hos~ tn sup~rvlsi()n who are entrnstro ~s leaders carry ont the

policies of Lufkin Industries and to be good e~illll.pies for all the men and

;,.;..,;,ni:;;·il tll~ i llil. yO;; tho;; r'Vs~vsitility tv hil.J. III ~,jiidi.i::,lvfi I d.!ii ro;;q. U.;-;)tiIi~

.:t. fijii irl'i..;.:;UgClti·jli ,)f th'l1s'I1 ·jis.:nmillClwry a·.:ts ,,:vffifi"iitt.;.,j Clg;;,.lfi:;t 111";' tJl;;,.t

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/·_'·V".n..<.,.:..>..htu.t..i..r_·.'•"• -

Resne<:tiullv

..

• I

~ylvt-st£-r ivh:C1ain Quahty Manag&r
cc: DOUG SM!TH .I PRESIDENT C~ CEO
P.~.UL PEREZ! VICF PESIDENT-HTJMAN RESOT.TRCES JIM BARBER i VICE PRESIDENT -TR..AJ LER OIVT SION

97-cv-00063-HC Document 263 - Filed 09/29/2003 Page 17 19
EXHIBIT
2

Case 97-cv-00063-I-tC Document'263 ..Filed 09/29/2003 Page 18 19

U.S. EQUAL EMPLOYMENT OPPORTUNI1Y COMMISSION

Houston District Office CERTIFICATION OF DOCUMENTS

1919 Smith Street, 7th Floor Houston, TX 77002 PH: (713) 209-3377
TDD: (713) 209-3439 FAX: (713) 209-3381 LEGAL: (713) 209-3401

I, Martha Majors, Enforcement Manager of the Houston District Office of the Equal Employment Opportunity Commission ("Commission"), certify that:
As Enforcement Manager, all administrative files ln the Houston District Office are under my custody, care and control;
An administrative file was prepared in the regular course of business in the Houston District Office of the Commission pertaining to Charge Number 330-97-1502, Buford Thomas v. Lufkin Industries, Inc.;
The documents attached hereto are true and accurate copies from the above noted administrative file. I declare under penalty of perjury that the foregoing is true and correct.

Sworn to and Subscribed before me this July, 1997.

/ ~

MANAGER day of

LETICIA GONZAlES
MY COMMISSION EXPIRES February 22, 1998

Case

97-cv-00063.,.-HC ,-Qocument 263 '_ Filed 09/29/2003 ~age 19 of 19

-.:.)

~

. CHARGF- OF DISCRIMINATION ,

':. .~
-iG'~;;;Y

.\:
CHARGI:: NU~B

-.,

F'J

.

iii . . TillS Tor. 1sthatsffefocrtleBd, by tile prl"at"'1 ·,·1,~ Of1 914; s~e "r1vac:y Ac:t State••nt before OFEPA EEOC

~-,.33©9i3502

- ___ -

• AI

Texas Commission on Human Rights SUJIe or locolA~ncy, if all)'
NAIIE (JndJCIIC~ Ifr•• Ifll .. /Irs.)

HOllE TElEPtlOllE (.lD

..'.:'

=1 ~

~

....-"'""

-.~

. A~)

Mr. Bufo

',J

STREET ADDRE

NAMED IS THE EMPLOYER, LABOR ORGANIZAT~ON, EMPLOYMENT AGENCY APPRENTICESHIP COMMITTEE, STATE OR LOCAL GOVERNMENT AGENCY WHO DISCRIMINATED AGAINST ME Or_~ ,fuln on~ 1111' lwlor.) - .•'

HAIlE
Luf~_il] __ ~ndustries,
STREET A!lORES!> .

Inc.

NUIIBER OF EIIPLOYEES. IIEIlDERS

~re than '20 to::

...,.0 CIT.Y.•. ST.ATE

UP CODE

TelEPHONE (.lDcrllld6 An. CtMU)
.

NAIIE

STREET ADDRESS

CITY. SlAlE ~O ZIP CODE

.. ON BASED ON (Ch=4 IIpproprJIIU boz(es))

ag RACE·~-. -00 COLOR

0 " - ' 0 SEX -- t::J lIEtIGION' . ' NATIONAL-aRlal"

o RETALIATION

0 D A G E 'L-....'I DISABILITY

OTHER (Sp~cJry)

. ---""T-- - ----

DATE DISCRIUINATION TOOK PLACE

UJILlEST

. u.~

.----.-~-.-.---- ---..:...~

.ay', ''1979'" "(}5j17/96

.' ":-.:-- ..

.' p~r~onaL Ha:m and~ wrongf~{~cli~;g-;,-,=-:--::-::-;·;:~

: ~•

:.

. : .. f •

------A~----I· am a black Africa'n-Aineric:~n::":"--':':'

_-- -- ----:-.--..

~.-- ...--_.,-,._- ~

;..J' _

.-----.--" .... -._-_.-- .... _.

B. I began working for Respondent in May of 1979, and worked in' a variety of positions"lmtil'}o!ay ,~996, when I -wa-s'constructively discharged. At alltimes·relevant hereto I was a loyal, hard'
working, qualified, competent employee. . -.---- .- .- -- ----.'.- ".-. C. During my tenure I was denied promotional andtraini'ng opportunities

-'because of my race.

-----.----.- ..--- ..

D. During my tenure I was required to not only do my 'own 'work, but'-al:so

that of white colleagues·.. White colleagues Ifl~re not required to

do my work. I was overly burdened with work because of mrrace. E. Because of the denial.of 'ppportun~ty for advancement, and because I

was being overloaded with work, l' reasonaoly'felt compelled to'"

__._-_.--_._ __ --- --.--.- -.- -- resi,gn on ~ay17, 19?6~ ---.-...

.. ... ...._--_:..-..---~ ,.-

- -. . .. .. ...... ... .~. ---....
..::--- ..-...:..~-.-.::...--,;...:- -~--

...

II. 'Respondents' Reasons for Adverse Actions

••

4

___ •

_ .... .. ....- '-~'''-

I have no idea; ! a.--:: sure they will come up with something~ ·bu.t .the real

reason is that'I am a black African.American.
; .:
III. .Discrimination statement

I believe I have been discriminated against.:because I am a black African

American. of 1964,

asRaemsep~odnedde.nt

has therefore violated Title'VII of the Civil Rights Act I gelieve Respondent has similarly discriminated against

other black Afr1can-·Amer1cans.

 
 Case 97-cv-00063-HC Document 237 Filed 09/05/2003 Page 1 of 31

SCANNED

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION

SYLVESTER MCCLAIN, on his own

§

behalf and on behalf of a class of similarly §

situated persons, et ai.,

§

§

Plaintiffs,

§

vs.

§

§

LUFKIN INDUSTRIES,

§

§

Defendant.

§

D CIVIL ACTION NO. 9:~4t;,.oe SASTuE5RNDID""~if~"lc'rArI·c~f'c'i'::.-''l1T:~XA8
JUDGE COBB
SEP 0 S 2003
DiW!D J. MALANu,
BY

DEFENDANT LUFKIN INDUSTRIES' MOTION FOR SUMMAirlJOO'

Defendant Lufkin Industries, Inc. ("Lufkin") respectfully moves for summary judgment.

Plaintiffs have effectively abandoned their claims with respect to evaluations, training,

demotions, layoff, recalls, and rehires of hourly employees in Angelina County; all claims as to hourly employees outside Angelina County; and all claims as to salaried employees. 1 Plaintiffs offer no proof

of a statistically significant disparity adverse to black employees with respect to these employment

practices and employees. See Morin v. Caire, 77 F.3d 116, 121 n.l7 (5th Cir. 1996) (explaining that

plaintiffs can "abandon[] ... claims for want of proof."); Munoz v. Orr, 200 F.3d 291, 299 (5th Cir.

2000) (requiring disparate impact plaintiff to "conduct a systemic analysis" of the challenged

employment practice in order to prove claim), cert. denied, 531 U.S. 812 (2000).

Notwithstanding the breadth of their Second Amended Supplemental Complaint, Plaintiffs'

statistical expert's conclusions are limited to three discrete employment processes: (i) initial

assignment of entry level hourly employees, (ii) promotions and advancement for hourly jobs, and (iii)

Report of Richard Drogin, attached as Exhibit 2, and Plaintiffs' Supplemental Responses and Objections to Lufkin's First Set of Interrogatories Nos. I and 2, attached as Exhibit l. Plaintiffs' evidence in support of their disparate impact claims consists of (1) the report of their statistical expert, Richard Drogin, and (2) the report of their industrialorganizational psychology expert, Richard Martell, and the infonnation, data, and documents on which Dr. Drogin and Dr. Martell rely for their respective analysis and conclusions. (Id. at No.2). At the close of discovery, August 15, Plaintiffs did not intend to rely on anecdotal testimony to prove their disparate impact claims, although they state in their most recent discovery responses served September 2 that they may present certain anecdotal testimony, consisting primarily of the employment experience of at least 31 class members. (Id.).

Case 97-cv-00063"HC Document 237 Filed 09/05/~003 Page 2 of 31
pay rates of hourly employees. (Ex. 2, Drogin Report; see also Ex. 3, Hamel Affidavit). Specifically, Plaintiffs' expert in statistics offers his opinion that the only statistically significant disparities affecting Plaintiffs are a claimed over-assignment to the entry level position of General Foundryman; an under-representation in promotion from EEO categories 6 (craftsmen), 7 (semi-skilled), and 8 (unskilled); and a shortfall in average compensation in EEO categories 6, 7, and 8. (Jd.).
Dr. Drogin's inferential statistical analysis is nothing more than • comparisons of all persons hired in entry-level positions, and hired in entry-level positions on the same day, without regard to applicants for those positions not hired, what positions the individuals applied for, or the minimum qualifications required for the position; • comparisons of persons promoted in hourly positions in EEO categories 6-8 using applicant pools Dr. Drogin constructs without regard to Lufkin's seniority system, the actual bid sheets, or objective eligibility criteria; • a regression analysis of hourly pay rates in EEO categories 6-8 without controlling for the job classification in which the employee works.
Plaintiffs' initial assignment allegations do not state a claim because they were not in either EEOC charge on which this case is predicated. More significantly, because Dr. Drogin2 does not even attempt to account for discrete, objective employment practices used by Lufkin (such as departmental seniority, written tests, and a high school diploma or G.E.D. minimum qualification requirement), or to use proper comparisons, Dr. Drogin's analysis will not sustain Plaintiffs' case. Without competent statistical evidence that a particular employment practice significantly adversely affects black employees, Plaintiffs' disparate impact claims fail and their complaint must be dismissed.

Plaintiffs now rely exclusively on Richard Drogin for statistical opinions. Sandra McCune is not designated as an expert. Dr. McCune, whose report was accepted by the Court in the class certification hearing, was later criticized in Vance v. City ofNacogdoches, 198 F. Supp. 2d 858, 860 (E.D. Tex. 2002).

1290 129_1 O.OOC

2

Case 97-cv-00063-=HC Document 237 Filed 09/05/2D03 Page 3 of 31
STATEMENT OF MATERIAL FACTS3 I. SUMMARY OF LUFKIN'S INITIAL EMPLOYMENT, PROMOTION, AND
COMPENSATION PROCESS FOR HOURLY EMPLOYEES A. An Employee's Initial Assignment is Pre-Determined By a Job Requisition. Each of Lufkin's four manufacturing divisions has an entry-level hourly job classification. In the Foundry and Trailer divisions, the minimum qualifications for entry level are (i) prior labor experience, (ii) no termination for cause within two years, (iii) no termination for absenteeism within one year, and (iv) no gaps in work history for more than six months. (Ex. 4, Barbay at 64-65; Ex. 5, Poulan at 21).4 For Power Transmission and Oilfield, a high school diploma or GED is also required for an entry level position. (Barbay at 65; Poulan at 55). All entry-level hourly employees are hired through the Texas Workforce Commission. (Barbay at 46-48). The process is simple and objective. A Lufkin job requisition listing job title, shift and supervisor, is submitted by the hiring division to Human Resources. Each requisition is specific to a particular job classification and division. A copy of a Lufkin requisition form is attached as Exhibit 6 to this Motion. Each job requisition is assigned an internal requisition number, and an interview request is submitted to the local Texas Workforce Commission (''TWC''). (Barbay at 49-50). Lufkin advises the TWC of the available job classification and division. (Id.; Poulan at 10). Lufkin has provided in writing to the TWC the minimum requirements for the entry-level job classification in each of its manufacturing divisions. (Barbayat 52-53; Poulan 21-22, Ex. 4-8).

Attached as Exhibit 3 is the Affidavit of Douglas Hamel, verifying the cited deposition excerpts. References to testimony in depositions upon oral examination will be cited initially as Ex. _, [Deponent's Last Name] [Deposition Date (if more than one)] at [Page]. Subsequent cites to the deponent's deposition testimony will be cited as [Deponent's Last Name] [Deposition Date (if more than one)] at [Page], omitting the Exhibit number. Excerpts from cited depositions upon oral examination are included in the exhibits attached to this motion and specifically identified by deponent and deposition date in the accompanying table of contents.

4

Mr. Barbay is responsible for the hiring of entry-level, hourly employees. (Barbay Depo. at 233). Ms. Poulan,

Workforce Development Specialist, is the primary contact for Lufkin Industries at the TWC. (Id. at 4-5).

3

Case 97-cv-00063-eHC Document 237 Filed 09/05/2003 Page 4 of 31
The TWC enters the infonnation in its computer system and runs a search to match customers already entered in their databaseS with the available position. (Poulan at 23-24).
From the computer match list, the TWC calls customers and advises them of the specific job available. (Poulan at 24-25). For example, if the customer's name is generated for a general foundryman position, the TWC representative advises the customer that there is a general foundryman position available. (Id.). The TWC representative also goes over the customer's work experience to make sure he or she meets the minimum qualifications. (Id. at 25). If the customer is interested in the available job for which he or she was called and meets the minimum qualifications, he or she is referred for the job and set up to interview for that job. (Id.).
When applicants arrive at the TWC, they are given a Lufkin application. (Poulan at 30-31). Interviews are conducted in the order that the applications are returned to the TWC receptionist. (Id.; Barbay at 88-89). The interviewer confinns the applicant is applying for the position for which the TWC called him or her to interview (Barbay at 86-87), and discusses whether the candidate indeed meets Lufkin's minimum job requirements. (Barbay at 57-59). The job requisition number and disposition of each candidate interviewed is noted at the bottom of the interviewee's application fonn, and is entered in Lufkin's employee database. (Id. at 58, 59-60).
Applicants are hired for the position and division for which they apply. (Id. at 90). At no point does anyone from Lufkin decide which division or job an employee will be assigned once he or she is hired; this is "pre-determined by [the original job] requisition" before any interview ever takes place. (Id. at 93).
B. Lufkin's Hourly Promotion Process is by Union Contract. Lufkin's promotion process for hourly employees in each of its four manufacturing divisions is rigidly and objectively defined by the procedures in the Union Contract. (Ex. 7, Havard Declaration;
Individuals seeking employment, "customers," provide TWC with biographical information, work experience, and the type work preferred. (Poulan at 15-17).
4

Case 97-cv-00063-=HC Document 237 Filed 09/05/2_003 Page 5 of 31
Ex. 8, Agreement by and between Lufkin Industries, Inc. and A.F.L.-C.1.0. (hereinafter ("Union Contract"), Arts. 22 & 25 & Letters of Stipulation).6 First, and by far most common, are posted positions. (Jd.). Promotions to posted positions are filled pursuant to the job bid and posting procedure in the Union Contract. (!d.). A limited number of positions are not posted. These positions are defined in the Union Contract or are part of a defined career path or line of progression agreed to by the company and the unions. (See, e.g., id. at pp. 59, 62, 72-77). The failure to receive a promotion to a posted or non-posted position is subject to the Union Contract's grievance and arbitration procedure. (!d. at Art. 9).
1. Posted Positions Are Awarded to the Most Senior Eligible Bidder. a. Departmental Seniority
The procedure for awarding posted promotions is well-defined. Vacant positions are posted. (Union Contract, Art. 25). Any employee may sign the job posting. At the end of the posting period, promotions are awarded to eligible bidders from the job bid list based on "departmental seniority." (Jd. & Art. 22).
Steve Reynolds, Foundry Manufacturing Manager, and Richard Gilley, Trailer Manufacturing Manager, testified that from the group of eligible bidders, the seniority roster alone controls who receives the promotion. (Ex. 10, Reynolds at 192-93; Ex. 11, Gilley at 158-59). David Jinkins, Power Transmission Plant Superintendent, similarly explained that jobs in the Power Transmission Division are always given to the senior qualified bidder, subject to the bidder's right to demonstrate his or her ability to perform the job during a reasonable trial period. (Ex. 12, Jinkins at 114-15, 118-19). Finally, in the Oilfield division, Larry Long, Oilfield Manufacturing Manager, testified that if the senior person does not get the job, it is normally because he or she declined the position. (Ex. 13, Long at 103).

6

All references in this section are to the collective bargaining agreement in effect between October 1999 and

October 2002.

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Case 97-cv-00063-:HC Document 237 Filed 09/05/2003 Page 6 of 31
Plaintiffs' Class Representatives generally agree. Walter Butler, a 20+ year union steward, testified that he thought 80 to 90 percent of all promotions in the hourly work force in the Trailer Division were done by departmental seniority. (Ex. 14, Butler at 45, 171). Florine Thompson testified that in her view, 90% of promotions in the hourly workforce in the Trailer division were done by seniority. (Ex. 15, Thompson at 199-201.) Earl Potts, a 12+ year Lufkin employee in the Power Transmission and Oilfield divisions, testified that it was his experience that Lufkin awarded jobs by seniority in hourly jobs. (Ex. 16, Ports at 23, 49, 56-57). Leroy Gamer, a 35+ year Lufkin employee in the Power Transmission machine shop and fonner union steward, testified that he could not recall a single instance in the last ten years where someone with more seniority did not get a job after signing a bid sheet. (Ex. 17, Gamer at 148, 152-53). Clarence Owens, a veteran employee of both the Oilfield and Power Transmission Divisions, testified that it was also his understanding that most job promotions in the bargaining unit are awarded by seniority. (Ex. 18, Owens Depo. at 33-34,82).
b. Eligibility Criteria There are only limited situations in which a posted promotion does not go to the most senior employee (assuming, of course, that the most senior employee accepts the position when offered). For example, a bidder is not eligible if the posted position is not a promotion for the employee. Hourly employees, even those with many years of seniority, do not have the right to be considered for a demotion or a lateral move except in the case of shift preferences or as otherwise allowed by the Union Contract.? (Long at 93; Jinkins at 108; Gilley at 162-63; Reynolds at 153). In some instances, a move from a non-preferred shift to a preferred shift is considered a promotion by the union, even if the employee retains the same job classification.8 (Long at 94-95).

7

A promotion occurs if the top pay for the job bid (i) is higher than the top pay for the job the bidder currently

holds; (ii) the posted job is for a trainee position and the posted job being trained has a top pay higher than the top pay for

the job the bidder currently holds; (iii) the bid is for a Class B position and the Class A positions' top pay is higher than the

top pay for the job the bidder currently holds. (Long at 93-94; Jinkins at 108-09; Gilley at 162-63).

Lufkin and the Machinist union have entered into a Letter of Stipulation that defines the procedure for moving from 2nd or 3rd shift to 1st shift. (Union Contract, p. 71). Pursuant to this Letter of Stipulation, an employee must have

1290129_10.DOC

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Case 97-cv-00063.,HC Document 237 Filed 09/05/2003 Page 7 of 31

In the Foundry and Oilfield divisions, satisfactory attendance is required before an employee

may receive a promotion. (Reynolds at 153, 184-87; Long at 96). Satisfactory attendance is

determined by the Attendance Program, Exhibit B to the Union Contract. (Id. & Exhibit B to Union

Contract). Attendance records on all employees are maintained in Lufkin's attendance database.

(Ex. 9, Conway Declaration}. Foundry employees are likewise ineligible for promotion if they have

been issued a formal disciplinary warning for a plant rule violation in the six month period preceding

the job posting. (Reynolds at 153.). A copy of the warning is kept by the Foundry, sent to the union,

and placed in the employee's personnel file. (Id. at 163-64).

Finally, the Company may require an employee to possess a present ability to perform the

requirements of the position to be eligible for the promotion. (Union Contract, Art. 22). Ability,

however, is sparingly used in making promotion decisions and is reserved for highly skilled or

specialized positions. David Jinkins, Power Transmission Plant Superintendent, testified that he could

not recall a specific instance in more than 15 years as a supervisor, manager, and superintendent, when

an employee had been disqualified because of ability without at least being allowed to try out the job

for a reasonable period of time to see if he or she could perform the work. (Jinkins at 114-15).

According to Mr. Jinkins, the only time he could recall using ability at all was in layoffs. (Id.). In the

Foundry division, Mr. Reynolds estimated that the senior employee is going to get the job 99% of the

time. (Reynolds at 133). Larry Long, Oilfield Manufacturing Manager, testified that when the ability

clause is applied in his division, it is because of a clear difference in skill, not just performance level:

"It's clearly a skill that takes a long time to accumulate that sets them apart and is a true ability over

someone else." (Long at 104-05). In the Trailer division, Mr. Gilley testified that where there is a test,

ability is determined strictly through testing; where there is no test, the most senior employee is given

the job and allowed to demonstrate his or her ability to perform the required tasks. (Gilley at 234-37}.

two years on nights or have earned two ''by-passes'' before he or she can move to fIrst shift. This is also an eligibility criterion. (Long at 97-98). There are certain other narrowly defIned exceptions (Union Contract, Letter of Stipulation, p. 71).

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Case 97-cv-00063-HC Document 237 Filed 09/05/2003 Page 8 of 31
To the extent ability is used, the testimony and evidence conclusively demonstrate that this is almost always an objective determination. Present ability is most commonly measured by a written or demonstrative test. (See Reynolds at 108, 192-93; Gilley at 136, 137-47). The process is simple and objective: if an employee successfully passes the applicable written or demonstrative test, he or she is considered to have demonstrated the ability to perform the posted position and the position will go to the most senior employee among all those that have signed the bid sheet and passed the test. (Reynolds at 193; Gilley at 158-59).9
Copies of the tests used in each of Lutkin's divisions are attached as Exhibit 19 to this Motion. (See also Ex. 7, Havard Declaration).
An employee will also be deemed to have the present ability to perform the job if he or she previously held the posted position. (Gilley at 238; Reynolds at 132-33). Similarly, ability may be demonstrated by successfully performing the Class B classification for the posted Class A promotion. (Gilley at 115-16, 148-49; Reynolds at 132-33). For example, in the Trailer division, an employee must have held the Machine Operator Class B classification in order to be promoted to Machine Operator Class A. (Gilley at 148-49). Finally, ability may be demonstrated by holding the same classification at another company. (Reynolds at 132-33).
2. Non-Posted Promotions Are Awarded in Career Paths or Lines of Progression. Non-posted positions consist of two types: (i) entry level jobs; or (ii) jobs associated with a recognized career path or line of progression. (Union Contract, pp. 72-77; Long at 44-45; Jinkins at 103-06; Gilley at 141-42, 149-50; Reynolds at 156-57).

9

Tests are most prevalent in the Foundry and Trailer divisions and in the maintenance classifications, such as

electrician or maintenance mechanic. (Id.). Mr. Reynolds, the Foundry Manufacturing Manager, estimated that

approximately 25% of the jobs in the Foundry division have some sort of testing requirement. (Reynolds at 192). Mr.

Gilley testified that the Trailer division also requires a written or demonstrative test for promotion to various jobs. (Gilley

at 137-47). For example, to be promoted to a welding position, an employee must first pass a welding test, requiring the

employee to demonstrate the ability to weld. (Id.).

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Case 97-cv-00063",HC Document 237 Filed 09/05/2003 Page 9 of 31
Jobs associated with a recognized career path or line of progression are defined by the Union Contract or by agreement between Lufkin and the unions. For example, the Union Contract defines an Assembly career path within the Machine Shop department. (Union Contract, pp. 72-73). The Assembly career path is progressive with only the entry level job, Class II Assembler, being posted. (/d.). Progression through the remaining classifications is non-competitive, with jobs being awarded based on an individual demonstrating the ability to competently perform the job at the next level. (Jinkins at 104-05; Gilley at 185). The only applicable criteria is whether an individual can objectively perform the skills associated with the higher-level job, e.g., "demonstrated ability." (/d.; Union Contract, pp. 72-77). In other words, promotion to these jobs is determined by the individual and is not a matter of selecting a candidate from a group of employees with similar characteristics. (See, e.g., Ex. 20, Various Specialist and Certified Job Classifications).
C. Hourly Employee Pay Rates and Raises Are Dermed in the Union Contract. Pay rates for hourly employees are determined by the Union Contract, which lists the negotiated rates and premiums. (Union Contract, Exhibit A, Art. 18 & p. 71). The Union Contract also determines the timing of raises for hourly employees. Every hourly employee "shall be" granted a raise of at least twenty-five cents every six-month period, based on satisfactory performance until such employee reaches the top of the rate range for the job classification in which they are employed. (Union Contract, Art. 13).10

10

"Satisfactory performance" has been defmed over time through certain supplemental stipulations and agreements

with the unions. For example, Lufkin and the GMP have agreed in writing that for purposes of Article 13 raises,

satisfactory performance requires satisfactory attendance at or above the +1 level for absence and a +0 for tardy/early out

occurrences. (Ex. 21, Supplemental Agreement between Lufkin and GMP #429; Ex. 7, Havard Declaration). Other

divisions, including Oilfield and Trailer, also look at attendance in awarding raises. (Long at 122; Gilley at 209-12). If an

employee does not receive an Article 13 wage increase, he or she may grieve the action through the unions' grievance

procedure. (Union Contract, Art. 9).

9

97-cv-00063-HC Document 237 Filed 09105/2003 Page 10 31

ARGUMENT I. Plaintiffs Fail to State a Claim Regarding Initial Assignment.
The class claims proceed solely on the basis of McClain's and Thomas' EEOC charges. While

it is well settled that class members may "piggyback" on the named plaintiffs charges, to enjoy the

benefits of the "single filing rule," class members must be similarly situated to those persons actually

filing the EEOC charge. See Bettcher v. Brown Schs., Inc., 262 F.3d 492,494 (5th Cir. 2001); Allen v.

United States Steel Corp., 665 F.2d 689, 695 (5th Cir. 1982) ("[I]n a multiple-plaintiff, non-class

action suit, if one plaintiff has filed a timely EEOC complaint as to that plaintiff's individual claim,

then co-plaintiffs with individual claims arising out of similar discriminatory treatment in the same

time frame need not have satisfied the filing requirement.").

Here, neither McClain nor Thomas charged that Lufkin had discriminatory hiring or initial

assignment practices. Sylvester McClain's August 12, 1996 EEOC charge alleged that "[s]ince

January of 1995 and continuing, I have been subjected to different terms and conditions of

employment by being denied comparable training, access to supplies and equipment needed to do a

satisfactry [sic] job; given unsatisfactory evaluations." (Ex. 22, McClain EEOC Documents). In

particular, McClain charged that he was discriminatorily demoted from Quality Manager to Inspector

on January 6, 1996. (Id.). Additionally, although not stated in his charge, McClain's Intake

Questionnaire, Information Sheet, and memoranda written on January 8, 1996 and January 29, 1995,

alleged "low pay." (Id.). Notably missing from all of McClain's correspondence with the EEOC is

any discussion or complaint about hiring or initial assignment.

Buford Thomas' February 24, 1997 EEOC charge and allegations are no different. (Ex. 23

Thomas EEOC Documents). In his charge, Thomas alleged constructive discharge, denial of

promotional and training opportunities, and being "required to not only do my own work, but also that

of my white colleagues." (Id.). Like McClain, Thomas makes no complaint of discrimination in hiring

or initial assignment.

1290 129_10.00C

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FurthelTIlore, both McClain and Thomas would have been statutorily time-barred from asserting hiring or initial assignment claims at the time of their charges. See Huckabay v. Moore, 142 F.3d 233, 238 (5th Cir. 1998). At the time of their charges, more than 15 years had passed since Thomas' hiring and initial assignment to Power Transmission, and more than 20 years had passed since McClain's hiring and initial assignment to Oilfield. (Ex. 22, 23).
The only issues that may be brought in this action by class members "piggybacking" on McClain's and Thomas's EEOC charges are those practices properly asserted by McClain and Thomas in their EEOC charges and reasserted in the complaint. Oatis v. Crown Zellerbach Corp., 398 F.2d 496, 499 (5th Cir. 1968). As McClain and Thomas did not assert - and could not have properly asserted - hiring or initial assignment claims, these issues may not be considered in this action. Id; see also Allen, 665 F.2d at 696 ("[P]laintiffs ... who have not themselves filed timely EEOC complaints, cannot rely upon the EEOC complaint of another, when the latter complaint itself is not timely as to the filing party's own individual claims.").
Nor is Plaintiffs' initial assignment claim saved by the reasonable expectation rule announced in Sanchez v. Standard Brand, Inc., 431 F.2d 455 (5th Cir. 1970), which addresses the scope ofjudicial complaints brought by an individual who filed a timely EEOC charge. In such cases, the judicial complaint is limited to the scope of the EEOC investigation which can reasonably be expected to grow out of the charge. (Id.) The reasonable expectation rule requires that the scope of allegations made in a judicial complaint be "like or related" to allegations made in the EEOC charge. (Id.) Plaintiffs may not bootstrap a proper claim, however, simply through the intervention of class representatives. Unless the other class representatives filed charges with the EEOC, they and other class members must proceed "within the periphery of the issues which [the named plaintiffs] could assert." Vuyanich v. Republic Nat 'I Bank ofDallas, 723 F.2d 1195, 1201 (5th Cir. 1984) (citing Oatis, 398 F.2d at 499). Because McClain and Thomas did not file a charge asserting an initial assignment claim and any such

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charge would have been untimely as to McClain and Thomas, it is not a claim which they "could

assert," and neither can the class.

It is also beyond cavil that Thomas' and McClain's charges would not reasonably be expected

to initiate an investigation of hiring and initial assignment in Lufkin's Foundry. Since Thomas and

McClain were hired and assigned to divisions other than Foundry, there would have been no basis to

investigate a claim that black entry-level employees are relegated to the Foundry division. Nor is there

any basis to suggest that the EEOC would have investigated employment and assignment decisions

that accrued 15 and 20 years, respectively, before the changes were filed. Thomas, who was initially

hired in Power Transmission, makes no mention of the Foundry in his charge. McClain, who was

initially hired in Oilfield and, when rehired in 1972, assigned to the Trailer division, specifies that the

organization charged is "Lufkin Industries/Trailer Division." (Ex. 24, McClain at 18 (July 18, 2003);

Ex. 22, Intake Questionnaire).

The McClain and Thomas charges will not support failure-to-hire and initial assignment claims.
See, e.g., Evans v. u.s. Pipe & Foundry Co., 696 F.2d 925, 929 (11 th Cir. 1983) (holding that district

court did not err in denying class certification on initial job assignmentlhiring claims because EEOC

charge only alleged discrimination in promotions, unspecified terms and conditions of employment,

harassment, and union representation); Dennis v. County ofFairfax, 55 F.3d 151, 156 (4th Cir. 1995)

(affirming district court's dismissal of hiring claim as a matter of law because EEOC charge only

alleged "disparate disciplinary treatment"); Hyatt v. CNG Producing Co., No. 91-4654 §G, 1992 U.S.

Dist. LEXIS 17017, at ** 12-13 (E.D. La. Oct. 28, 1992) (dismissing as a matter of law discriminatory

job assignment claim because EEOC charge alleged only discriminatory discharge); Gustafson, Inc. v.

Bunch, No. 3:97-CV-2102-D, 83 Fair Empl. Prac. Cas. (BNA) 375, 1999 U.S. Dist. LEXIS 7107, at

**21-22 (N.D. Tex. May 7, 1999) (dismissing as a matter of law claim that employer ''unlawfully

discriminated by failing to hire [the plaintiff] for other jobs" because EEOC charges alleged only

"discrimination arising from Gustafson's decision not to hire him for the Northeast Territory TSR

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97-cv-00063-HC Document 237 Filed 09105/2003 Page 13 31
position" and retaliation); Simmons v. Iberville Operating Co., No. 89-3483, 1990 U.S. Dist. LEXIS 1336, at **10-12 (E.D. La. Feb. 2, 1990) (dismissing as a matter of law claims regarding "discrimination resulting from allegedly segregated job classifications, job assignments, [and] refusals to hire" because EEOC charges only alleged discriminatory demotion, harassment, suspension, and retaliatory discharge).ll Cf Thomas v. Capital Sec. Servs., 836 F.2d 866, 884 (5th Cir. 1988) (discussing possible Rule 11 sanctions based on plaintiffs' counsel's "expansion of the judicial complaint beyond the EEOC complaint," in that the EEOC charges alleged discriminatory layoff but the complaint included "shotgun allegations" such as hiring, promotion, and on-the-job treatment claims).
In sum, because McClain and Thomas did not make, and could not have made, timely hiring or initial assignment claims in their EEOC charges, Plaintiffs' initial assignment claims must be dismissed as a matter oflaw. II. Plaintiffs Have Not Established a Prima Facie Case Because They Cannot Identify a
Specific Practice That Has a Disparate Impact on Black Employees. Title VII requires, in pertinent part:
An unlawful employment practice based on disparate impact is established under this subchapter only if(i) a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race ... 42 U.S.C. §2000e-2(k)(1)(A)(i) (emphasis added).

II

See also Hubbard v. Rubbermaid, Inc., 436 F. Supp. 1184, 1187 (D. Md. 1977) (granting employer's motion to

dismiss as a matter of law "recruitment, job classification, hiring, [and] assignment" claims because EEOC charge only

alleged discrimination in wages, benefits, and terms and conditions of employment); Jackson v. Ohio Bell Tel. Co., 555 F.

Supp. 80, 83 (S.D. Ohio 1982) (dismissing as a matter of law job assignment claim because EEOC charge only alleged

discrimination in termination and discipline); Grant v. Morgan Guar. Trust Co. of NY, 548 F. Supp. 1189, 1191-92

(S.D.N.Y 1982) (dismissing as a matter of law assignment claim because EEOC charge only alleged failure-to-promote);

Combs v. C.A.R.E., Inc., 617 F. Supp. 1011, 1011-13 (E.D. Ark. 1985) (dismissing as a matter of law hiring and placement

claims because EEOC charge only alleged discriminatory discharge); Harris v. Caterpillar Tractor Co., No. S-Civ.-78-

3037, 1978 U.S. Dist. LEXIS 16232, at **2-4 (S.D. Ill. Aug. 1, 1978) (same); Plaisance v. Travelers Ins. Co., 880 F. Supp.

798, 805-07 (N.D. Ga. 1994) (dismissing job assignment claim as a matter of law because EEOC charge only alleged

failure-to-promote and retaliation), aff'd, 56 F.3d 1391 (lIth Cir. 1995), cert. denied, 516 U.S. 931 (1996).

13

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To establish a prima facie claim of disparate impact discrimination, a plaintiff must (1) identify

the challenged facially neutral employment practice or policy, and pinpoint the defendant's use of it;

(2) demonstrate a disparate impact on a group that falls within the protective ambit of Title VII; and (3)

demonstrate a causal relationship between the identified practice and the disparate impact. Gonzales v.

City ofNew Braunfels, 176 F.3d 834,839 (5th Cir. 1999) (emphasis added). Plaintiffs must conduct a

systematic analysis of the challenged employment practices in order to establish their case. Munoz,

200 F.3d at 299.

Throughout the multi-year history of this case, Plaintiffs have yet to identify any particular

employment practice alleged to have a disparate impact on Lufkin's black employees. Instead,

Plaintiffs frame their case only with the overarching allegation that ''unfettered subjective decision

making by a nearly all white management staff has had an unlawful disparate impact on plaintiffs and

the class in violation of Title VII." (Ex. 1, Plaintiffs Supplemental Responses and Objections to

Defendant Lufkin Industries' First Set of Interrogatories No. 1.) Their argument and analysis has

consistently focused on employment processes as a whole, i.e., as a single decision-making process,

with the intent of making a prima facie case out of alleged "bottom line" racial imbalances in Lufkin's

workforce. 12

Notwithstanding Plaintiffs' artful pleading, the disparate impact plaintiff must provide evidence

isolating and identifying the specific facially-neutral employment practice that is allegedly responsible

for observed statistical disparities. Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 657 (1989);

Johnson v. Uncle Ben's, 965 F.2d 1363, 1367 (5th Cir. 1992), cert. denied, 511 U.S. 1068 (1994);

Munoz, 200 F.3d at 304.

Plaintiffs are required to analyze the data available to isolate disparate impact in particular

employment practices. See Powers v. Ala. Dep't of Educ., 854 F.2d 1285, 1298 (11th Cir. 1988)

12

Without reference to any discriminatory practice or event, and without reference to demographic trends,

Dr. Drogin's "Descriptive Statistics" reports that black employees at Lufldn are employed in the lower EED categories and

earn less, on average, than white employees.

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("[P]laintiffs failed to raise a sufficient challenge to ... the use of the service ratings, and the evaluation of an applicant's training and experience. With regard to these practices, applicant statistics were available, and the plaintiffs should have employed them."), cert. denied, 490 U.S. 1107 (1989); Diehl v. Xerox Corp., 933 F. Supp. 1157, 1167 (W.D.N.Y. 1996) (dismissing disparate impact case, in part because plaintiffs' expert "refused to consider the skills assessments ... because she deemed that data to be incomplete and inherently inaccurate."); Pottenger v. Potlatch Corp., 329 F.3d 740, 748 (9th Cir. 2003) (affirming summary judgment for employer in part because plaintiffs expert had access to data that would likely have provided some non-discriminatory explanation for the disparity, but did not use the data); Sheehan v. Daily Racing Form, 104 F.3d 940, 942 (7th Cir. 1997) (affirming summary judgment for employer, in part because of plaintiffs failure to consider available data on job classification and familiarity with computers as explanations for any disparity), cert. denied, 521 U.S. 1104 (1997); Ottaviani v. State Univ. of New York at New Paltz, 875 F.2d 365, 374 (2d Cir. 1989) (affirming district court's criticism of plaintiffs' analysis due to failure to use available data on nondiscriminatory factors such as rank and prior positions held), cert. denied, 493 U.S. 1021 (1990); EEOC v. Sears, Roebuck & Co., 839 F.2d 302, 349-50 (7th Cir. 1988) (criticizing the EEOC for not analyzing data made available by the employer on non-discriminatory factors that may have explained the disparity); Stallings v. Container Corp. ofAm., 75 F.R.D. 511,519-20 (D. Del. 1977) (holding that plaintiffs' promotions disparate impact analysis was flawed because "it ignore[d] other relevant [and available] data").
The Civil Rights Act of 1991 created the only exception to the "particularity" requirement. See, e.g., Johnson, 965 F.2d at 1372 (explaining that, other than adding this exception, the 1991 Civil Rights Act did not alter Wards Cove's "particularity" requirement.).
[I]f the complaining party can demonstrate to the court that the elements of a respondent's decisionmaking process are not capable of separation for analysis, the decisionmaking process may be analyzed as one employment practice.
15

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42 U.S.c. § 2000e-2(K)(1)(B)(i).13 Contrary to Plaintiffs' view of the exception, the use of subjectivityl4 in a decision-making
process clearly does not render that process "incapable of separation for analysis." See Appleton v. Deloitte & Touche LLP, 168 F.R.D. 221, 225-26 (M.D. Tenn. 1996) ("Watson and Wards Cove require that the plaintiff show more than just the use of subjective criteria in decisionmaking and statistical disparities in the employer's work force" in order to prevail on a disparate impact claim); Kulkarni v. City Univ. o/New York, No. 01 CIV. 10628 (DLC), 2002 WL 1969676, 2002 U.S. Dist. LEXIS 15855, at **3-4 (S.D.N.Y. Aug. 26, 2002) ("To the extent that Kulkarni is complaining about ... those officers who implement facially neutral employment practices and the decisions made by those officers in the course of implementing the practices, that complaint is not a disparate impact claim addressed to an identified employment practice."). In fact, the plurality in Watson v. Ft. Worth Bank and Trust, 487 U.S. 977 (1988), specifically noted that if plaintiffs were allowed to broadly allege "subjective decisionmaking" as a specific employment practice, this would unacceptably "increase the risk that employers would be given incentives to adopt quotas or to engage in preferential treatment" contrary to Congress' intent as expressed in 42 U.S.C. § 2000e-2G).
First, we note that the plaintiff's burden in establishing a prima facie case goes beyond the need to show that there are statistical disparities in the employer's work force. The plaintiff must begin by identifying the specific employment practice that is challenged. Although this has been

13

The Interpretive Memorandum accompanying the 1991 Act adds guidance as to the degree plaintiffs must

"particularize" an employer practice:

When a decision-making process includes particular, functionally-integrated practices which are components of the same criterion, standard, method of administration, or test, such as the height and weight requirements designed to measure strength in Dothard v. Rawlinson, 433 U.S. 321 (1977), the particular functionally-integrated practices may be analyzed as one employment practice.

137 Congo Rec. § 15276 (dailyed. Oct. 25, 1991) (emphasis added). The memorandum provides the example of the "height and weight requirements" in Dothard; i.e., the practice of requiring a specific height and the practice of requiring a specific weight are both components of the same criterion: strength. Id. Another example of this narrow exception is provided by cases that do not require plaintiffs to break down an administered test into various questions. See, e.g., Allen v. Seidman, 881 F.2d 375, 381 (7th Cir. 1989).

14

Subjective employment criteria are not per se unlawful. Watson, 477 U.S. at 990; Johnson, 965 F.2d at 1369

("[A]n employer's policy of leaving promotion decisions to the unchecked discretion of lower level supervisors should

itself raise no inference of discriminatory conduct.").

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relatively easy to do in challenges to standardized tests, it may sometimes be more difficult when subjective selection criteria are at issue. Especially in cases where an employer combines subjective criteria with the use of more rigid standardized rules or tests, the plaintiff is in our view responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities.
Id. at 993-94 (emphasis added).
While the Fifth Circuit has not addressed the 42 U.S.C. § 2000e-2(K)(1)(B)(i) exception
specifically, the Ninth Circuit recently addressed this issue. Stout v. Potter, 276 F.3d 1118, 1124-25
(9th Cir. 2002). The Stout plaintiffs directed their disparate impact claims to "the decision-making
process" or "the process by which the [screening] Panel evaluated applications," which consisted of a
panel screening all applicants on the strength of their supervisor evaluations and applications,
identifying the most qualified candidates, and forwarding their names as potential interviewees to a
separate selection committee that made the final hiring decisions. Id. at 1121, 1124. The court noted
that "Plaintiffs generally cannot attack an overall decision-making process in the disparate impact
context, but must instead identify the particular element or practice within the process that causes an
adverse impact." !d. at 1124. The court then explained the screening process in the context of the 42
U.S.C. § 2000e-2(K)(1)(B)(i) exception:
The overall interview screening process included several discrete elements. Each member on the screening panel independently evaluated every applicant, measuring the applicant's supervisor evaluations and the substantive contents of the application. The application tested a candidate's proficiency on eleven validated competencies required for the AlC position. The panel members then met to compare their evaluations and discuss the applicants before collectively agreeing on the most qualified candidates. ... We doubt that the overall screening process should be treated as one employment practice for purposes of disparate impact analysis.
Id. (emphasis added).
Lufkin's initial assignment, promotion, and compensation decision-making processes include
several discrete practices that are easily separated for analysis. Plaintiffs' expert does not, and does not

1290129_10.DOC

17

97-cv-00063-HC Document 237 Filed 09105/2003 Page 18 31
even attempt to, isolate and identify each practice- subjective or objective - that Lufkin uses in the initial assignment, promotion, and pay processes or demonstrate each such practice's impact or lack of impact on blacks at Lufkin. A Title VII plaintiff does not make out a case of disparate impact simply by showing that at the "bottom line" there is a racial imbalance in the workforce, without reference to or discussion of relevant selection practices. Wards Cove, 490 U.S. at 657. A proper statistical analysis is modeled on the employer's actual employment practices and systemically analyzes each practice in the decision-making system to determine any racial effects. Johnson, 965 F.2d at 1367.
1. An employee's initial assignment at Lufkin results from a requisition, not ''unfettered decision making."
To begin, an employee's initial assignment at Lufkin flows naturally from the TWC's referral for a particular position. Thus, a most critical factor in an assignment process is ''what position did the prospective employee apply for" at the TWC. Lufkin's statistical expert, Dr. Mary Baker, using the actual applicant pools interviewed by Lufkin at the TWC, determined that blacks were not overassigned to General Foundryman but were, in fact, under-assigned and that the assignments were consistent with the outcome of a race-neutral selection process. (Ex. 25, Baker Report at 10-13.) In stark contrast, Dr. Drogin did not identify or analyze the impact of Lufkin's practice of selecting based on the applicants' referral from TWC, or Lufkin's practice of using the TWC in its process of filling entry-level positions. Nor did Dr. Drogin identify or analyze the impact of Lufkin's practice of using numerous criteria for entry-level positions-prior labor experience, no termination for cause within two years, no termination for absenteeism within one year, and no gaps in work history for more than six months-in reaching his conclusions. Finally, Dr. Drogin did not identify or analyze the impact of the high school diploma or GED requirement used in Power Transmission and Oilfield (but not Foundry and Trailer). (Ex. 2 at 10-12). In sum, in not accounting for various objective employment practices that clearly influence the selection and assignment of entry-level employees, Dr. Drogin has

1290 129_10.00C

18

97-cv-00063-HC Document 237 Filed 09105/2Q03 Page 19 31
failed to isolate and quantify any disparity arising from the alleged unlawful components of Lufkin's initial assignment process.
2. Hourly promotions result from objective criteria, almost always departmental seniority.
Plaintiffs again offer no factually-grounded or rational explanation of why Lufkin's hourly promotion process is not capable of separation for analysis other than their sweeping but unsubstantiated claim that all decisions at Lufkin are based on ''unfettered decision making." The Union Contract, however, establishes well-defined practices that control promotions-
(1) for most jobs (which are defined in the Union Contract), the employee must sign a bid; (2) the bid must be a promotion; (3) in Foundry and Oilfield, the employee must not be in the Attendance Program; (4) in Foundry, the employee must not have a plant rule violation in the past six months; (5) for various positions, the employee must pass a written test or demonstration of ability; (6) the employee must have greater departmental seniority over other eligible bidders; and (7) the successful bidder must accept the job. Each of these non-discriminatory reasons may be identified, quantified, and easily analyzed for disparate impact. Plaintiffs had open access to employees' personnel files and data on employees' relative seniority, employees' pre-promotion salary ranges (to determine if the job would be a promotion or a demotion, which is not allowed), bid sheets (to determine which employees bid, were ineligible, or were awarded the job), employees in the attendance program (to determine which employees were ineligible for promotion because of poor attendance), and employees who had violated plant rules. (Ex. 3, Hamel Affidavit; Ex. 9, Conway Declaration). Plaintiffs' failure to quantify the disparate impact, if any, of these various practices is, again, a complete failure of proof. Had Plaintiffs considered the bid process, using actual bid data which was provided to them (rather than Dr. Drogin's
19

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31

"constructed" applicant pools), they would have found, as did Dr. Baker, that of 1,519 awarded bids from 1994-2003, 335 were awarded to black employees, a difference of 3 from the expected number, or less than one-quarter standard deviation. (Baker Report at 16).
Plaintiffs' promotion analysis is particularly problematic. Without careful attention to identifying particular employment practices, a disparate impact analysis may impermissibly intrude on certain practices specifically authorized by Title VII. 42 U.S.C § 2000e-2(h) provides:
Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer to apply . . . different terms, conditions or privileges of employment pursuant to a bona fide seniority or merit system, . . . provided that such differences are not the result of an intention to discriminate because of race .... The Congressional immunity afforded bona fide seniority systems insulates such systems, even though they may have a disparate impact. See Int'! Bhd. of Teamsters v. United States, 431 U.S. 324, 350 (1977). Thus, any proper analysis of potential disparate impact must separate disparities arising from a bona fide seniority system from other practices. Plaintiffs concede that Lufkin's use of departmental seniority in the employment process is a bona fide seniority system. (Plaintiffs' April 11, 2003 letter to the Court re: "Collective Bargaining Agreement"). To the extent Plaintiffs have not separated out the effect of such a system-the award of jobs to bidders on the basis of departmental seniority-they have impermissibly included in their analysis disparities arising from a seniority system in direct violation of immunity afforded by 42 U.S.c. § 2000e-2(h).
3. Pay rates are set by the Union Contract. Lufkin's compensation procedure for hourly employees is perhaps the simplest procedure of all to analyze. By negotiation with the unions, every job classification is assigned a specific minimum and maximum rate of pay. Every hourly employee gets a twenty-five cent per hour raise every six months, until he reaches the maximum wage, unless he has incurred specific, defined attendance occurrences or disciplinary violations. These practices are easily isolated and analyzed for statistical significance.
20

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As with initial assignment and promotion, Plaintiffs' analysis of compensation does not attempt to account for Lufkin's practices. Dr. Drogin's regression analysis does not control for job classification, the primary detenninant of hourly pay. (Ex.2 at 18). When job classification is used, as was done in Dr. Baker's analysis, there is no statistically significant difference in pay between black and white Lufkin hourly employees. (Baker report at 18-21.)
In sum, Lufkin's employment processes are capable of separation into discrete practices based on applicant referrals from TWC, seniority, eligibility factors, and job classification. By not isolating or identifying specific employment practices with a significant disparate effect, plaintiffs have no prima facie case and summary judgment for the defendant is properly granted. Arguello v. Conoco, Inc., 207 F.3d 803, 813 (5th Cir. 2000) (affinning dismissal of Title II disparate impact claims under 12(b)(6) due to plaintiffs' "fail[ure] to allege that there was a specific Conoco policy which had a negative disparate effect on minority customers."); see also Byrnie v. Town of Cromwell, Bd. ofEduc., 243 F.3d 93, 111-12 (2d Cir. 2001) (affinning summary judgment for employer because plaintiff did not identify which specific employment practice accounted for disparate impact); Chavez v. Coors Brewing Co., No. 98-1109, 1999 U.S. App. LEXIS 5300, at **10-11 (10th Cir. Mar. 25, 1999) (same); Bannister v. Dal-Tile Int'l, Inc., No. Civ.A.3:02-CV-2498, 2003 U.S. Dist. LEXIS 8261, at **8-9 (N.D. Tex. May 14, 2003) (dismissing disparate impact claim under 12(b)(6) because plaintiff had "failed to identify any factor in Da1-Tile's decision-making process responsible for causing the alleged impact); Legania v. E. Jefferson Gen. Hosp. Dist. No.2, No. 02-1085 § "K"(5), 2003 U.S. Dist. LEXIS 9221, at *24 (E.D. La. May 29,2003) (granting summary judgment for employer on disparate impact claim due to plaintiffs failure ''to identify specific practices as being responsible for any observed disparities"); Patterson v. Magnolia Reg'l Health Ctr., No. CIV.A.1 :99CV073-D-A, 2001 WL 1524419, at *3 (N.D. Miss. Apr. 3,2001) (same); Maniatas v. New York Hosp.-Cornell Med. Ctr., 58 F. Supp. 2d 221, 228 (S.D.N.Y. 1999) (same); Joseph v. Publix Super Mkts., Inc., 983 F. Supp. 1431,

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1444 (S.D. Fla. 1997) (same); Kelber v. Forest Elec. Corp., 799 F. Supp. 326, 333 (S.D.N.Y. 1992) (same). III. Dr. Drogin's statistical analyses of disparate impact and causation are incomplete,
unreliable, and therefore inadmissible as a matter of law. In considering a Rule 56(c) motion opposed by expert testimony, the trial court has broad discretion to rule on the admissibility of the expert's evidence and may inquire into the reliability and foundation of any expert's opinion. Munoz, 200 F.3d at 301. If the basis for an expert's opinion is clearly unreliable, the district court may disregard that opinion in deciding whether a party has created a genuine issue of material fact. Id. 15 The detennination of reliability itself and the factors taken into account are left to the discretion of the district court consistent with its gatekeeping function under Fed. R. Evid. 702. Id. (citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999)). The U.S. Supreme Court instructed in Bazemore v. Friday that statistical analyses may be "so incomplete as to be inadmissible as irrelevant." 478 U.S. 385,400 n.lO (1986). "[A] statistical study that fails to correct for salient explanatory variables, or even to make the most elementary comparisons, has no value as causal explanation and is therefore inadmissible in a federal court." People Who Care v. Rockford Bd. of Educ., 111 F.3d 528, 537-38 (7th Cir. 1997); United States v. Artero, 121 F.3d 1256, 1262 (9th Cir. 1997), cert. denied, 522 U.S. 1133 (1998).16 Generally,

15

See, e.g., Bennett v. Roberts, 295 F.3d 687,697 (7th Cir. 2002) (affinning summary judgment for employer based

on district court's proper finding that plaintiffs' statistical proof of disparate treatment was "unreliable"); Hollander v. Am.

Cyanamid Co., 172 F.3d 192,202-04 (2d Cir. 1999) (affirming summary judgment for employer based on district court's

proper finding that plaintiffs statistical proof of disparate treatment was inadmissible and unreliable); Ballor v. Alcona

County Rd. Comm'n, No. 97-1413,1998 U.S. App. LEXIS 10519, at **9-12 (6th Cir. May 20,1998) (affirming summary

judgment for employer based on district court's proper exclusion under Daubert of plaintiffs' statistical proof of disparate

impact and treatment); Sheehan v. Daily Racing Form, 104 F.3d 940,942 (7th Cir. 1997) (affirming summary judgment for

employer because plaintiffs' statistical proof of disparate treatment was inadmissible under Daubert), cert. denied, 521 U.S.

1004 (1997); O'Keefe v. Eureka X-Ray Tube Corp., No. 95-C-4281, 1998 U.S. Dist. LEXIS 11382, at **30-31 (N.D. Ill.

1998) (granting summary judgment for employer on disparate treatment claims and holding that plaintiffs' statistical

evidence was not probative because of its failure to "take into consideration other factors that might affect the analysis,

such as the positions of the various employees within the organization.").

16

See also Tagatz v. Marquette Univ., 861 F.2d 1040, 1045 (7th Cir. 1988) (holding that failure to control for other

explanatory variables makes an expert's table "essentially worthless."); Mazus v. Dep't of Transp., 629 F.2d 870, 875 (3d

Cir. 1980), ("Statistical comparisons, if they are to have any value, must be between comparable groups and free from

variables which would undermine the reasonableness of discrimination inferences to be drawn."), cert. denied, 449 U.S.

1126 (1981); EEOC v. W. Elec. Co., Inc., 713 F.2d 1011, 1018-19 (4th Cir. 1983) ("Like any other type of circumstantial

1290129_10.00C

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97-cv-00063-HC Document 237 Filed 09105/2003 Page 23 31

"statistical comparisons offered in support of a disparate impact claim should be drawn as narrowly as possible to avoid effects of factors other than discriminatory practices." Powers v. Ala. Dep't ofEduc., 854 F.2d 1285, 1297 (11th Cir. 1988), cert. denied, 490 U.S. 1107 (1989). Disparate impact is not proved if factors other than race account for enough of the variance as to render any effect of race statistically insignificant. Dicker v. Allstate Life Ins. Co., No. 89 C 4982, 1997 WL 182290, at *42 (N.D. Ill. Apr. 9, 1997). This is especially important in this case, because without including other explanatory and non-discriminatory factors in their analyses, Plaintiffs have not isolated their challenged employment practice or demonstrated its disparate impact on blacks.
1. Plaintiffs' Initial Assignment Analyses is Unreliable. Dr. Drogin's analysis of initial assignments has three major flaws -he does not account for the actual pool for each entry-level position; his principal analysis does not control for time; and he does not distinguish between qualified and unqualified applicants in his pool.17 (Ex. 2 at 10-12). First, notwithstanding Lufkin's exclusive use of TWC, Dr. Drogin ignores the pools of applicants for entrylevel positions for General Foundryman provided to Lufkin by TWC. (Ex. 9, Conway Declaration). 18 Instead, Dr. Drogin's model looks only to those who were hired for any entry-level position, not those who applied for specific positions. See EEOC v. Chicago Miniature Lamp Works, 947 F.2d 292, 301

evidence, statistical evidence 'must not be accepted uncritically,' and because many statistical models used in discrimination cases by professional statisticians are sophisticated and complex, courts must give 'close scrutiny [to the] empirical proof on which the models are erected. Courts should guard against the use of data which may have been 'segmented and particularized and fashioned to obtain a desired result."').

17

The failure to include relevant data results in flawed and unreliable disparate impact analyses. In Powers, 854

F.2d at 1298, the Eleventh Circuit held that the plaintiffs failed to raise a sufficient disparate impact challenge to the

employer's use of service ratings and evaluation of an applicant's training and experience, because "[w]ith regard to these

practices, applicant statistics were available, and the plaintiffs should have employed them." See also Stallings, 75 F.R.D.

at 518-20 (holding that "there is no statistically significant data which indicates ... a disparate impact," in part because the

analysis "ignore[d] other relevant data").

18

Especially with regard to improper comparisons, Dr. Drogin has been criticized for conducting "naIve,"

"deceptive," "misleading," "inappropriate," "faulty," "erroneous[]," or "distort[ed]" statistical analyses in other

employment cases. See, e.g., Frank v. United Airlines, Inc., No. C-92-0692-CAL, 1997 U.S. Dist. LEXIS 4286, at *10-15

(N.D. Cal. Feb. 26, 1997) (concluding that Dr. Drogin's statistics failed to make the key comparison between those female

employees granted an exception to the employer's weight requirement and those who requested exception), rev'd in part on

other grounds, 216 F.3d 845 (9th Cir. 2000); Maddox v. Claytor, No. 78-2-ALB, 1983 U.S. Dist. LEXIS 12004, at *13-14,

*21, *30 (M.D. Ga. Nov. 4, 1983), aff'd, 764 F.2d 1539, 1550-51, 1553-55 (lIth Cir. 1985); Edmonds v. S. Pac. Transp.

Co., Nos. C-72-1270-AJZ and C-74-2140-AJZ, 1979 U.S. Dist. LEXlS 13100, at *56-58 (N.D. Cal. Apr. 11, 1979).

23

Case 9:97-cv-00063_HC

Document 237

Filed 0910512003

Page 24 of 31

(7th Cir. 1991) (concluding that disparate impact findings were clearly erroneous in part because they

credited statistics that did not take into account applicant preference). Next, Dr. Drogin's principal analysis assumes that all applicants applied and were hired

effective on the same day.19 Dr. Drogin's principal analysis also fails to account for the fact that

certain jobs were not available at certain times. It cannot be gainsaid that any employee was steered

(as Plaintiffs suggest) into a particular job if that was the only job available and the only job for which

the employee interviewed. Finally, Dr. Drogin fails to distinguish between minimum qualifications. His model assumes

that all employees were equally qualified for all divisions. At Lufkin, the Foundry and Trailer

divisions do not require a high school diploma or GED, while Power Transmission and Oilfield do.

Thus, Dr. Drogin has analyzed assignments to Power Transmission and Oilfield using a pool including

unqualified applicants. A proper statistical analysis is based only on the "qualified applicant pool." Johnson, 965 F.2d
at 1369 (emphasis added). See also Wards Cove, 490 U.S. at 647-55 (reversing court of appeals'

acceptance of the comparison between the racial composition of the cannery work force and that of the noncannery work force, because ''the cannery work force in no way reflected 'the pool of qualified job

applicants"'); New York Transit Auth. v. Beazer, 440 U.S. 568, 584-87 (1979) (rejecting plaintiffs'
I
statistic because "a substantial portion of the persons included in it are ... unqualified for otheJ

reasons" and thus "it tells us nothing about the class of otherwise-qualified applicants ani

Rc

employees"); Frazier v. Garrison IS.D., 980 F.2d 1514, 1524 (5th Cir. 1993) ("The specific holding (

err

Wards Cove was that statistical proof used by the Court of Appeals was an inaccurate measure

statistical disparity because it did not take into account the 'qualified' versus 'unqualifif

19

Dr. Drogin assumes in Table 10 and paragraphs 25 and 26 that each new entry-level employee was equally Ii

to be selected for each of the positions. This is essentially a model in which a marble colored corresponding to ra.

placed in a jar for every person hired over the time period, then marbles are drawn from the jar at one time to replicat'

assignment process.

97-cv-00063-J:iC Document 237 Filed 09105/2003 Page 25 31
not perfonning a multiple regression analysis. 22 Id. The Fifth Circuit affinned, holding that the "district court acted well within its discretion in evaluating the reliability of [the expert's] evidence at the summary judgment stage" and that "taken cumulatively, the problems with [the] expert['s] evidence indicate that his expert testimony could be unreliable." Id. 23
Dr. Drogin's bottom line analysis wholly fails to consider any of the important nondiscriminatory factors that qualify or disqualify hourly employees for promotions, such as bidding, departmental seniority, disciplinary warnings, excessive absence, and eligibility tests (none of which Plaintiffs have challenged). (Ex. 2 at 12-17). For example, to be considered "qualified" for most hourly positions at Lufkin, an employee must have submitted a bid for the job in question and, for some, must pass a test. By omitting factors such as whether the employee actually bid on the job and whether the employee was eligible for promotion, Dr. Drogin's analysis falsely constructs pools of employees who do not belong in the actual applicant pool. See, e.g., Buckner v. Cameron Iron Works, Inc., No. 72-H-292, 23 Fair Empl. Prac. Cas. (BNA) 1092,23 Empl. Prac. Dec. (CCH) P30,954, 1979 U.S. Dist. LEXIS 12218, at **31-33 (S.D. Tex. May 23, 1979) (holding that there was no evidence of disparate impact in plaintiff's failure to receive a position for which he was not qualified and on which he was not able to bid).24

22

As in Munoz, Dr. Drogin has failed to perfonn multiple regression analyses to control for non-discriminatory

factors (and in this case, unchallenged non-discriminatory factors) which Lufkin has repeatedly identified as essential to its

promotion practice. 200 F.3d at 301.

23

See also Ross v. Univ. of Texas at San Antonio, 139 F.3d 521, 525-26 (5th Cir. 1998) (affirming summary

judgment for employer because plaintiffs expert's opinion was based upon incomplete infonnation and did "not contain

any statistical analysis that would be competent summary judgment testimony").

24

See also Trevino v. Holly Sugar Corp., 811 F.2d 896, 902 (5th Cir. 1987) (holding that no "compellingly

persuasive evidence of discrimination" existed "because plaintiffs' expert failed to take into account the effects of accrued

seniority, job skills, or bidding activity."); Julien v. Scott, No. C-961858 CAL, 1998 U.S. Dist. LEXIS 11043, at **12-14

(N.D. Cal. July 17, 1998) (granting summary judgment on disparate impact claim, in part because the statistical comparison

failed to identify the "relevant applicant pool," which consisted of "the qualified 'eligible' Appraiser II's who applied for

promotion."), aJJ'd, 189 F.3d 473 (9th Cir. 1999); Williams v. Am. St. Gobain Corp., 447 F.2d 561, 563, 567 (lOth Cir.

1971) (holding that no racially discriminatory employment practice existed where job positions were filled via bids based

on the criteria of seniority, and black employees with higher seniority did not bid); EEOC v. Joe's Stone Crab, Inc., 220

F.3d 1263, 1276-77 (11 th Cir. 2000) (emphasizing that relevant pool are those persons who actually applied for position,

not those that were "theoretically 'available' and 'qualified"').

26

Case 9:97-cv-00063-HC Document 237 Filed 0910512003 Page 26 of 31
In fact, Dr. Drogin's promotion analysis is constructed in such a fashion as to almost guarantee that his pools have little in common with the actual bidders. Dr. Drogin's pools are constructed to include only those persons in the same job classification as the person promoted at previous year end with the same or greater seniority. As many of the class representatives testified, in most cases promotions are awarded to the senior bidder. Thus, the bid pool must have been composed of bidders with less seniority than the bidder selected-just the opposite of Dr. Drogin's construction. Dr. Drogin's construction further presumes, without foundation, that all persons in the same job classification as the person promoted would have bid on the job and possessed the requisite eligibility and qualifications for promotion. Similar assumptions by Dr. Drogin have been criticized.
b. Dr. Drogin 's Analyses Fail to Show Statistically Significant Disparities. Further, a prima facie case of disparate impact requires statistics to show a "gross disparity" in how the different races are treated. McClain, 187 F.R.D. at 276. In order to prove a "gross disparity," the plaintiffs have relied on standard deviation analyses. This Court has held that "[a] deviation greater than three standard deviations is sufficient to support a prima facie case." McClain, 187 F.R.D. at 276. Therefore, Drogin's findings of Z-scores under three standard deviations are insufficient to support a prima facie case of disparate impact as a matter of law. Additionally, the Fifth Circuit has stated that "it is doubtful" that there is an "ironclad rule ... that anytime there is a difference of three standard deviations between the expected and observed number a prima facie case has been made out." Lopez v. Laborers Int'! Union Local #18, 987 F.2d 1210, 1215 (5th Cir. 1993)?5 In Lopez, even though the plaintiffs had "demonstrat[ed] a disparity of three standard deviations," the court found that
25
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27

Case 97-cv-00063-HC Document 237 Filed 09105/2003 Page 27 of 31

"they have concocted numbers to create the requisite standard deviations .,. on the basis of completely

inappropriate data." Id. at 1214?6

c.

Dr. Drogin's Analyses Fail to Analyze the Challenged Promotions

Practices to Show a Causal Relationship Between Them and the

"Disparate Impact. "

A proper statistical analysis is modeled on the employer's actual employment practices and

systematically analyzes each component of the decisionmaking system to determine any effect

attributable to race. Johnson, 965 F.2d at 1367. In Johnson, similar to our case, the plaintiff alleged

that the employer "allowed its supervisors to make promotion decisions subjectively and that this

practice resulted in a disparity between the promotion rates of Black and white employees." 965 F.2d

at 1369. The Fifth Circuit affirmed the trial court's grant of the employer's summary judgment motion

on the subjectivity claim because the plaintiff had "not offered any evidence that Blacks' allegedly

smaller number of promotions was causally related to this subjectivity" and that "this cannot suffice to

establish a prima facie case" of disparate impact. Id. Therefore, because Dr. Drogin's promotion

analyses fails to make the required causal connection, the analyses are inadequate as a matter of law and summary judgment for Lufkin on this issue is appropriate.27

3. Dr. Drogin's Pay Rate Analysis is Meaningless.

The U.S. Supreme Court has held that "[t]here may ... be some [multiple] regressions so

incomplete as to be inadmissible as irrelevant." Bazemore, 478 U.S. at 400 n.lO. A multiple

26

See also Coleman v. Exxon Chem. Corp., 162 F. Supp. 2d 593, 619-21 (S.D. Tex. 2001) (granting summary

judgment for employer on disparate treatment claim in part because plaintiffs' evidence did not make proper statistical

comparison; when such appropriate comparison was made, the data failed to reveal statistically significant standard

deviations); Jones v. Pepsi-Cola Metro. Bottling Co., Inc., 871 F. Supp. 305, 311 (E.D. Mich. 1994) (granting summary

judgment for employer on race and sex disparate impact claims, holding plaintiffs' evidence not probative of disparate

impact due to use of wrong statistical pool, and explaining that defense expert used proper statistical pool in analysis that

showed no statistically significant standard deviations).

27

See also Cooper v. S. Co., 260 F. Supp. 2d 1317, 1333-34 (N.D. Ga. 2003) (granting summary judgment for

employer on disparate impact claim because plaintiff could not establish the existence of a causal nexus between the

disparity and the use of manager discretion in promotion decisions); McNairn v. Sullivan, 929 F.2d 974, 979 (4th Cir. 1991)

(affirming district court's judgment for employer on disparate impact claim and holding that requirement that plaintiffs

show "that specific elements of the employer's promotion criteria had a significant disparate impact on the protected class"

was "not satisfied because plaintiff [did] not attempt to show that the subjective element of HHS promotion criteria

significantly affected qualified blacks' and Hispanics' chances to be promoted.").

28

97-cv-00063-HC Document 237 Filed 09105/2003 Page 28 31

regression analysis must account for the "major factors" thought to have an effect on salary level or it
will be considered unacceptable as evidence of discrimination. Id. 28
A mUltiple regression that ignores job classification is meaningless. In Coward v. ADT Sec.
Sys., 140 F.3d 271, 274-75 (D.C. Cir. 1998), the D.C. Circuit affirmed the district court's exclusion of
the plaintiffs' statistical analysis based on its failure to "account for job title or any other variable
representing type of work performed:"
Applying these standards to this case, we find that the regression analysis was "so incomplete as to be inadmissible as irrelevant".... The regression analysis failed to account for job title or any other variable representing type of work performed. This omission is fatal because [plaintiffs] claim that they should be compared to employees in other job categories who perform similar work but who earn more than they. According to their own theory of the case, therefore, job title, or some other measure of type of work, serves as a "major factor" within the meaning of Bazemore. But because the regression analysis compares all employees in all job categories without accounting for type of work, it tells us nothing about whether employees who perform similar work are paid differently. [Plaintiffs] therefore cannot use the regression analysis to show that similarly situated white employees earn more.... [T]he regression analysis is flawed as a matter of law....
(Citations omitted).
As in Coward, Dr. Drogin's compensation analysis completely fails to take the "major factor"
ofjob classification into account and make the proper comparison: that of blacks to whites in the same
job classification. (Ex. 2 at 18). Hourly pay at Lufkin is negotiated with the unions by job
classification. The fact that the average black employee makes less than the average white employee
means nothing unless the expert controls for job classification and, with respect to hourly employees,
attendance record. Dr. Drogin did not control for any of these factors. (Id.). That job classification
matters is evidenced by the fact that discrepancies in pay between blacks and whites dropped when Dr.
Drogin focused on EEO categories instead of the entire workforce. However, even within EEO
categories, there can be wide variation in the types and market value of jobs. Dr. Drogin made no

28

See also Smith v. Virginia Commonwealth Univ., 84 F.3d 672,676 (4th Cir. 1996) ("Bazemore and common sense

require that any multiple regression analysis used to determine pay disparity must include all the major factors on which

pay is determined.").

29

97-cv-00063-HC Document 237 Filed 09105/2Q03 Page 29 31

effort to break down this category into sub-groups much less to conduct an analysis based on job

classifications. Had Dr. Drogin taken his analysis one step further, as did Dr. Baker, and compared

workers in the same position, the discrepancies would have vanished. (Baker Report at 18-21.)

Therefore, as Dr. Drogin's multiple regression analyses failed to account for the major factors

that affect compensation at Lufkin, and failed to make the proper comparisons, these analyses are

inadmissible as a matter of law under Bazemore, and summary judgment on this issue is properly granted to Lufkin.29

IV. Plaintiffs' Abandoned Claims Must be Dismissed.

Plaintiffs offer no proof of disparity with respect to any other employment practice. As a

matter oflaw, any such claims are abandoned and

See Morin v. Caire, supra.

OF COUNSEL:
VINSON & ELKINS, L.L.P. First City Tower Houston, Texas 77002-6760

Attorney- n-Charge dhamel@velaw.com State BarNo. 08818300 CHRISTOPHER V. BACON Of Counsel State Bar No. 01493980 MICHELLE MAHONY Of Counsel State Bar No. 24002516 2300 First City Tower 100 I Fannin Street Houston, Texas 77002-6760 (713) 758-2036 (Telephone) (713) 615-5388 (Telecopy)

29

See Bickerstaff v. Vassar Coli., 196 F.3d 435, 449-50 (affmning grant of summary judgment to employer and

exclusion ofplaintiffs statistical analysis based on its failure to account for the major factors of teaching and service).

30

97-cv-00063-blC Document 237 Filed 091OS/2Q.03 Page 30 31
CERTIFICATE OF SERVICE I certify that on this 5th day of September, 2003, a copy of the foregoing Defendant Lufkin Industries' Motion for Summary Judgment was forwarded to Plaintiffs by facsimile transmission (without attachments) and by Federal Express as follows: Timothy B. Garrigan, 2803 North Street,
fA Nacogdoches, TX 75963-1902, (936) 560-9578, and Teresa Demchak, Saperstein, Goldstein,
Demchak & Baller, 300 Lakeside Drive, Suite 1000'JI311<1, 94612, (510) 835-1417.
I~ t...

1290129_10.00C

31

97-cv-00063-HC Document 237 Filed 09105/2003 Page 31 31
EXHIBITS TO DOCUMENT #237
MOTION FOR
SUMMARY JUDGMENT
NOT SCANNED

 
 Case 9:97-cv-00063-HC Document 513-1 Filed 04/06/2005 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION

SYLVESTER MCCLAIN, on his own

§

behalf and on behalf of a class of similarly §

situated persons, et al.,

§

§

Plaintiffs,

§

vs.

§

§

LUFKIN INDUSTRIES,

§

§

Defendant.

§

CIVIL ACTION NO. 9:97-CV-063 JUDGE COBB

DEFENDANT LUFKIN INDUSTRIES, INC.’S MOTION TO COMPEL PRODUCTION OF DOCUMENTS

Title VII authorizes the awarding of only “reasonable” attorneys’ (including expert) fees.

42 U.S.C. § 2000e-5(k). “Accordingly, the [fee] opponent is entitled to the information it

requires to appraise the reasonableness of the fee requested and in order that it may present any

legitimate challenges to the application to the District Court.” Nat’l Assoc. of Concerned

Veterans v. Sec’y of Def., 675 F.2d 1319, 1329 (D.C. Cir. 1982). Specifically, information

“primarily related to the justification for the claimed billing rate and the nature and extent of the

work done by the applicant’s counsel on various phases of the case…is essential in the

calculation of the fee award and opposing counsel should have access to this information as a

matter of right.” Id. (citing Wolf v. Frank, 555 F.2d 1213, 1215 (5th Cir. 1977), among others)

(emphasis added). Similarly, with regards to costs and expenses, the Fifth Circuit has explicitly

held that cost and expenses “must not be awarded when they are extravagant or unnecessary.”

Curtis v. Bill Hanna Ford, Inc., 822 F.2d 549, 553 (5th Cir. 1987) (emphasis added).

Plaintiffs object to 1) Lufkin’s request for, as evidence of exercised billing judgment,

records of time charged, but unbilled, by Plaintiffs’ counsel; 2) Lufkin’s request for invoices,

bills, and other documentation of expenses incurred; and 3) Lufkin’s request for Plaintiffs’

Case 9:97-cv-00063-HC Document 513-1 Filed 04/06/2005 Page 2 of 7
counsel’s yearly billing rates over the course of their representation of Plaintiffs (i.e., for 19962004; 2005 has been provided) (Defendant’s Third Request for Production, Requests Nos. 1-3). See Plaintiffs’ Responses and Objections at 1-4, a copy of which is attached as Exhibit A. These objections are not proper. I. Records of Time Charged, but Unbilled, by Plaintiffs’ Counsel, as Evidence of Exercised Billing Judgment
Recognizing that they are required to exercise “billing judgment,”1 Plaintiffs’ counsel have submitted declarations stating that they have written off some of their time. (Demchak Decl. at ¶73; Garrigan Decl. at ¶¶20, 23). However, they have refused to offer any proof of what they have actually written off. Id. Lufkin and the Court are expected simply to take Plaintiffs’ counsel at their word – that they exercised billing judgment. However, in order to truly assess Plaintiffs’ counsel’s “billing judgment,” Lufkin should be allowed to review the time entries that they have written off. In fact, the Fifth Circuit expects parties seeking fees to document hours written off so that their billing judgment can be evaluated, having noted that “[i]deally, billing judgment is reflected in the fee application, showing not only hours claimed, but also hours written off.” Walker, 99 F.2d at 769-70 (emphasis added).
There is no legitimate reason for resisting this request. If the records existed in the first place, producing them is hardly burdensome. In fact, redacting these entries from the time records would have taken more effort. Moreover, given the relevance of “billing judgment” to a final award of fees, Plaintiffs cannot argue that these records are not relevant. Accordingly, Plaintiffs should be compelled to produce records of time charged, but unbilled, by Plaintiffs’ counsel.
1 Walker v. U.S. Dept. of Housing & Urban Dev., 99 F.2d 761, 769-70 (5th Cir. 1996) (“Plaintiffs submitting fee requests are required to exercise billing judgment…which refers to the usual practice of law firms in writing off unproductive, excessive, or redundant hours”).
2

Case 9:97-cv-00063-HC Document 513-1 Filed 04/06/2005 Page 3 of 7
II. Invoices, Bills, and Other Documentation of Expenses Incurred While Lufkin is willing to narrow its request for invoices, bills, and other documentation
of expenses to only expenses related to 1) expert fees and 2) all travel, these two categories still amount to nearly $700,000. Yet Plaintiffs are unwilling to provide any invoices related to these two categories. Lufkin and the Court must simply assume that all of the work performed by Plaintiffs’ statistical experts was reasonable and justified. Similarly, Lufkin and the Court must assume that Plaintiffs’ counsel always used good judgment when traveling, despite the fact that frequently, multiple counsel traveled to the same event with airplane tickets costing between $1000 and $2000 each. There is no legitimate justification for withholding this information if Plaintiffs seek reimbursement of such expenses. Thus, Lufkin should have access to this information as a matter of right.
A. Expert fees As mentioned above, Title VII authorizes the awarding of only “reasonable” attorneys’ (including expert) fees. “Accordingly, [Lufkin] is entitled to the information it requires to appraise the reasonableness of the fee requested and in order that it may present any legitimate challenges to the application to the District Court.” See supra. Such documentation is especially necessary for Lufkin (and the Court) in this case as Plaintiffs are claiming expert fees of nearly half a million dollars ($497,666.53), (Demchak Decl. Exh. 29 ($465,915.36); Garrigan Decl. Exh. 2 ($31,751.17)), or nearly 60 percent (59.2%) of the total cost and expense request. Id. B. Travel expenses As noted above, the Fifth Circuit has explicitly held that cost and expenses “must not be awarded when they are extravagant or unnecessary.” Supra. “Accordingly, [Lufkin] is entitled to the information it requires to appraise the reasonableness of the [cost and expense] requested and in order that it may present any legitimate challenges to the application to the District
3

Case 9:97-cv-00063-HC Document 513-1 Filed 04/06/2005 Page 4 of 7
Court.” See supra. In fact, such a production is required by 28 U.S.C. § 1821 for travel costs associated with all witnesses and deponents. See infra. Expense reports alone, (Demchak Decl. Exh. 29; Garrigan Decl. Exh. 2), are not sufficient.
For example, § 1821(c)(1) states that a witness or deponent who travels by common carrier “shall utilize a common carrier at the most economical rate reasonably available. A receipt or other evidence of actual cost shall be furnished” (emphasis added). Similarly, “[t]oll charges for toll roads, bridges, tunnels, and ferries, taxicab fares between places of lodging and carrier terminals, and parking fees (upon presentation of a valid parking receipt) shall be paid in full to a witness [or deponent] incurring such expenses.” 28 U.S.C. § 1821(c)(3) (emphasis added).
Such documentation is especially necessary for Lufkin (and the Court) in this case as Plaintiffs are claiming travel expenses for Goldstein Demchak alone of nearly $175,000 ($174,249.21), (Demchak Decl. Exh. 29), or nearly a quarter (22.1%) of the total cost and expense request for the firm. (Id.) Entries also abound of airfares costing between $1,000 to $2000 each (e.g., $1,897 (8/11/2000); $1,499 (10/26/2001); $1,688 (11/18/2001)) with no additional information whatsoever.
Moreover, the request will not be burdensome. As Plaintiffs describe, travel receipts for airfare, hotels, meals, etc. are all already organized and attached to expense reports. See Plaintiffs’ Responses and Objections at 3. All that is needed is to copy them, some on both sides. (Id.)
Plaintiffs should be compelled to produce invoices, bills, and other documentation of expert fees and all travel expenses incurred.
4

Case 9:97-cv-00063-HC Document 513-1 Filed 04/06/2005 Page 5 of 7
III. Plaintiffs’ Counsel’s Yearly Billing Rates Over the Course of Their Representation of Plaintiffs
Finally, Plaintiffs refuse to reveal their billing rates for any year other than 2005 and ask the Court to use that billing rate for all years on grounds that “compensation at current relevant market rates is appropriate as a means of compensating for delay in payment.” (Plaintiffs Response and Objections at 4, citing Missouri v. Jenkins by Agyei, 491 U.S. 274, 283-84 (1989)). Plaintiffs tell only half of the story.2 “In compensating for a delay, the district court may either grant an unenhanced lodestar based on current rates, see Leroy v. City of Houston, 831 F.2d 576, 584 (5th Cir. 1987), or calculate the lodestar using the rates applicable when the work was done and grant a delay enhancement, see Alberti v. Klevenhagen, 896 F.2d 927, 936 (5th Cir. 1990).” Walker, 99 F.2d at 773 (emphasis added).
This decision is for the Court, not Plaintiffs, to make. And for good reason, for if Plaintiffs’ counsel’s billing rates between 2004 and 2005 increased at a faster rate than in previous years – either because of their perception of market forces or because they anticipated prevailing in a particular case – it would clearly not make sense to use those rates for earlier years. If the current hourly rate is used for all hours, the attorney will most likely be overcompensated. 151 A.L.R. Fed. 77 at §10. Disfavoring Plaintiffs’ approach is consistent with subsequent Supreme Court holdings. See Farrar v. Hobby, 506 U.S. 103, 115 (1992) (citing Riverside v. Rivera, 477 U.S. 561, 580 (1986)) (“prevailing party” attorneys’ fee awards under civil rights statutes “were never intended to ‘produce windfalls to attorneys’”).
2 The holding of Missouri actually reads, “an appropriate adjustment for delay in payment – whether by the application of current rather than historic hourly rates or otherwise – is within the contemplation of the statute. Missouri, 491 U.S. at 284 (emphasis added).
5

Case 9:97-cv-00063-HC Document 513-1 Filed 04/06/2005 Page 6 of 7

The Court needs these historical rates in order to choose the appropriate approach. Plaintiffs should not be allowed to hide this information and should be compelled to produce their counsel’s yearly billing rates over the course of their representation of Plaintiffs.
CONCLUSION For all the reasons cited above, Defendant’s Motion to Compel Production of Documents should be granted.

Respectfully submitted,

OF COUNSEL:
VINSON & ELKINS L.L.P. 1001 Fannin Street Houston, Texas 77002-6760

_____________/s/________________ DOUGLAS E. HAMEL Attorney-In-Charge dhamel@velaw.com State Bar No. 08818300 CHRISTOPHER V. BACON Of Counsel State Bar No. 01493980 2300 First City Tower 1001 Fannin Street Houston, Texas 77002-6760 (713) 758-2036 (Telephone) (713) 615-5388 (Telecopy)
Attorneys for Defendant, LUFKIN INDUSTRIES, INC.

6

Case 9:97-cv-00063-HC Document 513-1 Filed 04/06/2005 Page 7 of 7
CERTIFICATE OF SERVICE I certify that on this 6th day of April, 2005, a copy of the foregoing Defendant Lufkin Industries, Inc.’s Motion to Compel Production of Documents was filed electronically through the Court’s CM/ECF System and was automatically copied to Plaintiffs through the Court’s electronic filing system.
_____________/s/________________ Attorney for Defendant
CERTIFICATE OF CONFERENCE Pursuant to FRCP 26(c) and Local Rule CV-7(h), Lufkin’s counsel attempted to confer with Plaintiffs’ counsel in a good faith attempt to resolve the matter without court intervention by leaving a voicemail message – after assurances Plaintiffs’ counsel would be checking voicemail messages – detailing Lufkin’s concerns and proposed compromise. Plaintiffs’ counsel has not responded.
_____________/s/________________ Attorney for Defendant
7

 
 Case 9:97-cv-00063-HC Document 400 Filed 10/12/2004 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION

SYLVESTER MCCLAIN, on his own

§

behalf and on behalf of a class of similarly §

situated persons, et al.,

§

§

Plaintiffs,

§

vs.

§

§

LUFKIN INDUSTRIES,

§

§

Defendant.

§

CIVIL ACTION NO. 9:97-CV-063 JUDGE COBB

DEFENDANT LUFKIN INDUSTRIES’ MOTION TO DISMISS CLASS REPRESENTATIVES
Defendant Lufkin Industries (“Lufkin”) moves to dismiss class representatives Patrick Ross, Mary Thomas (Williams), Eddie Mask, Leroy Garner, Sherry Calloway Swint, Walter Butler, Clarence Owens, Earl Potts, Clifford Duirden, and Roald Mark (“class representatives”) for failure to fairly and adequately protect the interests of the class.
BACKGROUND On March 31, 1999, the Court entered an order designating Patrick Ross, Mary Thomas (Williams), Eddie Mask, Leroy Garner, Sherry Calloway Swint, Walter Butler (as a “John Doe”), Clarence Owens (as a “John Doe”), Earl Potts, Clifford Duirden, and Roald Mark as additional class representatives. Since that time, these class representatives have failed to demonstrate any interest in the action and have failed to adequately protect the interests of the absent class members.
ARGUMENT AND AUTHORITY Federal Rule of Civil Procedure 23(a)(4) provides, “One or more members of a class may sue . . . as representative parties on behalf of all only if . . . (4) the representative parties will

Case 9:97-cv-00063-HC Document 400 Filed 10/12/2004 Page 2 of 6
fairly and adequately protect the interests of the class.” FED. R. CIV. P. 23(a)(4). In its class certification memorandum opinion, the Court indicated that it “has continuing authority and ongoing obligation to adjust the class to serve the interest of its class members.” McClain v. Lufkin Industries, Inc., 187 F.R.D. 267, 281 (E.D. Tex. 1999). Indeed, the district court is charged with an ongoing duty of monitoring its class decisions in light of the development of the case. Richardson v. Byrd, 709 F.2d 1016, 1019 (5th Cir. 1983). See also Grigsby v. North Mississippi Medical Center, Inc., 586 F.2d 457, 462 (5th Cir. 1978) (“Before defining a class suit, the district court must determine that ‘the representative parties will fairly and adequately protect the interest of the class.’ The court’s responsibilities do not end there; it must continue carefully to scrutinize the adequacy of representation . . .”) (citation omitted); Guerine v. J&W Inv., Inc., 544 F.2d 863, 864 (5th Cir. 1977) (“A decision as to class certification is not immutable. Rule 23(c)(1) empowers and requires a court to carefully scrutinize the adequacy of representation in all class actions.”).
The adequacy requirement mandates that the class representatives demonstrate the willingness and ability to take an active role in and control the litigation. Berger v. Compaq Computer Corp., 257 F.3d 475, 482 (5th Cir. 2001). See also Gill v. Monroe County Dept. of Social Services, 92 F.R.D. 14, 16 (W.D.N.Y. 1981) (“The class representative stands in a most important position with regard to the litigation. Since the absent class members will be bound by any judgment which results from the action, the class representative has a special duty to safeguard the interests of the absent members and must be able and willing to participate actively in the litigation.”); City Partnership Co. v. Jones Intercable, Inc., 213 F.R.D. 576, 584 (D. Colo. 2002) (“Whether or not the class representative is familiar with the specifics of the complaint is not dispositive of the more critical question of whether that individual will adequately represent

1854073_1.DOC

2

Case 9:97-cv-00063-HC Document 400 Filed 10/12/2004 Page 3 of 6

the claims of the class by devoting time and effort to the lawsuit.”) (quoting In re Southeast Hotel Properties Limited Partnership Investor Litigation, 151 F.R.D. 597, 607 (W.D.N.C. 1993)). The class is entitled to more than blind reliance upon even competent counsel by uninterested representatives because an attorney who prosecutes a class action with unfettered discretion becomes, in fact, the representative of the class. This is an unacceptable situation because of the possible conflicts of interest involved. Kirkpatrick v. J.C. Bradford & Co., 827 F.2d 718, 727 (11th Cir. 1987); Greenspan v. Brassler, 78 F.R.D. 130, 133 (S.D.N.Y. 1978) (both quoting In re Goldchip Funding Co., 61 F.R.D. 592, 594 (M.D.Pa. 1974)).
Since being added as named representatives in this class action, the class representatives have failed to adequately represent and protect the interests of the absentee class members. The class representatives have shown no interest in this action and, since the class certification hearing, have not attended a hearing or trial.1 Courts have held that a plaintiff who fails to attend hearings and trial is inadequate to serve as a class representative. In re Goldchip Funding Co., 61 F.R.D. at 595 (denying class certification due to lack of adequate representation because the plaintiffs failed to demonstrate a “keen interest in the outcome of the litigation” as evidenced by the fact that neither of the proposed class representatives had attended any of the three hearings held in the case); Weikel v. Tower Semiconductor Ltd., 183 F.R.D. 377, 398 (D.N.J. 1998) (holding that an individual who may not be able to attend trial is not an adequate class representative because absence from trial seriously interferes with the obligation to vigorously prosecute the action). See also Gill, 92 F.R.D. at 16 (noting that the class representative was removed due to her apparent lack of interest in the lawsuit); Lenora v. Koller Die & Tool Co., Inc. 1978 WL 200, *1 (E.D. Wis. 1978) (disqualifying the plaintiff as an adequate class representative because of his demonstrated disinterest in the lawsuit). This Court has also
1 Nor did any of these representatives attend any of the mediation sessions.

1854073_1.DOC

3

Case 9:97-cv-00063-HC Document 400 Filed 10/12/2004 Page 4 of 6

emphasized the importance of class representatives attending hearings in the present case. McClain, 187 F.R.D. at 281 (indicating that the adequacy of representation requirement was satisfied because “Mr. McClain and Mr. Thomas have attended each court appearance involving this suit.”).
Accordingly, by not attending hearings and trial, the class representatives have failed to fairly and adequately protect the interests of the class and should be dismissed.
CONCLUSION For the foregoing reasons, Lufkin moves this Court to dismiss Patrick Ross, Mary Thomas (Williams), Eddie Mask, Leroy Garner, Sherry Calloway Swint, Walter Butler, Clarence Owens, Earl Potts, Clifford Duirden, and Roald Mark as class representatives.

OF COUNSEL:
VINSON & ELKINS, L.L.P. First City Tower Houston, Texas 77002-6760

Respectfully submitted,
__/s/_______________________________ DOUGLAS E. HAMEL Attorney-In-Charge State Bar No. 08818300 dhamel@velaw.com CHRISTOPHER V. BACON Of Counsel State Bar No. 01493980 MICHELLE MAHONY Of Counsel State Bar No. 24002516 2300 First City Tower 1001 Fannin Street Houston, Texas 77002-6760 (713) 758-2036 (Telephone) (713) 615-5388 (Telecopy)

1854073_1.DOC

4

Case 9:97-cv-00063-HC Document 400 Filed 10/12/2004 Page 5 of 6
CERTIFICATE OF SERVICE
I certify that on this _____ day of ____________ 2004, a copy of the foregoing Defendant Lufkin Industries’ Motion to Dismiss Class Representatives was filed electronically through the Court’s CM/ECF system and was automatically copied to Plaintiffs through the court’s electronic filing system.
_________/s/____________________ Attorney for Defendant

1854073_1.DOC

5

Case 9:97-cv-00063-HC Document 400 Filed 10/12/2004 Page 6 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION

SYLVESTER MCCLAIN, on his own

§

behalf and on behalf of a class of similarly §

situated persons, et al.,

§

§

Plaintiffs,

§

vs.

§

§

LUFKIN INDUSTRIES,

§

§

Defendant.

§

CIVIL ACTION NO. 9:97-CV-063 JUDGE COBB

ORDER GRANTING DEFENDANT LUFKIN INDUSTRIES’ MOTION TO DISMISS CLASS REPRESENTATIVES

The Court, having considered Defendant’s Motion to Dismiss Class Representatives Patrick Ross, Mary Thomas (Williams), Eddie Mask, Leroy Garner, Sherry Calloway Swint, Walter Butler, Clarence Owens, Earl Potts, Clifford Duirden, and Roald Mark, ORDERS that said class representatives be dismissed.

________________________________ UNITED STATES DISTRICT JUDGE

 
 Case 9:97-cv-00063-RC Document 582 Filed 08/15/2008 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION

SYLVESTER MCCLAIN, on his own

§

behalf and on behalf of a class of similarly §

situated persons, et al.,

§

§

Plaintiffs,

§

vs.

§

§

LUFKIN INDUSTRIES,

§

§

Defendant.

§

CIVIL ACTION NO. 9:97-CV-063 JUDGE CLARK

DEFENDANT LUFKIN INDUSTRIES, INC.’S MOTION TO QUASH DEPOSITIONS AND FOR PROTECTION FROM UNNECESSARY DISCOVERY

Although the time for discovery has long since passed, this case has been tried and

appealed, plaintiffs initiated “post-remand” discovery in this case without instruction from this

Court. To avoid unnecessary controversy, Lufkin cooperated in such discovery voluntarily

producing its electronic database which records all promotions and other personnel actions

(updating its production before trial through May 2008), producing documents (985 pages in

response to 22 separate requests) and presenting a corporate representative for deposition (with

two attorneys present, plaintiffs deposed Lufkin’s Manager for Human Resources for more than

six hours). Now, plaintiffs demand that Lufkin present five additional witnesses for deposition

of up to seven hours each and respond to an additional 22 requests for production and two

interrogatories with a total of 27 subparts. These depositions, requests, and interrogatories are

unnecessary for the Parties to craft their proposals for back pay and injunctive relief that this

Court requested on June 5, 2008 and can serve only to unnecessarily increase the litigation costs

in this case. Because plaintiffs’ appetite for discovery seems insatiable, Lufkin moves for

protection and the Court’s supervision of further discovery, if such discovery is necessary.

Case 9:97-cv-00063-RC Document 582 Filed 08/15/2008 Page 2 of 8
I. Background. On June 5, 2008, this Court asked the Parties to submit proposals (not to exceed ten pages) for calculating back pay and for injunctive relief in accordance with the Fifth Circuit’s decision in this case.1 While Lufkin presumed that the Court did not intend for the Parties to engage in post-remand discovery at least until the Court had an opportunity to consider the Parties’ proposals at the status conference currently scheduled for December 5, 2008, Lufkin agreed to allow Plaintiffs to engage in limited discovery on any changes that might have taken place since the trial. When Plaintiffs, however, served Lufkin with five separate notices for depositions under Rule 30(b) of the Federal Rules of Civil Procedure,2 Lufkin responded that it was not willing to consent to these depositions unless Plaintiffs agreed to a two-hour limit for each deposition. Plaintiffs countered that they needed the full seven hours to take the deposition of the person most knowledgeable about Lufkin’s human resources practices, but would consider limits to the remaining depositions after taking that first deposition. Therefore, on July 9, 2008, Lufkin presented John Havard, Lufkin’s Human Resources Manager for a 30(b)(6) deposition to testify on several broad subjects, including any actions taken by Lufkin to implement Judge Cobb’s Final Judgment. As has often been Plaintiffs’ practice throughout this litigation, two of Plaintiffs’ counsel were present for the deposition, including counsel who flew in from Oakland, California for the deposition. Havard was questioned for over six hours. Much of the questioning had little to do with Judge Cobb’s liability finding that Lufkin’s subjective decision-making practices had a disparate impact on promotion discrimination, much less the issue of what injunctive relief might
1 McClain v. Lufkin Industries, Inc., 519 F.3d 264, 283-84 (5th Cir. 2008) . 2 These depositions were for the person most knowledgeable about the human resources department, the person most knowledgeable about the corporate department, and the persons most knowledgeable for Lufkin’s three existing divisions. See notices of deposition attached as Exhibit A.

Case 9:97-cv-00063-RC Document 582 Filed 08/15/2008 Page 3 of 8
address any problem with those practices. Plaintiffs’ counsel asked many questions that were outside the scope of their notice of deposition, including a long line of questions concerning a 2007 EEOC charge in which an employee had alleged racial harassment, an issue that clearly involved a disparate treatment (not impact) claim. Havard depo. at 202-211. Havard was also asked about Lufkin’s paper and pencil tests and whether they had been validated, even though there was no finding by the trial court that those tests had a disparate impact on black employees, and Plaintiffs never challenged these tests during the original litigation. Havard depo. at 201.
Following Mr. Havard’s deposition, Plaintiffs renewed their request to take an additional four depositions pursuant to Rule 30(b)(6), plus the deposition of Paul Perez, Lufkin’s Vice President in charge of human resources. See Exhibit B. While Lufkin believed that further depositions were unnecessary for the Parties to craft their respective proposals for the Court and would only serve to unnecessarily increase each side’s legal expenses, Lufkin advised Plaintiffs that it would agree to the remaining Rule 30(b)(6) depositions of the persons most knowledgeable of the foundry, oil field, and power transmission divisions if Plaintiffs agreed to a reasonable time limit for each deposition. Plaintiffs were unwilling to agree to any time limits or to forego the depositions of Paul Perez or the representative with knowledge of the corporate division. Plaintiffs also served Lufkin with 22 additional requests for documents and two interrogatories that contained 27 separate questions, about objective tests that Plaintiffs chose not to challenge during the trial of this case. See Plaintiffs First Post-Remand Set of Interrogatories, Plaintiffs’ Second Post-Remand Request for Production of Documents; Plaintiffs’ Third PostRemand Request for Documents, attached as Exhibit C.

Case 9:97-cv-00063-RC Document 582 Filed 08/15/2008 Page 4 of 8
ARGUMENT There is no justification for Plaintiffs to take any more depositions, much less five more depositions that could last up to 35 hours. Addressing Judge Cobb’s injunctive relief ruling, the Fifth Circuit took issue with the trial court’s failure to identify “specific steps” that Lufkin needed to take in order to address the liability finding that Lufkin’s promotion practices had a disparate impact on black employees. 519 F.3d 264, 284 (5th Cir. 2008) (“An order framed in these broad generalities fails to afford notice to Lufkin of its proscribed or required conduct and is therefore unenforceable.”) While recognizing that it would “not be simple” to “craft an adequate remedial order that will eliminate discrimination without hobbling Lufkin’s legitimate promotion polices,” the Court of Appeals remanded the case to the district court for “reviewing afresh the propriety of the injunction, and if it is found necessary, of balancing plaintiffs’ requests for stronger measures to ensure Lufkin’s compliance with the imprecision of the liability finding.” Id. The scope of any prohibitory injunction should be limited to the specific conduct that Judge Cobb and the Fifth Circuit found to violate the law. See, e.g., United States v. Criminal Sheriff, 19 F.3d 238, 240-41 (5th Cir. 1994) (because there were only findings regarding discriminatory job assignments, court inappropriately entered an injunction against sex discrimination in hiring, promotion and recruitment); Brady v. Thurston Motor Lines Corp., 726 F.2d 136, 146-47 (4th Cir. 1984) (injunction against initial job placement not appropriate when Plaintiffs failed to prove discriminating initial job placement). There may be cases where a change in circumstances may be relevant to the issue of injunctive relief. See, e.g., Spencer v. General Elect., 894 F.2d 651, 660-61 (4th Cir. 1990), (affirming denial of injunction against sexual harassment where harassing supervisor was no

Case 9:97-cv-00063-RC Document 582 Filed 08/15/2008 Page 5 of 8
longer employed and company had revamped its sexual harassment policy) overruled on other grounds by Farrar v. Hobby, 506 U.S. 103 (1992); Dole v. Shenandoah Baptist Church, 899 F.2d 1389, 1401 (4th Cir. 1990) (affirming denial of injunction where defendant had ceased practice of paying “head of household” salary supplement). In such cases, Lufkin would generally have the burden of showing that the changed circumstances militated against the injunctive relief that the Court was considering imposing. If Lufkin were to argue that a change of circumstances should be taken into account by this Court in crafting injunctive relief --- and Lufkin may do so in its proposal to the court --- some discovery into those particular circumstances might be warranted.3 Until such time, there is no basis for any of the discovery, much less the far reaching and broad-based discovery that Plaintiffs have served on Lufkin.
During the litigation of this case, Plaintiffs took 21 depositions, most lasting a full day. In fact, plaintiffs post remand deposition was the fourth time that Havard had testified. He was deposed twice by plaintiffs (for a total of 9 hours 42 minutes) and testified at trial. The additional witnesses whom Plaintiffs seek to depose were also deposed before the trial of this case, some more than once, and all of them for at least a full day. Additionally, Plaintiffs had an opportunity to question these witnesses at trial.
Any order for injunctive relief should be based on the evidence that was presented to Judge Cobb during the trial of this case, because that is the evidence upon which Judge Cobb’s liability finding was based. In the event that Lufkin does argue that there has been a change of circumstances that the Court should take into account in determining appropriate injunctive relief, some discovery might be merited if it has not already been addressed in the recent deposition of John Havard.
3 One such circumstance, is Lufkin’s recent closure of its trailer division. Clearly, it would not make sense for the court to enter an injunction with respect to that particular division.

Case 9:97-cv-00063-RC Document 582 Filed 08/15/2008 Page 6 of 8
For the most part, Havard’s testimony provided the Plaintiffs with considerable detail about what Lufkin has done since the trial court entered its judgment. Havard described how Lufkin developed more consistent recordkeeping procedures across its divisions to keep track of every promotion decision. Havard depo. at 20-21, 43-44. Hence, in hourly promotions, whenever a more senior job bidder has lost out to a promotion to a less senior bidder, Lufkin can identify the specific factor or factors that resulted in the more senior job bidder losing out on the promotion, be it excessive absences, not having passed a required test for the job, being disqualified because the bidder was not seeking a higher ranked job (i.e., it would result in a demotion or a lateral move), or because the senior employee simply reconsidered and turned the job down. While Lufkin has always kept such data, the new recordkeeping procedures are clearer and more thorough, making it possible to conduct a disparate impact analysis of any specific rule in Lufkin’s collective bargaining agreement that might have an effect on black bidders. Havard also described the new processes by which human resources monitors promotions. Havard depo. at 44. With respect to the trial court’s concern that black employees might receive less on-the-job training, Havard explained that employees today would not receive training for a job classification that they did not hold. Havard depo. at 48-49. Havard also described the extensive diversity training that was conducted by an outside consultant in May 2005, for all supervisors and managers, as well as other training that has been provided on equal employment opportunity issues to Lufkin’s human resources department and other employees. Havard depo. at 32, 36-44.
Along with the discovery that Plaintiffs conducted prior to trial, and the evidence presented at trial, Plaintiffs certainly have enough information to develop the proposal requested

Case 9:97-cv-00063-RC Document 582 Filed 08/15/2008 Page 7 of 8

by the Court4 for injunctive relief that would address the court’s finding that subjective decisionmaking processes had a disparate impact on Lufkin’s promotions. In any event, their focus should be on the evidence presented at trial. There is no benefit to allowing Plaintiffs to conduct additional discovery at this time. It is already clear that Plaintiffs’ attorneys’ fees in this case will substantially exceed the total monetary relief obtained by the Plaintiffs. Allowing Plaintiffs to engage in full-scale post-judgment discovery will not aid the Court in determining appropriate injunctive relief and will provide no additional benefit to the individual Plaintiffs. For these reasons, Lufkin moves the Court to quash Plaintiffs’ depositions and enter an Order precluding Plaintiffs from taking additional discovery at this time.
Respectfully submitted,

OF COUNSEL:
VINSON & ELKINS L.L.P. 1001 Fannin Street Houston, Texas 77002-6760

____________/s/__________________ DOUGLAS E. HAMEL Attorney-In-Charge dhamel@velaw.com State Bar No. 08818300 CHRISTOPHER V. BACON Counsel State Bar No. 01493980 2500 First City Tower 1001 Fannin Street Houston, Texas 77002-6760 (713) 758-2036 (Telephone) (713) 615-5388 (Telecopy)
Attorneys for Defendant, LUFKIN INDUSTRIES, INC.

4 The ten-page memorandum is also supposed to address methods of calculating back wages.

Case 9:97-cv-00063-RC Document 582 Filed 08/15/2008 Page 8 of 8
CERTIFICATE OF CONFERENCE. I, Christopher V. Bacon conferred with Timothy Garrigan regarding this Motion. Mr. Garrigan was unwilling to agree to withdraw his Notices of Deposition and is opposed to this Motion.
____________/s/_______________ Christopher V. Bacon
CERTIFICATE OF SERVICE I certify that on this 15th day of August 2008, a copy of the foregoing Defendant Lufkin Industries, Inc.’s Motion to Quash Depositions and for Protection from Unnecessary Discovery was filed electronically through the Court’s CM/ECF System and was automatically copied to Plaintiffs through the Court’s electronic filing system.
_____________/s/________________ Attorney for Defendant

 
 Case 97-cv-00063-HC Document 202 Filed 07/03/2003 Page 1 of 25

IN

THE

UNITED

STATES

DISTRICT

F/! Err
COUR'fJ·:;· DiS":i

;-::("~',tt-RgOKURT

FOR THE EASTERN DISTRICT OF TEXAS q,,) II!r .., _.

LUFKIN DIVISION

'.' ~ .. ,;~ - j ?'1 q: 08

SYLVESTER MCCLAIN, et al.
Plaintiffs, vs.
LUFKIN INDUSTRIES,
Defendant.

§

:,~7J1EK'N

§

§

§

CIVIL ACTION NO. 9:97-CV-063

§

§

§

§

DEFENDANT LUFKIN INDUSTRIES' OBJECTION TO TRIAL IN BEAUMONT AND MOTION TO TRANSFER CASE TO LUFKIN FOR TRIAL

Defendant Lufkin Industries ("Lufkin") respectfully objects to the Court's sua sponte

Order which sets this case for trial in Beaumont and moves the Court to set this case for trial in

Lufkin, as follows:)

FACTUAL BACKGROUND

1. This case was filed in the Lufkin Division by Sylvester McClain and Buford

Thomas. Mr. McClain and Mr. Thomas lived and worked in Lufkin, Texas when this lawsuit

was filed. (Plaintiffs' Second Amended Supplemental Complaint, ~ 5 & 6). Following a class

certification hearing, the Court certified a class of all Black employees from March 6, 1994 to

present, consisting of 900+ class members.

2. On June 16, 2003, Plaintiffs filed a witness list identifying 62 non-expert

witnesses they expect to call at trial, virtually all of whom work or reside in Lufkin, and none of

whom work or reside in the Beaumont area. The Plaintiffs' potential witnesses include, among

others, 13 class representatives, 34 absent class members, and 21 current Lufkin supervisors,

managers, and officers (class and non-class members). (Exhibit A, Plaintiffs' Witness List).

While the Court has not actually transferred the case to the Beaumont Division (it has simply ruled that the case will be tried in Lufkin), the Court's Order has the same effect as a Transfer Order.

Case 97-cv-00063-HC Document 202 Filed 07/03/2003 Page 2 of 25
a. According to Plaintiffs' witness list, 12 of the 13 named plaintiffs and class representatives reside or work in the Lufkin vicinity, well within the boundaries of the Lufkin division, and none reside or work near the Beaumont area.2 (Exhibit A, Plaintiffs' Witness List). As named plaintiffs and class representatives, whose rights are affected by this case, each of these individuals has a special interest in this case as well as the right, if not the obligation, to attend any and all of portions of the trial of this matter, to the extent allowed by law.
b. In addition to the 13 class representatives, Plaintiffs identified 34 absent class members who may testify at trial. (Id.). According to the addresses provided by Plaintiffs, all of these individuals reside or work in the Lufkin area, within the boundaries of the Lufkin division, and none of them reside or work in the Beaumont area. (Id.). Like the named plaintiffs and class representatives, whose rights are being adjudicated in this action, each of these individuals has a special interest in this case and after giving testimony, should have a realistic opportunity to attend the trial of this matter.
c. Plaintiffs further identified 21 current Lufkin managers, supervisors, and officers (class and non-class members), including five manufacturing division heads with overall responsibility for Lufkin's respective manufacturing operations. (Exhibit B, Affidavit of Paul Perez). All of these individuals reside or work in the Lufkin area, within the boundaries of the Lufkin division, and each is important to the day-to-day operations of the Company. (Id.). In particular, the division heads are of critical importance to Lufkin's day-to-day manufacturing operations. (Id.). A lengthy trial

2

Class Representative Sherry Calloway-Swint resides in Lancaster, Texas, near Dallas.

2

Case 97-cv-00063-HC Document 202 Filed 07/03/2003 Page 3 of 25
requiring their absence from the Lufkin area for any significant period of time would unnecessarily disrupt business operations. (Id.).
d. Finally, Plaintiffs identified a handful of current or former Lufkin employees (non-class members), a former Lufkin manager, and several others, including a member of the Lufkin office of the Texas Workforce Commission and a local union official, as potential witnesses. Without exception, these individuals also reside or work within the Lufkin area, within the boundaries of the Lufkin division. (Exhibit A, Plaintiffs' Witness List).
e. Except as discussed above, the only person on Plaintiffs' witness list that lives outside the Lufkin area is Plaintiffs' own expert, who resides and works in California. (Id.). 4. There are in excess of 900 former and current Lufkin employees included in the class as it is currently defined. On information and belief, most of these individuals reside or work in the Lufkin area within the Lufkin division and none of them reside or work in the Beaumont vicinity. As plaintiffs, whose rights are being adjudicated in this action, each of these individuals has a special interest in the case and should have a realistic opportunity to attend any and all portions of the trial of this matter, to the extent allowed by the rules of procedure. 5. Lufkin's headquarters and principal manufacturing operations are all located in Lufkin, Texas. Lufkin has no facility or office in or around Beaumont. (Exhibit B, Affidavit of Paul Perez). Documents and other records related to the Company's Lufkin, Texas operations, including both personnel files and grievance files, are located in Lufkin, Texas. (Id.). 6. Plaintiffs' lead counsel resides and offices in Nacogdoches, Texas, which is approximately 20 miles from Lufkin and 127 miles from Beaumont.
3

Case 97-cv-00063-HC Document 202 Filed 07/03/2003 Page 4 of 25
7. Defendant's lead counsel reside and office in Houston, Texas, which IS approximately 120 miles from Lufkin and 88 miles from Beaumont.
8. To date, neither party has requested that the Court transfer this case to the Beaumont Division.
9. Plaintiffs originally demanded a jury. However, Plaintiffs have dismissed any claims that they might have for compensatory and punitive damages, making a jury unnecessary. 3
ARGUMENT The statutory presumption is that any case filed within the Lufkin division of the Eastern District of Texas will be heard in Lufkin. See 28 U.S.C.A. § 124(c)(7) ("[c]ourt for the Lufkin Division shall be held at Lufkin"). Because this case was filed in Lufkin, there is a statutory presumption that it should be tried in Lufkin. There is no basis to deviate from this statutory presumption and to transfer this case to Beaumont for trial. See In re Horseshoe Entertainment, - F.3d -, 2003 WL 21498934 (5th Cir. July 1, 2003) (granting writ of mandamus, reversing district court and ordering transfer of Title VII case to district and division where alleged discrimination occurred, employment records were located, and almost all potential witness resided). The analysis for any proposed transfer is the same regardless of whether the transfer is inter or intra-district. See Mohamed v. Mazda Motor Corp.. 90 F.Supp.2d 757, 768 (E.D. Tex. 2000). Except in cases where all of the parties consent to the transfer, 28 U.S.C. § 1404(b), there are only two circumstances that would justify having this case tried in Beaumont instead of
In previous correspondence, the Court has discussed providing an opt-out right to the class. To the extent any class member opts out, he or she would be entitled to a jury trial. Under established 7th Amendment jurisprudence, any such trial would have to occur before a trial of the class issues.
4

Case 97-cv-00063-HC Document 202 Filed 07/03/2003 Page 5 of 25
Lufkin: (1) "the convenience of parties and witnesses"; and (2) the "interest of justice." 28 U.S.C. § 1404(a).
A. All of the "Convenience" Factors Weigh Against Transferring This Case to Beaumont.
Convenience factors include: (1) plaintiffs choice of forum; (2) convenience of the parties and witnesses; (3) place of the alleged wrong; (4) location of counsel; (5) cost of obtaining the attendance of witnesses; (6) accessibility and location of sources of proof; and (7) possibility of delay and prejudice if transfer is granted. Hanby v. Shell Oil Co., 144 F.Supp.2d 673, 676-77 (B.D. Tex 2001) (Cobb, J.). Of these, the most important factor governing the choice of venue is whether "substantial inconvenience will be visited upon key witnesses." See Mohamed, 90 F.Supp.2d at 774.
"A plaintiffs right to choose a forum is well-established, and there is a strong presumption favoring a plaintiff's choice." Hanby, 144 F. Supp.2d at 677 (citing Robertson v. Kiamichi RR Co., L.L.c., 42 F. Supp.2d 651,655 (E.D. Tex. 1999)). Any transfer analysis must begin with the fact that Plaintiffs chose to bring this case in Lufkin. As Plaintiffs obviously recognized, Lufkin is the only location with a factual nexus to this case, and the only location convenient for the parties and the witnesses, virtually all of whom reside or work in the Lufkin area or vicinity and none of whom reside or work near Beaumont.
In the same case, this Court similarly stated that ''where another venue is more convenient to the residences of the parties, in terms of travel miles, over a more remote venue with no factual nexus, the closer venue is more appropriate." Hanby, 144 F.Supp.2d at 678. There is no dispute that the Defendant, Lufkin Industries, is principally located in Lufkin, Texas and has no facilities in Beaumont. (Exhibit B, Affidavit of Paul Perez). The Plaintiffs too, including all but one of the class representatives, reside or work in the Lufkin vicinity, within the
5

Case 97-cv-00063-HC Document 202 Filed 07/03/2003 Page 6 of 25
boundaries of the Lufkin division, and have no relationship to the Beaumont area. (Exhibit A, Plaintiffs' Witness List; Plaintiffs' Second Amended Supplemental Complaint, ~ 4-19). Additionally, upon information and belief, the 900+ class members, who are absent parties to this action, reside or work in the Lufkin vicinity, and have no known connection to Beaumont. In sum, each and every party whose rights will be adjudicated in this trial either lives or works in or around Lufkin and has no relationship to the Beaumont area.
The same results obtain with respect to the potential trial witnesses. Of the 62 non-expert witnesses identified on Plaintiffs' witness list: (i) all of the 13 named plaintiffs and class representatives reside or work in the Lufkin area, except for one class representative who lives near Dallas, (ii) all of the 32 absent class members reside or work in the Lufkin area, (iii) all of the 21 currently-employed Lufkin supervisors, managers, and officers (class and non-class) reside or work in the Lufkin area, and (iv) all of the remaining witnesses, including other past and present Lufkin employees, a representative from the Lufkin office of the Texas Workforce Commission, and a local union official reside or work in the Lufkin area. (Exhibit A, Plaintiffs' Witness List; Exhibit B, Affidavit of Paul Perez). Lufkin anticipates that all, or substantially all, of its witnesses will also reside or work in Lufkin.
Under these circumstances, a transfer to Beaumont will cause substantial inconvenience to the parties and administrative difficulties for the Court. First, because virtually all of the potential witnesses either live or work in the Lufkin vicinity, as pointedly demonstrated by Plaintiffs' own witness list, they will have to travel over 200 miles (roundtrip) to testify at the trial. Trial schedules are unpredictable and it is very difficult for counsel to predict with certainty when a witness will be needed. The witness who is called to appear to testify on the afternoon of one day, stands a good chance of being asked to return the next morning, meaning
6

Case 97-cv-00063-HC Document 202 Filed 07/03/2003 Page 7 of 25

many witnesses may have to miss multiple days of work (without pay) in order to stay in Beaumont, on standby, in case they are needed.
The respective parties will have to pay for the travel costs of any witnesses subpoenaed to testify in Beaumont, including mileage and possible multi-day hotel stays. Where, as here, the trial is expected to last at least one month, necessitating either roundtrip daily travel for many witnesses or hotel expenses in Beaumont, these costs in terms of both inconvenience to the witnesses and expense to the parties will be significant. See generally Conway v. Lenzing AktiengesellschaJt, 222 F. Supp.2d 833, 834 (E.D. Tex. 2002); Day v. Burlington Northern Santa Fe Railway Co., 196 F.Supp.2d 435,436 (E.D. Tex. 2001).
In addition to travel and hotel expenses, there are also other direct costs to the parties and witnesses. Putting aside the fact that all of the parties and witnesses will be forced to miss entire days of work to attend or testify at a trial more than 100 miles away from their homes and jobs, the Plaintiffs have identified 21 Lufkin managers, supervisors, and officers (class and non-class members) as potential witnesses. (Exhibit B, Affidavit of Paul Perez). Five of these individuals are manufacturing managers, in charge of Lufkin's manufacturing and production operations in each of its four divisions, and one is responsible for Lufkin's information systems companywide.4 (ld.). These individuals are critical to Lufkin's day-to-day operations and addressing the daily problems and requirements of Lufkin's customers and the employees under their supervision. (ld.). A lengthy trial in Beaumont requiring their continued or prolonged absence from the Lufkin area would disrupt the Company's business operations unnecessarily. (ld.).

4

These persons include Larry Long, Jay Glick, David Jinkins, Richard Gilley, Steven Reynolds, and Stephen

Conway. (Exhibit B, Affidavit ofpaul Perez).

7

Case 97-cv-00063-HC Document 202 Filed 07/03/2003 Page 8 of 25
On the other hand, if the case were tried in Lufkin, all ofthe parties, the 62+ witnesses on Plaintiffs' witness list, and the 900+ absent class members, could continue to work a normal schedule, attend the trial, and be available on short notice at the courthouse in Lufkin if subpoenaed to testify, without significant interruption to their regular workday or Lufkin's dayto-day operations.
The remaining convenience factors also militate in favor of keeping this trial in Lufkin. The location of all alleged wrongs committed by the Defendant occurred in and around Defendant's operating facilities in Lufkin. (Plaintiffs' Second Amended Supplemental
Complaint, W21-123). By contrast, Beaumont has no factual nexus to this case. Cf Hanby, 144
F. Supp.2d at 679. Plaintiffs' lead counsel resides much closer to Lufkin than Beaumont. Additionally,
while Beaumont may be slightly nearer to the Defendant's counsel's Houston offices, the undersigned counsel would find trial in Beaumont to be much more inconvenient, because of the lack of access to company records and company personnel during the trial. In particular, given that this case spans more than a decade, coupled with the sheer number of witnesses on Plaintiffs' preliminary witness list alone, Lufkin will be substantially disadvantaged by a trial occurring one hundred miles away from its records and managers, which are located in Lufkin.
Plaintiffs have identified 47 members of the class (including the named plaintiffs and class representatives) that they intend to call at trial to offer anecdotal evidence of alleged discrimination occurring at Lufkin Industries over the last 10 years. (Exhibit A, Plaintiffs' Witness List). The likelihood that unexpected statements may be made by these witnesses is significant, indeed, virtually a certainty, inasmuch as Plaintiffs' preliminary witness list includes an astonishing 34 absent class members, whom Plaintiffs have so far shielded from all
8

Case 97-cv-00063-HC Document 202 Filed 07/03/2003 Page 9 of 25

discovery.5 For example, it is not difficult to imagine in light of the depositions taken thus far, that some absent class member on Plaintiffs' witness list may take the stand and testify as did Class Representative Owens about some unnamed friend who applied for a job in the 1980's or as did Class Representative Butler about a promotion he or she did not get in the 1970's. Lufkin's cross-examination of these anecdotal witnesses will likely have to be prepared "on the spot" without the benefit of any substantial pre-trial discovery from absent class members. It is therefore essential that Lufkin have quick access to its records and managers in order effectively to rebut such anecdotal testimony. Such access is realistic only if trial is held in Lufkin, where Lufkin's records and managers are located. (Exhibit B, Affidavit of Paul Perez).
Finally, there is no possibility of delay or prejudice if a transfer is granted. Whether tried in Beaumont or Lufkin, this case will be tried by the same Court under the existing trial schedule.
B. The "Interest of Justice" Factors Weigh Heavily Against Transferring This Case to Beaumont.
Transferring a case may also be justified in the "interest of justice." 28 U.S.C. § 1404(a). Public interest factors include: (1) administrative difficulties caused by court congestion; (2) local interest in adjudicating local disputes; (3) unfairness of burdening citizens in unrelated forum with jury duty;6 and (4) avoidance of unnecessary problems in conflict of

5

Lufkin has filed a Motion to Compel and a Motion for Leave to Serve Written Discovery on the Class.

Both motions are still pending.

6

As it currently stands, the Court will try this case without a jury. Accordingly, there is no reason to

consider any argument that the "interest of justice" would be served by having a Beaumont jury hear this case

instead of a Lufkin jury because the latter would be prejudiced against one party or the other because of what

jurors had heard about the case. But even if this case were to be tried to a jury, there has been no showing that

it would be impossible to find a fair jury panel in Lufkin. In fact, there is evidence to the contrary. In January

2003, when this Court tried the case styled Roald Mark v. Lufkin Industries, 9:98-CV-00277, to a Lufkin jury,

the Court asked potential jurors in voir dire whether they had heard of the present class action. Not one of the

twenty-five potential jurors who been called had heard of the case. Ultimately, only two jurors had to be

struck for cause, one who had spouse who was employed by Lufkin and another who was related to one of

9

97-cv-00063-HC Document 202 Filed 07103/2003 Page 10 25

laws. Hanby, 144 F. Supp.2d at 677. There are no "interest of justice" factors that weigh in favor of having this case tried in Beaumont, in contrast to at least three compelling "interest of justice" factors that weigh heavily favor of having this case tried in Lufkin.
First, the 900+ class members have a direct interest in this case. They will be effectively shut out of attending the trial of this matter if they have to miss work and travel at their own expense more than 200 miles daily, round-trip, to attend the proceedings.
Second, there is a commensurate local interest in adjudicating local disputes. See Hanby, 144 F. Supp.2d at 676. The people of Lufkin certainly have a greater interest in this case than the citizens of Beaumont given that Plaintiffs have made serious accusations against a major Lufkin employer. If the case is held in Beaumont, it will be much more difficult for citizens interested in the case to attend the trial.
Finally, for Title VII actions, the Fifth Circuit has made it clear that there are specific "special factors" determining where proper venue lies: (1) the unlawful employment practice is alleged to have been committed; (2) the employment records relevant to such practice are maintained and administered; (3) the aggrieved person would have worked but for the alleged unlawful employment practice; and (4) the respondent has his principal office. 42 U.S.C. § 2000e-5(f)(3); In Re Horseshoe Entertainment, - F.3d -, 2003 WL 21498934 (5th Cir. July 1, 2003). 7 The Fifth Circuit has recognized that the special venue factors included in Title VII indicate that Congress determined that the most appropriate place for employment discrimination controversies to be litigated were within venues that had direct and immediate connection with

Lufkin's managers. There is nothing to suggest that this particular jury pool was anomalous. Based on the experience in the Mark case, it appears that an untainted jury could be found for the present case.

7

Although the Horseshoe opinion directly concerns itself with transfers between judicial districts, not

divisions, other Texas district courts have recognized that the principals articulated in that opinion are

instructive for transferring venue within districts as well. See Cardenas-Garcia v. Texas Tech University, 2003

WL 282445 (N.D. Texas-Dallas Div. Feb 4, 2003).

10

97-cv-00063-:tIC Document 202 Filed 07103/2003 Page 11 25
the parties, the events and the evidence bearing on their controversy. Id. All of these factors weigh in favor of having the present case tried in Lufkin.
CONCLUSION For the foregoing reasons, Lufkin is the more appropriate location for trial. Defendant moves that trial of this matter be reset for Lufkin, Texas.
E.HA L State Bar 0.: 008818300 CHRISTOPHER V. BACON State Bar No.: 01493980 MARY MICHELLE MAHONY State Bar No. 24002516 1001 Fannin Houston, Texas 77002-6760 (713) 758-2466 (Telephone) ATTORNEYS FOR LUFKIN INDUSTRIES CERTIFICATE OF CONFERENCE Plaintiffs are opposed to this Motion.
11

97-cv-00063-HC Document 202 Filed 07103/2003 Page 12 25
CERTIFICATE OF SERVICE I certify that on thisJd day of July, the foregoing motion was forwarded to counsel for Plaintiffs by facsimile (without exhibits) and Federal Express mail (with exhibits), with proper postage affixed and addressed as follows:
Timothy B. Garrigan Stuckey & Garrigan 2803 North Street Nacogdoches, Texas 76961
409-560-9578 Teresa Demchak Saperstein, Goldstein, Demchak & Baller 300 Lakeside Drive, Suite 1000 Oakland, California 94612
12

97-cv-00063-IjC Document 202 Filed 07103/2003 Page 13 25

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION

SYLVESTER MCCLAIN, on his own

§

behalf and on behalf of a class of similarly §

situated persons, et aI.,

§

§

Plaintiffs,

§

vs.

§

§

LUFKIN INDUSTRIES,

§

§

Defendant.

§

CIVIL ACTION NO. 9:97-CV-063

ORDER

The trial of this case is specially set for the United States Courthouse in Lufkin, Texas on

_ _ _ _ _ _-', 2003.

UNITED STATES DISTRICT JUDGE

97-cv-00063-tJC Document 202 Filed 07103/2003 Page 14 25
EXHIBIT A

Case 97-cv-00063-HC Document 202 Filed 07/03/2003

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06/16/0'3
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16: 32
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FAX
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510 835
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-

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l-ds-te

i-n

D-emc-hak

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Page 15 of 25 141 003/009

IN THE 'UNITED STATES DISTRICf COURT,

FOR THE EASTERN DISTRICf COURT OF TEXAS

LUFKIN DMSJON

Sylvester McClain, et al. Plaintiffs,
Vo
Lufkin Industries, Inc. Defendants.

§ Civil Action No. 9:97 CV 063 (COBB) § § § § §
§ § §

PLAINTIFFS' WITNESS LIST

I. PRELIMINARY STATEMENT
This witness list is based upon information presently known and available to plaintiffs, which they have been able to identify through reasonable efforts. Discovety, investigation, research and analysis are still on-going and may disclose the existence of additional witnesses or eliminate the need for testimony from previously identified witnesses. Plaintiffs therefore reserve and do not waive their right to add or delete witnesses from this list as a result of information later discovered or obtained. Further, plaintiffs reserve the right to add witnesses if necessary to rebut testimony provided lry any of Lufkin Industries. Inc.'s ("Lufkin") witnesses. Lastly, plaintiffs reserve the right to present at trial any witness identified on Lufkin's witness list, including but not limited to Lufkin's expert witnesses.
II. WITNESSES THAT PLAINTIFF MAY PRFSENT AT TRIAL;

1. Plaintiffs may present the following witnesses to provide expert testimony at trial:

,

a. Plaintiffs· statistical expert, Richard Drogin, 3104 Shattuck Avenue,

Berkeley, CA 94705; (510) 540-5071.

b. Additional experts to be disclosed in accordance with the Docket Control
Order filed with the Court on April 11, 2003.

8ase 97-cv-00063-HC Document 202 Filed 07/03/2Q03

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~004!009

2. Plaintiffs may present the :following witnesses at trial to testify regaffijDg Lufkin's employment practic~:
a. Marce D. Allen, Route 7, Box 1314, Lufkin, TX 75904; 936-853-3582.
b. Leon Arnie, Route 1, Box 167. Kennar~ TX 75847; 936-638-4327. Please note that Mr. Arnie is a member ofthe class certified in this matter and should be contacted only through plaintiffs' counsel.
... c. Travis Arnie, 601 S. Raguet, Lufkin, TX 75902; 936-634-2211. Please note that Mr. AnUe is a member ofthe class certified in this matter and should be contacted only
through plaintiffs' counsel.

cL Lenard Anders, 601 S. Raguet, Lufkin, TX 75902; 936-634-2211. Please note that Mr. Anders is a member ofthe class certified in this matter and should be contacted only through plaintiffs' counsel.

e. Viron Barbay, 601 S. Raguet, Lufkin, TX 75902; 936-634-221l.

f.

Perry Bell, 601 S. Raguet, Lufkin, TX 75902; 936-634-2211. Please note

that Mr. Bell is a member ofthe tlass certified in this matter and should be contacted only

through plaintiffs' counsel.

g. Thomas Brewer, 608 Bledsoe, Lufkin, TX 75904; 936-632-4180. Please note that Mr. Brewer is a member ofthe class certified in this matter and should be contacted only through plaintiffs' counsel.

h. Fremon Bryant, 601 S- Raguet, Lufkin, TX 75902; 936-634-2211. Please note that Mr. Bryant is a member ofthe class certified in this matter and should be contacted only
through plaintiffs' counsel.

i. James Btyant, P.O. Box 631844. Nacogdoches, TX 75965; 936-639-5748.

Please note that Mr. Bryant is a member ofthe class certified in this matter and should only be

contacted through. plaintiffs' counsel.

'

j.

Somari Bryant, 5510 CbampionDr.• Lufkin, TX 75901; 936-675-4014.

Please note that Mr. Bryant is a member ofthe class certified in this matter and should be

contacted only through plaintiffs' counsel.

Ie. Walter Butler, 101 Pametto Ct., Lufkin, TX 75901; 936-632-1332. Please note that Mr. Butler is a class representative in this matter and should be contacted only through plaintiffs' counsel.

1.

Sherry Calloway-Swint. 2601 Everton Dr.• Lancaster. TX 75134; 972-218-

6096. Please note that Ms. Calloway-Swint is a class representative in this matter and should be

contacted only through plaintiffs' counsel.

2

ease 9:97-cv-00063-!jC Document 202 Filed 0710312003

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ID.

Vivian Crain, 2403 Kingwood Cir' Lufkin, TX 75901; 936-632-7955. 7

Please note that Ms. Crain is a member ofthe class certified in this matter aod should be

contacted only through plaintiffs' counsel.

n. Steven Conway, 601 S. Raguet, Lufkin, TX 75902; 936--634-2211.

o. Byron Coutee, 601 S. Raguet, Lufkin, TX 75902; 936-634-2211. Please note that Mr. Coutee is a member of the class certified in this matter and should be contacted only 1hrough plaintiffs' counsel.

p. Gerald Coutee, 601 S. Raguet, Lufkin, TX 75902; 936-634-2211. Please note that Mr. Coutee is a member ofthe class certified in this matter and should be contacted only through plaintiffs' counsel.

q. Walter Culpepper, 601 S. Raguet, Lufkin, TX 75902; 936-634-2211. Please note that Mr. Culpepper is a member of the class certified in this matter and should be
contacted only through plaintiffs' counsel.

r.

Calvin Deason. 317 Ellis Ave., Lu~ TX 75904; 936-637-6264. Please

note that Mr. Deason is a member oftbe class certified in this matter and should be contacted

only through plaintiffs' counsel. '-

s. John Doss, Box 332, Well~ TX 75976; 936--867-4780.

t.

Clifford Duirden. 501 Chimney Rock, Lufkin, TX 75904; 936-634-5983.

Please note that Mr. Duirden is a class representative in this matter and should be contacted only

through plaintiffs' counsel.

u. William Fisher, Box 28002 MLK, Corrigan, TX 75939; 936-398-2256. Please note that Mr. Fisher is a member ofthe class certified in this matter and should only be contacted through plaintiffs' counsel.

v. Edward Gardner, 806 T:redwell Lufkin TX 75904; 936-634-6885. Please note that Mr. Gardner is a member ofthe class certified in this matter and should only be contacted through plaintiffs' counsel.

w. Leroy Gamer, Route 1, Pollock, TX 75969; 936-867-4474. Please note that Mr. Gamer is a class representative in this matter and should be contacted only through
plaintiffs' counsel.

x. Richard Gilley. 601 S. Raguet, LufkiD, TX 75902; 936--634-2211.

y. Jay Glick, 601 S. Raguet, Lufkin, TX 75902; 936-634-2211.
z. Clea'Yon Harper. 324 Tom Holland Road, L~ TX 75901; 936-6346331. Please note that Mr. Harper is a member of the class certified in this matter and should be contacted only through plaintiffs' COlDlSel.

3

Case 9:97-cv-00063-tJC Document 202 Filed 07103/2Q03
- - - 06/16-/0-3 -1-6:-33-F-AX-51-0 8-35-_ -I- - - - -Go-ld-st-ei-n Demcha-k -

of Page 18 25
~ 006/009

aa. Mondode Hadnot.. 601 S. Raguet, Lufkin, TX 75902; 936-634-2211.
Please note that Mr. Hadnot is a member of the class certified in this matter and should be
contacted only through plaintiffs' CO'UllSel.
bb. John Havard, 601 S. Raguet, Lufkin, TX 75902; 936-634-2211.
cc. Lemon Hamilton, 601 S. Raguet, Lufkin, TX 75902; 936-634-2211. Please note that Mr. Hamilton is a member ofthe class certified in this matter and should be
contacted only through plaintiffs' counsel.
dd. Jimmy L. Jackson, 404 Washington, Lufkin, TX 75904; 936-632-4169. Please note that Mr. Jackson is a mentber ofthe class certified. in this matter and should be contacted only through plaintiffs' counsel._
00. Alfred Johnson, 600 Sandybroolc, Lufkin, TX 75901; 936-639-5189. Please note that Mr. Johnson js a member ofthe class certified in this matter and should be contacted only through plaintiffs' counsel.
ff. David Jinkins, 601 S. Raguet, Lufkin, TX 75902; 936-634-2211.
gg. Robert LeWis, 512 Brase11, Lufkin. TX 75901; 936..634-2250. Please note
that Mr. Lewis is a member ofthe class certified in this matter and should only be contacted
through plaintiffs· counsel.
hh. Larry Long, 601 S. Raguet, Lufkin, TX 75902; 936-634-2211.
u. Oscar Lopez, 2803 Fuller Springs, Lufkin, TX 75901; 936-637-7829.
jj. A representative ofthe Lufkin Workforce Center, 346 N. John Redditt Dr., Lllflcin, TX 75904; 936-639-1351.
kk. Roald Mad, 614 Humaso~ Lufkin, TX 75901; 936-639-0622. Please
note that Mr. Mark is a class representative in this matter and should be contacted only through
plaintiffs' counsel.
11. Eddie Mask, 1807 Spence. Lufkin. TX 75901; 936-632-4930. Please note that Mr. Mask is a class representative in this matter and should be contacted only through
plaintiffs' counsel.
mm. Sylvester McClain, P.O. Box 151606, Lufkin, TX 75901; 936-699-2873. Please note that Mr. McClain is a Damed plaintiffin this watter and should be contacted only through plaintiffs' counsel.
nn. Kingsley McKay. 601 S. Raguet, L~ TX75902; 936-634-2211. Please note that Mr. McKay is a member ofthe class certified in this matter and should be contacted only through plaintiffs" counsel.
4

Case 9:97-cv-00063-tlC Document 202 Filed 07103/2Q03

- - - - . . .06/16/03 16:33 FAX -510-8.35-

Goldstein Demchak

Page 19

25 raJ 007/009

00. Robert Moye, P.o. Box 152051, Lu1kin, TX 75915; 93&.875-5968. Please note that Mr. Moye is a member ofthe class certified in this matter and should be contacted only
through plaintiffs' counseL
pp. Patsy Obi, Route 3, Huntington, TX 75949; 936-422-5098. Please note that Ms. Obi is a member ofthe class certified in this matter and should be contacted only through plaintiffs' counsel.
qq. Clarence Owens, 808 Atkinso~ Lufkin, TX 75901; 936-699-3742. Please
note that Mr. Owens is a class representative in this matter and should be contacted only through
plaintiffs' counsel.
IT. Paul Perez, 601 S. Raguet, Lufkin, TX 75902; 936-634-2211.
ss. . Earl Potts, 818 Overstlee4 Crockett, TX 75835; 936-544-5358. Please note that Mr. Potts is a class representative in this matter and should be contacted only through plaintiffs' counsel.
it. Keith Purvis, 150 White Dove Dr.• Lufkin, TX 75901; 936-824-3731. Please note that Mr. Punlis is a member ofthe class certified in this matter and should be
contacted only through plaintiffs'-counsel.
uU. Steven Reynol~ 601 S. Raguet, Lufkin. TX 75902; 936-634-221 L
vv. Louis Ross, 601 S. Raguet, L~ TX 75902; 936-634-2211. Please note that Mr. Ross is a member ofthe class certified in this matter and should only be contacted through plaintiffs' counsel.
ww. Patrick Ross, 107 Kirksey, Lufkin, TX 75901; 936-632-1368. Please note that Mr. Ross is a class representative in this matter and should be contacted only through
plaintiffs' counsel.
xx. Kenneth Singleton, 1107 Renfro, Lufkin, TX 75901; 936-639-1746. Please note that Mr. Singleton is a member ofthe class certified in this ma.tter and should be
ro~oruyiliro~pbmtim'ro~~
yy. Charles Shattuck, 601 S. Raguet, Lufkin, TX 75902; 936-634-2211. Please note that Mr. Shattuck is a member ofthe class certified in this matter and should only be
contacted through plaintiffS' counsel.
zz. Lenneth Sowell, '601 S. Raguet, L~ TX 75902; 936-634-2211. Please note that Mr. Sowell is a member ofthe class certified in this matter and should only be contacted through plaintiffs' counsel.
aaa. Lorinzo Tatum, Sr., 11197 CR. 3292 D, Garrison, TX 75946; 936-347-
3509. Please note that Mr. Tatum is a member ofthe class certified in this matter and should be
contacted only through plaintiffS' counsel.
5

Case 9:97-cv-00063-HC Document 202 Filed 07/03/2003
06/16/0~6.:33 FAX 51~ 835 . _ _ _ _ Goldstein Demchak

Page 20 of 25
~0081009

bbb. Buford Thomas, Route 7, P.O. Box 510, Lufkin, TX 75904-8532; 936632-7818. Please note that Mr. Thomas is a named plaintiffin this matter and should be contacted only through plaintiffs' cOWlSel.
ccc. Curtis Thomas. 601 S. Raguet. Lufkin, TX 75902; 936-634-2211. Please note that Mr. Thomas is a member ofthe class certified in this matter and should only be contacted through plaintiffs' counsel.
ddd. Kerroy M. Thomas. 115 Knollwoo~ L~ TX 75904; 936-526-6854. Please note that Mr. Thomas is a member of the class certified in this matter and should be contacted only through plaintiffs' counsel.
eee. Shirley Thomas, 614 N. Chestnut, Lufkin, TX 75901; 936-634-5089. Please note that Ms. Thomas is a member ofthe class certified in this matter and should only be contacted through pJaintiffs' counsel.
fif. Florine Thompson, 4205 June Drive, Lufkin, TX 75901; 936-875-4700.
m Please note that Ms. Thompson is a class representative this matter and should be contacted
only through plaintiffs' counse1.
ggg. BillyF. Webb. 200 AN CO Rd. 423, Palestine, TX 75803; 903-729-7148.
hhh. Bob Westerbrook. 601 S. Raguet, Lufkin, TX 75902; 936-634-2211.
iii. James White, P.O. Box 3198, Lufkin, TX 75907; 936-639·2654. Please note that Mr. White is a member ofthe class certified in this matter and should be contacted only through plaintiffs' counsel.
ill. Mary Williams, 612 Setlin; Lufkin, TX 75904; 936-637-0605. Please
note that Ms. Williams is a class representative in this matter and should be contacted only through plaintiffs' counsel.

6

97-cv-00063-tlC
------'-'-0"6-'116/03 16:34 FAX !)10 835 :..

Document 202 Filed 07103/2Q03 Goldstein Demchak

Page 21

25
141 009/009

kkk. Jeff Yount, 6089 U.S. Highway 69~, Pollock, TX 75969; 936-853-4847.

Dated: June 16, 2003

By. ~u' E. '/&M.eQ0
Teresa chak Darci E. Burrell Joshua G. Konecky Goldstein, Demchak. Baller, Borgen &
DaIdarian
300 Lakeside Drive, Suite 1000
Oakland, Califonria, 94612-3534 (510) 763-9800

Dated: J1lIle 16, 2003

By. iirno4-kif G-a.m~~ by Dt;:6
Timothy Gamgan
Stuckey, Garrigan & Castetter Law Offices
2803 North Street Nacogdoches, TX 75963-1902
(936)S~20

7

97-cv-00063-tiC Document 202 Filed 07103/2003 Page

25

EXHIBIT B

97-cv-00063-HC Document 202 Filed 07103/2Q03 Page 23 25

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICf OF TEXAS LUFKIN DIVISION

SYLVESTER MCCLAIN, on his own

§

beh.alf and on behalf of a (:bls.4l of similarly §

situated persons, ct aI.,

§

§

Plaintiffs,

§

vs.

§

§

LUFKIN INDUSTRIES,

§

§

Defendant.

§

CIVIL ACTION NO. 9:97-CV-063

AFnOAvn'OF PAUL PEREZ

STATE OF TEXAS

§

§

COUNTY OF ANGEI"INA §.

1. 1. Paul Perez, am over the age of twenty~ne and competent to make this Affidavit

and I have personal knowledge of the matters it contains.

2. 1 am the Vice President in charge ofIIuman Resources at Lufkin Industries.

3. Lufkin Industries' corporate headquarter.; and principal manufacturing operations

are located in Lufkin, Texas.

4. Documents and other records related to the Company'S ThThin, Texas operations,

including both personnel files and grievance files are located in Lufkin, Texas.

5. Lufkin Industries does not own OT operate any manufacturing facility in or around

Beaumont, Te}:as.

6. Lufkin Industries does not maintain a business office in OT around Beaumont,

Texas. 7.

I have reviewed Plaintifts' Witness List filed on lune 16,2003. in the matter of

Sylvester McClain. et 01. v. Lufkin Industries., CalL'Ie No. 9:97-CV-063. Plaintiffs' Witness List

lists identifies the following managers, supervisors. and officers currently employed by Lufkin

97-cv-00063-IjC Document 202 Filed 07103/2003 Page 24 25
Industries: (i) Travis Arnie; (ii) Viron Barbay~ (iii) Perry Bell; (iv) Fremon Bryant; (v) Steve
Conway, (vi) Byron Coutcc; (vii) Oendd Coutee; (viii) Walter Culpepper; (ix) Richard Gilley;
(x) Jay Glick; (xi) John Havard; (xii) Lemon Hamilton; (xiii) David Jinkins; (xiv) Larry Long;
(xv) Kingsley McKay; (xvi) Paul Perez; (xvii) Steven Reynolds; (xiix) Louis Ross; (xix) Charles Shattuck; (xx) Lenneth Sowell; and (xxi) Curtis Thomas. All of these individuals live and work
in the Lufkin, Texas area. The individuals are important to Lufkin's day-to-day operations and
.are responsible fhr addressing the daily problems and requirements of Lufkin's customers and the employees under their supervision. Their continued or prolonged absence from the Lufkin area would disrupt Lufkin's operations.
8. Of the 21 individuals identified in paragraph 7 of this Aftldavit. five are responsible for Lufkin's day-to-day manufacturing and production operations in its four primary business divisions: (a) Larry Long is the Oilfield Manufacturing Manager; (b) David Jinkins is the Power Transmission Manufacturing Manager; (e) Jay Glick is the Vice President and General Manager of the Power Transmission Divh.ion; (d) Richard Gilley is the Trailer Manufacturing Manager; and (e) Steven Reynold'! is Foundry General Manager. Foundry Division. In addition, Steve Conway is the Infonnation Systems Senior Project Leader, who..is-in charge of Lufkin's information ~'Ul8gement systems companywide. These individuals are critical to Lufkin's manufacturing and production operations. Their continued or prolonged absence frOm the Lufkin area would disrupt Lufkin~s operations.
Further affiant sayeth not.

97-cv-00063-I1C Document 202 Filed 07103/2003 Page 25 25

, Subscribed and sworn to before me the undersigned authority on this the ~ day of

----Alb~

2003.

\"..".5. )-"~

i QJr.r.",~~.. /

NOTARY PUBLIC \

 
 Case 9:97-cv-00063-RC Document 609 Filed 02/19/2009 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION

SYLVESTER MCCLAIN, on his own

§

behalf and on behalf of a class of similarly §

situated persons, et al.,

§

§

Plaintiffs,

§

vs.

§

§

LUFKIN INDUSTRIES,

§

§

Defendant.

§

CIVIL ACTION NO. 9:97-CV-063 JUDGE CLARK

DEFENDANT LUFKIN’S POSITION ON DISPUTED ISSUES FOR INJUNCTIVE RELIEF
At the Status Conference on December 5, 2008, the Court ordered the Parties to confer on a “methodology on injunction” and advise the Court on those issues on which they were in agreement (which have been identified in the Parties Joint Report on Injunctive Relief) and identify those issues on which they were not in agreement.
In agreeing to the character of certain remedial relief if an injunction is necessary, Lufkin has expressly reserved its right to challenge the need for injunctive relief based on the Fifth Circuit’s determination that only the Thomas charge supports the class claims (which Lufkin contends changes the liability period to no earlier than April 2, 1996) and the changed circumstances reflected in promotion data to 2007-2008. Notwithstanding Judge Cobb’s liability findings, Lufkin believes the data analysis since trial establishes conclusively that there is no statistically significant shortfall in African-American salaried promotions in any relevant time period.

Case 9:97-cv-00063-RC Document 609 Filed 02/19/2009 Page 2 of 8

To establish liability, Plaintiffs’ expert found a shortfall of 8.85 promotions in salaried positions between 1994 and 2002 at -2.02 standard deviations, which just meets the 5 percent level of statistical significance. Had Plaintiffs’ analysis been done for any other time period: from 1996 to 2002 (which would have been the appropriate time period had Buford Thomas’ EEOC charge been used; 1994 to 2008, 1996-2002, 2000-2007, or 2003-2007, there would have been no statistically significant shortfall in African-American salaried promotions. Even Plaintiffs’ expert concedes that there have been no lost promotions in salaried jobs since the time of trial (based on his calculation of zero damages in that period for salaried promotions).

Years
1994-2002 1994-2008 1996-2002 2000-2007 2003-2007

Total Number of Promotions
386 639 290 335 256

Total Number of Black Promotions 34 72 28 47 39

Disparity
-8.85 -7.93 -6.35 -1.02 0.91

Number

of

Standard

Deviations

-2.02

-1.61

-1.62

-.034

0.41

While there have been some lost hourly promotions since the time of trial, using Plaintiffs’ expert’s methodology, which the district court accepted, the number of lost promotions has been steadily declining. Thus, certainly as to salaried promotions, and, possibly, given the changes occurring since trial and during the period that Lufkin believes is the appropriate period to measure liability for hourly promotions,1 the need for far-reaching injunctive relief has been tempered.
In this light, Lufkin also disagrees with the Plaintiffs on the following issues:

1 Since 2003, Lufkin’s recordkeeping for hourly promotions has been dramatically improved, thus permitting analysis of active data which the courts universally accept as the preferred method.
-2-

Case 9:97-cv-00063-RC Document 609 Filed 02/19/2009 Page 3 of 8
1. Whether employees should first make complaints to Lufkin’s Human Resources department or their union before complaining to the Ombudsperson. While the Parties have agreed that the ombudsman would have authority to receive, investigate provisionally, determine and recommend measures to resolve complaints from Lufkin employees regarding Lufkin’s non-compliance with Court-ordered relief and from African-American employees regarding promotion and promotion-related discrimination, the Parties disagree as to whether employees should first make complaints to Lufkin’s Human Resources department or their union before complaining to the ombudsperson. From Lufkin’s prospective, the Court should foster, not circumvent, a culture which encourages employees to look to Human Resources or their union when they have problems.
With respect to the unions, this is especially important because the unions are the statutorily-recognized representatives of Lufkin’s hourly employees. People Who Care v. Rockford Bd. Of Educ. Sch. Dist. No. 205, 961 F.2d 1335, 1337 (7th Cir. 1992) (even though school district had been found to violate the Constitution, it was improper for district court to approve consent decree that conflicted with provisions of collective bargaining agreement without giving the union a hearing). In order not to infringe the union’s statutorily protected relationship with its members, the ombudsperson should first ask the complaining employee if he had complained to his union about any denied promotion and postpone consideration of any complaint until the employee has first given his union an opportunity to represent him consistent with its statutory duty and then determines that the union has not been properly responsive.
While not statutorily required, salaried employees should also be encouraged to first bring their concerns to Lufkin’s Human Resources department. If Lufkin and the employee are unable to resolve the complaint on their own, and only then, should the ombudsman become
-3-

Case 9:97-cv-00063-RC Document 609 Filed 02/19/2009 Page 4 of 8
involved in individual employee complaints. Thus, if an employee has a complaint, the remedial measures in the injunction should give Lufkin an opportunity to respond to the employee’s complaint either by providing the employee with additional information or, if the complaint has any basis, correcting the problem. Ultimately, since the goal is to develop internal mechanisms that will not require continued court supervision, having Lufkin respond first encourages the appropriate remedial action and develops the processes the Court wants established.
In the event that an employee complains to the ombudsperson without first bringing his complaint to Lufkin or the unions, the ombudsperson should first instruct the employee to complain about his denied promotion to Lufkin or his union. Lufkin is not be opposed to the ombudsperson advising employees, if they are not satisfied with Lufkin’s or union’s response, to then bring the complaint to him.
2. Whether the Ombudsperson should have authority to receive complaints of alleged discrimination regarding employment practices unrelated to promotions or noncompliance with the court’s injunction. The Parties are in disagreement as to scope of the ombudsperson’s authority to hear complaints. Plaintiffs prevailed on a single claim of disparate impact discrimination against blacks in promotions. Therefore, the ombudsperson should be limited to receiving and investigating complaints of black employees who believe that they have been discriminated against in promotions. The ombudsperson should consider discrimination in other practices of employment if and only that discrimination was directly related to the denied promotion. See United States v. Criminal Sheriff, 19 F.3d 238, 239-40 (5th Cir. 1994) (injunction narrowed to only address discriminatory job assignments because it was the only practice at issue). For example, if Lufkin took the position that an employee had not received a promotion because he had been disciplined, the ombudsperson could investigate if this were the case and, if
-4-

Case 9:97-cv-00063-RC Document 609 Filed 02/19/2009 Page 5 of 8
so, if race was implicated in the disciplinary decision. On the other hand, if an employee simply complained that he had been disciplined because of his race, the ombudsperson would not have authority to investigate although he could advise the employee of his right to file a charge of discrimination with the Equal Employment Opportunity Commission.
3. Whether an analysis of Lufkin’s promotion data should be conducted every six months or annually, and what type of analysis should be conducted by the ombudsperon. The Parties agree that the ombudsperson should provide the Court with reports on the promotion data that he receives from Lufkin along with any analyses that he has conducted on that promotion data. The Parties, however, disagree on the frequency of these reports, and more important, the type of analysis that the ombudsperson should conduct on this data.
As noted at the beginning of this submission, Plaintiffs’ own analysis reveals no lost promotions in salaried promotions and a declining number of lost promotions in hourly promotions. No doubt recognizing that the ombudsperson is unlikely to find a statistically significant discrepancy in Lufkin’s promotion data, Plaintiffs are opposed to limiting the ombudsperson to reporting “statistically” significant disparities in promotions and propose instead a looser undefined standard. While Lufkin has no objection to the ombudsperson conducting independent statistical analyses of Lufkin’s promotion data, the Court should require the ombudsperson to apply the same statistical tools that the court would accept during trial for analyzing the data and only report to the Court any “statistically significant disparities” as opposed to perceived disparities. See Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 655 (1989) (“Since the statistical disparity relied on by the Court of Appeals did not suffice to make out a prima facie case, any inquiry by us into whether the specific challenged employment
-5-

Case 9:97-cv-00063-RC Document 609 Filed 02/19/2009 Page 6 of 8
practices of petitioners caused that disparity is pretermitted… .”); MacRae v. McCormick, 458 F. Supp. 970, 980 (D.D.C. 1978) (evidence of disparity without evidence bearing on statistical significance is “of little probative value”), aff’d mem., 69 Fair Emp. Prac. (BNA) 320 (D.C. Cir. 1979).
While less controversial, Lufkin would also propose that the statistical analysis be conducted annually as opposed to every six months because an annual review would be based on more information and would more likely yield an accurate picture of whether the remedial measures are having the desired effect of reducing subjectivity in Lufkin’s promotion practices.
4. Whether managers should be evaluated on equal employment opportunity metrics. Plaintiffs have proposed that Lufkin develop performance “metrics” related to equal employment opportunity for manager accountability to be used to evaluate managers and as a factor in setting their compensation. Lufkin is opposed to the Court, through its injunction, effectively requiring supervisors and managers to meet certain goals in promotions as that presumes that Lufkin is obligated to meet specific quotas in promotions, which it is not. Nor does Lufkin believe that the Court, through its injunction, become a super Board of Directors dictating Lufkin’s evaluation and compensation practices (both of which were included as practices the class was certified to pursue and both of which Plaintiffs abandoned, offering no evidence of any disparate impact in evaluation or compensation systems for supervisors or managers).
In taking this position, Lufkin is not suggesting that it would ignore valid discrimination complaints against particular supervisors or managers or would disregard supervisors or managers who failed to follow Lufkin’s policies and procedures. Lufkin agrees that appropriate disciplinary action should be taken in such situations, but that such issues are not properly
-6-

Case 9:97-cv-00063-RC Document 609 Filed 02/19/2009 Page 7 of 8
regulated by an injunction directed to evaluation and compensatory systems. Such matters are more properly addressed to Lufkin in show cause or contempt proceedings with respect to its failure, if any, to endure compliance with the Court’s injunction as to promotion procedures.
5. Whether the Court’s injunction should remain in effect for two years with an option to extend, or for seven years. Again for the reasons set forth initially, there is no justification for the court to retain jurisdiction for another seven years when the liability findings were based on a period that ended in 2002, and there is been no statistically significant disparities in salaried promotions since the that time, and minimal disparities in hourly jobs. The court should retain jurisdiction for another two years. In the event that the ombudsperson finds continued disparate impact in promotions during the next two years, then the Court properly will consider a motion from Plaintiffs to extend the period of injunction. Otherwise, there is no reason for continued oversight beyond 2011.
Defendant Lufkin’s recommendations regarding injunction relief and comments herein are without prejudice to its reservation of right to challenge the Court’s underlying liability findings based on the Fifth Circuit’s decision that Sylvester McClain did not exhaust administrative remedies and that changed circumstances make injunctive relief as to salaried promotions unnecessary.
-7-

Case 9:97-cv-00063-RC Document 609 Filed 02/19/2009 Page 8 of 8

OF COUNSEL:
VINSON & ELKINS L.L.P. 1001 Fannin Street Houston, Texas 77002-6760

Respectfully submitted,
____________/s/__________________ DOUGLAS E. HAMEL Attorney-In-Charge dhamel@velaw.com State Bar No. 08818300 CHRISTOPHER V. BACON Of Counsel State Bar No. 01493980 2300 First City Tower 1001 Fannin Street Houston, Texas 77002-6760 (713) 758-2036 (Telephone) (713) 615-5388 (Telecopy)
Attorneys for Defendant, LUFKIN INDUSTRIES, INC.

CERTIFICATE OF SERVICE I certify that on this 19th day of February 2009, a copy of the foregoing document was filed electronically through the Court’s CM/ECF System and was automatically copied to Plaintiffs through the Court’s electronic filing system.

____________/s/____________________ Attorney for Defendant

-8-
Houston 3886148v.3

 
 Case 97-cv-00063-HC Document 340 Filed 11/12/2003 Page 1 7

'J SF!;l>',"=";."::..D1'"1 -Cll'r"::.RK
IN THE UNITED STATES DISTRICT COURT· . -'.,:; I i' leT COU1tT

FOR THE EASTERN DISTRICT OF TEXAS'([3 . :::1 /2 J,,,, I

LUFKIN DIVISION

P'd {I: 31

TX [';ST£~?N_

SYLVESTER MCCLAIN, et al.

§

§

O't~

Plaintiffs,

§

vs.

§

CIVIL ACTION NO. 9:97CV063

§

(JUDGE COBB)

§

LUFKIN INDUSTRIES, INC.

§

§

Defendant.

§

DEFENDANT'S REPLY TO PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR RECONSIDERATION AND MOTION TO STRIKE

Lufkin has produced all ofthe documents Plaintiffs seek to compel. The only conclusion

Lufkin can draw from the content and tone of Plaintiffs' response, which contains only one

paragraph that actually addresses Lufkin's motions, is that Plaintiffs are using this as an

opportunity to perpetuate additional misstatements about the discovery process and Lufkin's

discharge of its discovery obligations.

A. Lufkin's Motion to Strike Should Be Granted.

On October 3, 2003, six weeks after the discovery deadline, Plaintiffs requested Lufkin to

produce "application forms, records reflecting education, and performance evaluations" from 33

personnel files On October 10,2003, Plaintiffs requested the same documents plus "disciplinary

records" from all 185 personnel files Mr. Garrigan inspected on September 25 and intended to

inspect on October 8. Plaintiffs never requested any of these documents during discovery

(formally or informally). Because Plaintiffs' motion to compel is a blatant attempt to obtain

additional discovery after the discovery deadline, it should be stricken as untimely.

Plaintiffs' Motion to Compel should be stricken for the additional reason that it exceeds

the page limitation. Contrary to the claim in Plaintiffs' response, Lufkin's Motion to Strike

141S78U.DOC

1

Case 97-cv-00063-HC Document 340 Filed 11/12/2003 Page 2 7
Plaintiffs' 86-page motion to compel (filed less than two weeks after Plaintiffs' 208-page motion to compel) is not based on the page limitations set forth in Local Rule CV-7(a)(2), which Lufkin agrees is exclusive of attachments, but the rules that the Court announced would apply in this case. In this case, the Court has directed counsel for Lufkin that the page limitations that appear in the Local Rules would be enforced, inclusive of attachments. Plaintiffs' motion to compel is 86 pages, inclusive of attachments. This is well beyond the 15 pages allowed.
B. Lufkin's Motion for Reconsideration Should Be Granted. The Court set Lufkin's Motion for Reconsideration for hearing on November 13, 2003. Lufkin appreciates the opportunity to be heard on its motion, however, the Court's failure to act on Lufkin's contemporaneous motion to stay left Lufkin with no choice but to comply with the Court's Order, or risk a motion for sanctions, which Plaintiffs stated they intended to file (and surmised the Court would grant) if immediate compliance did not occur. As of November 5, 2003, all of the documents had been produced. Thus with the exception of reconsideration of the Court's open-ended requirement that Lufkin permit Plaintiffs continued access to all personnel files, Lufkin has been deprived in practical terms of any of the relief it originally sought. In any event, Lufkin continues to believe, for all the reasons set forth in its response to Plaintiffs' motion to compel, that Plaintiffs' motion to compel is unfounded and nothing more than an attempt to conduct discovery after the discovery deadline. The Court denied Lufkin that opportunity and should have denied the same request by Plaintiffs. Lufkin will respond briefly to Plaintiffs' misstatements about the prior discovery and inspection process. Any alleged hindrance in Mr. Garrigan's inspection of training materials on September 25 (which have nothing to do with Lufkin's motion to strike or Plaintiffs' motions to compel and have already been produce) was solely the result of Mr. Garrigan's own actions.
2

Case 97-cv-00063-HC Document 340 Filed 11/12/2003 Page 3 7
Had Mr. Garrigan recognized Ms. Mahony's claim of privilege as to any handwritten notes, Ms. Mahony could have quickly reviewed the handwritten notes (while Mr. Garrigan inspected other training manuals) to determine if the notes were privileged. (Attachment A, Mahony Declaration). Instead, Mr. Garrigan debated the issue while he continued to read the handwritten notes. Then, to frustrate the process further, he demanded that Ms. Mahony put her assertion of privilege in writing, two different times, and then amend, initial, date, and time-stamp the writing before he would turn over the handwritten notes. (Jd.). Given the events of September 25, Lufkin is not willing to require one of its employees, not familiar with the law or rules of procedure, to supervise Mr. Garrigan.
During the September 25 inspection, Mr. Garrigan also picked up a copy of Lufkin's Company newspaper and began reading it without permission. (ld.). The "Lufkin Connection" clearly states on the front page that it is intended for Lufkin employees and their families. (Jd.). Mr. Garrigan is neither. Second, the "Lufkin Connection" is not a document that is publicly disseminated or available. (Id.). Indeed, Plaintiffs formally requested copies of the Company newspaper in a request for production. (Id.).
Lastly, on August 6, 2003, Mr. Garrigan came to Lufkin's offices to pick up some personnel requisition fonns. Despite being told by counsel to wait in the lobby, Mr. Garrigan proceeded directly to the Human Resources suite. (Id.). The non-managerial Human Resources employee he approached was surprised by his unannounced appearance and unsure how to respond. (ld.). Lufkin does not believe there was anything malicious in Mr. Garrigan's actions, however, his disregard of counsel's instructions and unannounced appearance in the Human Resources suite validates Lufkin's continuing belief that Mr. Garrigan's presence in Lufkin's
3

Case 97-cv-00063-HC Document 340 Filed 11/12/2003 Page 4 7

offices must take place under the supervision of counsel, knowledgeable of the law and the rules of procedure. (Id.)

Respectfully submitted,
~~~f.;

OF COUNSEL:
VINSON & ELKINS, L.L.P. First City Tower Houston, Texas 77002-6760

Attorney-In-Charge dhamel@velaw.com State Bar No. 08818300 CHRISTOPHER V. BACON Of Counsel State Bar No. 01493980 MICHELLE MAHONY Of Counsel State Bar No. 24002516 2300 First City Tower 1001 Fannin Street Houston, Texas 77002-6760 (713) 758-2036 (Telephone) (713) 615-5388 (Telecopy)

CERTIFICATE OF SERVICE

It" I certify that on this day of November, 2003, a copy of the foregoing was forwarded

to Plaintiffs by facsimile transmission (without attachments) and by Federal Express as follows:

Timothy B. Garrigan, 2803 North Street, Nacogdoches, TX 75963-1902, (936) 560-9578, and

Teresa Demchak, Morris Baller, Darci Burrell, and Joshua Konecky, Goldstein, Demchak,

2 & 4 , Baller, Borgen & Dardarian, 300 Lakeside Drive, Suite 1000, Oakland, CA 94612, (510) 835-

1417.

~

Attorney for Defendant

141578Ll.DOC

4

Case 97-cv-00063-HC Document 340 Filed 11/12/2003 Page 5 7

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION

SYLVESTER MCCLAIN, et al. Plaintiffs,
vs.
LUFKIN INDUSTRIES, INC. Defendant.

§

§

§

§

CIVIL ACTION NO. 9:97CV063

§

(JUDGE COBB)

§

§

§

§

DECLARATION OF MARY MICHELLE MAHONY

I, Mary Michelle Mahony, am of sound mind and over the age of twenty-one, am competent to make this Declaration, and have personal knowledge of the truth of its contents. I make the following declaration under penalty of perjury:

"1. I am an attorney licensed to practice law in the State of Texas and before the United States District Court for the Eastern District of Texas. I am an associate attorney with the law firm of Vinson & Elkins, LLP.

2. I represent Lufkin Industries, Inc. ("Lufkin") in this action-styled action.

3. I traveled to Lufkin Industries on September 25, 2003 to meet Mr. Garrigan at 10:00 a.m. so that he could inspect training materials and personnel files. During the inspection, I asked Mr. Garrigan why he had not reviewed the training materials or personnel files earlier before the discovery deadline and he told me that he had been busy.

4. I arranged for the inspection to take place in a conference room, approximately 25 yards from the Human Resources suite, in order to minimize disruption to workplace.

5. When Mr. Garrigan arrived, I showed him the two boxes of training materials. Before giving the materials to Mr. Garrigan, I noticed that some of the training manuals contained unrelated, privileged materials in the front pockets and between some pages, including certain portions of Lufkin's affirmative action plan which the Court has ruled are privileged. I reviewed and removed this material.

6. There were also some handwritten notes in some of the trammg manuals, including an affirmative action manual Mr. Garrigan was reviewing. I had never seen the notes before September 25, did not know who wrote the notes, or the context in which they were written. I asked Mr. Garrigan several times to return the manual and to review another training manual so that I could review the content ofthe notes. Mr. Garrigan refused.

Case 97-cv-00063-HC Document 340 Filed 11/12/2003 Page 6 7
7. I then specifically advised Mr. Garrigan that I was asserting privilege with respect to the handwritten notes until I had the opportunity to review them. Again, Mr. Garrigan refused and continued to review the material. After several more assertions of privilege, Mr. Garrigan told me to put it in writing.
8. While I did not think this was necessary, I hurriedly wrote out my assertion of privilege. Mr. Garrigan looked at it, said it was illegible, and continued to refuse to return the affirmative action plan manual.
9. I then wrote out a second assertion of privilege with respect to the handwritten notes (in print) and gave it to Mr. Garrigan. Mr. Garrigan told me this too was insufficient and that I would have to delete the reference to the handwritten notes.
10. I complied with Mr. Garrigan's request and struck through the reference to the handwritten notes. Mr. Garrigan then demanded that I initial the strikethrough and time and date stamp the writing. A copy of both writings are attached to Mr. Garrigan's Declaration.
11. After I did all of these things, Mr. Garrigan gave me the training manual. I reviewed the handwritten notes while Mr. Garrigan inspected other materials. When I determined that the handwritten notes were not privileged, I so advised Mr. Garrigan and gave the book back to him to complete his inspection.
12. During the inspection, I asked Mr. Garrigan no less than a dozen times for a copy of the written assertion of privilege that I gave him, offering to copy it myself in his presence or to allow him to use the copy machine in Lufkin's Human Resources office. For no apparent reason, Mr. Garrigan refused and did not produce the pages until October 3, 2003.
13. During the September 25 inspection while I was pulling personnel files and without my knowledge, Mr. Garrigan picked up a copy of the Lufkin employee newspaper. When I saw Mr. Garrigan reading it, I asked him to put it down. The newspaper is not publicly available and states on the front page that it is for Lufkin employees and their families. Plaintiffs previously requested copies of the "Lufkin Connection" in formal discovery. When I saw Mr. Garrigan reading the paper, I asked him to return the document to me, which he did.
14. On August 6,2003, I arranged with Mr. Garrigan to meet me at Lufkin Industries so that he could review and copy certain personnel requisition forms Plaintiffs had requested. I asked Mr. Garrigan to wait for me in the lobby of the building and I would come meet him. Mr. Garrigan did not do as I requested and proceeded to the Human Resources suite, where he approached a non-managerial Human Resources employee looking for counsel. The employee was surprised by Mr. Garrigan's unannounced appearance. While I do not think there was anything malicious in Mr. Garrigan's actions, I was concerned that he did not follow my instructions to wait in the lobby.
I declare under penalty of peIjury under the laws of the United States of America that the foregoing is true and correct."
141578LI.DOC

Case 97-cv-00063-HC Document 340 Filed 11/12/2003 Page 7 7
/I A% 3
DATI!

 
 Case 9:97-cv-00063-RC Document 631 Filed 04/17/2009 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION

SYLVESTER MCCLAIN, on his own

§

behalf and on behalf of a class of similarly §

situated persons, et al.,

§

§

Plaintiffs,

§

vs.

§

§

LUFKIN INDUSTRIES, INC.,

§

§

Defendant.

§

CIVIL ACTION NO. 9:97-CV-063 JUDGE CLARK

DEFENDANT LUFKIN’S POSITION ON DISPUTED ISSUES FOR CALCULATION OF MONETARY RELIEF
Since their Final Report, the Parties have further narrowed the issues in dispute regarding the calculation of back wages to two issues: (1) which time periods should be included in an award, and (2) what rate of prejudgment interest should apply. Along with this Position Statement, Lufkin is filing a Motion for Partial Summary Judgment with respect to Plaintiffs’ claim of disparate impact in salaried promotions on grounds that there is no evidence of a statistically significant disparity in promotions to salaried positions during any time period relevant to the Thomas charge of discrimination, which is now the operative charge since the Fifth Circuit found that Sylvester McClain failed to exhaust administrative remedies with respect to the class claims of promotion discrimination.

Case 9:97-cv-00063-RC Document 631 Filed 04/17/2009 Page 2 of 12

The Parties have agreed to stipulate to the calculation of back wages for each time period

as follows:

Year

Hourly

Salaried

1994-1995 $483,340

$109,868

1996-2002 $1,901,417 $128,055

2003-2004 $487,756

$0

2004-2007 $159,412

$0

As set forth in the above chart, Plaintiffs seek $3,031,925 in back pay for hourly employees for 1994 through 2007 and $237,923 in back pay for salaried employees for 1994 to 2007. 1 While stipulating to the method of calculation for all time periods, Lufkin agrees only that the back wage award of $1,901,417 for hourly employees between 1996 and 2002 is appropriate. Lufkin objects to any back wages being awarded for promotions in 1994 and 1995, because they precede the statute of limitations.2 Lufkin also objects to any back wages being awarded for salaried employees for 1996 through 2002 because there is no evidence of a statistical disparity for this time period, although this argument is briefed in the companion Motion for Partial Summary Judgment. Finally, Lufkin objects to back wages being awarded for the periods after 2002 because no evidence was heard with respect to this time period and that as a result of Lufkin’s improved recordkeeping, if evidence were taken, Lufkin would establish that
1 However, Plaintiffs concede that there are no back wages owed to salaried employees for the period following 2002, even employing the methodology used by their expert. 2 The statute of limitations would also exclude any promotions between January 1, 1996 and April 2, 1996. However, it may be difficult to ascertain with complete accuracy which promotions occurred during that time period because Plaintiffs’ expert grouped promotions on a year-to-year basis.
- 2 -

Case 9:97-cv-00063-RC Document 631 Filed 04/17/2009 Page 3 of 12
excessive subjectivity is not present in the process, which is almost entirely objective; that using an appropriate analysis there is no disparate impact on African Americans in promotions; and, to the extent any disparity exists, it is justified by legitimate business reasons.
ARGUMENTS A. The Court should not include the 1994 through 1995 time period in the damages
calculation. In finding that Sylvester McClain’s charge of discrimination was the operative charge of discrimination upon which the class’ claims were based, Judge Cobb found that the statute of limitations extended back to March 6, 1994, 300 days before Sylvester McClain complained to the EEOC.3 The Fifth Circuit, however, held that McClain failed to exhaust EEOC remedies with respect to any of the class claims, finding instead that the class claims of promotion discrimination were exhausted by the EEOC charge filed by Buford Thomas on February 24, 1998.4 Because Thomas’ charge is now the operative charge, the statute of limitations now extends back to only April 2, 1996, 300 days before it was filed. Promotions occurring before 1996 cannot give rise to liability since they are time barred, and they should not be included in the damages calculation. See Frank v. Xerox Corp., 347 F.3d 130, 136 (5th Cir. 2003) (finding that district court correctly determined date for timeliness was 300 days before charge was filed, and that any prior “bad conduct” is time barred). The Supreme Court has established that relief or compensation for time-barred conduct is prohibited. United Air Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977) (a “discriminatory act which is not made the basis for a timely charge is the legal equivalent of a discriminatory act which occurred before the
3 Amended Final Judgment at 7-9, Dkt. 552. 4 See McClain v. Lufkin Industries, 519 F.3d 264, 274 (5th Cir. 2008) (“McClain’s letter failed to identify any neutral employment policy” but Thomas’s complaint “presents a close question of exhaustion directed at a discriminatory, albeit neutral, company policy authorizing subjective promotion decisions”).
- 3 -

Case 9:97-cv-00063-RC Document 631 Filed 04/17/2009 Page 4 of 12
statute was passed”). As Evans instructs, any promotion disparities occurring before April 2, 1996, are without legal consequence, are not to be viewed as unlawful, and cannot support an award of damages.
While Title VII does allow courts to consider accrual of back pay to two years prior to the filing of a charge with the Commission, 42 U.S.C. § 2000e-5(g)(1), which in this case would be back to February 24, 1995, because the damages flowing from any promotion decision begin at the time the decision is made, not before, no damages accrue for promotion disparities not made the basis of a timely charge. Moreover, even if damages had accrued (and they have not), accrual would only apply to those class members who could have filed a claim or promotion discrimination within the 300-day statute of limitations period set by Thomas’ charge. For example, class members whose employment terminated prior to April 2, 1996 would not have any promotion claim that could have been timely filed within the period of the Thomas charge and, thus, no damage. Similarly, Plaintiffs offer no proof that those class members who had timely promotion claims within the 300-day statute of limitations also lost promotions outside of the 300-day period but within the two years prior to the filing of the charge.5 Plaintiffs cannot recover damages for promotions outside of the 300-day statute of limitations without a showing that the same class member who was denied a promotion during the 300-day period also suffered promotion losses within the two year period. To allow otherwise, would circumvent the statute of limitations because only those Lufkin employees who could have filed a timely charge when Thomas did are entitled to be members of the class. Williams v. Owens-Ill., Inc., 665 F.2d 918, 923-24 (9th Cir. 1982), cert. denied, 459 U.S. 971 (1982) (noting that employees who were no longer employed during 300 day period could not have filed a claim).
5 Plaintiffs no doubt recognized that it would not be appropriate to seek back wages beyond 300-days, when they only sought damages for promotions within 300 days before Sylvester McClain’s charge at trial and took no appeal on this issue.
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Case 9:97-cv-00063-RC Document 631 Filed 04/17/2009 Page 5 of 12
The continuing violation doctrine does not apply to discrete discriminatory actions, such as promotions, that are time barred, even if those acts are related to acts alleged as happening in the liability period. National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002); Celestine v. Petroleos de Venezuela SA, 266 F.3d 343, 352 (5th Cir. 2001). In Morgan, the Supreme Court established that, “Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify. Each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable ‘unlawful employment practice.’” Id. at 114.
In Celestine, more than two hundred African Americans alleged a pattern or practice of racial discrimination in promotions and training by their employer. Id. at 348. The court of appeals affirmed the district court’s refusal to consider events occurring outside of the liability period. Id. at 351. The court of appeals denied the plaintiffs’ attempt to introduce past incidents under the continuing violation doctrine, holding that plaintiffs’ claims of racial discrimination for failure to promote and train were discrete events based on the conclusion that “[a]n employee who claims to be the victim of racially motivated failure to promote or train is put on notice that his rights have been violated at the time the adverse employment decision occurs, and must therefore bring the claim within 180 days of the adverse decision.” Id. at 352 (citing Huckabay v. Moore, 142 F.3d 233 (5th Cir. 1998)). Thus, the Plaintiffs’ class claim on disparate impact on promotions is not appropriate for the application of the continuing violation doctrine.
Plaintiffs may argue that the law of the case doctrine precludes the Court from considering this issue. Conway v. Chemical Leaman Tank Lines, Inc., 644 F.2d 1059, 1061 (5th Cir. 1981) (the doctrine “operates to preclude a reexamination of issues decided on appeal…”). However, “the law of the case established by a prior appeal does not extend to preclude
- 5 -

Case 9:97-cv-00063-RC Document 631 Filed 04/17/2009 Page 6 of 12
consideration of issues not presented or decided…” by the court of appeals. Id. (internal quotations omitted).
On appeal Lufkin did ask the court of appeals to consider whether McClain’s charge properly exhausted administrative remedies and whether that charge could support the class. Lufkin, however, never asked the court of appeals to establish Thomas’s charge as the operative charge, and, lacking knowledge that the court of appeals would make that determination, Lufkin could not have presented an issue related to the modified limitations period. For whatever reason, the court of appeals did not address the finding’s impact on the liability findings on promotions or the damages calculations. In fact, Plaintiffs conceded that the court of appeals left unresolved the consequences of its finding with respect to the calculation of damages for promotions.6
In Lufkin’s petition for panel rehearing it argued that the court of appeals should have remanded the case to this Court for a new finding on liability, because Judge Cobb had predicated his findings on the liability period established by McClain’s charge rather than Thomas’s charge.7 The court of appeals denied Lufkin’s motion for rehearing, but that denial does not amount to an express decision on the merits of the arguments the motion presented. See Alpha/Omega Insurance Services, Inc., 272 F.3d 276, 281 (5th Cir. 2001) (stating, “Our denial of a motion for panel rehearing does not amount to a decision on the merits”). Because the court of appeals did not do so, this Court is free to address issues related to the affect the exhaustion finding has on the Plaintiffs’ promotion claims, with specific regard to both predicating liability and awarding damages.

6

Plaintiffs-Appellants-Cross-Appellees’ Petition for Panel Rehearing on a Single Issue, p. 2.

7

Defendant-Appellee and Cross-Appellant’s Petition for Panel Rehearing, p. 7-15.

- 6 -

Case 9:97-cv-00063-RC Document 631 Filed 04/17/2009 Page 7 of 12
B. There is No Evidence to Support an Award of Damages after 2002. The record on which Judge Cobb made his findings of liability did not contain any
statistical evidence for the period following 2002. The record similarly lacks any anecdotal evidence of promotion discrimination after 2002. The shortfall 127 hourly promotions and 9 salaried promotions found by Judge Cobb all occurred prior to 2003. Given that there is no evidence in the record, it is not proper to award damages for this period. See Payne v. Travenol Laboratories, Inc., 673 F.2d 798, 824 (5th Cir. 1982) (trial court erred in awarding damages for 1971 to 1976 when the statistical evidence introduced at trial only covered time period from 1971 to 1974).
The only way that the court could justify awarding damages for the period after 2002 would be to reopen the evidence and allow another full-fledged trial on the period after 2002. Not only should Plaintiffs’ expert justify his failure to use actual applicant data when such data was clearly available since 2002, but Plaintiffs should be required to provide evidence that the Lufkin’s promotion practices continued to be influenced by unfettered subjective decisionmaking. If Lufkin can show that its decision-making processes were largely objective in the post 2002 period (and Lufkin believes that it can prove that), justice requires that Lufkin have an opportunity to make its case before damages are awarded. Moreover, in requesting that the Court reopen the evidence, Lufkin should have the opportunity to prove whether there is a statistically significant disparity in hourly or salaried promotions for the entire time period and use the actual applicant data as available for the post-2002 period.
At this juncture, there is no justification for reopening this case when this case has been fully tried. When the case ended in October 2004, Plaintiffs made no effort at that time to introduce evidence from 2003 or early 2004. When Judge Cobb entered his judgment in August
- 7 -

Case 9:97-cv-00063-RC Document 631 Filed 04/17/2009 Page 8 of 12
2005, he only considered the statistical evidence through 2002 because that is what Plaintiffs had offered. Similarly, in remanding this case to this court, there is nothing in the Fifth Circuit’s mandate that suggests that it intended for this court to restart the trial and take evidence for the period after 2002. In fact, the Fifth Circuit made it clear that this court should only award damages with respect to those promotions that occurred prior to 2003:
On remand, the district court will be dealing solely with damages attributable to approximately 127 lost promotions in hourly pay grades and nine lost salaried employment promotions. 519 F.3d 264, 281 (5th Cir. 2008). Plaintiffs may argue that the court could reopen this case without conducting an evidentiary hearing. They may argue that the court could allow their statistical expert to analyze Lufkin’s date for the period after 2002, by using the same methodology that he applied to the pre-2003 data. This assumes, however, the same methodology would be appropriate for this time period. Lufkin believes that it would not because Plaintiffs’ expert failed to use the actual applicant pool data for each promotion even though such data was readily available for the post 2002 time period.8 The law is clear. Actual applicant flow data is superior to other data and should be used when available. See Teamsters, 431 U.S. at 342 n. 23; Anderson, 26 F.3d at 1286-87 n. 14 (“we agree with the district court that [the] actual applicant flow was the best measure of [the employer’s] performance . . . .”); Malave v. Potter, 320 F.3d 321, 326-27 (2d Cir. 2003) (holding it permissible to use alternatives to the preferred methodology only if actual data “are ‘difficult’
8 For most jobs, Lufkin posts the job and selects from the bidders. The bid sheets define with certainty the percentage of black applicants for each promotion. Plaintiffs’ expert ignored this data. EEOC v. Chicago Miniature Lamp Works, 947 F.2d 292, 302 (7th Cir. 1991) (The identification of a relevant labor market – the key issue in a class-based Title VII case – means not only identifying qualified potential applicants for the job at issue but also identifying interested potential applicants) (emphasis added).
- 8 -

Case 9:97-cv-00063-RC Document 631 Filed 04/17/2009 Page 9 of 12
or ‘impossible’ to obtain”); Stout v. Potter, 276 F.3d 1118, 1123 (9th Cir. 2002) (“In the context of promotions, the appropriate comparison is between the composition of candidates seeking promotion and the composition of those actually promoted.”); Powers v. Alabama Dept. of Educ., 854 F.2d 1285, 1298 (11th Cir. 1988) (“[A]pplicant statistics were available, and the plaintiffs should have employed them.”). A proper statistical analysis is based only on a “qualified applicant pool.” Johnson v. Uncle Ben’s, Inc., 965 F.2d 1363 1369 (5th Cir. 1992); see also Wards Cove, 490 U.S. at 647-55 (requiring comparison with pool of qualified job applicants); New York Transit Authority v. Beazer, 440 U.S. 568, 584-587 (1979); Frazier v. Garrison I.S.D., 980 F.2d 1514, 1524 (5th Cir. 1993) (“The specific holding of Wards Cove was that statistical proof used by the court of appeals was an accurate measure of statistical disparity because it did not take into account the ‘qualified’ versus ‘unqualified’ workforce.”).
Judge Cobb excused Plaintiffs’ expert from using actual bid data in his analysis of the pre-2003 data only because Judge Cobb gave credence to the expert’s claim that many of the bid sheets prior to 2003 were illegible. The Fifth Circuit deferred to Judge Cobb’s finding. Judge Cobb, however, made no such finding with respect to the bid data since 2002, because those bid sheets were not in evidence. Because Lufkin took much more care with maintaining its bid sheet data after this lawsuit was filed, Lufkin believes that the Court would find that the bid data since 2002 is reliable and should be used. Moreover, Plaintiffs’ statistical case was supported by anecdotal evidence of promotion discrimination that predated 2003. There is no such evidence for the more recent period. If Plaintiffs want to recover damages for this time period, then they must offer evidence that supports their claims that they were denied promotions because Lufkin those procedures were governed by excessive subjectivity. Conversely, Lufkin must have the opportunity to counter this evidence with testimony about the practices that Lufkin has
- 9 -

Case 9:97-cv-00063-RC Document 631 Filed 04/17/2009 Page 10 of 12
implemented during this time period. In short, if damages are to be awarded for this period, Lufkin is entitled to a trial on the merits for this new time period. Obviously, this was not the intent of the Fifth Circuit when it remanded this case to this court to resolve discrete issues.
Because there is no evidence to support a finding of liability for the period beyond 2002 and because it would be unreasonable to conduct another full fledged trial on the 2002 through 2009 time period, no damages for this period should be awarded, except for the continuing losses for the shortfall promotions in the earlier periods which have already been taken into account in the 1996 through 2002 period. C. The Court is free to Reconsider Judge Cobb’s Award of 5% Prejudgment Interest.
Because the Fifth Circuit remanded the case for a redetermination of damages, the Court is free to reconsider the trial court’s prior award of 5% prejudgment interest. Adams v. Lindblad Travel, Inc., 730 F.2d 89, 93 (2d Cir. 1984) ("Despite the fact that Adams neglected at trial to ask the district court for an award of prejudgment interest, he is not precluded from doing so on remand. . . . Since we are remanding this case for a redetermination of damages, the parties have no legitimate expectation that the issues relating to the ultimate award have been finally decided."); In re Department of Energy Stripper Well Exemption Litigation, 821 F. Supp. 1432, 1434-37 (D. Kan. 1993) (party who fails to challenge rate of post judgment interest in previous appeal may raise issue for first time on remand; while party should have raised issue on appeal, law of the case does not preclude court from reconsidering issue on remand).
In determining the prejudgment interest rate that should apply, Lufkin would urge the Court to consider the treasury rates during the length of the case and award prejudgment interest at a rate that reflects the varying rates from the time the lawsuit was filed in February 1997 through the present. While the 5 percent awarded by Judge Cobb might have been reasonable
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Case 9:97-cv-00063-RC Document 631 Filed 04/17/2009 Page 11 of 12

for the first four years of this case, the treasury rate in the last 8 years has more often been under 5 percent and often it has been considerably below 5 percent. For example, between April 27, 2001 and September 30, 2005 and since October 26, 2007, the treasury rate has been below 4 percent. The purpose of awarding prejudgment interest is to make Plaintiffs whole not to give them a windfall to which they would ordinarily not be entitled.
In the event that the Court decides to use the Texas rate of interest, which appears to have been used by Judge Cobb,9 Lufkin would urge the Court to order that it be computed as simple interest as required under Texas law. Tex. Fin. Code Ann. §304.104.

OF COUNSEL:
VINSON & ELKINS L.L.P. 1001 Fannin Street Houston, Texas 77002-6760

Respectfully submitted,
_______/s/______________________ DOUGLAS E. HAMEL Attorney-In-Charge dhamel@velaw.com State Bar No. 08818300 CHRISTOPHER V. BACON Of Counsel State Bar No. 01493980 2300 First City Tower 1001 Fannin Street Houston, Texas 77002-6760 (713) 758-2036 (Telephone) (713) 615-5388 (Telecopy)
ATTORNEYS FOR LUFKIN INDUSTRIES, INC.

9 The Texas rate of postjudgment interest is five percent a year if the prime rate as published by the Board of Governors of the Federal Reserve is less than five percent. Tex. Fin. Code Ann. §304.004. Other provisions of the Texas Finance Code require the postjudgment rate of interest to be used for prejudgment interest in certain types of cases. Tex. Fin. Code Ann. §304.103. The prime rate was 3.88% at the time Judge Cobb entered his judgment.
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Case 9:97-cv-00063-RC Document 631 Filed 04/17/2009 Page 12 of 12
CERTIFICATE OF SERVICE I certify that on this 17th day of April 2009, a copy of the foregoing document was filed electronically through the Court’s CM/ECF System and was automatically copied to Plaintiffs through the Court’s electronic filing system.
________/s/_____________________ Attorney for Defendant

Houston 3959962v.3

- 12 -

 
 Case 97-cv-00063-HC Document 271 Filed 10107/20D3 Page 1 of 10

[! :-"-: IN THE UNITED STATES DISTRICT COURlll, ,~; ;:,~, ,C,·. :~ :: ';::')

FOR THE EASTERN DISTRICT OF TEXAS " , '" ,,', ,/ 1\ T

LUFKIN DIVISION

- '/" "',; ~ ;':; r ~T
'"" .... -l

1.11

~~.'
~ J.

:-J"-'rt

SYLVESTER MCCLAIN, on his own

§

behalf and on behalf of a class of similarly §

situated persons, et a1.,

§

§

Plaintiffs,

§

vs.

§

§

LUFKIN INDUSTRIES,

§

§

Defendant.

§

CIVIL ACTION NO. 9:97-CV-063 JUDGE COBB

DEFENDANT LUFKIN INDUSTRIES' REPLY TO PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT

Plaintiffs' Response attempts to lead the court into committing error subject to reversal in the court of appeals by arguing pre-FalconI cases and muddling distinct issues? The real issue is simple: "Can Sylvester McClain or Buford Thomas prosecute a class initial assignment claim, when they did not make such a claim in their EEOC charges,3 any such claim by them was timebarred at the time they filed their EEOC charges,4 and neither have standing to make an initial assignment claim because neither was initially assigned to the Foundry division?"

1 Gen. Tel. Co. o/the S. W v. Falcon, 457 U.S. 147 (1982). 2 Those issues being: 1) Whether the EEOC charges allege classwide discrimination; 2) Whether initial assignment claims fall within the scope of McClain's and Thomas' EEOC charges; and 3) Whether McClain or Thomas may bring initial assignment claims. Issues 2 and 3 are the subject of Lutkin's motion. 3 Contrary to the assertions in Plaintiffs' Response, Lufkin did not fail to take McClain's January 29, 1995 memorandum into account in its arguments. In fact, the memorandum was attached to Lufkin's Motion for Partial Summary Judgment at Exhibit 1. Lufkin's argument is unaffected by whether the EEOC charge is considered the fonnal signed charge in the EEOC's files dated August 12, 1996, or the January 29, 1995 memorandum from Sylvester McClain to Lufkin managers that the Court has previously held would be treated as an effective charge. 4 "[A] [T]itle VII plaintiff must file a charge of discrimination with the EEOC within 300 days after learning of the conduct alleged." Huckabay v. Moore, 142 F.3d 233,238 (5th Cir. 1998). McClain's and Thomas' EEOC charges were filed over 20 years and 15 years, respectively, from the dates of their initial assignment. (See Defendant's Motion for Partial Summary Judgment, Ex. 1 & Ex. 2).

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I. After Falcon. As a Matter of Law. Class Claims are Limited to Claims that McClain or Thomas Can Raise. The treatment of employment discrimination class actions changed dramatically5 in 1982
with the Supreme Court's decision in General Telephone Company of the Southwest v. Falcon that courts could not certify "across the board" class actions without carefully examining the named plaintiff's claims and ensuring that he is a proper representative under Rule 23. 457 U.S. 147 (1982). Thus, it is simply not enough for Sylvester McClain to complain about a "cultural program" at Lufkin Industries:
Title VII prohibits discriminatory employment practices, not an abstract policy of discrimination. The mere fact that an aggrieved private plaintiff is a member of an identifiable class of persons of the same race or national origin is insufficient to establish his standing to litigate on their behalf all possible claims of discrimination against a common employer. Id. at 159 n.15 (emphasis in original). Moreover, since 1984, the Fifth Circuit has confined class claims to those within the scope of the original injuries to the plaintiffs who filed charges with the EEOC. Vuyanich v. Republic Nat'l Bank, 723 F.2d 1195, 1201 (5th Cir. 1984). The Court specifically noted that ''the named plaintiffs 'must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.'" Id. at 1200. The Court further held that "extension of the litigation to claims the named plaintiffs could not raise '" violates rudimentary principles of typicality, commonality, and standing." Id. at 1201. Thus, because the two Vuyanich plaintiffs only suffered injuries from hiring and termination practices, the Court held that they lacked
S See Falcon v. Gen. Tel. Co., 815 F.2d 317, 319 (5th Cir. 1987) ("In a landmark decision significantly altering employment discrimination law in the arena of class actions, the [Falcon] Court decided to do away with the 'across-the-board' class defInition").
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standing to assert class claims arising from the bank's other employment practices compensation, promotion, placement, and maternity practices. Id. at 1200-01.6
By citing pre-Falcon authority, Plaintiffs would have the Court apply dated and inaccurate law. Plaintiffs base their entire argument that McClain and Thomas may prosecute initial assignment claims on cases from the 1970s and early 1980s that have been superseded by Falcon and its progeny, and are inconsistent with the statutory requirement that a timely charge of discrimination have been filed. Based on both Falcon and Vuyanich, McClain and Thomas do not have standing to "exten[d] '" the litigation to claims" that they themselves could not raise. Vuyanich, 723 F.2d at 1201. McClain and Thomas may not raise claims based on initial assignment as neither of them suffered injury from initial assignment (i.e., neither was initially assigned to the entry level position of General Foundryman, the initial assignment practice which the class challenges), and, independently, because they did not assert such claims in their EEOC charges and were time-barred from doing so. Id. at 1200-01.
A. As a Matter of Law, Initial Assignment Claims are Outside the Scope of the EEOC Investigations Reasonably Expected to Grow Out of McClain's and Thomas' EEOC Charges.
The reasonable expectation rule articulated in Sanchez v. Standard Brand, Inc., which addresses the scope of judicial complaints brought by an individual who filed a timely EEOC charge, limits a complaint to the scope of the EEOC investigation which can reasonably be expected to grow out of the charge. 431 F.2d 455,466 (5th Cir. 1970).7 Plaintiffs cite only two cases for their proposition that "courts have held that allegations of discrimination with respect to promotion, demotion and compensation would reasonably lead to an investigation of a
6 See also Bernard v. Gulf Oil Corp., 841 F.2d 547, 550-51 (5th Cir. 1988) (holding that "class representatives must 'possess the same interest and suffer the same injury' as the class members," and "a plaintiff lacks standing to litigate injurious conduct to which he was not subjected."). 7 The allegations made in a judicial complaint must be "like or related" to allegations made in the EEOC charge. 431 F.2d at 466.
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defendant's hiring practices." (See Plaintiffs Response at 8).8 Not surprisingly, both of these
cases are from the 1970s, before the Falcon decision. Post-Falcon case law9 holds that as a
matter of law, initial assignment claims are not within the scope of the allegations made by
McClain and Thomas.
The "reasonable expectation" rule cannot save Plaintiffs, especially in light of Vuyanich,
which held that the intervention of class representatives "cannot bootstrap the court's jurisdiction
to encompass claims regarding practices broader than the ... claims properly assertable by the
named plaintiffs." 723 F.2d at 1201. As the other class representatives and class members did
not file EEOC charges, they must proceed ''within the periphery of the issues which [McClain
and Thomas] could assert." ld. (citing Oatis v. Crown Zellerbach Corp., 398 F.2d 496,499 (5th
Cir.1968)). Because McClain and Thomas did not, and could not, file a timely charge asserting
an initial assignment claim, they do not have standing to raise this claim so neither can the class.
ld.
8 Arey v. Providence Hosp., 55 F.R.D. 62,67 (D.D.C. 1972); Hoston v. United States Gypsum Co., 67 F.R.D. 650, 656 (E.D. La. 1975). 9 See Evans v. U.S. Pipe & Foundry Co., 696 F.2d 925,929 (11 th Cir. 1983) (holding that district court did not err in denying class certification on initial job assignmentJhiring claims because EEOC charge only alleged discrimination in promotions, unspecified tenns and conditions of employment, harassment, and union representation); Dennis v. County ofFaiifax, 55 F.3d 151,156 (4th Cir. 1995) (affirming district court's dismissal of hiring claim as a matter of law because EEOC charge only alleged "disparate disciplinary treatment"); Plaisance v. Travelers Ins. Co., 880 F. Supp. 798, 805-07 (N.D. Ga. 1994) (dismissing job assignment claim as a matter of law because EEOC charge only alleged failure-to-promote and retaliation), affd, 56 F.3d 1391 (11th Cir. 1995), cert. denied, 516 U.S. 931 (1996); Gustafson, Inc. v. Bunch, No. 3:97-CV-2102-D, 83 Fair Empl. Prac. Cas. (BNA) 375, 1999 U.S. Dist. LEXIS 7107, at **21-22 (N.D. Tex. May 7, 1999) (dismissing as a matter of law claim that employer "unlawfully discriminated by failing to hire [the plaintiff] for other jobs" because EEOC charges alleged only "discrimination arising from Gustafson's decision not to hire him for the Northeast Territory TSR position" and retaliation); Hyatt v. CNG Producing Co., No. 91-4654 §G, 1992 U.S. Dist. LEXIS 17017, at **12-13 (E.D. La. Oct. 28, 1992) (dismissing as a matter of law discriminatory job assignment claim because EEOC charge alleged only discriminatory discharge); Simmons v. Iberville Operating Co., No. 89-3483, 1990 U.S. Dist. LEXIS 1336, at **1012 (E.D. La. Feb. 2, 1990) (dismissing as a matter oflaw claims regarding "discrimination resulting from allegedly segregated job classifications, job assignments, [and] refusals to hire" because EEOC charges only alleged discriminatory demotion, harassment, suspension, and retaliatory discharge); Combs v. C.A.R.E., Inc., 617 F. Supp. 1011, 1011-13 (E.D. Ark. 1985) (dismissing as a matter of law hiring and placement claims because EEOC charge only alleged discriminatory discharge). Cf Thomas v. Capital Sec. Servs., 836 F.2d 866, 884 (5th Cir. 1988) (discussing possible Rule 11 sanctions based on plaintiffs' counsel's "expansion of the judicial complaint beyond the EEOC complaint," in that the EEOC charges alleged discriminatory layoff but the complaint included "shotgun allegations" such as hiring, promotion, and on-the-job treatment claims).
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B. Plaintiffs are not Entitled to an Across-the-Board Attack on Lufkin's Alleged "General Policy of Discrimination" Under Falcon's Footnote 15.
Even if Plaintiffs could satisfy the EEOC charge requirement, Plaintiffs' argument that
McClain's reference to a "cultural problem" at Lufkin somehow provides McClain with standing
to make an across-the-board attack on Lufkin's employment practices, including claims about
initial assignment practices, ignores the major precedents of the past 20 years in class action
litigation. See Vuyanich, 723 F.2d at 1201 {"[E]xtension of the litigation to claims the named
plaintiffs could not raise ... violates rudimentary principles of ... standing."}. Plaintiffs' use of
pre-Falcon cases to establish that across-the-board attacks are allowed without regard to the
underlying EEOC charge and doctrines of standing is designed to lead the Court into reversible
error based on superseded law.
For Plaintiffs' argument that across-the-board attacks continue to be viable, the only post-
Falcon case they cited that actually took into account Falcon's invalidation of across-the-board attacks lO is Shipes v. Trinity Industries, No. TY-80-462-CA, 1981 WL 65, *7 {E.D. Tex. Oct. 10,
1985}. The Shipes court relied upon footnote 15 in Falcon to allow an across-the-board attack:
Significant proof that an employer operated under a general policy of discrimination conceivably could justify a class of both applicants and employees if the discrimination manifested itself in hiring and promotion practices in the same general fashion, such as through entirely subjective decisionmaldng processes. 1981 WL 65 at *7 {citing 457 U.S. at 159 n.15} {emphasis added}.
10 Plaintiff's other post-Falcon case, Jackson v. Fort Worth Nat'l Bank, No. 4-77-276-K, 1983 WL 30332, 1983 U.S. Dist. LEXIS 16404, *15 (N.D. Tex. June 8, 1983), was decided under the court's mistaken impression that Falcon did not invalidate across-the-board attacks, so the court allowed an across-the board attack without requiring the class to prove that the employer operated under entirely subjective decisionmaking processes. This is clearly wrong when viewed against subsequent post-Falcon Fifth Circuit case law. Compare Jackson, 1983 U.S. Dist. LEXIS 16404, at *15 ("Although the defendants submit that Falcon prohibits 'across the board' attacks on discriminatory practices, this court does not read the opinion as so doing.") with Young v. Pierce, 822 F.2d 1368, 1370 (5th Cir. 1987) (stating that Falcon "invalidat[ed] 'across-the-board' Title VII class action certifications"); Falcon v. Gen. Tel. Co., 815 F.2d 317, 319 (5th Cir. 1987) ("In a landmark decision significantly altering employment discrimination law in the arena of class actions, the [Falcon] Court decided to do away with the 'across-the-board' class definition").
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What Plaintiffs fail to mention is that this "entirely subjective" exception in Falcon's footnote 15 is inapplicable to employers, like Lufkin, whose decisionmaking processes are governed in part by collective bargaining agreements. See Page v. Us. Indus., Inc., 726 F.2d 1038, 1053-55 (5th Cir. 1984) (holding that decisionmaking processes were not wholly subjective because the employer's "supervisory personnel, although permitted wide discretion in ... decisions, were required to make those decisions in accordance with the standards set out in the union contract" and "qualifications required by collective bargaining agreements provide valid criteria which inject an element of objectivity into the promotion process."); Internat'l Union, United Auto., etc. v. LTV Aerospace & Defense Co., 136 F.R.D. 113, 122 (N.D. Tex. 1991) (holding that Falcon's "entirely subjective" exception did not apply because ''the existence, throughout the period pertinent to this suit, of a collective bargaining agreement governing many of the decisionmaking processes at issue establishes that the process was not entirely subjective.,,).ll
As Footnote 15's "entirely subjective" exception cannot apply here, McClain and Thomas can only assert claims for which they have standing. Id. at 1200-01. Therefore, because McClain and Thomas did not suffer an injury from initial assignment to the entry-level position of General Foundryman, they do not have standing to assert these claims on behalf of the class. II. Filing a Timely EEOC Charge is a Condition Precedent to be Proved by the Title
VII Plaintiffs. Not an Affirmative Defense. As for Plaintiffs' "affirmative defense" argument with regard to timely filing of an EEOC charge, the Supreme Court case12 cited by the Plaintiffs held only that "filing a timely charge of
11 See also Hamilton v. Gen. Motors Corp., 606 F.2d 576, 580 (5th Cir. 1979) ("In the instant case ... there is a valid objective criterion, the qualification required by the collective bargaining agreements."), cert. denied, 447 U.S. 907 (1980). 12 It is puzzling why Plaintiffs cited the other Supreme Court case, Orloffv. Willoughby, 345 U.S. 83,85 (1953), for their affirmative defense argument. This is a 1953 case concerning the Universal Military Training and Service Act,
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discrimination with the EEOC is ... a requirement that '" is subject to waiver, estoppel, and equitable tolling." Zipes v. Trans World Airlines, 455 U.S. 385, 393 (1982). Contrary to Plaintiffs' assertion, Zipes does not decide which party has the burden of proof on the timely filing issue and does not hold that the issue is an affirmative defense to be established by the defendant (who is not in the evidentiary position to establish whether the plaintiff timely filed). Id. Rather, timely filing of an EEOC charge is a condition precedent for the plaintiff to establish in order to state a claim under Title VII. See Price v. S. W. Bell Tel. Co., 687 F.2d 74, 79 n.6 (5th Cir. 1982) (citing Zipes and holding that ''the 180-day limitation period ... constitutes a condition precedent to suit"); Galvan v. Bexar County, 785 F.2d 1298, 1307 n.13 (5th Cir. 1986) ("[Plaintiff] satisfied the condition precedent of filing a timely charge of discrimination with the EEOC."). The plaintiff has the burden of proof to plead and prove that conditions precedent have been satisfied, and the defendant has no duty specifically to deny in the form of an affirmative defense that a plaintiff has not met any conditions precedent. Garcia v. Sunbelt Rentals, 310 F.3d 403, 404 n.4 (5th Cir. 2002).13 As McClain and Thomas have not met their burdens of establishing that they filed timely EEOC charges with respect to initial assignment claims or that the EEOC filing deadlines are subject to estoppel, tolling, or waiver,14 Plaintiffs have not established the condition precedent of timely filing and thus fail to state an initial assignment cause of action.
and was decided 11 years before Title VII even existed. It seems this is yet another attempt by the Plaintiffs to lead the Court into error with dated and absolutely irrelevant case law. 13 See also Thornton v. South Cent. Bell Tel. Co., 906 F. Supp. 1110, 1116 (S.D. Miss. 1995) (''When a defendant .' contends that a plaintiff has failed to file [an EEOC charge] timely under Title VII, the burden rests with the plaintiff to prove this condition precedent by showing either that the [EEOC charge] in fact, was filed timely or that the deadline should be subject to the equitable doctrines of estoppel, tolling, or waiver.") (citing Blumberg v. HCA Mgmt. Co., 848 F.2d 642, 644 (5th Cir. 1988)). 14 Lufkin has not waived its objection to Plaintiffs' failure to plead and prove this condition precedent, because Lufkin's Answer and Amended Answer both pointed out Plaintiffs' failure to exhaust their administrative remedies. (See Defendant's Original Answer, filed 3/19/97, at 6 and Defendant's Amended Answer, filed 4/7/03, at 14).
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III. The "Law of the Case" Doctrine is Inapplicable, Both Because it Does Not Bar the Court from Reconsidering its Own Decisions and Because the Court Has Never Decided the Timely EEOC Charge Filing Issue.
As for Plaintiffs' "law of the case" argument, even if the doctrine required this Court to
abide by its previous decisions - which it does not15 - the Court has never decided the issue of
whether McClain has satisfied his burden of proving that he satisfied the condition precedent of
filing a timely EEOC charge regarding initial assignment claims. Although Plaintiffs claim that
the issue was "implicitly, ifnot explicitly rejected when the court certified the class," (Plaintiffs'
Response at 4), the class certification hearing only determined whether Plaintiffs met the Rule 23
requirements and did not decide the merits of the claims. Decisions about whether Plaintiffs'
claims were within the purview of Rule 23,16 although related, are independent of the issue of
whether McClain or Thomas, on the merits, have failed to state a claim. As noted above, it is
incumbent upon Plaintiffs to prove that they have satisfied the condition precedent of timely
filing an EEOC charge which encompasses the asserted claims. 17 Plaintiffs here have never even
attempted to prove this. Thus, even if the "law of the case" doctrine applied to bar the Court
IS Plaintiffs err in their interpretation of the law-of-the-case doctrine, which the Fifth Circuit applies when decisions from one court (e.g., the trial court) are subsequently viewed by another court (e.g., the appellate court). See Pegues v. Morehouse Parish Sch. Rd., 706 F.2d 735, 738 (5th Cir. 1983) (the doctrine "operates to foreclose re-examination of decided issues either on remand or on a subsequent appeal"); Paul v. US., 734 F.2d 1064, 1066 (5th Cir. 1984) ("While the 'law of the case' doctrine is not an inexorable command, a decision of a legal issue or issues by an appellate court establishes the 'law of the case' and must be followed in all subsequent proceedings in the same case in the trial"). Thus, a judge is not bound by his or her own previous rulings in the same case. Knotts v. US., 893 F.2d 758,761 (5th Cir. 1990) (holding that the appellate court is not required to apply its own prior decisions to the same case in subsequent proceedings); Us. v. Palmer, 122 F.3d 215, 220 (5th Cir. 1997) ("The law-of-the-case doctrine does not ... set a trial court's prior rulings in stone, especially if revisiting those rulings will prevent error."). 16 Moreover, certification decisions are often reexamined. See Fed. R. Civ. Proc. 23(c)(1). Courts frequently revisit certification decisions or redefine the class that they certified. See Coopers & Lybrand v Livesay, 437 U.S. 463, 469 (1978) (holding that because Rule 23(c)(1) provides that order involving class status may be "altered or amended before decision on merits," "a district court's order denying or granting class status is inherently tentative."); Elster v Alexander, 608 F.2d 196, 197 (5th Cir. 1979) ("The district court has a continuing power under Fed.R.Civ.P. 23(c)(1). Its certification decision 'is not irreversible and may be altered or amended at a later date."'); Nichols v. Mobile Rd. ofRealtors, Inc., 675 F.2d 671,679 (5th Cir. 1982) (affirming district court's decision to decertify class). 17 Garcia, 310 F.3d at 404 n.4; Thornton, 906 F. Supp. at 1116; Price, 687 F.2d at 79 n.6; Galvan, 785 F.2d at 1307 n.13.
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from reconsidering its own previous decisions, it would not apply here because the Court has not yet decided this issue.
CONCLUSION Under Falcon and its Fifth Circuit progeny, across-the-board attacks are prohibited and class claims are limited to claims that McClain or Thomas can raise. Neither McClain nor Thomas suffered from the alleged discriminatory initial assignment. Nor have either filed a timely EEOC charge raising initial assignment claims, and thus they have not satisfied a condition precedent to assert such claims. The papers McClain and Thomas put before the EEOC establish, without dispute, that neither McClain nor Thomas charged that Lufkin discriminates in initial assignments. As a matter of law, as the law has been consistently applied by the Fifth Circuit since Falcon, Lufkin is entitled to dismissal of the class initial assignment claims.

OF COUNSEL:
VINSON & ELKINS, L.L.P. First City Tower Houston, Texas 77002-6760

Attorney n-Charge State Bar No. 08818300 CHRISTOPHER V. BACON Of Counsel State Bar No. 01493980 MICHELLE MAHONY Of Counsel State Bar No. 24002516 2300 First City Tower 1001 Fannin Street Houston, Texas 77002-6760 dhamel@velaw.com (713) 758-2036 (Telephone) (713) 615-5388 (Telecopy)
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CERTIFICATE OF SERVICE
I certify that on this ~ ~ day of October, 2003, a copy of the foregoing Defendant
Lufkin Industries' Reply to PlaIntiffs' Response to Defendant's Motion for Partial Summary Judgment was forwarded to Plaintiffs by facsimile transmission (without attachments) and by Federal Express as follows: Timothy B. Garrigan, 2803 North Street, Nacogdoches, TX 759631902, (936) 560-9578, and Teresa Demchak, Goldstein Demchak, Baller, Borgen & Dardarian,
300 Lakeside Drive, Suite 1000, Oakland, CA 94612, (5 0) 837.14;

 
 Case 9:97-cv-00063-HC Document 492-1 Filed 03/01/2005 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION

SYLVESTER MCCLAIN, et al., Plaintiffs,
v. LUFKIN INDUSTRIES,
Defendant.

§ § § § § CIVIL ACTION NO. 9:97-CV-063 § § § §

DEFENDANT'S REPLY TO PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO VACATE THE COURT'S ORDER OF JANUARY 18, 2005

I. Plaintiffs' Response Misunderstands the Waiver Issue.

Defendant’s motion to vacate arises principally from its dilemma that to meet and confer

with the objective of reaching “agreement on the specific details of non-monetary remedial

measures” necessarily waives its right to appeal. As they have done in other briefing, without

noting the contrary authority in the Fifth Circuit, Plaintiffs argue cases from other circuits for the

proposition that Lufkin will not jeopardize its appellate rights by participating in a process to agree

to additional injunctive relief. Had Plaintiffs actually addressed the Fifth Circuit caselaw (instead

of burying it in a footnote), they would have discovered that a party cannot agree to a judgment

and then appeal it, even with an express reservation of the right to appeal. Amstar Corp., 607 F.2d 1100, 1100 (5th Cir. 1979).1

Thus even with a reservation of the right to appeal, under controlling law, any agreement

to additional injunctive relief will preclude Lufkin from appealing those orders. It may also waive

Lufkin's right to appeal the Court's original injunction to the extent Lufkin's agreement to

1

Admittedly, this appears to be the minority view, however, it remains the controlling law in the Fifth Circuit.

See Downey v. State Farm Fire & Casualty Co., 266 F.3d 675, 683 (7th Cir. 2001) (noting that "[o]nly the fifth circuit

gives no effect to an express reservation of appellate rights); Verzilli v. Flexon, Inc., 295 F.3d 421, 423 (3d Cir. 2002).

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additional injunctive relief necessarily subsumes the premise that injunctive relief was appropriate in the first instance. See Strouse v. J. Kinson Cook, Inc., 634 F.2d 883, 883 n.1 (5th Cir. 1981) (stating that appeal cannot be taken from an agreed judgment, nor can party accept portions of judgment that operate in his favor while appealing those he finds detrimental to him).
Plaintiffs' waiver argument is equally unavailing. Plaintiffs cannot avoid Fifth Circuit precedent by purportedly agreeing to forego asserting waiver on appeal. Waiver is not an issue restricted to the parties but may also be raised by the Court. For example, in White & Yarborough, 228 F.2d 836, 837 (5th Cir. 1955), the Fifth Circuit affirmed the district court's award of attorney's fee to plaintiff in an amount less than that requested in an agreed order. On appeal, the Fifth Circuit sua sponte raised the issue of waiver and concluded that by agreeing to the judgment in the district court, plaintiff's counsel waived the right to complain about the failure of the court to award fees in the amount stipulated by the parties.
The instant situation is no different. Whether or not Plaintiffs raise waiver on appeal, the real issue is whether the Fifth Circuit has any basis even to consider the appeal if Lufkin has implicitly (by not opposing) or explicitly (by affirmative act) agreed to any additional injunctive relief. Judge Easterbrook of the Seventh Circuit succinctly summarized the point: "Waiver affects, not a court's power to hear the case, but whether as a practical matter it has any job to do." Downey, 266 F.3d at 683. Absent "any job to do," the Fifth Circuit will not take up a matter already agreed to by the parties, whether or not the issue of waiver has been raised or specifically reserved by the district court, as Plaintiffs suggest. II. Plaintiffs Were Premature as Lufkin Had No Meaningful Opportunity To Comply.
Plaintiffs' motion was filed and granted only 4 days after the Court's Final Judgment was entered. Four days was not enough time to “create and implement” the programs for promotion and initial assignment ordered by the Court; nor have Plaintiffs cited any case authority in which
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the party enjoined was given only four days to comply with an injunction requiring it to “create and implement” such programs.
Nevertheless, without any finding that Lufkin had not complied with the Court’s injunction, Plaintiffs moved to require additional relief. In any event, the reality is that in the six weeks since the Court entered a Final Judgment, Lufkin has in fact taken measures consistent with the Court's original injunction and, absent a stay, will continue to follow the Court's Order. Before requiring Lufkin to meet and confer, it first should have given a meaningful opportunity to effectuate compliance on its own. If Plaintiffs believe non-compliance becomes an issue in the future, they should raise it then. III. Plaintiffs Improperly Suggest The Court Has Jurisdiction To Rewrite Its Injunction.
To reiterate, Lufkin does not dispute the Court's continuing jurisdiction under Rule 62(c) to monitor compliance with its original injunction while its appeal is pending. However, this limited grant of jurisdiction does not authorize the Court to supplement or modify its original injunction in such a manner as to alter the status quo with respect to injunctive relief that is the subject of its ongoing appeal. Compare Gryar v. Odeco Drilling, Inc., 674 F.2d 373, 374 (5th Cir. 1982) (no jurisdiction to enter amended judgment after parties had appealed) with Farmhand, Inc. v. Anel Engineering Indus., 693 F.2d 1140, 1146 (5th Cir. 1982) (concluding that court retained jurisdiction to issue contempt order for violation of original injunction).
IAM v. Eastern Airlines, Inc., 847 F.2d 1014 (2d Cir. 1988), cited by Plaintiffs, provides an example of this principle. In Eastern Airlines, the district court initially denied the union's request for an injunction to prohibit the assignment of production work to one of its stewards. While on appeal, the district court entered a second injunction preventing Eastern from assigning the same employee production work when he claimed union business required his full attention. On appeal,
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the Second Circuit specifically held that the district court was without authority to enter the second injunction, reasoning that it altered the status quo and provided additional injunctive relief.2
This Court need look no further than the proposed Order attached to Plaintiffs' original motion to see that what Plaintiffs want through the "meet and confer" process is the same thing the union sought in Eastern Airlines -- additional injunctive relief, in excess of that already ordered (or denied) by the Court. For example, in paragraph 3 of the proposed Order that the Court signed, Plaintiffs specifically included language regarding the Court's jurisdiction to order "other relief," in addition to jurisdiction to oversee compliance.3 The only jurisdiction this Court retains is "to oversee and enforce compliance;" it cannot enter further injunctive relief as such an order would effectively change the issues on appeal.
More directly, the proposed Order attached to Plaintiffs' Response flatly admits that they intend to seek additional injunctive relief of the form that will require the Court "to supplement or modify" its original injunction and its Final Judgment. This request, like the entire "meet and confer process," expressly contemplates additional injunctive relief, not included in the Court's original injunction. For the reasons and authority previously stated, this is improper.
Finally, page 5 of Plaintiffs' Response suggests, without the benefit of any authority, that additional affirmative relief is perfectly appropriate at this time to supplement the Court's original "prohibitory" injunction. This suggestion is entirely disingenuous as the Court's original injunction was not simply "prohibitory," but also ordered Lufkin to take affirmative actions to create and implement non-discriminatory assignment, promotion and training systems.

2

The Court went on to consider the injunction on the merits based on the stipulation of the parties that the

second injunction would be treated as arising from a new lawsuit.

3

Plaintiffs’ cross-notice of appeal, filed on February 28, 2005, similarly describes the “meet and confer”

proceedings as necessary to address the “adequacy and completeness” of the injunctive relief originally ordered by the

Court. Plaintiffs cannot on one hand appeal the Court’s injunction as “inadequate[]” and “incomplete” and on the

other contend that the “meet and confer” conference is purely for compliance purposes.

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IV. Plaintiffs' Response Misconstrues The Role of the Unions. Plaintiffs' Response perpetuates their misunderstanding of federal labor law. Lufkin
cannot agree with Plaintiffs to make changes in areas that are the subject of mandatory bargaining. Nor may Plaintiffs compel Lufkin to negotiate around the Unions by characterizing the proposed "meet and confer" between the parties as a "judicial" matter. The Union's interest in protecting its collectively bargained rights is no less important in a "judicial" setting than it would be in a private collective bargaining session. See Edwards v. City of Houston, 78 F.3d 983, 999 (5th Cir. 1996) (recognizing virtually unfettered right to intervene where CBA at issue).
Alternatively, Plaintiffs question whether the Unions have a role in the "meet and confer" process, but declare they have no objection to the their participation. Plaintiffs' actions are to the contrary. The Unions have approached both parties about post-judgment intervention, concerned that the Court's injunction impacts portions of the collective bargaining agreement. Instead of simply agreeing to the intervention as they had previously indicated they would at this stage, Plaintiffs presented the Unions with a 2-page stipulation, requiring, in part, that the Unions waive certain appellate rights.4 Ironically, that is also what they want Lufkin to do in the "meet and confer" process.
Respectfully submitted,
________________/s/_______________ DOUGLAS E. HAMEL Attorney-In-Charge State Bar No. 08818300 CHRISTOPHER V. BACON State Bar No. 01493980

4

A copy of the stipulation is attached as Exhibit A.

5

Case 9:97-cv-00063-HC Document 492-1 Filed 03/01/2005 Page 6 of 6

OF COUNSEL:
VINSON & ELKINS, L.L.P. First City Tower Houston, Texas 77002-6760

AMY S. FERBER State Bar No. 24040888 2300 First City Tower 1001 Fannin Street Houston, Texas 77002-6760 (713) 758-2036 (Telephone) (713) 615-5388 (Telecopy)

CERTIFICATE OF SERVICE
I certify that on this 1st day of March, 2005, a copy of the foregoing Defendant’s Reply to Plaintiff’s Response to Defendant’s Motion to Vacate the Court’s Order of January 18, 2005 was filed electronically though the Court's CM/ECF system and was automatically copied to Plaintiffs through the court's electronic filing system.

2109851_1.DOC

____________/s/_______________________ Attorney for Defendant

6

 
 Case 9:97-cv-00063-RC Document 592 Filed 01/05/2009 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION

SYLVESTER MCCLAIN, on his own

§

behalf and on behalf of a class of similarly §

situated persons, et al.,

§

§

Plaintiffs,

§

vs.

§

§

LUFKIN INDUSTRIES,

§

§

Defendant.

§

CIVIL ACTION NO. 9:97-CV-063 JUDGE CLARK

DEFENDANT LUFKIN INDUSTRIES, INC.’S REPLY TO PLAINTIFFS RESPONSE IN OPPOSITION TO DEFENDANT’S SECOND MOTION TO QUASH DEPOSITION AND
FOR PROTECTION FROM UNNECESSARY DISCOVERY

The relevant market for determining the prevailing hourly rate is the community in which the district court sits. Tollet v. City of Kemah, 285 F.3d 357, 368 (5th Cir. 2002), cert. denied, 537 U.S. 883 (2002); Ross v. Lamm, 713, F.2d 546, 555 (10th Cir. 1983) (absent unusual

circumstances “the fee rates of the local areas should be applied even when the lawyer seeking

fees are from another area”). Plaintiffs respond that Defendant’s counsel -- who are not from

the Eastern District -- should be required to produce their billing information because

“comparative information” for this type of litigation in this District is “scare or non-existent.”

Plaintiffs disregard their lead counsel’s experience as a well-known civil rights lawyer who has

practiced in this Eastern District, including Lufkin and Beaumont, for many years. More

importantly, Plaintiffs ignore that Mr. Garrigan alone represented Plaintiffs in obtaining class

certification, defending that certification on appeal, and has been lead counsel in this litigation

from its inception. As is apparent from the Court’s class certification order, during the time

Plaintiffs were represented only by Mr. Garrigan, Plaintiffs went a long way toward convincing

Case 9:97-cv-00063-RC Document 592 Filed 01/05/2009 Page 2 of 5
the Court that they were victims of unlawful discrimination.1 Well before the Demchak law firm joined the fray, the major battle had been won. Even at trial, Mr. Garrigan continued to serve as lead counsel, examining 11 out of 22 witnesses who testified.
Plaintiffs note that some courts have relied on out-of-district rates when the litigants were unable to find qualified local counsel. Mathur v. Bd. Of Trustees of S. Ill. Univ., 317 F.3d 738, 743-44) (7th Cir. 2003). In Mathur, however, the Plaintiff was unable for find anyone to represent him in the jurisdiction where the case was tried. 317 F.3d at 744. The court found that it was “reasonable for Mathur to search for an attorney in Chicago after he exhausted his options in southern Illinois.” Id. Plaintiffs also cite Arbor Hill Concerned Citizens Neighborhood Assoc. v. County of Albany & Albany County Board of Elections, 522 F.3d 182, 191-92 (2d. Cir. 2008), where the court of appeals held that a district court may compensate out-of-town counsel at their higher rate in certain situations. Nevertheless the Arbor Hill court held that district court did not abuse its discretion by using the lower in-district rate for out-of-town counsel because of the presumption that a paying client would not want to pay more than the local rate. 522 F.3d at 191. The court noted that “we believe that a reasonable paying resident of Albany would have made a greater effort to retain an attorney practicing in [the area], than did the plaintiffs. The rates charged by attorneys in the Southern District of New York would simply have been too high for a thrifty, hypothetical client.” Id. In both Mathur and Arbor Hill, the courts recognized the general rule that the local rates should apply.
1 For example, this Court found – “[a] broad array of Lufkin employment practices rest on the subjective decision making processes,” Mem. Op. at 4; “an exception for skilled applicants all but obliterates the seniority rule,” Id. at 6; “This channeling process is not guided by any objective standards.” Id.; “the pervasive subjective decision-making process interacts with other facially neutral employment conditions to the disadvantage of African-Americans,” Id. at 7; and “the discriminatory effects of the constellation of suspect employment practices used by Lufkin Industries cannot be isolated individually.” Id. at 9.

Case 9:97-cv-00063-RC Document 592 Filed 01/05/2009 Page 3 of 5
If the Eastern District of Texas lacked lawyers with Mr. Garrigan’s law firm’s expertise – not to mention a number of other highly qualified civil rights lawyers – Plaintiffs’ arguments to explore the rates of similar Plaintiffs’ counsel in other jurisdictions might have merit. But, as noted at the beginning of this motion, Mr. Garrigan not only obtained certification for the class without the assistance of the Demchak law firm, but remained the lead lawyer through the time of trial. There is no reason why Mr. Garrigan’s actual billing rate should not be used as a benchmark in this case. Nor is there any reason why Lufkin’s Houston-based defense counsels’ rates would be relevant to establishing a benchmark for plaintiffs in this case.
Nor is Mr. Garrigan the only experienced employment lawyer in the Eastern District of Texas, whose billing rates can be appropriately used as a benchmark in this case. In its response to Plaintiffs’ Petition for Fees, Lufkin provided Judge Cobb with affidavit evidence from experienced employment lawyers in Beaumont and Lufkin. Lufkin also provided Judge Cobb with a thorough analysis of Plaintiffs hours as to why much of Plaintiffs work was duplicative or excessive. Unfortunately, Judge Cobb did not cite any of this evidence or analysis in his Opinion and simply stated in conclusory fashion that Ms. Demchak’s hours “were excessive and not necessary.” There is nothing in the Fifth Circuit’s decision that suggests that it disagreed with Judge Cobb’s fee award other than the fact that Judge Cobb failed to “explain with a reasonable degree of specificity the findings and reasons upon which the award was based.”
Plaintiffs offer no authority that Defendant’s counsel’s hourly records would be relevant to Plaintiffs’ petition. While a few cases have held that an opposing counsel’s hourly rates are relevant for establishing the appropriate market rate for the community, as Lufkin noted in its original Motion, in each of those cases the hourly rate was relevant because the [opposing] counsel in those cases practiced in the same jurisdiction where the case was tried. See, e.g., U.S.

Case 9:97-cv-00063-RC Document 592 Filed 01/05/2009 Page 4 of 5

Golf Corp. v. Eufala Bank & Trust Co., 639 F.2d 1197, 1203 (5th Cir. 1981) (relevant to consider opposing party’s hourly rates because they practiced the same kind of law in Eufala, Alabama).
Judge Cobb was correct when he ruled that Defendant’s counsel’s fees were not relevant and that Order should not be disturbed. Lufkin was represented by Houston-based attorneys who have never practiced on the plaintiffs’ side of the employment bar. There billing rates and records are not relevant. Moreover, Plaintiffs should continue to abide by this Court’s Order that no additional discovery be conducted so that Parties can concentrate on the other tasks that the Court has assigned them. For these reasons, Lufkin moves the Court to quash Plaintiffs’ deposition and enter an Order reaffirming its original Order that Plaintiffs are to cease engaging in discovery at this time.

Respectfully submitted,

OF COUNSEL:
VINSON & ELKINS L.L.P. 1001 Fannin Street Houston, Texas 77002-6760

____________/s/__________________ DOUGLAS E. HAMEL Attorney-In-Charge dhamel@velaw.com State Bar No. 08818300 CHRISTOPHER V. BACON Counsel State Bar No. 01493980 2500 First City Tower 1001 Fannin Street Houston, Texas 77002-6760 (713) 758-2036 (Telephone) (713) 615-5388 (Telecopy)
Attorneys for Defendant, LUFKIN INDUSTRIES, INC.

Case 9:97-cv-00063-RC Document 592 Filed 01/05/2009 Page 5 of 5
CERTIFICATE OF SERVICE I certify that on this 5th day January 2009, a copy of the foregoing Defendant Lufkin Industries, Inc.’s Reply to Plaintiffs’ Response to Defendant’s Motion to Quash Deposition and for Protection from Unnecessary Discovery was filed electronically through the Court’s CM/ECF System and was automatically copied to Plaintiffs through the Court’s electronic filing system.
_____________/s/________________ Attorney for Defendant
Houston 3833654v.1

 
 Case 9:97-cv-00063-RC Document 641 Filed 05/12/2009 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION

SYLVESTER MCCLAIN, on his own

§

behalf and on behalf of a class of similarly §

situated persons, et al.,

§

§

Plaintiffs,

§

vs.

§

§

LUFKIN INDUSTRIES,

§

§

Defendant.

§

CIVIL ACTION NO. 9:97-CV-063 JUDGE CLARK

DEFENDANT LUFKIN’S REPLY TO PLAINTIFFS’RESPONSE TO LUFKIN’S AMENDED MOTION FOR PARTIAL SUMMARY JUDGMENT
A. Other than the Statistical Evidence There was No Other Evidence in the Trial Record Supporting Plaintiffs’ Claims of Discrimination in Salaried Promotions.

Plaintiffs argue that Judge Cobb found “other evidence” of discrimination in salaried promotions although they cite to no such evidence in the record. In fact, only one class member, Florine Thompson, testified that she had once been passed over for a salaried promotion in favor of a white employee, although Ms. Thompson offered no testimony as to when this occurred, or what position was involved, so it is not even clear whether this promotion would have fallen within the relevant time period1 or whether it involved a position where there had been a shortfall in black employees. (Tr. (Day 1) 244).2 At the same time, Ms. Thompson conceded that she had been selected for three salaried jobs. (Tr. (Day 1) 247).
Of the other four class members who testified at trial, none offered any evidence of having been denied a promotion during the relevant time period. Sylvester McClain, an hourly

1 Given that Ms. Thompson worked for Lufkin for 19 years, it is quite possible this unspecified promotion occurred outside the limitations period. 2 Cites to (Tr. (Day X) #) are to the xth day of the Trial at page #.

Case 9:97-cv-00063-RC Document 641 Filed 05/12/2009 Page 2 of 9
employee throughout the relevant time period, admitted that he never bid on any job (hourly or salaried) after 1996. Calvin Deason and Kelvin Pope, hourly employees who always worked in the foundry and trailer division respectively, offered no evidence that either had sought a salaried promotion. (Tr. (Day 1) 142, 187-249; Tr. (Day 2) 109-141). Vivian Crane, a salaried employee who had worked in various low-level salaried positions (insurance clerk, senior insurance clerk, accounting voucher clerk) and one supervisory position (employee benefits supervisor), offered no evidence that she had been denied a salaried promotion because of her race. (Tr. (Day 5) 250-290). In fact, Ms. Crane conceded that she had been promoted to multiple salaried jobs over white employees. (Tr. (Day 5) 267).
Not only did Plaintiffs fail to offer any evidence of Plaintiffs who had been denied promotions to salaried jobs during the relevant time period, but they did not offer any testimony from employees who held or had sought jobs in front-line supervisor, engineering, accounting, technician position, information technology position, or management positions, typical salaried positions at Lufkin. Def. Trial Exh. 24. The anecdotal evidence presented only concerned employees in bargaining unit or lower level clerical positions. Given that Plaintiffs offered anecdotal evidence of salaried discrimination, Plaintiffs would at least need to offer significant statistical evidence of salaried discrimination, which Plaintiffs failed to do. B. There is No Authority (Legal or Scientific) where a Statistical Discrepancy of 1.62 Standard Deviations would be Significant.
The only evidence in the trial record of discrimination in salaried promotions, was Plaintiffs’ expert testimony that there was a statistically significant discrepancy at 2.03 standard deviations, for salaried positions for the 1994 through 2002 time period. Once the data for salaried promotions from 1994 and 1995 is eliminated, it is undisputed that the discrepancy drops to 1.62 standard deviations.
-2-

Case 9:97-cv-00063-RC Document 641 Filed 05/12/2009 Page 3 of 9
Even though the Fifth Circuit may not have endorsed a “bright line” test of 1.96 standard deviations (or five percent significance level) test, Lufkin is unaware of any federal court decision where 1.62 standard deviations have been found to be statistically significant. In citing the Fifth Circuit’s rejection of AT & T’s claim that “there is a strict legal benchmark” for statistical proof in Rendon v. AT & T Technologies, 883 F.2d 388, 397 (5th Cir. 1989), Plaintiffs fail to point out that AT&T had claimed that “there is a strict legal benchmark that requires three standard deviations to demonstrate that data has statistical significance.” (emphasis supplied). The Court found that 2.9 standard deviations could be significant and went on to hold that anything in excess of two or three standard deviations could be significant. At best, Rendon stands for the proposition that a disparity of less than 3 standard deviations may be statistically significant. A closer reading of the case makes it clear that the Rendon court found that 2 standard deviations was a minimum threshold for significance. Similarly, in Vuyanich v. Republic National Bank of Dallas, 505 F. Supp. 224, 351 (N.D. Tex. 1990), vacated on other grounds, 723 F.2d 1995 (5th Cir. 1984), the court ultimately concluded that the Defendant discriminated against blacks because there was a discrepancy that “exceeds 1.96 [standard deviations] in magnitude. While the Vuyanich court also noted that there was no bright line test because of a wide variety of statistical tests and different ways to gather a sample, the court recognized that “[i]t has become a convention in social science to accept as statistically significant values which have a probability of occurring by chance 5% of the time or less. Id. at 272.
Plaintiffs cite only one case, United States v. Georgia Power Co., 474 F.2d 906, 915 (5th Cir. 1973), where the court accepted a 6 percent level of significance instead of a 5 percent
-3-

Case 9:97-cv-00063-RC Document 641 Filed 05/12/2009 Page 4 of 9
level.3 Notably, the court in that case was not confronted with an analysis of promotion decisions but a validation of a job test that had been created by Georgia Power which had been challenged by the EEOC. Georgia Power had shown that there was positive correlation between its employment test and job performance at a 6 percent level of significance. Although the EEOC’s validation guidelines required a positive correlation at the 5 percent level of significance, the court concluded that the test was preferable to a more subjective procedure alternative such as an interview, which had not been validated at all. In Watkins v. Scott Paper Co., 530 F.2d 1159, 1187 n. 40 (5th Cir.), cert denied, 429 U.S. 861 (1976), the Fifth Circuit went on to state that a 10 percent level of significance, rather than the more conventional 5 percent level, “might be acceptable” in the context of the validity of job tests under Title VII. However, there is no authority for departing from the 5 percent level of significance in cases where plaintiffs are challenging promotion decisions.
The most recent edition of the key treatise on employment discrimination law states that “[i]t has become a convention in the social sciences to accept, as statistically significant, values that have a probability of occurring by chance of 5 percent or less and to reject those that fail the 5 percent test.” B. Lindemann & P. Grossman, EMPLOYMENT DISCRIMINATION LAW (BNA) (4th ed. 2007) at 2341-42 (emphasis supplied).
Without supporting authority, Plaintiffs suggest that a looser standard might be acceptable when smaller samples are involved. If anything, it is the other way around.4 Courts are more likely to reject statistical findings based on small samples unless the level of statistical significance is significantly higher or there is an abundance of anecdotal evidence supporting the
3 Using a normal distribution, a 6 percent level of significance would be equivalent to approximately 1.88 standard deviations. See normal distribution table at http://www.math.unb.ca/~knight/utility/NormTble.htm. Hence, it is still significantly above the 1.62 standard deviations for salaried promotions at Lufkin between 1996 and 2002. 4 Relatively speaking, the sample of 293 salaried promotions was small compared to the hourly promotions. Plaintiffs, however, have never argued that the sample of salaried promotions was too small to analyze on its own.
-4-

Case 9:97-cv-00063-RC Document 641 Filed 05/12/2009 Page 5 of 9
Plaintiff’s case. See, e.g., Pollis v. New Sch. For Social Research, 132 F.2d 115 (2d. Cir. 1997) (rejecting statistical evidence because sample was too small); Shutt v. Sandoz Crop Prot. Corp., 944 F.2d 1431, 1432-34 (9th Cir. 1991) (same); Tinker v. Sears, Roebuck & Co., 127 F.3d 519, 524 (6th Cir. 1997); Thomas v. Washington County Sch. Bd., 915 F.2d 922, 925-26 (4th Cir. 1990) (although sample size was small, plaintiff proved her case by showing 46 examples of nepotism).
Requiring either a higher level of significance for smaller samples or stronger anedoctal evidence that supports the claim of discrimination makes complete sense. After all, if 300 heads are obtained after tossing a coin 1000 times, a statistician could reasonably question the fairness of the coin, because of the large number of coin tosses. Additional evidence might not be necessary to reach the conclusion that the coin was not fair. On the other hand, if 3 heads were obtained after tossing a coin 10 times, no statistician (or layman) would question the coin’s fairness, without additional evidence. So it is with employment discrimination. A shortfall of 6.35 promotions out of a total of 293 salaried promotions for the time period between 1996 and 2002, resulting in an overall statistical discrepancy of 1.62 standard deviations, is not sufficient to justify a finding of disparate impact discrimination in salaried promotions.
Even when Plaintiffs try to carve out 98 out of the 293 promotions (those promotions from hourly to salaried positions, but excluding those within salaried positions), the discrepancy fails to meet the 1.96 standard deviation test. Although the discrepancy for this smaller subset of salaried employees is closer to the 5 percent level of significance, given the smaller sample, as well as the fact that the statistical significance is still below the conventionally accepted threshold, Plaintiffs would need significant non-statistical evidence of promotion discrimination in salaried jobs during the relevant time period in order to support this finding. Given that the trial record contains testimony of one salaried promotion who was denied on account of the
-5-

Case 9:97-cv-00063-RC Document 641 Filed 05/12/2009 Page 6 of 9
employee’s race, with no information regarding when the job was sought, what job was sought, or the skills and background of the person who was awarded the job instead of the class member, there is no basis to support a liability finding on the salaried promotions with this statistical finding. Moreover, in selecting a smaller sample, there is even more of a reason to apply a standard that is stricter than the 1.96 standard deviation test give the lack of any supporting anecdotal evidence.
C. The Separate Analysis of Hourly and Salaried Promotions at Trial was Proper Because Lufkin’s Hourly and Salaried Promotions are Handled in Very Different Ways.
Because there is clearly no statistically significant disparity in salaried promotions for the relevant time period established by Buford Thomas’ charge of discrimination, Plaintiffs now argue that the Court should simply combine the hourly and salaried promotions. This is the first time that Plaintiffs have suggested this. Throughout this litigation, Plaintiffs, Defendants, Judge Cobb and the Fifth Circuit analyzed hourly and salaried promotions separately. This was not done out of mere convenience but because hourly and salaried promotions at Lufkin Industries have always been handled in starkly different ways with different procedures. A statistical disparity in hourly promotions reveals nothing about salaried promotions and vice versa.
Hourly promotions at Lufkin are governed exclusively by the terms of the collective bargaining agreement. Def. Trial Exhs. 6, 7, 8. Typically, employees seeking promotions to hourly positions during the relevant time period (1996 through 2002) would sign a bid sheet for an available opening if they were interested in the job. Tr. (Day 6) 59-60, 106-08, 151-52, 18687, 235-36. Under the bargaining agreement, the most senior eligible bidder was offered the promotion. Tr. (Day 6) 59-67, 106-118, 133, 151-161, 186-203, 235-44, 253-55. If the employee rejected the offer, the job was offered to the next most senior eligible bidder. Id.
-6-

Case 9:97-cv-00063-RC Document 641 Filed 05/12/2009 Page 7 of 9
Depending on the job or division, an employee would be deemed ineligible for an hourly promotion if he was bidding on a job that would not result in a promotion, if he was in the attendance program, if he had a plant rule violation, or failed a test. Id. The collective bargaining agreement also contained an “ability clause” to consider an employee’s ability to do the job.5 Def. Trial Ex. 7 (Article 22, p. 38).
In contrast to the bargaining unit jobs, the evidence at trial showed that Lufkin used job descriptions and interviews to select candidates for salaried positions. Def. Trial Exh. 24; Tr. (Day 7) 172. Persons were selected based on how well they fit those job descriptions. Tr. (Day 6) 75-76, 162-64, 205-06. There was little overlap between the criteria (either objective or subjective) used to determine hourly or salaried promotions. Salaried jobs at Lufkin included many jobs which require college degrees, jobs held by engineers, accountants, managers, and technicians. Def. Trial Exh. 24. The hourly jobs, in contrast, were largely blue collar jobs. Def. Trial Exh. 7 at 65-72.
The existence of a statistically significant disparity in hourly promotions does not prove that any of Lufkin’s practices had a disparate impact on salaried promotions and would not justify injunctive relief with respect to salaried promotion procedures when there is no evidence that these practices have a disparate impact on black employees seeking promotions to salaried jobs. Nor should Lufkin have to pay back wages to salaried employees when there is no evidence of discrimination in salaried promotions. Plaintiffs’ belated attempt to merge these two distinct and unrelated subclasses should not be allowed when there is no evidence (statistical or otherwise) that supports Plaintiffs’ claims of discrimination in salaried promotions.
5 Judge Cobb found that the “ability clause” often trumped seniority when hourly promotions were awarded. August 29, 2005, DKT. 552, Amended Final Judgment at 6.
-7-

Case 9:97-cv-00063-RC Document 641 Filed 05/12/2009 Page 8 of 9
D. This Court is Not Precluded by the Fifth Circuit’s Mandate or the Law of the Case From Granting Summary Judgment on the Salaried Promotion Claims Because the Parties Did Not Have an Opportunity to Brief Issues Concerning Thomas’ charge on Appeal.
Lufkin appealed the findings that Judge Cobb made, not findings that Judge Cobb could have made. DKT. 557. Had Judge Cobb found in his Amended Final Judgment that Thomas’ charge also exhausted the administrative remedies of the class, Lufkin would have been obligated to brief that issue. The issues of Thomas’ charge, however, were not raised until the Fifth Circuit issued its decision, after the Parties had briefed the issues. Hence, Lufkin did not have an opportunity to brief those issues.
Buford Thomas did not testify at trial and nowhere in Judge Cobb’s order was there any reference to Buford Thomas’ charge of discrimination. McClain’s charge was the basis of Judge Cobb’s decision that Plaintiffs’ had exhausted their administrative remedies. Nonetheless, Plaintiffs now contend that Lufkin should have fully responded to their passing reference [in a footnote] to Thomas’ charge. Plaintiffs’ footnote was hardly the alternative argument they now suggest. No reference to Thomas’ charge was made in the text of Plaintiffs’ arguments in any of their briefs and it is clear from all Parties’ briefs that Judge Cobb’s reliance on McClain’s charge was the issue in dispute.
To suggest that they were not surprised by the Court’s resolution of this matter is disingenuous. No reasonable litigant could have anticipated that the Fifth Circuit would have relied on Thomas’ charge when Judge Cobb made no findings regarding Thomas’charge that could have been appealed. Accordingly, the law of the case does not preclude this court from addressing the issues raised in Lufkin’s Motion for Partial Summary Judgment.
-8-

Case 9:97-cv-00063-RC Document 641 Filed 05/12/2009 Page 9 of 9

OF COUNSEL:
VINSON & ELKINS L.L.P. 1001 Fannin Street Houston, Texas 77002-6760

Respectfully submitted,
____/s/Christopher V. Bacon___________ DOUGLAS E. HAMEL Attorney-In-Charge dhamel@velaw.com State Bar No. 08818300 CHRISTOPHER V. BACON Of Counsel State Bar No. 01493980 2300 First City Tower 1001 Fannin Street Houston, Texas 77002-6760 (713) 758-2036 (Telephone) (713) 615-5388 (Telecopy)
Attorneys for Defendant, LUFKIN INDUSTRIES, INC.

CERTIFICATE OF SERVICE I certify that on this 12th day of May 2009, a copy of the foregoing document was filed electronically through the Court’s CM/ECF System and was automatically copied to Plaintiffs through the Court’s electronic filing system.

____/s/_Christopher V. Bacon Attorney for Defendant

-9-
Houston 3996863v.1

 
 Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 1 of 178

caUR IN THE UNITED STATES DISTRICT c~lf3r~ ~li"~.~~ ,-~v T

FOR THE

EASTERN DISTRICT LUFKIN DIVISION

OF

TEX~lA:]SJ

JUL

"4
2J Ai.

I
h:

35

SYLVESTER MCCLAIN, on his own

§

:~ (AS! LurKIU

behalf and on behalf of a class of similarly §

situated persons, et al.,

§

§

Plaintiffs,

§

vs.

§

CIVIL ACTION NO. 9:97-CV-063

§

LUFKIN INDUSTRIES,

§

§

Defendant.

§

DEFENDANT'S RESPONSE TO PLAINTIFFS' MOTION TO RECONSIDER ORDER DISMISSING DISPARATE TREATMENT CLASS CLAIMS

Plaintiffs motion for reconsideration directly contradicts the position that they took four

years ago before the Fifth Circuit. There, Plaintiffs stated that they were seeking only to certify a

disparate impact class and argued that this was precisely what this Court had done:

Lufkin Industries' Petition cites Allison v. Citgo, supra, for the proposition that the initial named plaintiffs' (McClain and Thomas') disparate treatment jury claims for compensatory and punitive damages are somehow inconsistent with class disparate impact claims for equitable relief. Petition at pp. 29-30. The district court explicitly considered, and rejected, this argument. See Memorandum Opinion at p. 23. In making this argument, Lufkin Industries ignores the primary obvious difference between this case and Allison v. Citgo; here the class has only disparate impact claims for equitable relief (triable only to the bench) while in Allison v. Citgo the proposed class also had parallel disparate treatment claims for compensatory and punitive damages, not present here, triable to a jury (or juries).
Plaintiffs' Answer to Petition for Permission to Appeal Order Granting Class Certification at 22-

23 (emphasis added), attached as Exhibit A.

Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 2 of 178
Ignoring "[t]he doctrine of judicial estoppel [that] prevents a party from asserting a position in a legal proceeding that is contrary to a position previously taken in the same or some earlier proceeding," Ergo Science, Inc. v. Martin, 73 F.3d 595, 598 (5th Cir. 1996), Plaintiffs now claim that they always intended to seek certification of a disparate treatment class and that they never interpreted the District Court's Order as being limited to the certification of a disparate impact class. In order to maintain the integrity of these proceedings, Plaintiffs should not be allowed to change their legal position in mid-stream. Afram Carriers, Inc. v. Moeykens, 145 F.3d 298, 303 (5th Cir. 1998) ("Judicial estoppel applies to protect the integrity of the courts-preventing a litigant from contradicting its previous, inconsistent position when a court has adopted and relied on it"). A. Based on the testimony of the class certification hearing. the Court's decision not to certify a disparate treatment class was well within its inherent power to manage and control litigation.
Four years ago, after reviewing the pleadings and hearing three days of testimony from numerous putative class members, this Court properly detennined that Plaintiffs' pattern and practice disparate treatment claims were not suitable for class certification. Although the Court's decision not to certify a disparate treatment class was based, in part, on the concerns raised by the Fifth Circuit in Allison v. Citgo, 151 F.3d 402 (5th Cir. 1998,) the Court's decision not to certify an across-the-board disparate treatment class was clearly consistent with General Telephone Co. v Falcon, 457 U.S. 147 (1982), where the Supreme Court warned against certification of across-the-board disparate treatment claims, such as Plaintiffs' claims, which broadly challenge a wide range of employment practice and fail to articulate any coherent pattern of disparate treatment.
2

Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 3 of 178
Although Plaintiffs now disingenuously suggest that the "Court's Rule 23(a) analysis with respect to plaintiffs' disparate impact claim would apply equally to plaintiffs' disparate treatment claim," the Court recognized the difference between the two theories. l As Plaintiffs have stated in their recent supplemental responses to Lufkin's interrogatories, their case-in-chief for their disparate impact class is principally based on the testimony of its two expert witnesses. In contrast, their pattern-and-practice case would require testimony from up to sixty-three witnesses, mostly concerning the individualized claims of the class members involving different supervisors, time periods, facilities, job practices, and adverse actions. Moreover, the consideration of each employee's individual disparate treatment claims must take into consideration that employee's seniority, attendance, job history, and educational background. See Trevino v. Holly Sugar Corp., 811 F.2d 896, 905 (5th Cir. 1987) (denial of class certification was proper because the employees' seniority and job skills required individualized proof). Thus, even before the Civil Rights Act of 1991, the Court's decision not to certify a disparate treatment class would have been justified. B. Under current Fifth Circuit law. it would have been improper and an abuse of discretion to certify Plaintiffs' disparate treatment claims as a class action.
While the Court properly exercised its discretion to deny certification of Plaintiffs' disparate treatment claims under authority existing prior to the enactment of the Civil Rights Act of 1991, that decision was compelled by the changes to Title VII brought by that amendment. It would be plainly wrong for the Court to certify such a class today. While courts may have routinely (as Plaintiffs put it) certified cases prior to the enactment of the Civil Rights Act of
1 While disparate impact cases, as a general matter, are better suited for class certification, Lufkin still takes the position that the Court improperly certified a disparate impact class in this particular case and will revisit this issue in a future motion. Here, Lufkin only addresses the unsuitability of Plaintiffs' disparate treatment claims for class certification.
3

Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 4 of 178
1991, in the thirteen years since the Civil Rights Act of 1991 provided for compensatory and punitive damages, the Fifth Circuit has not upheld the certification of a single disparate treatment class action. While Plaintiffs are correct that Allison does not absolutely preclude the certification of disparate treatment classes, in the Fifth Circuit, as a general role, disparate treatment classes should only be certified in cases where the questions of law or fact common to the members of the class predominate over questions affecting individual members, and where Plaintiffs are able to show that a class action would be superior to other methods of adjudicating the controversy. Smith v. Texaco, Inc., 263 F.3d 394, 408-09 (5th Cir. 2001) (holding that because compensatory and punitive damages predominate over injunctive relief, plaintiffs must meet 23(b)(3) requirements), vacated by, 281 F.3d 477 (5th Cir. 2002) (withdrawing earlier opinion because court dismissed, with prejudice, all claims in the underlying action); Allison v. Citgo, 151 F.3d at 416-22 (holding that trial court properly denied certification under 23(b)(2) because of the availability of monetary damages and properly denied certification under 23(b)(3) because individual issues predominated over issues common to the class).
Many class actions based on a pattern-or-practice disparate treatment theory that would have been certified before the Civil Rights Act of 1991 are no longer certifiable due to the availability of compensatory and punitive damages. Nor is this dependent entirely on Plaintiffs' prayer for relief. With the availability of substantial monetary damages (up to $300,000 in compensatory and punitive damages for each class member), whether asked for or not, in most cases monetary relief is not purely incidental to injunctive relief. Accordingly, plaintiffs who wish to bring disparate treatment class actions under Title VII or Section 1981 today must be able to satisfy Rule 23(b)(3)'s predominance requirement and show that the class action is a superior device for resolving that particular dispute, before a disparate treatment class is
4

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certified, whereas in the past, a disparate treatment class might have been certified under the less stringent requirements of Rule 23(b)(2). Compare Smith and Allison, supra, with Robinson v. Union Carbide Corp., 544 F.2d 1258, 1260 (5th Cir.1977) (reversing district court's certification under (b)(3), because the court should have certified case under 23(b)(2)), cert. denied, 434 U.S. 822 (1977).
In Smith v. Texaco, the Fifth Circuit gave a good example of a disparate treatment claim that properly may be brought as a class action:
A supervisor announces to the workforce that at 5:00 that evening, each white employee will be laid off. This act is singular, and it can be assumed that the defendant acted with the same level of intent as to each white employee. 263 F.3d at 412. In the Smith hypothetical, there would be little need for an individualized assessment of punitive damages because it would be the same for all employees. While compensatory damages would still require proof on an individual basis (some employees may react more sensitively to the news of their termination), "questions of law or fact common to the members of the class" would still ''predominate over any questions common to questions affecting individual members." The above hypothetical also satisfies the second requirement of Rule 23(b)(3) that the "class action is superior to other available methods for the fair and efficient adjudication of the controversy." It would certainly make more sense to have one jury consider these facts as opposed to having separate juries consider the same allegations for each employee who was affected by the termination announcement. One only needs to read the separate 102 paragraphs In the Second Amended Supplemental Complaint detailing the claims of disparate treatment discrimination alleged as to 13 named representatives to understand how far the present case is from the hypothetical posited
5

Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 6 of 178
mr in Smith. See Second Amended Supplemental Complaint, 21-123. Here, the representative
plaintiffs' claims of intentional discrimination are all over the board, involving different supervisors, time periods, facilities, and job practices. The alleged harm suffered by the different representatives varies enormously. Some (such as Clarence Owens and Mary Williams) have trouble recalling any incidents of discrimination. See, e.g., Deposition of Clarence Owens2 at 45-48, 54-56, 61-67, 147-49, 156-57 (testifying that he had not been subjected to race discrimination in the 31 years that he had been at Lufkin and that none of his supervisors had discriminated against him); Deposition of Mary Williams3 at 45-56, 76-77, 87-88,92-93, 96-97, 104, 116, 121, 130, 147-48, 164-168, 172, 174, 185,203 (testifying that her only real complaint with Lufkin was that she was not rehired sooner after she was laid off from the trailer division in 1996, and that it may have been a result of her race although she concedes that the layoff itself was done according to the terms of the collective bargaining agreement and was not discriminatory). Others, like Roald Mark (whose retaliation claims were rejected by a jury earlier this year) complain of repeated incidents of discrimination. See Second Supplemental
mr Complaint 106-110,
Sylvester McClain complains primarily that he was demoted during a layoff at the trailer division in 1996 and not given sufficient support as a Quality Manager, while Buford Thomas complains that he was not promoted to certain jobs prior to 1988 and was constructively discharged in 1994 from his job in the power transmission division. Deposition of Sylvester McClain at 172-197; Class Certification Hearing at 298-304, 340; Second Amended
2 Excerpts of the May 29, 2003 deposition of Clarence Owens are attached as Exhibit B. 3 Excerpts of the June 2, 2003 deposition of Mary Williams are attached as Exhibit C.
6

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Supplemental Complaint -,r 44.4 Leroy Garner complains about a promotion that he was denied
15 years before the class certification hearing, while Earl Potts complains that he once heard a fellow employee use a racial epithet. Class Certification Hearing at 44, 259-60. Patrick Ross, an employee who worked for Lufkin for two weeks, complains that he was assigned to an unpleasant job in the foundry and was mistreated by his black supervisors. Class Certification Hearing at 379-80.
One class representative, Sherry Calloway Swint, complains about an incident that was presumably settled. Ms. Swint was allegedly passed over for a promotion in the foundry for a buyer position in 1994. Deposition of Sherry Calloway Swint at 97-103.5 Plaintiffs' pleadings fail to point out that Ms. Swint complained about this to the OFCCP and that Lufkin resolved Ms. Swint's complaint in a conciliation agreement between Lufkin and the OFCCP. ld. at 10812; see also Conciliation Agreement Between Lufkin Industries and the OFCCP, attached as Exhibit G. While Lufkin denied any wrongdoing, it nonetheless settled Ms. Swint's complaint by agreeing to pay her back pay, paying her the wage that she would have earned had she received the promotion she wanted, and promising to promote Ms. Swint to the first available buyer position. ld. All of this poses the question: how could Ms. Swint's individual complaint be handled in the class context when the matter was the subject of an earlier settlement agreement?
The 13 representatives are conceivably the tip of the iceberg. Otherwise, Plaintiffs have failed to meet the numerosity requirement of Rule 23(a). Hence, a trial of disparate treatment claims may include various and sundry allegations from absent class members that could involve
4 Excerpts to the July 8, 2003 deposition of Sylvester McClain are attached as Exhibit D; Excerpts to the August 1998 Class Certification Hearing are attached as Exhibit E. 5 Excerpts from the June 16, 2003 deposition of Sherry Calloway Swint are attached as Exhibit F.
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possibly other time periods, supervisors, divisions, practices, adverse actions and alleged banns. In contrast to the hypothetical in Smith v. Texaco, where all of the class members were complaining about a single act, Plaintiffs' alleged "systemic" disparate treatment claims are nothing more than dozens (or potentially hundreds) of individual lawsuits linked together as one. As the Court recognized, the advantages and economies of a class action in such circumstances are non-existent. Unlike a trial on a disparate impact claim that would focus on practices that allegedly affected a large group of people in a similar way, a disparate treatment class action could take weeks to try because it would require the parties to focus on each class member's individualized claims.
Moreover, the potential availability of substantial compensatory and punitive damages further undermines the usefulness of the class device. Not only are the representative class members' individual claims allover the place, but their potential claims for damages would have to be assessed on a case-by-case basis.
Plaintiffs argue that that Allison should not apply when class counsel does not assert claims for compensatory and punitive damages. Conspicuously missing from Plaintiffs' argument, however, is any mention of Zachery v. Texaco Exploration & Prod., Inc., 185 F.R.D. 230 244 (W.D. Tex 1999), a case where class counsel affirmatively dismissed all claims for compensatory and punitive damages on behalf of the individual class members in order to get around the problem identified by Allison. While the Zachery counsel may have resolved the problem of having to meet the requirements of 23(b)(3), by explicitly renouncing the entire class' right to compensatory and punitive damages, the court recognized that this solution created
8

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another problem, namely how class counsel could adequately represent all members of the class when they had renounced every member's right to seek compensatory or punitive damages.6
It is not clear how Plaintiffs distinguish this case from Zachery, other than to claim that only two of the representative plaintiffs, Sylvester McClain and Buford Thomas, have affirmatively disavowed their intent to seek compensatory and punitive damages.7 While it is all well and good that McClain and Thomas are willing to forego their claims for compensatory and punitive damages, as plaintiffs recognize (in their request for notice permitting class members to opt out) it is presumptuous to assume that each member of the class would (or should) make the same decision. Moreover, if class counsel were to argue that punitive and compensatory damages in this case were incidental and did not predominate over other types of relief, they would be undermining the thrust of their disparate treatment claim, namely that Lufkin engages in widespread intentional discrimination in many employment practices and that many of its black employees have suffered serious harm because of Lufkin's actions.
Even assuming that class counsel is not seeking compensatory and punitive damages for any members of the class, and never intended to, certification of a disparate treatment class presents serious problems because it will either undermine a class member's right to seek full relief in the future or compromise Lufkin's Seventh Amendment right to a jury trial, if a class member were to bring such a claim at a later date. Plaintiffs suggestion that a disparate treatment
6This Court has also recognized the problem of renouncing compensatory and punitive damages on behalf of an entire class in Smith v. Texaco, 88 F. Supp. 2d 663, 679 (E.n. Tex. 2000), where it stated that it would have been "more concerned if plaintiffs' counsel did not request compensatory and punitive damages." 7 If anything, class counsel have left the door open to seek such relief for other members by asking for "any and all other additional relief to which Plaintiffs appear to be entitled" in their "Prayer for Relief." Plaintiffs have not allowed Lufkin to ask any of the other class members whether they intend to seek compensatory and punitive damages. In fact, when Lufkin took the deposition of Walter Butler (the first of the 11 representatives to be deposed), Plaintiffs' counsel would not allow Butler to answer any questions on this subject. Deposition of Walter Butler at 255-260.7 After counsel called the discovery hotline, the Court sustained Plaintiffs' counsel's objections to this line of questioning. Id
9

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class be certified and that Plaintiffs be allowed to opt-out does not solve the problem either, because the claims of the disparate treatment class would clearly overlap with those of the optouts, and each of the individual opt-out cases would have to be tried before the class action. See Beacon Theatres Inc. v. Westover, 359 U.S. 500 (1959). Not only would the court still have to hear a class action case that is nothing more than many individual trials tied together, but the individuals who opted-out could come back to testify in the pattern and practice case even though they would not be entitled to any additional monetary relief. The principal value of the class action is that it is more efficient than having a series of individual trials. In this case, however, there would be no such advantage. In contrast, there would be far less duplication between the individual opt-out trials on disparate treatment claims and a trial of a disparate impact class action case. 8
Quite simply, abandoning potential claims for compensatory and punitive damages is not a viable solution. One cannot adequately represent a class of individuals unless one seeks the full panoply of relief to which each individual might be entitled. Accordingly, the only other way to obtain certification of a disparate treatment class is to meet the requirements of Rule 23(b)(3). Even though the second Allison opinion may have been more restrained than the earlier withdrawn decision, there is no doubt that Allison signaled a dramatic change in how disparate treatment class certification decisions will be analyzed in the years to come. Plaintiffs' suggestion to the contrary is naive. Moreover, the Court's decision in Smith v. Texaco leaves no doubt that Allison was not an aberration. While disparate treatment class actions may still be certified in some rare cases, as a general practice disparate treatment cases will have to be
8 Lufkin would still argue that the individual trials should be tried fIrst, as there is likely some overlap between the factual issues.
10

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brought individually. While Lufkin continues to disagree with the Court's certification of a disparate impact class, the Court's decision not to certify a disparate treatment class in 1999 was entirely consistent with Fifth Circuit law.
C. While front pay is an equitable remedy and could be awarded in a class disparate impact case, the Court correctly recognized that front pay is unlikely to be an appropriate remedy for Plaintiffs' alleged disparate impact claims.
In its July 11, 2003 Order, the Court stated that class members would only be entitled to damages that are available under disparate impact claims. While compensatory and punitive
damages are not available for disparate impact claims, see 42 U.S.C. § 1981a, successful plaintiffs in disparate impact cases are entitled to equitable relief including, in appropriate cases, back pay and front pay. 42 U.S.C. § 2000e-5(g)(1).
Although the Court did not specifically address front pay in its written order, at the hearing on July 11, 2003, the Court indicated that it did not intend to award front pay to members in the class who did not opt out. There was no question, however, that the Court recognized that front pay was an equitable remedy and that the Court would not necessarily be precluded by Allison from awarding it.
In any event, Plaintiffs' concerns about front pay in this disparate impact case are largely academic, because front pay is unlikely to be a necessary remedy, even if Plaintiffs succeed in proving a disparate impact case.9 Front pay is typically awarded in termination cases where reinstatement would not feasible. However, it is never a preferred remedy and should be used as a last resort, such as in the case where the employee was subject to serious harassment or where
~efore the Court considers any remedies, Plaintiffs will have to prove that there is a specific employment practice at Lufkin that has a disparate impact on some black employees. To date, Plaintiffs have yet to identify a specific practice, much less prove that it has a disparate impact on black employees.
11

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there was considerable hostility between the supervisor and the employee prior to the employee being tenninated. See Weaver v. Amoco Prod. Co., 66 F.3d 85,88 (5th Cir. 1995) ("This Circuit continues to recognize the decided preference to award reinstatement instead of front pay for a discriminatory discharge...".). Although Plaintiffs have not yet identified any specific facially neutral employment practices at Lufkin that have a disparate impact on black employees, Lufkin has seen no evidence so far that would suggest that Plaintiffs' disparate impact class case will focus on tenninations. Plaintiffs' statistical expert's report contains no statistical evidence showing that tenninations at Lufkin are handled in a discriminatory manner, and only one of the named representatives, Roald Mark, has complained about being terminated because of his race, and his termination claim has already been considered and rejected by a jury.10
While front pay could be awarded in a promotion case, such as the case where there is no vacancy to which a plaintiff could be promoted immediately, it is hardly the only remedy available in such cases. The Court could also order an employer to pay an employee the rate that the employee would earn in the position that the employee was supposed to have, until the desired position became available. This was the remedy that Lufkin agreed to in its conciliation agreement with the OFCCP regarding Sherry Calloway Swint. While such a remedy would not be called "front pay," it is essentially the same. The advantage of such a remedy is that it is considerably less speculative than awarding a lump sum based on some estimate of how long it will take the employee to reach the desired promotion or how long the employee will remain with the company. See Williams v. Pharmacia, Inc., 137 F.3d 944,954 (7th Cir. 1998) (holding that front-pay award must be limited in duration and that Plaintiff must demonstrate with
10 Others have been laid off during reductions-in-force but recognized that their lack of seniority and not their race resulted in their layoff. See, e.g., Deposition of Mary Thomas at 205.
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reasonable degree of certainty how long plaintiff would have expected to work for defendant). Calculating front pay would be especially difficult and subject to a very individualized analysis, where employees are frequently laid off for non-discriminatory reasons when business is slow, and rehired when it picks up. Thus, the Court's reluctance to award front pay to people who do not opt out is reasonable and would not be an abuse of discretion. D. By requiring notice. allowing class members to opt-out, and tolling the statute of limitations. the Court has established procedural safeguards to ensure that any class member who desires to seek relief for any claim of intentional discrimination may do so.
Plaintiffs argue that the Court ignored ''required procedural safeguards" when it granted Lufkin's Motion to Dismiss Disparate Treatment Claims by disingenuously suggesting that Lufkin's Motion was more akin to a Rule 12 or Rule 56 motionY It was not. It was nothing more than a motion seeking clarification of the Court's consideration of the Plaintiffs' Rule 23 motion. While there was no question that the Court had only certified a disparate impact class (and Plaintiffs had conceded as much in the Fifth Circuit), Lufkin wanted the Court to explicitly state that it had not certified a disparate treatment class. Otherwise, there was a danger (obviously recognized by the Court in its recent Order) that class members would be lulled into thinking that the statute of limitations would remain tolled for any individual disparate treatment claims.
In its Order, the Court has gone out of its way to protect the interests of the absent class members, first by making it abundantly clear that it has not dismissed any class member's individual disparate treatment claims. The Court has also sought to toll the statute of limitations on any individual disparate treatment claims until the Court has had an opportunity to provide
Ii Nor has Lufkin moved to dismiss Plaintiffs' individual disparate treatment claims. Any decision to seek summary judgment on claims brought by class members who opt out will be made on a case-by-case basis, depending on the substance of their allegations and whether there is a disputed issue of fact pertaining to those allegations.
13

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notice to all class members that they have a right to opt out of the class and bring their disparate treatment individual claims for which they might be able to recover compensatory or punitive damages.
Plaintiffs' alternative request that the Court certify its Order for an interlocutory appeal and stay the proceedings pending such appeal should also be denied. 12 Plaintiffs knew full well, four years ago, that the Court had not certified a disparate treatment class, and yet they chose not to file a cross appeal when Lufkin filed its Petition for Discretionary Review. Now, three months before trial, they want to return to the Fifth Circuit in order to make an argument that is directly contrary to the argument that they made in 1999. Moreover, even if the Plaintiffs had been genuinely confused by the Court's earlier Order, there would be no justification for an interlocutory appeal in this case. Plaintiffs have an even weaker case for certification of a disparate treatment class than the Plaintiffs in Smith v. Texaco did. Based on Allison, there is no mystery as to how the Fifth Circuit might consider the Court's decision not to certify a disparate treatment class. Thus, because this case does not "involve a controlling question of law as to which there is substantial ground for difference of opinion," the Court should not certify this case for an interlocutory appeal. 28 U.S.C. § 1292(b).
12 In the event that the Court decides to certify its Order for an interlocutory appeal (and Lufkin would urge the Court not to do so), Lufkin would ask that the Court certify the original class certification order as well, in order to give Lufkin the opportunity to again ask the Fifth Circuit to review the certification of the disparate impact claim class as well. In short, if the Fifth Circuit is going to review the Court's decision not to certify a disparate treatment class, it might as well review the decision to certify a disparate impact class.
14

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Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 16 of 178
NO. 99-33
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
SYLVESTER McCLAIN and BUFORD THOMAS, on their own behalf and representing a certified class of African American employees, and PATRICK ROSS, MARY THOMAS, EDDIE K. MASK, LEROY GARNER, SHERRY CALLOWAY SWINT, JOHN DOE a/k/a "A", JOHN DOE II a/k/a "B", JOHN DOE III a/k/a "CD, CLIFFORD R. DUIRDEN, EARL POTTS, and ROALD MARK, representing a certified class of African American employees,
Plaintiffs-Respondents v. LUFKIN INDUSTRIES, INC.,
Defendant-Petitioner
On Appeal from the United States District Court For the Eastern District of Texas Lufkin Division
ANSWER TO PETITION FOR PERMISSION TO APPEAL ORDER GRANTING CLASS CERTIFICATION
Timothy B. Garrigan Bar Card No. 07703600 Stuckey & Garrigan Law Offices 2803 North Street P.O. Box 631902 Nacogdoches, Texas 75963-1902 (409) 560-6020 FAX: (409) 560-9578 Attorney for Plaintiffs-Respondents

Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 17 of 178

TABLE OF CONTENTS

Page No.

I. FACTS NECESSARY TO UNDERSTAND THE QUESTION PRESENTED......

1

A. Prior proceedings ................................... .

1

B. Lufkin Industries ................................... .

4

C. Class Representatives ............................... .

9

D. Lufkin Industries' statistician's (Dr. Chorush's)

Analyses and Criticisms ............................. .

10

II. SUMMARY OF REASONS WHY THE PETITION AND STAY SHOULD BE

DENIED. .......................... . . ............. .... .. ....

16

"

I I I. ARGUMENT..................................................

1 7

A. The trial court considered the controlling law

and appropriate evidence in certifying the

plaintiff class. ....................................

18

B. Certification of a broad class is appropriate

where the exercise of subjective and

discriminatory decision making affects many

employment practices. ...............................

20

C. The class is adequately represented and the

individual claims of two class representatives

does not preclude class certification. ..............

21

D. McClain's January 1995 letter is adequate to

constitute an EEOC charge. . . . . . . . . . . . . . . . . . . . . . . . . . .

23

E. Plaintiffs' statistical analysis is not akin

to that in Wards Cove. ..............................

25

"

IV. CONCLUS ION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

26

CERTIFICATE OF SERVICE . . . . . . . . . . . • . . . . . . . . . . . . . . . . . . . . . . . . . . . .

27

Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 18 of 178
I.
FACTS NECESSARY TO UNDERSTAND THE QUESTION PRESENTED On- March 31, 1999 the Honorable Howell Cobb, United States District Judge for the Eastern District of Texas, filed a " Memorandum Opinion and Order certifying a plaintiff class of African American employees in this employment discrimination case. On the same date the district court also filed an Order Designating Class Representatives, designating 11 class representatives in addition to the two initial named plaintiffs. Copies of these documents are included in Exhibit A to Petitioner Lufkin Industries, Inc.'s ("Lufkin Industries") Petition for Permission to Appeal Order Granting Class Certification ("Petition"). On April 16, 1999 the undersigned counsel for the Plaintiffs-Respondents received the Petition and now submits this Answer opposing the Petition .1 In its Petition Lufkin Industries describes only ~ selected facts and its own disputed assertions. To better reflect the actual circumstances of this case, the Plaintiffs-Respondents Class provides the following additional information: A. Prior Proceedings In January of 1995 Plaintiff McClain sent a letter to the EEOC complaining not only about the race discrimination he personally suffered, but also that race discrimination "is a cultural problem that must be addressed to prevent discriminatory practices in
1 On April 21, 1999 this Court granted an opposed motion for an extension of time up to and including April 29, 1999 to file this Answer.
"
1

Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 19 of 178

Lufkin Trailer Division or any other part of Lufkin Industries

II

A copy of the McClain letter of January 29, 1995 was

submitt:ed to the district court- wfth Plaintiffs' Response in

opposition to Defendant's Motion to Dismiss Class Action Claims,

filed on June 23, 1997. The January 29, 1995 letter is a written

statement sufficiently precise to identify the parties and to

describe generally the action or practices complained of,
"
constituting a charge of discrimination pursuant to 29 CFR §

1601.12(b).2

This lawsuit was subsequently filed on February 26, 1997.

After depositions of the parties were conducted, Lufkin Industries

filed a Motion to Dismiss Class Action Claims, seeking dismissal of

all class claims without permitting plaintiffs any discovery

regarding class certification issues. That motion was denied on

October 22, 1997. Pursuant to court order the parties filed a

Discovery Plan Relating to the Question of Class Certification on

November 3, 1997. The Discovery Plan included provisions requiring

Lufkin Industries to describe and provide certain limited relevant
"
information and to produce its Vice President of Human Resources,

Paul Perez, for deposition as well as one other deposition pursuant

to Rule 30(b)(6), Fed.R.Civ.Pro. Although Lufkin Industries agreed

2 Petitioner Lufkin Industries would have the Court rely on a later, and more limited, charge of discrimination prepared for plaintiff McClain by the EEOC. In doing so, Lufkin Industries fails to mention that the formal charge of discrimination was signed under protest by plaintiff McClain only because the EEOC threatened to dismiss his claims if he did not sign. See EEOC letter of August 6, 1996 and McClain letter of August 12, 1996, Exhibits 1 and 2, respectively, in Respondents' Appendix.
2

"

Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 20 of 178
"

to the Discovery Plan, it resisted producing much of the relevant

information (including its personnel databases refl-ecting work

force and applicant flow statistics) and refused to appear for the

Rule 30(b)(6) deposition, thereby preventing refinement of

statistical analyses. See Order of November 26, 1997 and pp. 3-5

of the August 18, 1998 transcript in Petitioner's Appendix

(hereinafter, "PA __ ").

On November 11, 1997 Plaintiffs filed their Motion for Class

Certification. Lufkin Industries filed its Response to Plaintiff's

" Motion for Class Certification on or about December 1, 1997 urging

the district court to accept an analysis comparing the Lufkin

Industries work force to census data in a nine-county recruiting

area reflecting only 14 percent African Americans. In fact, Lufkin

Industries' applicant flow data (which Lufkin Industries initially

denied the existence of) reflects the relevant applicant pool to be

32 percent African American. McCune Report at p. 3, Exhibit E to

the Petition.

This Court has rejected general population

comparisons, such as that previously urged by Lufkin Industries, in

favor of more relevant applicant flow comparisons. EEOC v. Olson's

Dairy Queen, 989 F.2d 165, 169 (5th Cir. 1993).

"

This case was initially assigned to the Honorable Thad

Heartfield, United States District Judge for the Eastern District

of Texas, who presided over a class certification hearing on

February 18, 1998. A copy of the transcript of the February 18,

1998 hearing is included as Exhibit 3 in Respondents' Appendix.

References to the hearing before Judge Heartfield will be "H __ ".

3

Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 21 of 178

Without a ruling on class certification, the case was transferred
"
to Judge Cobb, who has indicated that he considered a transcript of

the hearing before Judge Heartfield.- Judge Cobb- also required

Lufkin Industries to produce a considerable volume of

organizational charts, employee manuals, written personnel

policies, and personnel databases. See Order for Production of

Evidence and Witnesses filed June 30, 1998. Judge Cobb held a

second class certification hearing from August 18 through August

20, 1998, a transcript of which is included in Petitioner's

Appendix. Judge Cobb also spent several hours inspecting Lufkin

Industries' facilities in Lufkin, Texas.

B. Lufkin Industries

"

Lufkin Industries' Petition provides very little information

about its racial composition or its decision making processes.

While it is inappropriate for the courts to inquire about, or

consider, the merits of claims while considering class

certification, many courts have recognized the usefulness of

considering both statistical and anecdotal evidence relevant to

class certification. See Lindemann and Grossman, Employment

Discrimination Law, 3rd Ed., (BNA 1996) at pp. 1621-26.

Lufkin Industries has one Human Resources office and has the

same personnel policies throughout its Lufkin, Texas operations

regarding hiring, demotions, training and compensation. H 196-97.

" Lufkin Industries exaggerates the effectiveness of the collective

bargaining agreement it is party to. Petition at p. 2, for

example. As explicitly recognized by the district court, the

4

Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 22 of 178
seniority provisions of the collective bargaining agreement are obliterated by Lufkin Industries' use of exceptions ·for skilled employees. See Memorandum Opinion at p. 6. 3 The-district court
., also concluded that "the union grievance procedure has
traditionally been ineffective." Ibid. at p. 7. Despite any distinction between hourly (Union) and salaried
employees, Lufkin Industries concedes that it exercises subjective discretion in all hiring, promotion, termination, discipline and demotion decisions, and that any disparate impact on African Americans is a result of this discretionary decision making. PA 464, 467-68. Lufkin Industries' Vice President for Human Resources also conceded that the disparities are possibly due to racially prejudiced decision makers at moderate and lower levels, that racial prejudice is possibly imbedded throughout the Lufkin
., Industries organization, and that there is a racial imbalance
increasingly evident as you go higher up the Lufkin Industries "pyramid." PA 563, 573-75.
Lufkin Industries has an all-white, all-male Board of Directors. H 184. Of its approximately 2,200 employees none of the 37 who benefit from a bonus program are African American. H
3 The exception reads: ... in the case of promotions, demotions, transfers, layoffs, and recalling to work ... departmental seniority shall govern if their ability to perform the work is approximately equal." ... The determination of an employee's ability to perform the work is a function of management. See page 38 of the collective bargaining agreement, attached to ~ the Petition at Exhibit B.
5

Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 23 of 178
198. None of the 70 employees who benefit from a stock option program are African American. H 199. Lufkin Industries' personnel databases reflect 116 employees with a base pay above $4,000 per month, none of whom are African American. H 199-200; and McCune Report at p. 8.
Lufkin Industries has four objective hiring criteria (no " termination within two years, six months of continuous recent
employment, no problems with absenteeism, and broadly construed industrial experience), none of which explain racial disparities. PA 459-61. 4 The applicant flow data from 1994 to 19975 reflected that 32 percent of the relevant applicants for employment at Lufkin Industries were African American6 , nonetheless, less than 19 percent of the relevant work force is African American. McCune Report at p. 2. A qualified African American applicant has a 36 percent chance of being hired by Lufkin Industries while a similarly qualified white applicant has a 49 percent chance of
"
4 Perez did testify that there were only a few jobs, "[a] very small percentage of the hires," that have any educational requirement. H 189; PA 461. Lufkin Industries has not presented any evidence of these few positions' education requirements. If these requirements do exist it is possible that they would account for disparities in only a few positions.
5 Perez initially falsely denied the existence of applicant flow data. H 184. Eventually applicant flow data for only 19941997 was produced.
6 Relevant applicants include only whites and African Americans. All of Dr. McCune's relevant work force comparisons are to African Americans and whites, eliminating other minorities who might also be subject to discrimination and whose inclusion would dilute results.
6
"

Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 24 of 178
being hired, a statistically significant disparity. McCune Report at p. 5.
African Americans hired by Lufkin Industries are assigned to divisions and other organizational units that appear to be segregated. The district court recognized this as channeling African Americans into less desirable positions. See Memorandum Order at pp. 5-6. Lufkin Industries has six divisions with more than 30 employees. African Americans are over-represented in the Foundry Division (where working conditions can be very harsh) to a statistically significantly level and are under-represented in the remaining divisions to a statistically significant level.? McCune Report at pp. 3-4. Less than seven percent of the promotions from hourly to salaried positions are awarded to African Americans even though the hourly work force from which the promotions are made is over 24 percent African American, another statistically significant disparity. McCune Report at p. 6.
Lufkin Industries' personnel databases reflect 19 numbered departments, 13 of which have less than 10 percent African American employees, including eight departments with no African American employees. PA 67-68. Seventy-one percent of the African American
.J
employees are concentrated into only two departments. Ibid. These
? Depending on whether the racial composition of the departments is compared to applicant flow (32 percent African Americans) or to the overall composition of Lufkin Industries' work force (19 percent), African Americans may not be seen as under-represented in the Trailer Division, where conditions are also harsh.
7

Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 25 of 178
" figures suggest that Lufkin Industries, as it organizes itself into departments, is largely segregated by race. Lufkin Industries' personnel databases also reflect organization by Chart of Account numbers, of which there are 31. Twenty-five of the Chart of Account categories have less than 10 percent African American employees, including 19 Charts of Account with no African Americans at all. PA 69. Eighty percent of the African American employees are concentrated into only three of the Chart of Account categories. These figures also suggest that Lufkin Industries, as it organizes itself into Charts of Account, is still largely segregated. Despite higher average seniority, Lufkin Industries' African
"
American employees are significantly over-represented in positions paying less than $12 per hour and significantly under-represented in hourly positions paying greater than $12 per hour. McCune Report at pp. 7-8. Less than five percent of Lufkin Industries' salaried work force is African American and among the salaried ranks African Americans are significantly over-represented in positions paying less than $2,000 and are entirely (and significantly) excluded from 116 positions paying $4,000 or more per month. McCune Report at p. 8.
African Americans are discharged for cause at roughly twice the rate one would expect based on their representation in Lufkin
"
Industries' work force, another statistically significant disparity. McCune Report at p. 10. African Americans are also
8

Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 26 of 178
disproportionately affected by layoffs to a statistically significant degree. McCune Report at p. 11.
Even Lufkin Industries' statistician conceded that Lufkin " Industries' hiring practices for the period 1994 through 1997
significantly disadvantaged African Americans, as did the hiring practices for the years 1994, 1995 and 1997 analyzed separately. PA 644-47. Only in 1996, a year in which an unusually high number of employees were hired into the Foundry, did the applicant flow analysis fail to reveal statistically significant disparities. Ibid.
C. Class Representatives All of the class representatives are African Americans who are
subject to Lufkin Industries' discriminatory subjective decision making, which discourages African Americans from pursuing , advancement. See Memorandum Opinion at p. 7. Class representative Sylvester McClain has worked for Lufkin Industries for approximately 27 years in salaried and hourly positions and is currently a Bargaining unit member. Class representative Buford Thomas worked for approximately 17 years as a low level salaried employee. Contrary to Lufkin Industries' representations, two of the class representatives hold salaried, non-Bargaining Unit positions. See Affidavit of Mary Thomas in Support of Class Certification and Affidavit of "AU in Support of Class Certification. 8 Another class representative is a former employee
8 The Affidavits in Support of Class Certification are , attached to Plaintiffs' Brief Explaining How Evidence Relates to
Each Class Certification Criterion, filed on January 21, 1998.
9

Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 27 of 178
the bid sheets involved and could not say that the small sample, selected by Lufkin Industries, fairly represents all of the promotions to salaried positions. ---PA -618; H 155-59. Dr. Chorush's analysis assumed that the applicant pool consisted of the employees who signed the bid sheet even though he was aware that some of the openings were awarded to persons not on the bid sheets and that the actual applicant pool included others. PA 621-23. He conceded that his analysis did not account for the fact that supervisors " encouraged, and discouraged, employees to sign bid sheets. PA 623. Dr. Chorush conceded that his analysis did not take into account openings that were not posted for bid and knew that there were a couple hundred promotions not included in his analysis. PA 627-28. Dr. Chorush conceded that there were many personnel actions resulting in higher pay that he did not consider to be promotions. PA 631. Dr. Chorush also conceded that he added at least one successful African American to his analysis who should have been excluded, skewing the results in favor of Lufkin Industries. PA 629. He also left out at least one unsuccessful African American, again skewing the results in favor of Lufkin Industries. PA 632. " Finally, Dr. Chorush also admitted that his statistical analysis did not take into account the fact that many of the promotion decisions he was looking at were interdependent, further skewing the results of the analysis. 9 PA 639. Dr. Chorush plainly
9 This criticism is true of all of Dr. Corush's analyses where he disaggregated the data down to the level of each individual position. Of course, this Court has long recognized the impropriety of disaggregating data as a defensive tactic. Capaci v. Katz and Besthoff, Inc., 711 F.2d 647, 654-57 (5th Cir.
11

Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 28 of 178
"
admitted that his analysis had two weaknesses that would impact the result, his assumption regarding the applicant pool and the failure to account for co-variance or interdependence. PA 639.
Dr. Chorush performed a second promotion analysis for Lufkin Industries in which he compared successful promotion applicants to a proxy applicant pool defined as employees with the same job title as the person selected. H 163. Dr. Chorush conceded that his analysis irrationally assumed that everyone with a particular job title was equally qualified for promotion regardless of their prior experience. H 163. Dr. Chorush admitted that this definition of the applicant was arbitrary. H 164. He also conceded that his
"
proxy applicant pool excluded employees who may have been equally qualified with the successful applicant. H 164-65. Finally, it is obvious that this definition of the applicant pool is almost designed to hide the effects of Lufkin Industries assigning African Americans into dead-end jobs from which promotions are unlikely.
Given the admitted weaknesses, the district court was more than justified in not relying on Dr. Chorush's analyses.
Lufkin Industries' Petition stresses Dr. Chorush's criticisms of some of the analyses conducted by Plaintiff's statistician, Dr. McCune. See also Chorush's criticisms attached to the Petition at Exhibit G. Almost all of Dr. Chorush's criticisms are hypothetical
"
or theoretical (i. e., a different sample or consideration of
factors for which there was no evidence such as skill, experience,
education, performance, might have made a difference) or involve
1983}. 12

Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 29 of 178
disaggregating data down to the level of the individual job, or date, or some smaller sample. Both categories of criticism have " been re-jected by this Court. Capaci,- supra, 711 F~2d at 654-56.
Lufkin Industries' Petition first criticizes Dr. McCune's layoff analysis, arguing that hourly and salaried layoffs should be disaggregated. Petition at pp. 8-9. However, nowhere does Lufkin Industries, or Dr. Chorush, explain why hourly and salaried employees would be affected differently in layoffs. Dr. Chorush's criticism and counter-analysis actually disaggregates the data not only by hourly/salary status, but by job and date. See Chorush criticisms at p. 9 and its Exhibit 6. Nowhere is there an explanation for this excessive disaggregation of the data resorted to by Dr. Chorush in order to corne up with insignificant results. " At the very least, Dr. McCune's analysis demonstrates that African Americans are significantly more likely to be assigned to positions affected by layoffs.
Lufkin Industries' Petition criticizes Dr. McCune's analysis of promotion from hourly to salaried positions. Petition at pp. 910 and 21-22. As explained, Dr. McCune's analysis of promotions from hourly to salaried positions was based on reasonable assumptions given the impossibility of in defining "promotion" without Lufkin Industries providing a witness pursuant to Rule 30(b)(6), as anticipated by the agreed discovery plan, to provide addi tional information about descriptions in Lufkin Industries' " personnel database. PA 3-5, 73-82. As Dr. McCune also explained, the bid sheets produced by Lufkin Industries reflected that the
13

Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 30 of 178

actual applicants included employees from throughout the hourly

work force. PA 127. Contrary to Lufkin Industries's Petition, Dr.

McCune ~ever said that all blacks~ere equally likely to receive a

promotion to a salary job. Ibid. As Lufkin Industries' Petition

fails to mention, Dr. McCune adopted as much of Dr. Chorush' s

criticism as appropriate, and still found significant discrepancies

in promotions. PA 73-82. Again without explanation, Dr. Chorush's

criticism includes an unreasonable disaggregation down to the level

of the individual job. See Chorush criticism at p. 5, and its

Exhibit 3.

Lufkin Industries' Petition makes hypothetical criticisms of

Dr. McCune's assumption that the racial composition of different

divisions should be roughly the same without providing any

information or explanation for the statistically significant under-

representations and over-representations of African Americans in

the various divisions. Petition at p. 10. Instead, Lufkin " Industries incorrectly credits Dr. McCune with some unlikely

assumptions and implies that the discrepancies could have been

explained because there may have been fewer African American

applicants for engineering positions. Ibid. First, as noted

before, Lufkin Industries conceded that there were very few

positions, such as engineers, with educational requirements. See

fn. 2, supra.

Second, such hypothetical criticisms are

ineffective. Capaci, supra, 711 F.2d at 653-54. Lufkin Industries

has made no showing that any legitimate explanation exists for the

14
"

Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 31 of 178

disproportionate distribution of African Americans throughout its

organizational divisions, departments, and Charts of Account.

Lufkin Industries' Petition - argues that the over-

representation of African Americans in lower paying positions and

the under-representation of African Americans in higher paying

positions is acceptable as long as employees are being paid the

same wages for the same work. Petition at p. 11. Lufkin

" Industries is essentially arguing that it should be free to channel African American employees, or some other disfavored minority, into

lower paying and less desirable jobs as long as they do not involve

African Americans doing precisely the same work as that being done

by higher paid whites.

Lufkin Industries' Petition also criticizes Dr. McCune's

comparison of applicant flow data to work force composition because

the work force reflects 40 years of hiring practices. This

criticism ignores Dr. McCune's unassailed analysis demonstrating

statistically significant disparities in the rates of

selection/rejection during the same period of the applicant flow

data. McCune Report at p. 5. Also, Lufkin Industries has not

described any reason to believe that their applicant flow

composition has changed, nor have they demonstrated that a

comparison to 40 years of applicant flow data would affect the

analysis.

Hypothetical and theoretical criticisms are

insufficient; Lufkin Industries must demonstrate a real effect of

the alleged errors. Capaci, supra, 711 F.2d at 653-54. Indeed,

Dr. Chorush's criticisms are saturated with suggestions that

15

Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 32 of 178
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various statistical flaws might exist or that education, experience, skills, performance or job histories, might make a difference. See, for instance', the hypothetical description of Simpson's Paradox and comments regarding compensation disparities in Dr. Chorush's criticisms at pp. 2-3 and 6, respectively. Similarly, in its Argument, Lufkin Industries implies that the number of entry level jobs, skill requirements and the number of openings will explain the disparities in the racial composition of its various divisions; however, Lufkin Industries has made no such showing and has not even produced information necessary to test its " arguments.
II. SUMMARY OF REASONS WHY THE PETITION AND STAY SHOULD BE DENIED
The district court thoroughly reviewed a great deal of the evidence, held two class certification hearings, inspected Lufkin Industries' work place, and correctly applied the controlling law in certifying the plaintiff class pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure, as this Court recently approved in Allison v. Citgo, 151 F.3d 402, 415-16 (5th Cir. 1998). Simply put, the district court has expended considerable effort before thoughtfully exercising its discretion to certify a class " pursuant to the controlling law and it would serve no purpose for this Court to revisit the issue.
Traditionally, courts of appeals do not consider permissive
interlocutory appeals absent exceptional circumstances. Coopers &
Lybrand v. Livesey, 437 U.S. 463, 474-75 (1978). Here, the
16

Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 33 of 178
Petitioner has demonstrated no exceptional circumstances/ or any ~ other persuasive rationale/ for this Court to revisit the district
court'~ well-reasoned class certification determination or to stay proceedings in the district court. Instead/ Petitioner merely urges this Court to reconsider arguments that have been considered and rejected by the district court based on well-settled law that the Petitioner entirely ignores.
III. ARGUMENT Much of Lufkin Industries' Petition/ including its arguments about statistical evidence and the circumstances underlying the individual claims of McClain and Thomas / consists of arguments explicitly rejected by the district court and thinly veiled
'J
attempts to goad this Court into making a premature prohibited inquiry or determination of the merits of the class or individual claims. Lufkin Industries' strategy must fail for at least three reasons. First/ the district court's determination to certify the plaintiff class is well reasoned. Second/ even the limited statistical evidence available at this stage strongly supports the class claims. See Section I-B/ supra. Third/ the Supreme Court long ago recognized the inappropriateness of a preliminary inquiry into the merits before or during class certification. Eisen v. Carlisle & Jacquelin/ 417 U.S. 156/ 177-78 (1974) ("[T]he question is not whether the plaintiff or plaintiffs have stated a cause of
'J
action or will prevail on the rnerits / but rather whether the
17

Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 34 of 178
requirements of Rule 23 are met.") See also Redditt v. Mississippi Extended Care Centers, 718 F.2d 1381 (5th Cir. 1983).
A. Th-e trial court considered the controlling law and appropriate evidence in certifying the plaintiff class. As described in the Memorandum Opinion, the district court
"
properly considered controlling law in concluding that plaintiffs have demonstrated a prima facie disparate impact case and met the requirements of Rule 23(a) and (b)(2). It would serve little purpose to repeat the district court's cogent and thorough analysis here. Also, as this Court has recently indicated, the district court maintains substantial discretion in determining whether to certify a class action, a decision reviewed only for abuse. Allison v. Citgo Petroleum Corp., 151 F.3d 402, 408 (5th Cir. 1998) .10 It is also worthy of note that Lufkin Industries' Petition does not even acknowledge most of the law controlling the issue of class certification, including: footnote 15 in General Telephone
"
Co. of Southwest v. Falcon, 102 S.Ct. 2364, 2371 fn. 15 (1982), indicating that certification of a broad class is appropriate if discrimination manifested itself through entirely subjective decision making processes i this Court's holdings in Shipes v. Trinity Industries, 987 F.2d 311, 316 (5th Cir. 1993); and/or Carpenter v. Stephen F. Austin State University, 706 F.2d 608, 617 (5th Cir. 1983), that allegations of subjective personnel processes that operate to discriminate satisfy the commonality and typicality
10 From Lufkin Industries' Petition it does not appear that the class certification decision is being challenged for application of an incorrect legal standard.
"
18

Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 35 of 178
of Rule 23(a), or that Title VII specifically permits a decision making process to be analyzed as one employment practice if it cannot De separated into elements for purposes of analysis. 42 U.S.C. § 2000e-2(k)(1)(B)(i).
Lufkin Industries' reliance on watson v. Fort Worth Bank and Trust, 108 S.Ct. 2777 (1988), is entirely misplaced. Watson holds that
"
[ I ] f an employer's undisciplined system of subj ective decision making has precisely the same effects as a system pervaded by impermissible intentional discrimination, it is difficult to see why Title VII's proscription against discriminatory actions should not apply . . . . We conclude, accordingly, that subjective or discretionary employment practices may be analyzed under the disparate impact approach in appropriate cases. Watson, 108 S.Ct. at 2787. Lufkin Industries also argues that because "only four of the 13 representatives ever worked in the foundry" that the numerosity requirement of Rule 23(a) is somehow not met. See Petition at p. 17. Of course, there is no authority for the proposition that the numerosity requirement of Rule 23(a) depends on the number of class , representatives in any particular category. Rule 23(a) refers to the number of class members, not class representatives. Lufkin Industries acknowledges that several witnesses testified to their observation that African Americans tended to be disproportionately channelled into the Foundry Division, where working conditions are harsh. Petition at p. 17. Lufkin Industries then argues these observations were merely subjective beliefs that cannot constitute evidence of discrimination. Ibid. In making this argument Lufkin Industries ignores substantial
19
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Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 36 of 178
statistical information, based on its own personnel databases, indicating that African Americans are disproportionately hired into, and represented in, the Foundry Division. See Section I B., supra, and the Memorandum Opinion at pp. 5-6.
B. Certification of a broad class is appropriate where the exercise of subjective and discriminatory decision making affects many employment practices. As noted above and in the Memorandum Opinion below, recent
changes to Title VII; fn. 15 in Falcon, supra, 102 S.Ct. at 2371, and this Court in Shipes, supra, 387 F.2d at 316; and Carpenter, " supra, 706 F. 2d at 617 I all provide for certification of broad classes based on allegations of subjective personnel decisions that operate to discriminate in a broad array of decisions such as hiring and promotion.
without describing any rationale, Lufkin Industries' Petition argues that a class cannot include both hourly bargaining unit members and salaried employees. Petition at p. 22. The cases cited by Lufkin Industries involved circumstances where district courts exercised their discretion to avoid certifying classes because the only plaintiff was not a member of the proposed class or where there was an actual conflict between subsets of a proposed " class. See Wells v. Ramsay, Scarlett & Co., 506 F.2d 436 (5th Cir. 1975)i Wagner v. Taylor, 836 F.2d 578, 595-96 (D.C. Cir. 1987), respectively. Vuyanich v. Republic Nat'l Bank of Dallas, 723 F.2d 1195, 1199 (5th Cir. 1984), explicitly distinguishes itself from the instant case in which the class is affected by a general policy of discrimination.
20

Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 37 of 178
In one other case a district court found that the provisions \ of an effective collective bargaining agreement introduced "valid
objectlve criterion" inconsistent- 'with the plaintiffs' allegation of a discriminatory subjective decision making process. Int'l Union, UAW AFL-CIO v. LTV Aerospace and Defense Co., 136 F.R.D. 113, 121 (N.D. Tex. 1991). Contrary to the rationale of that case, here the district court found that the collective bargaining . agreement is a mere formality because an exception for skilled employees all but obliterates the seniority provisions of the collective bargaining agreement, and the grievance procedure has been traditionally ineffective. See Memorandum Opinion at pp. 6-7.
In rejecting Lufkin Industries' argument, the district court " recognized that there is no conflict apparent in the diverse class
certified and that "there is no foundation to infer adversity from diversity." See Memorandum Opinion at p. 23.
C. The class is adequately represented and the individual claims of two class representatives does not preclude class certification. As at least one other jurisdiction has recognized, it is
ironic that an employer being sued for employment discrimination would purport to be concerned about whether the representative plaintiffs will fairly and adequately protect the interests of the plaintiff class; it is "a bit like permitting a fox, although with a pious countenance, to take charge of the chicken house." Eggleston v. Chicago Journeyman Plumbers Local No. 130, 657 F.2d
"
890, 895 (7th Cir. 1981). So, ironically by not surprisingly, Lufkin Industries claims to be concerned with whether the
21

Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 38 of 178
representative parties will fairly and adequately protect the plaintiff class.
First, the court below has -certified a total of 13 class representatives, from different divisions, different bargaining
"
units, and salaried positions. Lufkin Industries' Petition continues its energetic effort to report picayune differences between the experiences of different class members, an argument that the district court has considered and rejected. See Memorandum Opinion at p. 23. However, Lufkin Industries has never found an actual conflict between any class representative and members of the class. Furthermore, the district court has indicated a willingness to reconsider certification, consider mOdifying the class, consider-decertifying the class, or to appoint additional class representatives if it becomes appropriate. See Memorandum Opinion at pp. 15 and 24. Lufkin Industries' Petition
"
all but ignores that the class is represented by current and former employees from almost every conceivable classification and area of the company.
Lufkin Industries' Petition cites Allison v. Citgo, supra, for
the proposition that the initial named plaintiffs' (McClain's and Thomas') disparate treatment jury claims for compensatory and punitive damages are somehow inconsistent with class disparate impact claims for equitable relief. Petition at pp. 29-30. The district court explicitly considered, and rejected, this argument. See Memorandum Opinion at p. 23. In making this argument, Lufkin Industries ignores the primary obvious difference between this case
"
22

Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 39 of 178
and Allison v. Citgo; here, the class has only disparate impact claims for equitable relief (triable only to the bench) while in Allison v. Citgo the proposed class -also had parallel disparate treatment claims for compensatory and punitive damages, not present here, triable to a jury (or juries). Allison v. Citgo implicated problems with the Seventh Amendment right to a jury because the class disparate impact and class disparate treatment claims involved a substantial overlap of issues that would require possibly conflicting determinations by both the bench and a jury or juries. Ibid., 151 F.3d at 423-25. Here, the only issues triable to a jury are the individual claims of McClain and Thomas, which the district court has severed.
It should also be noted that class representatives' individual claims are often present and, absent an actual conflict, do not interfere with class certification. See Senter v. General Motors, Inc., 532 F.2d 511 (6th Cir. 1976). Otherwise, an employer would be able to preclude a class action by retaliating against, or ., comrni tting some other individual tort against, the class representative. Ibid., 532 F.2d at 525 fn. 32.
D. MCClain's January 1995 letter is adequate to constitute an EEOC charge. As the district court correctly noted, class members may
"piggy back" on McClain's exhaustion of administrative remedies before the EEOC. See fn. 1 in Memorandum Opinion, citing Albemarle Paper Co. v. Moody, 95 S.Ct. 2362, 2370 (1975); see also Oatis v. Crown Zellerbach Corporation, 398 F.2d 496, 499 (5th Cir. 1968). As indicated by Lufkin Industries, the district court relied on
23

Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 40 of 178
plaintiff McClain's January 29, 1995 letter to constitute a charge of discrimination. See Petition at p. 23, fn. 16.
In this jurisdiction charges of discrimination, especially those prepared by lay people, are interpreted with the utmost liberality. Tillman v. City of Boaz, 548 F.2d 592 (5th Cir. 1977); Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970). Furthermore, this Court has long recognized that an EEOC charge consists of a written statement sufficiently precise to identify the parties and to describe generally the action or practices
",
complained of, pursuant to 29 CFR § 1601.12(b), and that any deficiencies in such a charge can be remedied by subsequent amendment. Price v. Southwestern Bell Telephone Co., 687 F.2d 74, 77 (5th Cir. 1982).
Therefore, it is plainly not an abuse of discretion for the district court to consider that McClain's letter of January 29, 1~95 describing race discrimination at Lufkin Industries as a "cultural problem that must be addressed to prevent discriminatory practices in Lufkin Trailer Division or any other part of Lufkin Industries" as sufficient to constitute a charge of discrimination that could reasonably have triggered an investigation into the
" ,
discriminatory employment actions addressed in this class action. The evidence is uncontradicted that McClain sent this letter to the EEOC in January of 1995. H 214. Certainly, the plaintiff class should not be punished if the EEOC mishandled the initial letter.
24

Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 41 of 178
" E. Plaintiffs' statistical analysis is not akin to that in Wards Cove. Lufkin Industries tries to a~gue.that Dr. McCune's comparison
of hourly African American and white employees who are promoted into salaried jobs is somehow similar to the analysis rejected by the Supreme Court in Wards Cove Packing Co. v. Atonio, 109 S.Ct. 2115, 2121 (1989), where the Ninth Circuit relied solely on a comparison of the racial compositions of the employer's cannery work force with its non-cannery work force. This is a straw man argument: the plaintiff class has never suggested, and the district court never accepted, such an analysis. Instead, as the district court explicitly recognized, Dr. McCune compares the
"
racial composition of the relevant portions of the hourly work force with the racial composition of the hourly work force that has been promoted to salaried positions. See Memorandum Opinion at p. 11, McCune Report at p. 6, and testimony at PA 85-86.
The district court concluded that Dr. McCune's analyses compared similarly situated groups of employees, that the data underlying her report was of sufficient reliability to support her conclusions, and that appropriate data sets were analyzed. Memorandum Opinion at p. 12. Curiously, Judge Cobb also indicates that an analysis of similarly situated groups "do not require a close inquiry into the relevance of the underlying data."
"
Memorandum Opinion at p. 12. In light of the thoroughness of the Memorandum Opinion, this appears to be simply a reference to the district court's willingness to revisit relevance to the merits during the liability phase of litigation after the parties have had
25

Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 42 of 178

an opportunity to further refine the statistics. For instance, Lufkin Industries still has the opportunity to produce. information concerrring education, skills, performance, job histories in an
"
effort to explain statistical disparities and such data might be relevant to liability. Throughout the Memorandum Opinion the district court is careful to state that it is reviewing evidence only for the purposes of determining class certification and whether plaintiffs have made a prima facie case; it would of course be inappropriate for the district court to make inquiry, or conclusions, concerning the merits of the case or even the relevance of evidence on the merits. Eisen v. Carlisle and Jacquelin, 417 U.S. 156, 177 (1974).
IV. CONCLUSION
"
FOR THE REASONS EXPLAINED ABOVE, the Respondent-Plaintiff class respectfully requests that Lufkin Industries' Petition, and request for a stay, be DENIED.

Respectfully submitted,

~~an By:

I

V--

Tifuothy B/~

Texas Bar Card No. 07703600

Attorney, Plaintiffs-Appellees

Stuckey & Garrigan Law Offices

2803 North Street

P.O. Box 631902

Nacogdoches, Texas 75963-1902

. ,

(409) 560-6020 FAX: (409) 560-9578

26

Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 43 of 178

CERTIFICATE OF SERVICE

I hereby certify that I have served all counsel of record in this case, including the following, with a true and correct copy of the foregoing Plaintiffs-Respondents' Answer to Petition for Permission to Appeal Order Granting Class Certification by sending same via United States mail, postage prepaid:

John H. Smither/Christopher Bacon

Vinson & Elkins

~

2806 First City Tower

1001 Fannin

Houston TX 77002-6760

f'l. --e on this L <{ day of (f-\; '/

, 1999.

'J

27
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Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 44 of 178

Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 45 of 178

1

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

2

LUFKIN DIVISION

3

SYLVESTER McCLAIN, ET AL.

4

VS.

CIVIL ACTION NO. 9:97CV063

5

LUFKIN INDUSTRIES

6

7

********************************************************

8

ORAL DEPOSITION OF

9

CLARENCE EARL OWENS

10

MAY 29, 2003

11

********************************************************

12

13

14

15

THE ORAL DEPOSITION of CLARENCE EARL OWENS,

16

duly sworn, produced as a witness at the instance of the

17

DEFENDANT, was taken In the above styled and numbered

18

cause on the 29th day of May, 2003, from 9:00 a.m. to

19

3:58 p.m., before Sheila R. Skidmore, Certified

20

Shorthand Reporter in and for the State of Texas,

21

reported by machine shorthand, at Lufkin Industries,

22

Inc., Career Development Building, 409 Ellis Avenue,

23

Lufkin, Texas, 75904, pursuant to the Federal Rules of

24

Civil Procedure and the provisions stated on the record.

25

Ascii Disk Enclosed

Word For Word Reporting
(713) 847-8984

Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 46 of 178

29

1

A. I don't know the answer to that.

2

Q. But you think he was here about three years

3

ago?

4

A. Yes, ma'am.

5

Q. Power Transmission -- that's a pretty good

6

department to work in?

7

MR. KONECKY: Objection, form.

8

A. I would think so.

9

Q. (BY MS. MAHONY) You're currently employed ln

10

the Power Transmission department, aren't you?

11

A. I am now.

12

Q. How long have you been employed in the Power

13

Transmission department?

14

A. Thirty-two years.

15

Q. You've been in Power Transmission for

16

32 years?

17

A. Yes, ma'am.

18

Q. Were you ever in the Oilfield Division?

19

A. Yes, ma'am, I was.

20

Q. When was that?

21

A. It's been about two, maybe three years now.

22

Q. Were you working for both divisions at one

23

point in time?

24

A. I really don't know the answer to that. They

25

was

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3S

1

A. No, rna' am.

2

Q. When did you get the classification hot gear

3

welder?

4

A. Three years, two years maybe; two, three

5

years, something like that.

6

Q. Now, hot gear welder is the highest welder

7

classification, isn't it?

8

MR. KONECKY: Objection, form.

9

A. Yes.

10

Q. (BY MS. MAHONY) And it's the highest paid

11

welding job in the fabrication department, isn't it?

12

MR. KONECKY: Objection, form.

13

A. Hourly it is.

14

Q. (BY MS. MAHONY) What is your salary per hour?

15

Around 15?

16

A. Can I go back to that?

17

Q. Sure.

18

A. I really don't know right now.

19

Q. You don't know what your salary

20

A. No.

21

Q. But you know that you're the highest paid

22

welder --

23

A. I know, but I just

24

Q. What's the welding classification below hot

25

gear welder?

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1

Is that Hot Gear Welder A -- Gear

2

Welder A?

3

MR. KONECKY: Objection, form.

4

Q. (BY MS. MAHONY) What about Welder Class A?

5

A. Welder Class A.

6

Q. You make more money than a Welder Class A.

7

Correct?

8

A. True.

9

Q. Do you know how much more money you make than

10

a Welder Class A?

11

A. I think about a dollar and a half, $2.

12

Q. If I were to guess that you make about $16 an

13

hour, does that sound right?

14

A. That's about right.

15

Q. Are you at the top of your wage

16

classification?

17

A. For hourly, I am.

18

Q. How long have you been at the top of your

19

classification ln terms of wages for hourly?

20

As long as you've been welding hot gears?

21

MR. KONECKY: Objection, form.

22

A. It's kind of a tricky question because I don't

23

know I don't quite understand the question fully --

24

Q. (BY MS. MAHONY) Okay.

25

A. -- because there's two sides to the question

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1

A. Correct.

2

Q. Okay. After the split, who was your

3

supervisor?

4

A. Bobby Allen.

5

Q. Is Bobby Allen your supervisor today?

6

A. Yes, he is.

7

Q. Do you get along with Bobby Allen?

8

MR. KONECKY: Objection, form.

9

A. Yes, ma'am.

10

Q. (BY MS. MAHONY) Ever have any trouble with

11

Bobby Allen?

12

MR. KONECKY: Objection, form.

13

A. No, ma'am.

14

Q. (BY MS. MAHONY) So Bobby Allen's been a good

15

boss?

16

MR. KONECKY: Objection, form.

17

A. Yes.

18

Q. (BY MS. MAHONY) How would you describe your

19

relationship with Bobby Allen?

20

A. He's a fair -- pretty fair man, pretty good.

21

Q. Pretty good. Any hesitations?

22

A. What do you mean?

23

Q. Well, you said "pretty good." Any problems

24

you're referring to?

25

A. Oh. No, ma'am.

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1

Q. Is Bobby Allen someone you can trust?

2

MR. KONECKY: Objection, form.

3

A. As far as I know.

4

Q. (BY MS. MAHONY) If you had a personal

5

problem, could you go to Bobby Allen and talk to him?

6

MR. KONECKY: Objection, form.

7

A. I would say "yes."

8

Q. (BY MS. MAHONY) Do you believe Bobby Allen

9

has ever discriminated against you because of your race?

10

MR. KONECKY: Objection, form.

11

A. Not as I know of.

12

Q. (BY MS. MAHONY) Do you believe Bobby Allen

13

has discriminated against anyone else because of their

14

race?

15

MR. KONECKY: Objection, form.

16

A. Not as I know of.

17

Q. (BY MS. MAHONY) You're not aware of any

18

situation where you think Bobby Allen made an employment

19

decision because of someone's race?

20

MR. KONECKY: Objection, form.

21

A. Not that I'm aware of.

22

Q. (BY MS. MAHONY) Do you think Mr. Allen's ever

23

treated you differently because of your race?

24

A. No, ma'am.

25

Q. Who are the other supervisors in the PT fab

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r

department right now?

2

A. Dale Staten.

3

Q. Do you know what his job title is?

4

Is it foreman?

5

A. Yeah, foreman; floor foreman.

6

Q. How long have you worked with Mr. Staten?

7

A. Three, four years.

8

Q. Do you get along with Mr. Staten?

9

MR. KONECKY: Objection, form.

10

A. Yes, ma'am, I do.

11

Q. (BY MS. MAHONY) You testified that you

12

thought Mr. Allen was a fair man. Do you think

13

Mr. Staten is a fair man?

14

MR. KONECKY: Objection, form.

15

A. Yes, ma'am.

16

Q. (BY MS. MAHONY) Do you believe that

17

Mr. Staten has ever discriminated against you because of

18

your race?

19

MR. KONECKY: Objection, form.

20

A. No, ma'am.

21

Q. (BY MS. MAHONY) Do you think he's treated you

22

unfairly because of your race?

23

MR. KONECKY; Objection, form.

24

A. Would you repeat that?

25

Q. (BY MS. MAHONY) Has Mr. Staten ever treated

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1

you unfairly?

2

MR. KONECKY: Objection, form.

3

A. No, ma'am.

4

Q. (BY MS. MAHONY) Do you think Mr. Staten has

5

treated other employees in the PT fabrication department

6

unfairly?

7

MR. KONECKY: Objection, form.

8

A. No, ma'am.

9

Q. (BY MS. MAHONY) Do you think Mr. Allen has

10

treated any other employee that you're aware of

11

unfairly?

12

A. Not that I'm aware of.

13

Q. Has anyone ever complained to you about

14

Mr. Staten or Mr. Allen?

15

A. No, ma'am.

16

Q. Has anyone ever come to you and said, "I think

17

Mr. Allen and Mr. Staten have discriminated against me

18

because of my race"?

19

A. No, ma'am.

20

Q. Has anyone in the PT fabrication department --

21

and I'm talking since the split -- ever come to you and

22

complained about race discrimination?

23

A. Yes, ma'am.

24

Q. Who was that?

25

A. Charles Lee.

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1

shops split in the PT fabrication department?

2

A. Are there any more I've worked with?

3

Q. Right, that have supervised you.

4

A. Other than Don when I go to Buck Creek from

5

time to time.

6

Q. Okay. Let's talk about Mr. Baker.

7

Don Baker was your supervisor for a

8

number of years. Correct?

9

A. Correct.

10

Q. This was before the split in the shops?

11

A. Correct.

12

Q. Would you say he was your supervisor for

13

ten years?

14

A. Comfortably speaking, I'd say that, yeah. It

15

may have been longer.

16

Q. Do you get along with Mr. Baker?

17

A. Yes, ma'am.

18

Q. Did Mr. Baker ever treat you unfairly?

19

MR. KONECKY: Objection, form.

20

A. No, ma'am.

21

Q. (BY MS. MAHONY) Are you aware of any

22

situation where you thought Mr. Baker treated another

23

employee unfairly?

24

A. No, ma'am.

25

Q. How would you describe Mr. Baker?

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1

A. Fair.

2

Q. Does he make employment decisions on the basis

3

of race?

4

MR. KONECKY: Objection, form.

5

A. Make what?

6

Q. (BY MS. MAHONY) Are you aware -- has

7

Mr. Baker ever made any employment decision on the basis

8

of someone's race?

9

MR. KONECKY: Objection, form.

10

A. Not as I know of.

11

Q. (BY MS. MAHONY) During the ten or so years

12

that Mr. Baker supervised you, do you believe that he

13

subjected you to racial discrimination?

14

MR. KONECKY: Objection, form.

15

A. No.

16

Q. (BY MS. MAHONY) Do you believe he made any

17

decisions about your employment on the basis of your

18

race?

19

MR. KONECKY: Objection, form.

20

A. No.

21

Q. (BY MS. MAHONY) Do you have an opinion if

22

Mr. Baker subjected any other employee In the

23

fabrication department to racial discrimination?

24

MR. KONECKY: Objection, form.

25

A. Not as I know of.

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1

Q. (BY MS. MAHONY) Did anyone ever complain to

2

you about Mr. Baker, saying that he made a decision on

3

the basis of race?

4

A. No.

5

Q. Is there any situation in the ten years that

6

you worked with Mr. Baker where you think race played a

7

role in a decision he made?

8

MR. KONECKY: Objection, form.

9

A. None that I can think of now.

10

Q. (BY MS. MAHONY) What about Mr. Allen? Same

11

question.

12

A. None that I can think of.

13

Q. What about Mr. Staten?

14

A. None that I can think of.

15

Q. You're a member of the boilermakers union?

16

A. Yes, ma'am.

17

Q. When did you join the union?

18

A. Thirty years ago.

19

Q. Have you ever been a union steward?

20

A. No, ma'am.

21

Q. Have you ever wanted to be a union steward?

22

A. No, ma'am.

23

Q. Who's your union steward right now?

24

A. David Richards.

25

Q. Does Mr. Richards work in the fabrication

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1

A. Yes.

2

Q. (BY MS. MAHONY) Are you happy with the

3

boilermakers union?

4

MR. KONECKY: Objection, form.

5

A. Pretty much, yes.

6

Q. (BY MS. MAHONY) Pretty much?

7

Any problems?

8

A. Well, I guess it could be more; but that's

9

what we got.

10

Q. Have you welded any hot gears this year?

11

A. No, I haven't.

12

Q. But you're still paid as a hot gear welder?

13

A. Yes, ma'am.

14

Q. How many other hot gear welders are there?

15

A. There's one more.

16

Q. What's his name?

17

A. Ricky Sowell.

18

Q. What's Ricky Sowell's race?

19

What's his race?

20

A. White.

21

Q. Do you get along with Ricky Sowell?

22

A. Yes, ma'am.

23

Q. You currently work the day shift. Correct?

24

A. We both do.

25

Q. Both do?

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1

How long have you worked with Ricky

2

Sowell?

3

A. Twenty years, twenty-five years or more.

4

Q. Have y'all always gotten along?

5

A. Yes, ma'am.

6

Q. Do you ever feel that he's discriminated or

7

harassed you because of your race?

8

MR. KONECKY: Objection, form.

9

A. No, he hasn't.

10

Q. (BY MS. MAHONY) Did you have any welding

11

experience when you came to Lufkin Industries?

12

A. Very little.

13

Q. So Lufkin trained you to be a welder.

14

MR. KONECKY: Objection, form.

15

Q. (BY MS. MAHONY) Is that correct?

16

A. That's correct.

17

Q. Did you ever attend any welding classes

18

outside of Lufkin?

19

A. No, I didn't.

20

Q. What kind of training have you received since

21

you've been at Lufkin to be a welder?

22

A. I'd say quite a bit.

23

Q. Have you ever been denied any training

24

opportunity?

25

MR. KONECKY: Objection, form.

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1

A. No, ma'am.

2

Q. (BY MS. MAHONY) Have you helped train other

3

people?

4

A. Yes, ma'am, I have.

5

Q. And what have you trained them on? Welding?

6

A. On welding.

7

Q. How many other people would you say that

8

you've trained?

9

A. The numbers go up pretty high.

10

Q. How many people work on the day shift right

11

now

12

MR. KONECKY: Objection, form.

13

Q. (BY MS. MAHONY)

in the PT fab department?

14

A. I'd say about 35.

15

Q. Do you get along with most of your co-workers?

16

MR. KONECKY: Objection, form.

17

A. I get along with all of them.

18

Q. (BY MS. MAHONY) Ever had any problems with

19

them?

20

A. No, ma'am.

21

Q. Do you think they trust you?

22

MR. KONECKY: Objection, form.

23

A. I really can't see in their heads to tell you

24

that.

25

Q. (BY MS. MAHONY) Okay. I think it's fair to

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1

say you've been with the company a long time.

2

A. Yes, ma'am.

3

Q. You're a very experienced welder. Correct?

4

MR. KONECKY: Objection, form.

5

A. Correct.

6

Q. (BY MS. MAHONY) You have the highest paid job

7

ln the PT fab department of the hourly employees.

8

MR. KONECKY: Objection, form.

9

Q. (BY MS. MAHONY) Correct?

10

A. Correct.

11

Q. You're probably respected by your co-workers.

12

Correct?

13

MR. KONECKY: Objection, form.

14

A. True.

15

Q. (BY MS. MAHONY) And you're respected by your

16

supervisors. Correct?

17

MR. KONECKY: Objection, form.

18

A. True.

19

Q. (BY MS. MAHONY) Do they respect your opinion

20

on welding issues?

21

If you say, "This needs to be done this

22

way," do they listen to you?

23

MR. KONECKY: Objection, form.

24

A. Sometimes.

25

Q. (BY MS. MAHONY) Sometimes they don't?

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1

A. Sometimes they don't.

2

Q. Do you have a lot of friends at Lufkin?

3

MR. KONECKY: Objection, form.

4

A. Lufkin Industries?

5

Q. (BY MS. MAHONY) Lufkin Industries, yes.

6

A. I would think so.

7

Q. Do you consider Don Baker a friend?

8

MR. KONECKY: Objection, form.

9

A. Yes, I do.

10

Q. (BY MS. MAHONY) Bobby Allen?

11

MR. KONECKY: Same objection.

12

A. Yes, I do.

13

Q. (BY MS. MAHONY) Dale Staten?

14

MR. KONECKY: Objection, form.

15

A. Yes, I do.

16

Q. (BY MS. MAHONY) Ricky Sowell?

17

MR. KONECKY: Objection, form.

18

Q. (BY MS. MAHONY) Do you consider him a friend?

19

A. Yes, I do.

20

Q. Do you think if your co-workers had concerns

21

about their job or their supervisor or someone else,

22

they would come to you and talk to you

23

MR. KONECKY: Objection, form.

24

Q. (BY MS. MAHONY) -- about those concerns?

25

A. I can't really get into their heads.

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1

On some issues, maybe, yes.

2

Q. Mr. Owens, have you ever complained to anyone

3

at Lufkin Industries about race discrimination?

4

MR. KONECKY: Objection, form.

5

A. No.

6

Q. (BY MS. MAHONY) In the 31 years that you've

7

worked here, do you feel that you've ever been subjected

8

to racial discrimination by anyone at Lufkin Industries?

9

MR. KONECKY: Objection, form.

10

A. No.

11

Q. (BY MS. MAHONY) Let me back up. I want to

12

make sure

13

You've never complained to anyone at the

14

company about race discrimination. Is that correct?

15

A. No, that's not correct.

16

Q. Okay. Who have you complained about

17

discrimination to?

18

A. Oh, it's just been a few things that happened,

19

you know

20

Q. Okay.

21

A.

things that we discussed, you know; people

22

that told me about things, you know. I wasn't telling

23

themi they were telling me.

24

Q. So you don't feel like you've been a victim of

25

discrimination while you've been employed -- or been

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1

subjected to discrimination while you've been employed

2

at Lufkin Industries?

3

MR. KONECKY: Objection, form.

4

A. I can't get inside everybody's head.

5

Q. (BY MS. MAHONY) Is there any situation or the

6

circumstances of any situation, a promotion or any kind

7

of employment decision, where the circumstances led you

8

to think that you were being treated differently because

9

of your race?

10

A. Well, I don't know what they -- how they make

11

decisions, but

you know, as far as I know, maybe not.

12

Q. When you say "don't know how they make

13

decisions," who are you referring to? Who is "they"?

14

A. I'd say supervisors and salaried personnel.

15

Q. Who makes decisions in the PT fab

16

department --

17

MR. KONECKY: Objection, form.

18

Q. (BY MS. MAHONY) -- for hourly employees?

19

Say, for promotions, do you know who

20

makes decisions?

21

MR. KONECKY: Objection, form.

22

A. It's one of two people.

23

Q. (BY MS. MAHONY) And that would be?

24

A. David Jinkins --

25

Q. Okay.

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1

A. Yes, ma'am, I do.

2

Q. Mr. Owens, do you have any reason to believe

3

that black employees would be less likely to get a

4

supervisor or foreman job in Oilfield than white

5

employees?

6

MR. KONECKY: Objection, form.

7

A. I can't answer that one.

8

Q. (BY MS. MAHONY) Do you know any

9

African-American employees employed by Lufkin Industries

10

above the level of foreman?

11

A. Not -- I don't know any. There might be some

12

there, but I don't know if they're there.

13

Q. Do you know if any black African-American

14

employees have applied for a job above foreman, let's

15

say in the PT fab department?

16

A. Not as I know of. I can't think of nobody.

17

MR. KONECKY: Whenever you get to a

18

point where you want to take a break --

19

MS. MAHONY: Just a few more questions,

20

if you don't mind.

21

Q. (BY MS. MAHONY) Is that okay with you?

22

A. Okay.

23

Q. I think we've established that you've received

24

several promotions while employed at Lufkin Industries.

25

Correct?

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1

A. Correct.

2

Q. You've never been laid off, meaning your job

3

was terminated, while you were employed at Lufkin

4

Industries?

5

A. No, ma'am.

6

Q. Have you been demoted while employed at Lufkin

7

Industries?

8

A. No, I haven't.

9

Q. What would you consider to be the worst job ln

10

the PT fab department?

11

MR. KONECKY: Objection, form.

12

A. That -- are you talking about just the

13

department I'm working in or are you talking about the

14

whole PT fab as a whole?

15

Q. (BY MS. MAHONY) Just the department you're

16

working in.

17

A. Just the department I'm working in? Hot

18

gears.

19

Q. But it's also the most highly compensated

20

welding job among hourly employees -- correct -- in your

21

department.

22

A. Say that again.

23

Q. It pays the most money.

24

A. Yes, it do.

25

There is a reason for that, too.

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1

Q. An6 the reason being?

2

A. The rest of the welders just drop their hood

3

and make a weld; but on that hot gear job, you have to

4

sit in about 6- or 700-degree heat for 12, 14, 18 hours

5

a day.

6

That's why the money's better.

7

Q. Did you want to be a hot gear welder?

8

A. Not really.

9

It's bad on your health.

10

Q. But you're happy with the money you make as a

11

hot gear welder?

12

MR. KONECKY: Objection, form.

13

A. I try to be happy.

14

Q. (BY MS. MAHONY) Have you ever asked to be

15

transferred to another job other than hot gear welder?

16

A. Well, when my health starts deteriorating real

17

bad, I will move.

18

MS. MAHONY: If you want to take a quick

19

break, we can. I'm going to mark this and go over the

20

affidavit. Or we can go ahead.

21

MR. KONECKY: Why don't we take a break.

22

(Recess from 2:58 p.m. to 3:05 p.m.)

23

(Exhibit Nos. 15 and 16 marked)

24

MS. MAHONY: Okay. We're going back on

25

the record.

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1

know of?

2

A. Not as I can think of right now.

3

Q. Other than Mr. Hyde, have you observed any

4

other white employees being promoted over black

5

African-American employees who have more seniority?

6

MR. KONECKY: Objection as to form.

7

A. No. I can't think of nobody.

8

Q. (BY MS. MAHONY) Is Mr. Hyde still a foreman

9

in the Oilfield Division?

10

A. I don't -- I think he got cut back.

11

Q. He was busted back?

12

A. I think he was. I'm not sure.

13

Q. The next paragraph, first sentence, "I have

14

observed that white employees have more opportunities

15

for promotions than black African-American employees"

16

what have you observed?

17

A. I guess most of your blacks don't -- they

18

don't want to step up and take the responsibility

19

because they're scared of -- once they get out from

20

under the bargaining unit, they're scared of discipline,

21

whatever -- you can get treated any kind of way, so most

22

blacks don't want to take the job.

23

Q. Do you know any black employee who has been

24

discouraged from taking a salaried job?

25

MR. KONECKY; Objection, form.

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1

A. None that I can think of right now.

2

Q. (BY MS. MAHONY) Would you agree with me that

3

if you don't apply for a promotion, you're not going to

4

get a promotion to a salaried position?

5

MR. KONECKY: Objection, form.

6

A. It's not exactly the fact that you apply for a

7

salary job. If I'm not mistaken, the way they do that

8

is: They mainly just kind of go by, I guess, job

9

ability or something and just choose who they want.

10

Q. (BY MS. MAHONY) So it's your opinion that you

11

haven't seen black African-American employees in

12

salaried positions because the black African-American

13

employees you've observed haven't wanted to be in those

14

positions?

15

A. They just haven't been chosen

16

MR. KONECKY: Objection, form.

17

Q. (BY MS. MAHONY) Pardon?

18

A. They just haven't been chosen for those

19

positions.

20

Q. The next sentence says "The highest level

21

black African-American employee in the oil Field

22

Division is a Foreman, and there is only one black

23

African-American Foreman."

24

Who are you referring to?

25

A. I think that would have to be Curtis Thomas.

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Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 69 of 178

1

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

2

LUFKIN DIVISION

3

SYLVESTER McCLAIN, ET AL.

4

VS.

CIVIL ACTION NO. 9:97CV063

5

LUFKIN INDUSTRIES

6

7

********************************************************

8

ORAL DEPOSITION OF

9

MARY O. WILLIAMS

10

JUNE 2, 2003

11

********************************************************

12

13

14

15

THE ORAL DEPOSITION of MARY O. WILLIAMS, duly

16

sworn, produced as a witness at the instance of the

17

DEFENDANT, was taken in the above styled and numbered

18

cause on the 2nd day of June, 2003, from 9:27 a.m. to

19

4:57 p.m., before Sheila R. Skidmore, Certified

20

Shorthand Reporter in and for the State of Texas,

21

reported by machine shorthand, at Lufkin Industries,

22

Inc., Career Development Building, 409 Ellis Avenue,

23

Lufkin, Texas, 75904, pursuant to the Federal Rules of

24

Civil Procedure a~d the provisions stated on the record.

25

Ascii Disk Enclosed

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45

1

Q. Did you repcrt the incident to anyone?

2

A. Yes. I told Paul Perez about it.

3

Q. Do you know what Mr. Perez did?

4

A. No, I don't.

5

Q. How many times did you talk to Mr. Perez about

6

the incident?

7

A. I only told him once.

8

Q. Did he follow up with you about the incident?

9

A. No.

10

Q. Did you have any other run-ins with Homer

11

Eubanks while you were employed as a security officer?

12

A. No.

13

Q. How long were you employed as a security

14

officer? From April of 1997 through

15

A.. .. June of 2000.

16

Q. Just for the record, in June of 2000, you

17

became a cycle counter?

18

A. Yes.

19

Q. Did you get along with Mr. Ray?

20

A. Yes.

21

Q. Did Mr. Ray ever discriminate against you

22

because of your race?

23

MS. BURRELL: Objection.

24

MS. MAHONY: Basis for your objection?

25

MS. BURRELL: You can ask her, based on

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46

1

her personal knowledge, whethe~ she knows if he did or

2

not.

3

MS. MAHONY: I assume she's testifying

4

from her personal knowledge.

5

MS. BURRELL: Well, I'm just clarifying.

6

Q. (BY MS. MAHONY) Based on your personal

7

knowledge, did Mr. Ray ever discriminate against you

8

because of your race?

9

A. Well, it's like this -- I'm not sure, because

10

you could be talking to people every day and they're

11

discriminating against you and you'll never even know

12

Q. And how is that?

13

A. -- until you're just gone.

14

Q. And how is that?

15

A. With Lufkin Industries.

16

Q. You haven't understood some of my questions.

17

I don't understand your answers. What do you mean they

18

could be discriminating against you, you don't know,

19

it's Lufkin Industries?

20

A. I have been around people that will smile in

21

your face and laugh on you -- behind your back or

22

whatever, you know, or write stuff down about you that's

23

wrong and tell you you're all right in your face.

24

Q. Who at Lufkin Industries has told you you're

25

all right to your face and said something different

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1

behind your back?

2

A. I don't have any --

3

THE WITNESS: I don't have to answer

4

that, do I?

5

MS. BURRELL: Yeah.

6

A. Okay.

7

Q. (BY MS. MAHONY) Ms. Williams, please answer

8

the question.

9

A. Repeat it for me, please.

10

Q. Ms. Williams, who at Lufkin Industries has

11

said one thing to your face and something else behind

12

your back?

13

Ms. Williams, please answer the

14

question.

15

MS. MAHONY: Let's go off the record.

16

(Discussion off the record from

17

10:50 a.m. to 10:51 a.m.)

18

MS. MAHONY: Okay. Let's go back on the

19

record.

·20

Q. (BY MS. MAHONY) Ms. Williams, you've

21

testified that you think people at Lufkin Industries

22

might have discriminated against you because of your

23

race. I asked you to provide me examples, and you said

24

because some people will say one thing to your face and

25

tell you something else behind your back.

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1

MS. BURRELL: Objection, form.

2

MS. MAHONY: Basis?

3

MS. BURRELL: You're misstating her

4

testimony.

5

Q. (BY MS. MAHONY) Is it your testimony that

6

Lufkin Industries has discriminated against you because

7

of your race?

8

MS. BURRELL: Objection.

9

Today? Are you talking about what she

10

just testified to? Are you talking about generally?

11

MS. MAHONY: I'm talking about generally.

12

Q. (BY MS. MAHONY) At any time that you've

13

worked at Lufkin Industries, do you believe that you

14

have been subjected to discrimination because of your

15

race?

16

A. Yes.

17

Q. When?

18

A. Like when I was laid off the first time, it's

19

like some white people that I worked with

I would see

20

them out in the stores and stuff and they would tell me

21

that they had been called back to work maybe two weeks

22

or whatever after we had been laid off, and I was never

23

called back.

24

Q. Anything else?

25

A. That's about it.

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1

Q. SO other than not being called back from a

2

layoff, in your personal opinion, you have not been

3

discriminated against by Lufkin Industries because of

4

your race?

5

A. It's something else, but I just can't think of

6

it right now.

7

Q. Now, earlier you testified that you think

8

people at Lufkin Industries discriminate because they'll

9

tell you one thing to your face and something else

10

behind your back.

11

MS. BURRELL: Objection.

12

Q. (BY MS. MAHONY) Is that your testimony?

13

A. Could I just --

14

Q. Sure.

15

A. That's what I was just talking about. It's

16

like, ~You're all right, but we're not calling you

17

back.~ That's what --

18

Q. SO someone has told you to your face --

19

A. Uh-huh.

20

Q. -- "You're all right"?

21

A. Yes.

22

Q. What have they told you behind your back?

23

MS. BURRELL: Objection.

24

Q. (BY MS. MAHONY) What did they say behind your

25

back?

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1

A. Well, it's what they have showed me.

2

Q. And what have they showed you?

3

A. That they didn't want me back.

4

Q. Isn't it correct that after you were laid off

5

the first time, you were rehired by Lufkin Industries?

6

A. Yeah, into another division -- I mean --

7

THE WITNESS: What do you call it? Like,

8

you know, you have your hourly; and then

9

MR. BAKER: Department.

10

THE WITNESS: Huh?

11

MR. BAKER: Division, department; same

12

thing.

13

THE WITNESS: Yeah.

14

Q. (BY MS. MAHONY) But you didn't like working

15

in the Trailer Division, did you?

16

MS. BURRELL: Objection.

17

You can answer, if you understand the

18

question.

19

THE WITNESS: Okay.

20

A. No.

21

Q. (BY MS. MAHONY) Did you want to go back and

22

work in the Trailer Division?

23

A. No.

24

Q. So you believe that you we~e discriminated

25

against because you were not recalled into another

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51

1

division?

2

MS. BURRELL: Objection.

3

MS. MAHONY: Basis?

4

MS. BURRELL: That's not what she said.

5

Q. (BY MS. MAHONY) You were upset that you

6

weren't called back to work after your first layoff.

7

Correct?

8

A. Right.

9

Q. To your knowledge, if you had been called

10

back, would you have been called back to the Trailer

11

Division?

12

A. I probably would have been, but it didn't

13

happen.

14

Q. If you had been called back to the Trailer

15

Division, would you have taken the job?

16

A. Yes.

17

Q. Even though you didn't like the Trailer

18

Division?

19

A. Right.

20

Q. Other than not being called back from the

21

first layoff, do you believe that you have been

22

subjected to discrimination because of your race by

23

anyone at Lufkin Industries at any other time during

24

your ,entire employment with Lufkin Industries?

25

A. Yes.

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1

Q. When was that?

2

A. I wouldn't know the exact dates.

3

Q. Okay. What are you referring to, then?

4

A. The trailer plant --

5

Q. Uh-huh.

6

A. -- where they were -- would train some people

7

for certain jobs and other people couldn't have those

8

jobs or whatever.

9

Q. What jobs?

10

A. I couldn't name them because I didn't work

11

there long enough to learn everything.

12

Q. Did you ever apply for any training and your

13

request was denied?

14

A. I had thought about signing up for their

15

welding class, but it was too late for that. I didn't

16

get in it on time.

17

Q. So you didn't sign up for the class?

18

A. I was told it was full or something of that

19

nature or something; it wasn't even happening or

20

something.

21

Q. Who told you that?

22

A. Whoever was in the -- I don't remember all

23

those people. I'm sorry.

24

Q. Did you want to be a welder?

25

A. Yes. I had thought about that at one time.

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1

Q. Did you ever go to your supervisor and express

2

any interest in welding?

3

A. That's why I was saying that, because I had

4

tried; but it wasn't, you know --

5

Q. Who was your supervisor at the time?

6

A. It was either Kenneth White or Bob Adams.

7

Q. Did either Mr. White -- did Mr. White conduct

8

the welding training?

9

A. I'm not sure who conducted what or how they

10

did it. It's just that I was interested in it.

11

Q. Did you tell Mr. White you were interested in

12

welding?

13

A. Yes.

14

Q. And what did he say?

15

A. That's the only time I mentioned it, when I

16

was trying to get into the class; and that was about it.

17

Q. Do you remember what he said to you when you

18

said you were interested?

19

A. Just like I said, it was -- either it was full

20

or it didn't -- I would have to wait until another time

21

or something like that. I can't remember exactly.

22

Q. Did you ever express an interest in any other

23

training class?

24

A. I can't think of any right now.

25

Q. Did you ever sign a bid sheet for a welding

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54

1

job?

2

A. No.

3

Q. Has anyone else ever complained to you that

4

they were denied training that they had requested?

5

A. No.

6

Q. Do you know of anyone who requested training

7

and the request was denied?

8

A. I was only there for Mary. I didn't know what

9

anybody else was doing.

10

Q. Are you aware of any situation -- you

11

testified this was in Trailer -- where you believe a

12

Trailer Division employee was denied training because of

13

their race?

14

A. Say that again.

15

Q. Are you aware of any situation where you

16

believe a Trailer Division employee was denied training

17

because of their race?

18

A. No. I can't think of any.

19

Q. Any reason to believe that you were not

20

allowed to take the welding class because of your.race?

21

A. Say that again.

22

Q. The welding class that we just talked about --

23

any reason to believe that you were not allowed to take

24

that class because of your race?

25

A. I'm not sure, but the only ones I saw becoming

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1

welders were white guys.

2

Q. Do you know Clarence Owens?

3

A. Uh-huh.

4

Q. Is he a welder?

5

A. I don't know what Clarence is.

6

Q. Do you know any black employees who are

7

welders?

8

A. I knew some. I don't know if they're still

9

working.

10

Q. SO you knew some black employees who were

11

welders. Correct?

12

A. Yes.

13

Q. And you knew some white employees who were

14

welders. Correct?

15

A. Yes.

16

Q. SO what's the basis of your opinion that most

17

the people you saw who were welders were white?

18

A. ... that got into the class were white.

19

Q. Any black employees get into the class that

20

you're aware of?

21

A. No. I don't -- I didn't know.

22

Q. But you didn't sign the sheet. Correct?

23

A. I don't even remember if it was a sheet.

24

Q. Okay. Any other reason to believe that you

25

were discriminated against while you were employed at

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1

Lufkin Industries other than the layoff that we've

2

talked about, the welding class and people saying one

3

thing to your face and another behind your back?

4

Anything else?

5

A. No. I can't think of anything right now.

6

Q. You also testified earlier that you thought

7

people had discriminated against you because they would

8

say one thing to your face and write something else

9

down. Are you referring to any specific situation?

10

A. Mainly in the part where I didn't get called

11

back, and that's about it.

12

Q. Do you have any friends working for Lufkin

13

Industries right now?

14

A. No.

15

Q. Any friends who previously worked for Lufkin

16

Industries?

17

A. No.

18

Q. Any family members who worked at Lufkin

19

Industries?

20

A. What are you talking about? Immediate family?

21

Q. I think you testified earlier that none of

22

your children have ever worked for Lufkin Industries.

23

Have any of your spouses ever worked for Lufkin

24

Industries?

25

A. I can't remember.

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76

1

Q. You don't remember their names?

2

A. No, I don't.

3

Q. Do you remember their race?

4

A. Yes. They were some older black guys and --

5

Q. Any white employees?

6

A. One white girl and one white boy. I don't

7

know their names, but they had handicaps or something.

8

Q. Who was your supervisor when you were a helper

9

in the Trailer -- when you were first hired?

10

A. Dennis Rice.

11

Q. Did you get along with Dennis Rice?

12

A. I guess so.

13

Q. Do you believe Dennis Rice ever discriminated

14

against you in any employment decision because of your

15

race?

16

A. I can't think of any right now.

17

Q. Did anyone else ever complain to you that they

18

thought Dennis Rice had discriminated against them

19

because of their race?

20

A. I wouldn't know what someone else was

21

thinking.

22

Q. I guess my question was: Did anyone else ever

23

complain to you that Dennis Rice discriminated against

24

them?

25

A. It's like -- I wasn't -- like I said, I didn't

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1'1

1

socialize that much on any job.

2

Q. Okay. Did Dennis Rice ever treat you

3

unfairly?

4

A. How would you mean "unfairly"?

5

Q. Well, do you think that he took some

6

employment action against you that you didn't deserve?

7

A. I wouldn't know.

8

Q. Are you aware of any employment decision

9

Dennis Rice made on the basis of race?

10

A. No. I can't think of any right now.

11

Q. Okay. Who was the head of the Trailer

12

Division when you were hired?

13

A. I think his name was Bill Dern. I'm not sure

14

who it was.

15

Q. When you hired in as a helper, did you join

16

the union?

17

A. Yes.

18

Q. And that's the boilermakers union?

19

A. Yes.

20

Q. Were yoU a member of the boilermakers union

21

for the entire time you were in the Trailer Division?

22

A. Yes.

23

Q. Were you ever an officer in

24

A. No.

25

Q. Did you ever want to be an officer?

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87

1

A. That's the cne I was supposed to complain to,

2

I thought.

3

Q. But you didn't complain to your supervisor?

4

A. Yes.

5

Q. Who did you complain to?

6

A. It was Dennis Rice.

7

Q. What did Dennis Rice say?

8

A. I can't remember.

9

Q. Do you think you were placed on the carpenters

10

dock because of your race?

11

A. Maybe.

12

Q. What's your basis for that belief?

13

A. I feel like if you went out there and looked

14

and you saw it yourself, you would know.

15

Q. What would I see, and how would I know?

16

A. If you had to work there, you would know.

17

Q. What is it about working on the carpenters

18

dock that would let me know that you were assigned to

19

the carpenters dock because of your race?

20

A. Okay. Everybody is over five feet tall and

21

I'm not even five feet tall, and then they had to start

22

fixing a special table for me to just get into the van

23

to get up and drill a rivet or -- what is that thing --

24

to drill a bit into the wall.

25

Q. Does it have to do with your race or your size

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88

1

that you think that you were _c

2

A. Both.

3

Q. Is there anyone else that had to have a

4

special table to help load the vans who worked on the

5

carpenters dock?

6

A. I can't remember, but I don't think so.

7

Q. But Lufkin worked with you so that you could

8

accomplish that task. Correct?

9

A. Yeah. They put that up there after I was put

10

somewhere else. It didn't help me.

11

Q. So you didn't have a table to work with while

12

you were on the carpenters dock?

13

A. They had tables, but it's like they didn't

14

help me.

15

Q.

Who is ~they"?

16

A. The dock had those kind of little tables that

17

you could -- or a little stool or something that you

18

could stand on, but it didn't really help me at all.

19

Q. Okay. I want you to turn to the next page of

20

Exhibit 1 that you have in front of you after the

21

application. It's Document L 15296.

22

I just want to confirm some things on

23

here, that this is accurate to your knowledge.

24

These aren't in numerical order. I

25

apologize for that.

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92

1

Q. You just found out when you got your paycheck?

2

A. Right.

3

Q. Did you generally get raises the entire time

4

you were employed in the Trailer Division?

5

A. Yes.

6

Q. You got raises pretty regularly?

7

A. This is probably a raise after I had made my

8

90 days or something. That's all that is.

9

Q. Did you get other raises in the Trailer

10

Division that you recall?

11

A. Yes.

12

Q. Any belief that you were ever denied a raise

13

to which you were entitled?

14

A. I can't remember.

15

Q. Did you ever complain to anyone that you

16

deserved a raise?

17

A. No.

18

Q. Did anyone ever complain to you that they were

19

denied a raise?

20

A. No.

21

I would be the wrong person to complain

22

to.

23

Q. Are you aware of any situation where you

24

believe an employee. in the Trailer Division was denied a

25

raise because of their race?

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1

A. I can't remember that.

2

Q. You can't remember or you don't know?

3

A. Both.

4

Q. So you're not aware of any situation

5

personally?

6

MS. BURRELL: Objection.

7

Q. (BY MS. MAHONY) You're not aware of any

8

situation as we sit here today where an employee was

9

denied a raise in the Trailer Division because of their

10

race?

11

A. I wouldn't know.

12

Q. You keep saying you wouldn't know. You

13

wouldn't know

14

A. I don't know about --

15

Q. You know about your own employment experience.

16

Right?

17

A. I just know something about me. I wasn't

18

trying to know about everybody else.

19

Q. Okay. If you want to turn to the next page,

20

it's Document L 15311. Its effective date, I think, is

21

November 14, 1994; although that's kind of hard to read.

22

A. There it is.

23

Q. Okay. You moved from first to second. Do you

24

recall moving back to second shift at some point?

25

A. Yes.

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1

house?

2

A. In one of those jobs -- it was on days that I

3

worked --

4

This is wrong.

5

I stayed over there like a month as a

6

helper, wrapping the vans, sanding those

whatever

7

they were making, they had to be sanded. I was a helper

8

over there.

9

Q. Who was your supervisor when you were over

10

there?

11

A. The first one was named -- I think it was Joe

12

Jumper, but he quit before -- I think a week after I

13

started over there.

14

Q. And then who did you work for?

15

A. I can't remember their name.

16

Q. Did you get along with your supervisors in the

17

paint house generally?

18

A. Yes.

19

Q. Do you feel like they ever discriminated

20

against you because of your race in the paint house?

21

A. No.

22

Q. Okay. I'm going to ask you to turn to the

23

next page.

24

A. What's the number on it?

25

Q. L 15309.

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97

1

Do you know a Renneth Rich?

2

A. Yes.

3

Q. Who is Kenneth Rich?

4

A. He was a supervisor.

5

Q. In any particular area?

6

A. Yeah. I think he took over the brad line or

7

something like that.

8

Q. Did you get along with Kenneth Rich?

9

A. Yes.

10

Q. Do you ever feel like Kenneth Rich

11

discriminated against you because of your race?

12

A. No.

13

Q. Who's Bob Westbrook?

14

A. I have no idea.

15

Wait a minute. I know who that is.

16

I guess he's a

somebody

I don't

17

know what he was, but I remember his name.

18

Q. Okay. Let's turn to the next page.

19

MS. MAHONY: If you'll let me get through

20

this, it might be a good time to break

21

MS. BURRELL: Okay.

22

MS. MAHONY: -- in abo~t ten minutes.

23

MS. BURRELL: That's the right page.

24

She'll identify the page.

25

Q. (BY MS. MAHONY) It's Page No. L 15308.

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104

1

A. It probably was a few months before I got laid

2

off.

3

Q. Were you a Trailer Builder Class A when you

4

were working for Steve Jayroe?

5

A. Yes.

6

Q. Did you get along with Steve Jayroe?

7

A. Yes.

8

Q. Do you have any reason to believe Steve Jayroe

9

discriminated against you because of your race?

10

A. No.

11

Q. Any reason to believe Steve Jayroe

12

discriminated against anyone else because of their race?

13

A. I wouldn't know.

14

(Exhibit No. 3 marked)

15

Q. (BY MS. MAHONY) Okay. I'm going to hand you

16

what's been marked as Exhibit 3.

17

MS. MAHONY: It's about 12:23. If we can

18

go till 12:30, about seven more minutes, is that okay?

19

MS. BURRELL: That's fine.

20

Q. (BY MS. MAHONY) Is that okay with you,

21

Ms. Williams?

22

A. Yes.

23

Q. Okay. Is this your signature at the bottom of

24

Exhibit 3?

25

A. Yes, it is.

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116

1

A. I can't think of their names right now, but

2

there are some.

3

Q. Do you know what they've been disciplined for?

4

A. No. I couldn't tell you.

5

Q. Do you know what race they are?

6

A. Blacks.

7

Q. Do you know any whites that have been

8

disciplined?

9

A. No, I didn't.

10

Q. You don't know any whites that have been

11

disciplined for attendance?

12

A. I'm sure they have, but I don't know about it.

13

Q. Do you have any reason to believe that black

14

employees are disciplined differently than white

15

employees in the Trailer Division?

16

A. Well, I wouldn't know because I don't go that

17

route. I mean, I try not to get into that area myself.

18

Q. Has anyone complained to you that they were

19

unfairly disciplined?

20

A. I can't remember.

21

Q. Do you think that could have happened?

22

MS. BURRELL: Objection.

23

MS. MAHONY: What's the basis of your

24

objection?

25

MS. BURRELL: When you say, "Do you

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121

1

A. Yes, from the Trailer Division.

2

Q. Do you know how it was determined who would be

3

laid off?

4

A. No, I didn't know how they determined it.

5

Q. Were the layoffs done by seniority?

6

A. I'm not sure how they did it.

7

Q. Do you believe you were laid off because of

8

your race?

9

A. All I know is: They told me that their

10

business had went down.

11

Q. Do you have any reason to dispute that?

12

A. No, I don't.

13

Q. Had business gone down before the layoff?

14

A. I don't know.

15

Q. Were you less busy before the layoff than you

16

had been at other times?

17

A. Not really, no.

18

Q. Were you busy for your entire shift every day

19

before the layoff?

20

A. Yes.

21

Q. On this layoff, there were white employees

22

that were laid off. Correct?

23

A. Yes.

24

Q. And during the March 1996 layoffs, there were

25

black employees that were laid off. Correct?

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130

1

Division, would that change your testimony that you

2

believe recalls in the Trailer Division are conducted on

3

the basis of race?

4

A. No.

5

Q. So you believe recalls in the Trailer Division

6

are conducted on the basis of race because you weren't

7

recalled. Is that correct?

8

A. Say that again.

9

Q. I just want to get all of the reasons that you

10

believe recalls in the Trailer Division are conducted on

11

the basis of race.

12

A. No, it's not just race.

13

Q. Okay. Do you believe recalls in the Trailer

14

Division are conducted on the basis of race?

15

A. Maybe in some cases and maybe not in others.

16

Q. Do you believe that you weren't recalled

17

because of your race?

18

A. Maybe.

19

Q . How many times did you talk to John Havard

. 20

between the time you were laid off and rehired about

21

coming back to work at Lufkin Industries?

22

A. I started calling the next week I was off.

23

Q. How often did you call?

24

A. Like every week.

25

Or even -- I went by there.

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147

1

you testified in this lawsuit as after you testified in

2

this lawsuit.

3

A. Right.

4

Q. You weren't demoted --

5

A. Being a security officer is demoted.

6

Q. Let me finish my question.

7

You weren't demoted when you came back

8

from going to court testifying in this lawsuit.

9

A. What

could I say something?

10

Q. Uh-huh.

11

A. What could they demote me to?

12

Q. Did anything else happen to you after you

13

testified in this lawsuit other than Barney and Jared

14

Satterwhite came to Gate 13 and asked you about court?

15

A. No, nothing else happened after that.

16

Q. Your job just continued the same as it did

17

before you testified. It continued the same after you

18

testified. Correct?

19

A. Yes.

20

Q. Did you generally get along with Jared

21

Satterwhite?

22

A. Yes.

23

Q. Do you feel like Jared Satterwhite ever

24

discriminated against you because of your race?

25

A. No.

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148

..

1

Q. Now during the time that you were a security

2

guard -- do you feel like you were subjected to race

3

discrimination by anyone during this period of time?

4

A. No.

5

Q. Now, at some point, you moved from security

6

guard to cycle counter. Correct?

7

A. Yes.

8

Q. How did you hear about the cycle counter job?

9

A. It was on a board.

10

Q. Do you remember where the board was?

11

A. It was on a wall on the backside of the

12

foundry.

13

Q. Where was the cycle counter job?

14

Was that an Oilfield job?

15

A. Yes, it was.

16

Q. At Buck Creek?

17

A. Yes.

18

Q. Did you sign the board?

19

A. Yes.

20

Q. Were you asked to interview?

21

A. Yes.

22

Q. Do you know anyone else who signed the board?

23

A. It was some other people that had signed for

24

it, too.

25

Q. The other people -- were they white employees?

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164

1

A. A month.

2

Q. (BY MS. MAHONY) Who was your supervisor when

3

you were a Parts Finisher Class B?

4

A. Don.

5

MR. BAKER: Yeah, I was most the time.

6

Q. (BY MS. MAHONY) Has Don Baker ever

7

discriminated against you because of your race?

8

A. No.

9

Q. Did you get along with Don Baker?

10

A. Yes.

11

Q. Moving to the Machine Operator

12

Structural II -- was there a raise involved in that?

13

A. Yes.

14

Q. Do you know how promotion decisions are made

15

in the Oilfield Division in the hourly jobs?

16

A. I can't remember.

17

Q. Do you have any reason to believe that they're

18

based on anything but seniority?

19

A. That's about it, I think, in that department.

20

Q. .Did you ever sign a bid sheet while you were

21

in the Oilfield Division?

22

A. I may have.

23

Q. Do you ever believe you were unfairly denied a

24

promotion while you were employed in the Oilfield

25

Division?

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165

1

A. I feel like I was -- Larry Long had job

2

openings allover the place, and he stuck me in that

3

nasty place when he had other openings and he could have

4

placed me somewhere else.

5

Q. What other openings did he have?

6

A. I don't know the openings that -- it was some

7

open, but I don't know the names of them.

8

And I feel like he placed me in that

9

place to make me go on and quit.

10

Q. You feel like he placed you in the parts

11

finisher job because of your race?

12

A. Yes.

13

Q. Were there any other white employees who were

14

parts finishers?

15

A. Donnie Gorton is white.

16

Q. Did Larry Long object to you moving out of the

17

parts finisher job?

18

A. He didn't say anything to me about it.

19

Q. Did you talk to Don Baker about moving out of

20

the parts finisher job to something else?

21

A. Don - - I feel like Don just took me out of it.

22

MR. BAKER: Can I just

23

MS. MAHONY: No.

24

MR. BAKER: Okay.

25

Q. (BY MS. MAHONY) Did you ever complain to

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166

1

Larry Long about him placing you in the parts finishel

2

position?

3

A. I didn't have to complain because they saw

4

that I couldn't handle some of that material that had to

5

be put on the belts.

6

Q. Did you ask to go back to being a cycle

7

counter?

8

A. No. I wouldn't.

9

Q. And you wouldn't because?

10

A. That's just as terrible.

11

Q. The person who replaced you as a cycle

12

counter -- were they white or black?

13

A. White.

14

And he used to do that, he told me.

15

Q. When you were in the Oilfield Division, did

16

anyone ever discourage you from signing a bid sheet?

17

A. No.

18

Q. Have you ever heard of any black employee who

19

was discouraged from signing a bid sheet in the Oilfield

20

Division?

21

A. No.

22

Q. Within the hourly jobs, are you personally

23

aware of any situation where the most senior employee

24

signed a bid sheet and did not get the job?

25

A. I can't remember.

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Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 99 of 178

16'

1

Q. You can't remember or you don't know of any

2

situation

3

A. Well, I don't know.

4

Q. Do you know any black employee who signed a

5

bid sheet and was the most senior and did not get the

6

job in the Oilfield Division?

7

A. I don't know.

8

Q. Were you ever disciplined while you were in

9

the Oilfield Division?

10

A. No.

11

Q. Do you know any other employees who were

12

disciplined in the Oilfield Division?

13

A. No, I don't.

14

Q. Did you have any problems with Don Baker while

15

you were in the Oilfield Division?

16

A. No.

17

Q. Did you have any problems running the radial

18

drill while you were in the Oilfield Division?

19

A. No.

20

Q. Let's just assume on Exhibit 5 that L 15277 is

21

correct, that you were moved to Machine Operator

22

Structural II on January 15, 2001. Does that still not

23

sound right to you?

24

A. .No, it doesn't.

25

Q. You think it was earlier than that?

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Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 100 of 178

16·:

1

A. Yes, it was.

2

Q. How long did you work on the radial drill? Do

3

you know?

4

More than a year, less than a year?

5

A. A little over a year.

6

Q. During that year period, do you feel like you

7

were ever subjected to discrimination?

8

A. No.

9

Q. Do you ever feel like you were treated

10

unfairly by anyone?

11

A. No.

12

Q. Let me go back.

13

While you were a parts finisher, do you

14

believe that you were treated unfairly by anyone?

15

A. The job itself was unfair for me.

16

Q. Okay. Same thing with the cycle counter

17

position.

18

A. Nobody else wanted it.

19

Q. And you bring up a -- I mean, you didn't have

20

to take the cycle counter job, did you?

21

A. I just wanted -- I'm used to moving around. I

22

didn't like sitting in one spot not making no money; and

23

when you sit there and don't have nothing to do but

24

think about who you owe and you're not making any money,

25

it hurts.

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Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 101 of 178

17

1

A. Yes.

2

Q. Did you get the job where you used him as a

3

reference?

4

A. No.

5

Q. Do you know if they ever called Don Baker?

6

A. I'm not sure.

7

Q. What else did Don Baker say during that

8

meeting?

9

A. He said he liked the way all of us worked. I

10

think that's what he said.

11

I can't remember everything he said.

12

Q. Do you have any reason to believe he was

13

unhappy with your work?

14

A. No.

15

Q. Did he tell you you were doing a good job?

16

A. Yes.

17

Q. Were people who had been at the company·longer

18

than you laid off with you in January 2002?

19

A. Most of them there had been there longer than

20

me.

21

Q. Any reason to believe you were laid off in

22

January 2002 because of your race?

23

A. No.

24

Q. When we started the day this morning, you made

25

a statement --

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174

1

A. I wouldn't know.

2

Q. Do you know Cedric Williams?

3

A. Yes.

4

Q. Was Cedric Williams laid off with you?

5

A. I can't remember.

6

Q. Cedric Williams is African-American. Correct?

7

A. Yes.

8

Q. Did you know Randall Duponte?

9

A. I can't remember most of those people.

10

Q. What about Jason Keely?

11

A. I can't -- I'm sorry. I can't remember most

12

of them.

13

Q. That's okay.

14

Are you complaining about your layoff in

15

January of 2002 in this lawsuit?

16

A. Am I complaining?

17

Q. Are you alleging that your layoff in January

18

of 2002 was because of your race in this lawsuit?

19

A. No, because I could see the business was going

20

down when I was working there.

21

Q. And you haven't reapplied for employment with

22

Lufkin Industries since January 2002. Correct?

23

A. I'm always told they're not hiring.

24

Q. Who's always telling you this?

25

A. The last -- the lady at the employment office,

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185

1

MS. MAHONY: Basis?

2

MS. BURRELL: You're talking about two

3

different things. There's the cycle counter job --

4

she's already testified as to what she did with respect

5

to the parts finisher job. So when you say "these two

6

things," you're asking two separate questions.

7

Q. (BY MS. MAHONY) I just want to ascertain if

8

you ever complained to anyone about Bobby Ward not

9

letting you work the computer.

10

A. Yes.

11

Q. To whom?

12

A. Larry Caples.

13

Q. When was this?

14

A. I can't remember, but he was -- he worked

15

there, too; so -- that was the man that showed me and

16

introduced me to Bobby.

17

Q. What did you tell Larry?

18

A. That I wasn't learning anything on the

19

computer.

20

Q. What did Larry say back ih response?

21

A. And so -- it's like I was not happy with that

22

job, and so I was placed somewhere else.

23

Q. You were happy to move out of cycle counting?

24

A. Yes.

25

Q. Did you ever complain to anyone about being

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203

1

position, you had no seniority in the bargaining unit.

2

Correct?

3

A. Right.

4

Q. What jobs were you eligible to apply for in

5

the bargaining unit?

6

A. None.

7

Q. What other employment opportunities do you

8

believe you were denied because of your race as alleged

9

in Paragraph 58 of Exhibit 6?

10

A. I can't think of any right now.

11

Q.

Paragraph 59 says "Defendant Lufkin

12

Industries laid off Plaintiff Class Representative

13

Mary Thomas in 1996 and passed her over for recall

14

because of her race."

15

Do you contend that you were laid off in

16

1996 because of your race?

17

A. I feel like I was left out of the recall

18

because of my race.

19

Q. But you don't have any complaints about being

20

laid off because of your race?

21

A. No.

22

Q. I think you testified earlier --

23

MS. MAHONY: Correct me if I'm wrong,

24

Counsel.

25

Q. (BY MS. MAHONY) -- that you believe you were

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Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 105 of 178

Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 106 of 178
____________________________________________________________ 1

1

IN THE UNITED STATES DISTRICT

2

FOR THE EASTERN DISTRICT OF TEXAS

3

LUFKIN DIVISION

4

SYLVESTER McCLAIN, on his own

)

5 behalf and on behalf of a class )

of similarly situated persons, )

6 et al

)

7
vs.
8

)
)
) C.A. NO. 9:97-CV-063
)

LUFKIN INDUSTRIES

)

9

*******************************************************
10

11

ORAL DEPOSITION OF

12

SYLVESTER McCLAIN

13

July 8th, 2003

14

Volume 1 of 1

15 .§;~RIlfI~JJ..C.QJ!'y'.............................

16

17

ORAL DEPOSITION OF SYLVESTER McCLAIN, produced as a

18 witness at the instance of the DEFENDANT, and duly sworn,

19 was taken in the above-styled and numbered cause on the

20 8th of July, 2003, from 9:09 a.m. to 4:48 p.m., before

21 Dana R. Smelley, CSR in and for the State of Texas, RMR,

22 CRR, reported by machine shorthand, at the Days Inn of

23 Lufkin, 2130 South First Street, Lufkin, Texas, pursuant

24 to the Federal Rules of Civil Procedure and the

25 provisions stated on the record or attached hereto.

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- - - - - - -172

1

A. That's the basis I have.

2

Q. You are the named plaintiff.

3

A. That's the basis I have.

4

Q. Can you name a single person who is black who

5 did not get rehired when they should have by Lufkin

6 Industries?

7

A. Anytime?

8

Q. Since January I, 1994 to the present.

9

A. I don't, I don't know.

10

Q. Can you name anybody who is a class

11 representative who has not been rehired?

12

A. I just don't recall right now.

13

Q. What is the basis for believing that black

14 employees other than yourself are discriminated against

15 in termination because of their race by Lufkin Industries

16 from January I, 1994 to the present?

17

A. You know, since '94, there is a factor that has

18 probably limited what I do know, and that is we've had

19 different periods of upturning, downturning business, and

20 about the only era that I do have it is, based on the

21 classification, is on the recalls, but like I say, I

22 don't recall right now.

23

Q. Okay, sir. Now, in terms of your own

24 situation, you do not allege that you've been

25 discriminated against in termination because, in fact,

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173

1 you've not been terminated, have you?

2

A. No, sir.

3

Q. You don't allege that you've been discriminated

4 against in rehiring, do you?

5

A. No, sir.

6

Q. You don't allege that you've been discriminated

7 against in recall, do you?

8

A. No, sir.

9

Q. You don't allege that you have been

10 discriminated against because of -- in layoff, do you?

11

A. No, sir.

12

Q. You don't allege that you have been

13 discriminated against in discipline, do you?

14

A. Yes, sir, I do.

15

Q. When have you been disciplined that you thought

16 that that was discrimination?

17

A. The CDR that Arden Jenkins did on me, that was

18 discipline, and when I was demoted. That's a form of

19 discipline.

20

Q. So it is your demotion and the low - -

21

A. CDR.

22

Q. CDR?

23

A. What does CDR stand for.

24

A. Career development something.

25

Q. Any other situation which you think you have

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,--------------------------------------------------------------------174

1 been discriminated against in discipline other than those

2 two instances?

3

A. Yes. A lack of discipline. For instance, I

4 was on my way to a safety awards dinner. I was quality

5 manager, and a gentleman sat at the table, supervisor,

6 that the company had numerous complaints, not only had a

7 racist attitude towards blacks but towards women, also

8 made the comment that, "Mmm, here comes a nigger fixing

9 to sit down beside us." Earl Dover, a supervisor, was

10 sitting at the table who claimed he didn't hear it, but I

11 did, I did attempt to ask him outside, and I told him I

12 wanted something done. He tried to talk me out of it

13 saying, "You know, you know how he is." I said, I know

14 that he is racist and I know that I will not tolerate

15 being called that kind of name. And so basically he

16 didn't do anything. I didn't see him laid off. He might

17 have talked to him, but a lot of good that did because he

18 didn't change.

19

Q. When was, when was this?

20

A. I really don't know. It was before he left. I

21 don't even know when he was -- whether he resigned or

22 they forced him to resign or what. I don't know.

23

Q. Who is "He"?

24

A. Carter Olds. Carter Olds. And he is deceased

25 now.

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1

Q. Carlos?

2

A.

Carter Olds.

3

MR. HAMEL: Claude?

4

THE WITNESS: No, Carter.

5

Q. O-A-T-E-S?

6

A.

Carter olds.

7

Q.

Oh, Olds?

8

A. Carter Olds. And the supervisor's name is Earl

9 Dover.

10

Q. Now, what position did Mr. Olds have?

11

A. He was a supervisor at the paint house. And I

12 wasn't the only one complaining about his racist

13 comments. There were many, many complaints, and there

14 was nothing ever done.

15

Q. Did you hear anyone other than Mr. Olds ever

16 make any racist comments?

17

A. Yes. What was his name? Bob Adams. Let me

18 make sure. Yes. And the same person, supervisor, Earl 19 Dover. I was in the time-out area and he used the same

20 terminology, "Here comes Earl Dover and that nigger. " 21 And that's a very degrading word. The definition is less 22 than trash, and I don't want that said about myself, 23 either.

24

Q.

Anyone else?

25

A. That's all that I can think of this time, but

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176
~-------------------------------------------------------------------

1 there were numeroUs instances where there was racial

2 name-calling or racial stereotyping and people complained

3 about it. I just can1t recall right now what they were.

4 And this type of behavior was tolerated by management,

5 being that they didn't do anything. If they did

6 anything, it was a slap on the wrist because nothing

7 concrete was ever seen. They wasnlt laid off, they

8 wasnlt fired, they wasnlt written up or anything like

9 that.

10

Q. Who is Mr. -- what was Mr. Adams I first name?

11

A. Bob Adams.

12

Q. Now, you complained to Mr. Dover about the

13 comment by Mr. Olds?

14

A. Yes.

15

Q. Did you complain to anyone else in

16

A. Yes, that

17

Q.

- - Lufkin management?

18

A. Yes. That is part of one of my written

19 complaints to management. I dontt know which one, but

20 you have it in your paperwork.

21

Q. And did you complain to anyone about the

22 comment you claim that was made by Bob Adams?

23

A. Yes. It's in writing, in a memo. You have a

24 copy of that, I believe.

25

Q. Now, other -- do you have personal knowledge,

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1 meaning that you heard what was said, of any other racial

2 comments made about black employees?

3

A. I can't recall at this time except to say that

4 it has been an ongoing process, and it has been part of a

5 culture that Lufkin has tolerated to exist.

6

Q. When is the last time that you heard any racial

7 comment made at Lufkin Industries?

8

A. Personally?

9

Q. Yes, sir.

10

A. I don't remember, and I do -- but I do remember

11 recently

I say recently. I know since 1994, I've got

12 some complaints, and I don't remember exactly who they

13 were from or what they said.

14

Q. Mr. McClain, I'm asking you about what you have

15 heard.

16

A. Oh.

17

Q. Have you heard any racial comments?

18

A. I don't recall. I don't recall.

19

Q. And you don't recall when the last one you

20 heard?

21

A. No. I mean

22

Q. would it be more than ten years ago?

23

A. I don't recall. I just don't recall.

24

Q. Now, when you heard the comment from

by

25 Mr. Olds, what was your position at that time?

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_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _- -_ _ _ _ _ _- -_ _ _ _ _ _- -_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 1 7 8

1

A. Quality manager.

2

Q. And do you recall how long you had been the

3 quality manager?

4

A. No, I do not, not unless I've got it dated on

5 the document. Actually documentation would probably show

6 because I dated all my documentation.

7

Q. And in this documentation did you specifically

8 say that Carter Olds made this comment about you?

9

A. Yes.

10

Q. Or in your hearing?

11

A. Yes.

12

Q. And what position did you hold when Mr. Adams

13 is supposed to have made his comment?

'14

A, I was a Trailer Body Builder A, either that or

15 an inspector. I don't remember which. One of the two.

16

Q. Well, would it have been prior to the time that

17 you became chief inspector?

18

A. Yeah, it would be before that.

19

Q. All right. Now, as to people telling you about

20 this, who has told you that there are racial comments

21 made at Lufkin?

22

A. I mean, there have been numerous individuals.

23 Right off the top of my head, I can't think of anyone.

24 Let me think. I just can't think of anyone right now.

25 But if I think of someone, with your permission I'll

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1 bring it back up and I'll give you a name.

2

Q. Are you aware of any segregated facilities at

3 Lufkin?

4

A. At this time?

5

Q. At this time or at any time in the past.

6

A. I believe it was the - - I don't know if it was

7 the machine shop or if it was the foundry. I believe I

8 remember seeing these, but mostly I heard the class

9 members testify. I may not have seen that because I

10 don't recollect, but I've certainly -- class members

11 testified after segregation was outlawed, there was

12 still -- the signs were taken down but there was still

13 separate drinking fountains and toilet facilities for

14 black and whi te.

15

Q. Okay. And have you -- can you recall ever

16 seeing such a thing?

17

A. I don't recall that.

18

Q. Do you -- can you say from personal knowledge

19 since your employment in 1969 that you have observed any

20 segregated facilities at Lufkin Industries?

21

A. I don't recall because I don't even recall how

22 it was when I first hired in. I don't recall how that

23 was, how that was arranged for water and the bathrooms.

24

Q. Have you heard anybody say that there have been

25 any segregated facilities at Lufkin in the past

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1 twenty-five years?

2

A. Yes.

3

Q. Okay.

4

A. Some of the class litigants.

5

Q. Who is that?

6

A. I don't remember their name, but it's

7 part

well, it's part, it's written down somewhere, but

8 some of the class litigants did testify. I think they

9 testified at the hearings. I think that's part of your

10 documentation. I think they testified at the hearing

11 that either in the machine shop -- I believe it was the

12 machine shop, that there were -- the signs were taken

13 down, but there was separate drinking fountains and

14 possibly bathrooms for black and white.

15

Q. Do you have any knowledge that Lufkin

16 Industries permitted this to occur?

17

A. I mean, you got a supervisor in the area. They

18 had to admit it.

19

Q. For example, do you know of any black employee

20 who was disciplined because he used a drinking fountain

21 that you believe he was not supposed to use?

22

A. No, sir, I don't.

23

Q. Did you ever hear of any black employee who got

24 disciplined or counseled or anything said to them about

25 using a bathroom facility?

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1

A. The only thing I know is that they testified

2 about the separate facilities. That's all.

3

Q. What I'm asking you is, do you know of any

4 situation in which a black employee has ever told you

5 that they have not been able to have the full enjoyment

6 of whatever facilities Lufkin provides to employees?

7

A. Well, again, I only have the testimony of the

8 class litigants that there were separate facilities, one

9 for blacks, especially drinking water fountains, and one

10 for white and that they -- and I don't know if they were

11 disciplined because of drinking out of them or if they

12 knew not to drink out of them.

13

Q. They knew not to drink out of them?

14

A. Yes.

15

Q. What did they tell you about knowing not to

16 drink out of them?

17

A. Well, they just had separate facilities. I

18 mean, if there's something going on in the shop, you know

19 it, okay? Now, whether there was -- whether they found

20 out by word of mouth, I don't know.

21

Q. Certainly in as far as your personal

22 experience, you have never encountered any segregated

23 facilities of any type at Lufkin?

24

MR. GARRIGAN: Objection, form.

25

THE WITNESS: Not that I remember.

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---------------------------------182

1

Q.

(BY MR. HAMEL) Mr. McClain, you were the

2 president of the NAACP chapter at Lufkin, Texas.

3

A. Yes, sir.

4

Q. Do you think you would have forgotten if you

5 had encountered segregated facilities at Lufkin

6 Industries?

7

A. Well, if you are counting before I became, I

8 hired in in '72. I encountered a lot of things and a lot

9 of -- one of the reasons I got involved in NAACP, in

10 civil rights, was because of the frustrating moments I

11 encountered when I hired on at Lufkin Industries. It

12 was n 't jus t a t Lu f kin. It was other places also. But so

13 I'm saying that it's possible I could have encountered

14 it. I just don't remember.

15

Q. Now, sir, why do you think that you have been

16 discriminated against -- before we get to that, can you

17 name a single black person who will -- who has knowledge

18 of any segregated facilities at Lufkin Industries?

19

A. Say that again.

20

Q. Yes, sir. Can you name for me a single black

21 person who has any knowledge of segregated facilities at

22 Lufkin Industries?

23

A. You mean ever or --

24

Q. Well, since 1965.

25

A. I can't name, but there are class litigants

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1 that can testify that there were segregated facilities,

2 yes.

3

Q. And other than Mr. Adams and Mr. Olds, can you

4 name a single person who you believe used racial slurs or

5 comments about black employees?

6

A. I heard about it, but I don't know of it

7 personally.

8

Q. As I understand your testimony, I want to be

9 absolutely clear about this, you have heard that there

10 were comments?

11

A. Yes.

12

Q. But you don't know who told you that?

13

A. No, because that's been -- I mean, it's been,

14 I ike

there's been time periods between where we've

15 talked about it. I've talked to a lot of people. I just

16 don't remember except the specific instance I gave you.

17

Q. And you don't know who told you?

18

A. Right.

19

Q. You don't know the black employee who was in

20 the vicinity when it happened, right?

21

A. Well, even if I think I know, I'm not going to

22 call their name because I'm not sure.

23

Q. Well, you tell me who you think may be there.

24

A. I'm not going to do that.

25

Q. Well, you don't have a choice.

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1

A. Well, if I tell you that I think somebody said

2 this, I'm not -- and they didn't say it, then I'm telling

3 you a 1 ie, am I not?

4

Q. No. If you genuinely think somebody said it,

5 ·then tell me who it is.

6

A. Well, I'm low on memory. I'm just saying

7 I'm

8

Q. That's fine.

9

A. There's a possibility some told, but I'm not

10 sure.

11

Q. Then tell me who you think --

12

A. I'm just --

13

Q.

-- may be possible who said it.

14

A. I'm just not sure. I'm not sure.

15

Q.

16 that?

Who do you think it is possible may have said

17

A. Well, I'll just give you one name. Clifford

18 Duirden. I believe I've had a discussion with him

19 concerning either some stereotyping in the warehouse, 20 racial stereotyping or name-calling, and I believe that

21 we had that conversation, but I'm not sure.

22

Q. Am I correct that you can't call any names of

23 people who were supposed to have made these comments

24 other than Mr. Olds and Mr. Adams?

25

A. That's right.

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185

1

Q. And you have, you have a belief that perhaps

2 you talked to Clifford Duirden. How many times have you

3 heard, in your best estimate, that there has been some

4 incident of name-calling or racial comment at Lufkin?

5

A. I can't recall, but off and on I've heard it.

6 I can't

7

Q. Fewer than a dozen?

8

A.

I can't recall.

9

Q. Fewer than two dozen?

10

A. You are talking about

you are talking from

11 about '72 to now. There is no way I can recall.

12

Q. Well, can you recall from March of '94 to the

13 present?

14

A. I can't recall.

15

Q. Give me an order of magnitude.

16

A. I can't recall.

17

Q. You can't tell me whether it's one or two or

18 f i v e 0 r ten?

19

A. I just can't recall. I just can't recall.

20

Q. Or twelve?

21

A. I just can't recall.

22

Q. Can you recall that it's fewer than fifty?

23

A. I can't recall. I don't want to give you a

24 number that I'm not sure of.

25

Q. Can you give me a number that you are confident

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1 it is not greater than?

2

A. I just, I would feel uncomfortable giving you a

3 number. If I say I don't know, I mean, it just means I

4 don't remember or I don't know.

5

Q. Well, sir, this is a lawsuit that you have

6 filed.

7

A. I understand that.

8

Q. And in this lawsuit, you complain that race

9 discrimination at Lufkin Industries is pervasive.

10

A. Yes.

11

Q. And you understand what "pervasive" means?

12

A. It means it's widespread.

13

Q. All right.

14

A. And it's cultural.

15

Q. And do you believe that name-calling of blacks

16 is pervasive at Lufkin Industries?

17

A. It has happened. How much has it happened on a

18 percentage basis, I mean, I haven't -- I'm not an expert

19 on saying it's 30 percent, 10 percent. All I know is

20 it's happened. It's happened to me and it's happened to

21 others.

22

Q. Okay.

23

A. But I just can't give you the names of those

24 people that has came to me and said, hey, this individual

25 said this or that.

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187
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1

Q. I'm asking not for the names. We've been over

2 that.

3

A. Right.

4

Q. I'm asking if you can tell me how many

5 incidents in which there was supposed to have been

6 name-calling that you believe have been reported to you?

7

A. I just, I don't remember. Numerous, but I

8 don't remember how many.

9

Q.

Well, when you say ~Numerous, ~ what do you

10 mean?

11

A. More than, more than one.

12

Q. Okay. Can -- are you confident it's less than

13 ten?

14

A. I don't know. All I know is numerous, okay?

15

Q. And when you say "Numerous," you mean more than

16 one?

17

A. Yes.

18

Q. How do you believe that you have been

19 discriminated against since January I, 1994?

20

A. Take it chronologically. First of all, I was

21 treated different than other, other white managers or

22 white supervisors. So it was in treatment. That was one

23 area.

24

Q. Yes? Please tell me how you've been

25 discriminated against. Let's just go through them one by

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1 one and then we'll go back over them.

2

A. And when I say "Treatment," they made a

3 difference how they treated me as a supervisor and they

4 treated them. Treated --

5

Q. I understand. I'm going to go over them in a

6 moment.

7

A. Okay, okay. Treatment, okay.

8

Q. I want you to list how you've been treated

9 differently.

10

A. Okay, okay. Treatment, paid, support, lack of

11 resources, lack of training. I think that pretty well

12 covers it.

13

Q. Well, I don't want to -- I don't want to

"14 mislead you in any way, but I thought I had heard earlier

15 in your testimony that you also believed that you were

16 demoted?

17

A. Well, yes. Yes.

18

Q. Any other than those six?

19

A. Anything doing with equal opportunity, equal

20 pay, equal treatment. Those three areas primarily is

21 where I've been discriminated against.

22

Q. All right. Now, you say that you were treated

23 differently than other white managers and supervisors.

24

A. Right.

25

Q. Tell me specifically how you have been treated

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1 differently than other white managers and supervisors.

2

A. Whichever you want first.

3

Q. You just -- why don't you do it chronologically

4 from January 1, 1994.

5

A. I mean, which area you want? Treatment,

6 opportunity? Pick which one you want.

7

Q. You have said that you believe you had

8 different -- that there has been different treatment of

9 you than other white managers and supervisors.

10

A. Right.

11

Q. Would you please tell me how you have been

12 treated differently.

13

A. Okay.

14

Q. Item by item.

15

A. Okay. One, I did not have the same -- did not

16 have the authority that would go with my position. An

17 instance of that is, I wrote two men up for clearly not

18 following my orders and doing their job properly, and my

19 supervisor rescinded those write-ups. He threw them

20 away. As a manager, when I would go out into the shop, I

21 did not have the same authority that other managers have,

22 being sales, being purchasing, production superintendent.

23

When they come out to the shop, we knew,

24 the men and women knew who they were, and they

25 were -- they had the authority to go with their position

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1 and therefore, they were respected for what position they

2 was in. For instance, if I would go out on the line and

3 as a quality manager I was supposed to have the authority

4 to close down any process that was producing defects that

5 needed to be -- that needed to be corrected. On numerous

6 occasions I thought I had that authority, but I didn't

7 because I was overruled by Arden Jenkins, one, and other

8 supervisors, and I don't remember exactly. I had -- I

9 think I had eight, seven or eight supervisors over a

10 seven- or eight -year period. But clearly I was supposed

11 to have that authority, but I didn't.

12

So it really kind of made me look bad. I

13 come out and find that defective welding is going on and

14 the reason it's going on is because machines have not

15 been maintained and the workers have been told to do the

16 welding, to get the work out. That's catastrophic as a

17 manager. That completely undermines the total purpose of

18 a quality manager. His job is to ensure and maintain the

19 quality of those trailers that are produced, from

20 beginning to end. Okay?

21

Q. Any other situations in which you were treated

22 differently?

23

A. Okay.

I'm trying to make sure I stay within

24 the same category. As quality manager, I had to have

25 access to the corporate office in the trailer plant,

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1 trailer division, to do serial plates, and we had -- they

2 eventually moved that to my office to process, and

3 process means getting copies of documents, distributing

4 the copies of those documents to the various department

5 heads and supervisors that needed to have those. Also,

6 there were documents that I needed to create and process

7 on the weekend when I -- because I didn't have time

8 during the week. I was denied -- I came to work one

9 Saturday, and I was denied access to the corporate

10 office. I was using the gate guard's key at the time,

11 and when I came by to get the key -- the reason I was

12 using his key, because I wasn't given one, and he told

13 me, said, I was told not to give it to you. So I

14

Q. Who is that?

15

A. I don't know who the gate guard was but - -

16

Q. Who told you that?

17

A. The gate guard told me.

18

Q. Who?

19

A. I don't remember who he - - what his name was.

20 But he called Earl Dover. Earl Dover was my boss at that

21 time, and Earl Dover told him to give me the key. And so

22 I'm assuming that it came from Arden Jenkins, because he

23 was -- Earl Dover

Arden Jenkins was my boss, but Earl

24 Dover was over production, van production. So -- and he

25 might have been production superintendent at the time

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----------------------------------------------------192

1 because he's been production superintendent twice. But

2 anyway, so when I came in Monday, I went to Arden

3 Jenkins, and I asked him about it, and somehow there was

4 a document on file on top of his desk that made reference

5 to some stuff being stolen from the office, and I believe

6 that was way back in the Eighties. So I asked him, what

7 does that have to do with me? I said, Earl Dover raised

8 the question. He said, they are going to have to decide

9 if you, the quality manager, are you trustworthy enough

10 to have a key to the corporate office, which I thought

11 was strictly ludicrous.

12

So to make a long story short, basically

13 Earl Dover told the guard to give me the key. So he must

14 have been production superintendent at that time. Billy

15 Durham, who had made a lateral move from chief inspector,

16 still had his same key, and all these secretaries up

17 there had keys to the corporate office, along with

18 managers. So I was treated -- I'll tell you, that -- I

19 felt terribly. I felt real bad. I mean, I was

20 devastated. Had no idea why I was having to get

I

21 just knew they hadn't give me the key, but I had no idea

22 why I was having -- I'm a manager and I'm having to

23 solicit a key from the gate guard to get into the office.

24 During the week I didn't have a problem because someone

25 would be there.

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1

Q. Was this when you were chief inspector?

2

A. Either chief inspector or quality manager, one

3 of the two.

4

Q. And I'm assuming if it was when you were

5 quality manager, it was early in your time as quality

6 manager?

7

A. I don't remember the exact time. I'm thinking

8 it was in the early Nineties, but it's in the

9 documentation. I'll -- in fact, it was in the complaint,

10 the memo that I sent on, the complaint that I filed to

11 the EEOC. It was in there.

12

Q. Mr. McClain, you were promoted to quality

13 manager in 1990,

'14

A. Yes.

15

Q. - - were you not?

16

A. Yes.

17

Q. And surely it didn't take you four years to

18 discover that you didn't have a key?

19

A. I don't know how long it took me to discover.

20 The reason I hadn't discovered it -- oh, I mean, I found

21 out I didn't have a key. I just didn't ask why.

22

Q. What --

23

A. I couldn't change everything at one time. I

24 just, I just went along with it because I had access to

25 the office and until they told me I couldn't get the key.

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---------------------------------194

1

Q. When is it in your time as quality manager that

2 you asked the question as to why you did not have a key?

3

A. I'm not sure I understand your question. Well,

4 if I have the documentation, I'm sure I was quality

5 manager when this happened, and if I had the

6 documentation that has the complaint that I filed, it

7 will tell you exactly when.

8

Q. And this is the complaint you filed with who?

9

A. With EEOC.

10

Q. All right.

11

A. Also with upper management.

12

Q. Now - -

13

A. Including Mr. Perez and Mr. Smith.

14

Q. Now, sir, did this occur in the first two years

15 that you were quality manager?

16

A. I don't know. I don't know. Again, if you

17 get

18

Q. Is it likely -- more likely than not it

19 occurred the first two years?

20

A. I would rather not guess. If you get the

21 documentation, I can be more decided. I have a two and a

22 half page complaint, and that's part of the complaint.

23

Q. Any other situations in which you feel that you

24 were treated differently than white managers or

25 supervi sors?

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------------------------195

1

A. One more, and I think I -- that's probably

2 about all I can remember right now other than

3 the -- well, the -- in 1993 all of the salaried received

4 a $200 pay raise. Since I was an internal auditor and at

5 some point I had audited hourly up to Grade 10, I had

6 seen salary structures for salaried. So when I got the

7 $200 raise, I already felt they were going to pay me. I

8 didn't know how much. Pay me low. They know they were

9 underpaying me, I mean. But - - so I asked a friend of

10 mine to fax me the salary structure for Grade 11, I think

11 it was Grade 11 through 15, 18, whatever. So when he

12 faxed me that, I found out that I didn't get a $200

13 raise. I got a $40 raise. I was making

I was being

14 paid $160 lower than the bottom of my scale as quality

15 manager, and I had been a manager since 1990 and had been

16 chief inspector since 1987, and I thought that was

17 ludicrous.

18

Q. Mr. McClain, who is it that you asked to do

19 this? Who is your friend?

20

A. Gene McGallion. He was the quality manager at

21 fabrication. He is now over maintenance.

22

Q. Any other situations in which you thought you

23 were treated differently?

24

A. Well, the pay, treatment, training. I

25 continually asked for training that was needed for the

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, -_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _- -_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _- - - -_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 1 9 6

1 job that I was doing as a manager other than the internal

2 schools which was used to enhance workers' job skills. I

3 asked to be sent to school to learn statistical process

4 control, statistical data control, resource management,

5 time management, production process control, and

6 statistical sampling. None of those things that were

7 offered that I knew of that was offered by AC, and it was

8 not something that I should not have to pay for myself

9 since Lufkin was -- they had people, I think they were

10 sending to -- they sent Wayne Ashby to Texas A&M for

11 management training for thirty days at full pay. He's

12 white, he was a production manager, and they sent Doug

13 Williams for thirty full days, management pay.

14

So this wasn't the only instance where

15 training was. So I asked specific, I was specific for

16 training that I needed. I wasn't given it and yet, I was

17 still criticized. The other instance -- and I'll stop

18 here. The other instance --

19

Q. No, no. You don't stop. You tell me all

20 instances, all right?

21

A. This is all I can think of right now.

And

22 the other instance was the promotion. All of the CDRs

23 prior to the one I had gotten from Arden Jenkins were

24 good. He gave me the bad CDR, which is grounds for

25 demotion or termination. The only thing he complimented

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r -_ _ _ _ _ _ _ _~--------------------------------------------------------197

1 me for was working long hours, and that was because I

2 didn't get the support, the training, or equipment I

3 needed to do my job. And so when he gave me that bad

4 CDR, his intention was to fire me. He didn't fire me

5 because I made it known that I would do whatever

6 necessary to overcome the situation.

7

That's, that's part of it, but that's all

8 I can remember right now. Pay, the training, resources.

9 I asked for computers. I went to the college on my own

10 initiativej I got training. I even knew how to program

11 computers, and the only thing I got was an old,

12 out-of-date Macintosh, and the only thing I could do on

13 that was produce documents, memos, and basic documents,

14 basic column where I tried to create my own graphs. The

15 graphs I did create I had to create on someone else's

16 computer. So that's -- I'm sure that's not all, but

17 that's all I remember right now.

18

Q. All right. Let's take a break.

19

(Recess taken from 3:19 p.m. to 3:31 p.m.)

20

Q.

(BY MR. HAMEL) Mr. McClain, with respect to

21 the documents that have been produced in Lufkin today

22 which are Bates stamped PTFS 236 through 605, you

23 testified that many of these documents were maintained at

24 Lufkin where you worked?

25

A. Yes, inspector.

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Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 133 of 178

Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 134 of 178

1 HEARING ON CLASS CERTIFICATION

1

UNITED STATES DISTRICT COURT

2

EASTERN DISTRICT OF TEXAS

3

LUFKIN DIVISION

4

SYLVESTER MCCLAIN, ET AL, * Docket No. 9:97CV63

*

5

Plaintiffs,

*

*

6

vs.

* 10:30 a.m., August 18, 1998

*

7

LUFKIN INDUSTRIES, INC. , *

*

8

Defendant.

* Lufkin, Texas

9

10

VOLUME 1 OF 3 VOLUMES, PAGES 1 THROUGH 213

TABLE OF CONTENTS - SEE PAGE 213

11

TRANSCRIPT OF HEARING ON CLASS CERTIFICATION

BEFORE THE HONORABLE HOWELL COBB

12

UNITED STATES DISTRICT JUDGE

13

14

APPEARANCES:

15

For the Plaintiffs: Stuckey & Garrigan

BY: TIMOTHY BORNE GARRIGAN, ESQ.

16

P. O. Box 631902

Nacogdoches, Texas 75963-1902

17

For the Defendants: Vinson & Elkins

18

BY: JOHN H. SMITHER, ESQ., AND

CHRISTOPHER V. BACON, ESQ.

19

2300 First City Tower, 1001 Fannin

Houston, Texas 77002-6760

20

Court Reporter:

Whitney Durham Garza, CPR, RPR

21

Excel Reporting & Associates

P. O. Box 151601

22

Lufkin, Texas 75901-1601

(409) 632-2442

23

24

Proceedings recorded by mechanical stenography,

transcript produced by computer.

25

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44 Garner - Cross

1

Q. ~ow, if you were going to move up to another

2

position beyond a Machine Class Operator A, it's my

3

understanding that the next level was the position known

4

as a machinist; is that right?

5

A. Machinist, right.

6

Q. And then I think there's another position that's

7

even above that known as a certified machinist?

8

A. Certified.

9

Q. You never put your name on any bid list for a

10

machinist position, did you?

11

A. Yes, at one time.

12

Q. Do you recall when?

13

A. I guess I had been there about 15 years.

14

Q. All right. Did someone have more seniority than you

15

at that time?

16

A. No. I had -- I had the seniority at that time.

17

Q. Your supervisor at the time you retired was Mr.

18

Flowers?

19

A. Yes.

20

Q. And Mr. Flowers and you had both -- he was a white

21

man; is that right?

22

A. Right.

23

Q. Mr. Flowers and you had both at one point in time

24

been Machine Class Operator A?

25

A. Right.

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181 Mark - Direct

1

town he came from.

2

Q. Okay. Now, you -- have you yourself experienced any

3

discrimination?

4

A. Well, I don't know if you would call it

5

discrimination or what; but the last year, when I was in

6

my normal work area, which is DIF, we had a slow --

7

THE COURT: What's DIF?

8

THE WITNESS: Yeah. DIF, that's -- it's

9

another part of the foundry.

10

THE COURT: I thought maybe those initials

11

stood for something.

12

THE WITNESS: Delta something furnace.

13

THE COURT: Okay.

14

THE WITNESS: I never got around to learning

15

it.

16

THE COURT: All right.

17

A. But -- but, anyway, I was a cleaning machine

18

operator classified over there. Me, another guy who was

19

Hispanic, and another guy who was white was over there

20

working; and our supervisor who was white named Langford,

21

Jeff Langford, told us that that department was slowing

22

down and he would have to move people around. So, he

23

told us that we possibly would have to go to the cleaning

24

room and around -- the cleaning room, like, that's the

25

hardest job out there. I mean, you know, everybody out

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184 Mark - Direct

1

foreman

2

A. Uh-huh.

3

Q. -- have you ever heard him use racial slurs or

4

anything?

5

A. Well, yes. We was standing around -- around January

6

or December of '96 or early part of '97; and my foreman,

7

Ned Heismann, and another supervisor who was Jeff

8

Langford was standing there talking about basketball.

9

And Ned Heismann has a son that plays basketball at

10

Hudson. And he was telling him about his son's opponent

11

at the game that night before. He said that nigger was

12

giving his son problems. And I looked at him, you know,

13

kind of funny; and he said, nOh, Roy, don't worry about.

14

It's just a joke. It's nothing personal." But I was,

15

like, you know, it is personal because I'm black.

16

Q. Okay. Did anybody else hear that conversation?

17

A. Yes. It was me a guy named Harold Walker was

18

standing there, too.

19

Q. What's his classification?

20

A. He's a molder Class A.

21

Q. Okay. But nobody did anything about it?

22

A. No.

23

Q. Have you witnessed any other sorts of

24

discrimination?

25

A. Well, when I was first hired in in '95, it was a guy

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259 Potts - Direct

1

African-American gets isn't going to enhance his

2

promotion?

3

A. Yes.

4

Q. Between African-Americans and whites, who gets the

5

easier, cleaner job assignments?

6

A. The whites get the easier ones.

7

Q. Who has to work harder?

8

A. Has to work harder?

9

Q. Yeah.

10

A. The blacks work harder.

11

Q. And have you ever heard any of the white supervisors

12

use racially-derogatory terms or be present when other

13

whites use them?

14

A. Yes, I have.

15

Q. Would you tell us about that?

16

A. Well, at lunchtime we always sit over at the corner;

17

and we may playa hand of dominoes or so during our lunch

18

break. And weIll be playing and they'll always -~ it's

19

sometimes a joke that I heard one of them say and at that

20

particular day, my foreman was sitting right there

21

playing with us and when he said it, I kind of looked

22

over there at him and he looked -- I looked over there at

23

my foreman and he just kind of turned his head like that

24

(indicating) and didn't say nothing.

25

Q. What was the offensive thing you heard said?

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260 Potts - Direct

1

A. He said -- let me see. It was some kind of a joke.

2

Let me see if I can remember it. When they -- I don't

3

know if you're familiar with dominoes. We were playing

4

42, and a guy played a domino. He wasn't supposed to be

5

playing it. One guy said, "He reneged." And the other

6

white guy said, "No. He niggered." And I looked, you

7

know. I turned around at my foreman. He kind of just

8

turned his head and didn't say a thing. He kind of

9

grinned and turned his head this way. I figured, Well, I

10

can see he ain't going to do nothing, and left it at that

11

and stopped playing.

12

THE COURT: You stopped playing?

13

THE WITNESS: Yes, sir.

14

BY MR. GARRIGAN:

15

Q. Now, the discrimination that you've observed and

16

experienced, do you think that's isolated stuff or is it

17

common and typical in the company?

18

A. It's common and typical.

19

Q. Okay. Do you know either Mr. Buford or Mr. McClain?

20

A. I know Mr. Buford pretty well, and I have spoke with

21

Mr. McClain on one occasion.

22

Q. Okay . . 00 you have confidence in them to represent a

23

class of African-Americans at Lufkin Industries who are

24

subject to discrimination?

25

A. Yes, I do.

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298 Thomas - Direct

1

college; and it was by the president Frank Stevenson.

2

Q. Was he president then?

3

A. Yes, he was.

4

Q. Okay. Just briefly, if you would, tell the Court

5

what positions you've held since you worked there

6

during the time you were a full-time employee.

7

A. During the time in which I was a full-time employee

8

of Lufkin Industries, I worked in the sales department

9

for Lufkin who -- I trained for about a year and a half

10

prior to placement in Oklahoma City as a salesman for the

11

company in oil field equipment in which I worked there as

12

also a service man, as well, who would actually go out to

13

the job and work on the oil field equipment. After my

14

tenure spent there in the oil field, I had to decline. I

15

was transferred back to Lufkin Industries.

16

BY THE COURT:

17

Q. How long were you in Oklahoma City?

18

A. For four years, three and a half years, roughly.

19

Q. What was your position there?

20

A. In Oklahoma City I was a salesperson.

21

Q. How large -- how large a sales office did they have

22

in Oklahoma City?

23

A. It was an office of roughly five people.

24

Q. All right. Did that include service people, as well

25

as sales people?

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299 Thomas - Direct

1

A. We were combined of both, sales and service.

2

Q. What was your degree from Lamar University?

3

A. I had some hours in business, and also I obtained an

4

associate's degree in real estate from Lamar University.

5

BY MR. GARRIGAN:

6

Q. Okay. And then after you came back from -- well,

7

when you were in Oklahoma, did you have any supervisory

8

duties over other employees?

9

A. Yes, I did. I was on a trainee sales program in

10

which the other sales parties, who were all white there,

11

worked right alongside me; and I actually did a lot of

12

training in-house with the guys that they did have

13

working at the sales office there in Oklahoma City.

14

Q. And so you trained others?

15

A. Yes, I did.

16

Q. As far as you know, were you the first

17

African-American salesperson?

18

A. To my knowledge, I was the only.

19

Q. Okay. And then you said you were transferred back

20

to Lufkin?

21

A. Yes.

22

Q. What was your position when you were transferred

23

back?

24

A. When I was transferred back to Lufkin, I moved into

25

the data base coordinating job position in the machine

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300 Thomas - Direct

1

shop.

2

Q. Okay. They didn't offer you another sales position?

3

A. No, they didn't.

4

Q. Were there any African-Americans in sales positions?

5

A. No, there weren't, to my knowledge. I was the only

6

one.

7

Q. And so when you carne back, they put you on a

8

computer?

9

A. Basically what they did -- yes, they did. I was

10

working in the computer-integrated manufacturing division

11

of the company which actually did the programming for the

12

component parts of the company's operation and which I

13

have scheduled and maintained the operations thereof for

14

manufacturing purposes.

15

Q. All right. And how long did you do that?

16

A. I did that approximately for -- until 1984 which I

17

was then assigned a job in the quality assurance

18

department of the power transmission, at that time the

19

oil field manufacturing division, which was headed by, I

20

believe it was, Mike Penn.

21

Q. Okay. Can you tell us how many months or years it

22

was that you were the data base coordinator?

23

A. I would say it was roughly -- well, from '83 is when

24

I transferred back to Lufkin and then from '83 to 1984 is

25

when I was transferred into the computer-integrated

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301 Thomas - Direct

1

manuf~cturing department. During -- from '84 until, I

2

would say, approximately the latter part of '85, 1985, I

3

was transferred into the quality assurance department.

4

Q. Okay. And what did you do in the quality assurance

5

department?

6

A. Prior to my going into that department, I was asked

7

to assist the department, because of my training and

8

sales background, to accommodate that department to

9

handle outside customers as well as do documentation,

10

inspecting requirements, and also governmental

11

documentation, reading and specifications, to coordinate

12

my training with that department to assist in any way

13

possible; and I volunteered to go at that particular

14

time. I was asked by Mike Penn.

15

Q. Okay. And so now you were dealing with equipment

16

that had been sold and was being delivered?

17

A. Yes, I was. And at that particular time there was a

18

gentleman that was doing a particular job there in the QA

19

department who was transferred from another department to

20

do some work in the structural departments, as a matter

21

of fact. One of my entail duties was to assume his

22

duties, also, which I was not familiar with. I had to

23

just learn a whole new system allover again. That part

24

of that entity was called the ASME code pressure vessel

25

requirements for manufacturing the oil field air balance

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302 Thomas - Direct

1

pumping unit_which required outside coordination with the

2

inspectors and welding specifications and a whole host of

3

other technical requirements.

4

THE COURT: A -- ASME, is that American society

5

of --

6

THE WITNESS: American Society of Manufacturing

7

Engineering.

8

THE COURT: Manufacturing Engineering?

9

THE WITNESS: Yes.

10

BY MR. GARRIGAN:

11

Q. Okay. And then how long did you work in quality

12

assurance, then?

13

A. I worked in the QA department from 1984 to 1988, I

14

believe it was.

15

Q. And then what happened in 1988?

16

A. Well, during my time period working in the QA

17

department doing the various different duties that I had

18

assumed by appointment, I had begun to observe the

19

different job opportunities throughout the company to

20

advance, to get more income; and I attempted to apply for

21

these various different job opportunities and, thus, to

22

no avail. So, I had signed a job posting for a job

23

position as a sales and service manager for the company

24

in the oil field division, of an area which I just

25

previously worked before in Oklahoma City. So, I signed

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303 Thomas - Direct

1

this job posting aft~r numerous attempts to enhance my

2

position in the company as far as advancement; and I got

3

the job. It was not through your normal channels, I

4

admit; but I did get the job.

5

Q. What do you mean --

6

A. Position.

7

Q. -- it wasn't through normal channels?

8

A. One of the requirements of this particular job,

9

whenever you sign a job posting, was you have to submit a

10

job change application. Part of that job application had

11

to be signed and verified through your supervisors, your

12

current immediate supervisor, for approval. Then it

13

would be coordinated to the personnel department who

14

would give you a recommendation of whether or not you

15

will be applying for this job as far as an interview. I

16

did not have to go through the interview process after

17

signing that job posting.

18

Q. They just gave it to you?

19

A. I got the job. It was given.

20

Q. Was there any explanation for that?

21

A. None to my knowledge, other than the fact that I had

22

previously had some time spent there in Oklahoma City;

23

and I assumed that my abilities and performance did

24

justify the job.

25

Q. All right. And so you went back to Oklahoma?

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304 Thomas Direct

1

A. Yes, I did. I went back to Oklahoma and -- as a

2

service center manager to replace a gentleman that was in

3

the process of transferring back here to Lufkin.

4

Q. All right. How long did you stay in Oklahoma that

5

time?

6

A. Roughly six months.

7

Q. And then what happened after six months?

8

A. After a six-month period there at Oklahoma City, I

9

was given instruction by my supervisor there that my

10

services were no longer needed there in Oklahoma City and

11

I would be needed immediately to return back to Lufkin.

12

Q. And did -- was there some problem with your

13

performance in Oklahoma?

14

A. I questioned my performance with the immediate

15

supervisor, and his statement was that it was nothing

16

about your performance. It's just that your services are

17

needed there at Lufkin Industries in the machine shop

18

division. Mr. Mike Penn requests you return; and,' thus,

19

I returned to Lufkin.

20

Q. Okay. And what did you do when you got back to

21

Lufkin?

22

A. Upon my immediate return to Lufkin, I was very

23

disgruntled, the fact of the immediate return, and so I

24

questioned Mr. Penn, as well as Mr. Stevenson concerning

25

this immediate transfer and they assured me that it was

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340 Thomas - Cross

1

A. Going back in time, the only -- when I was

2

transferred back to Lufkin from Oklahoma City, that was

3

my last stent at an attempt to do anything else other

4

than talk to management and approach management about my

5

concerns personally, as well as throughout the plant.

6

Q. So, your attempts occurred really prior to going to

7

Oklahoma and then you were --

8

A. Yes.

9

Q. -- discouraged because of Oklahoma and you never

10

again applied?

11

A. Yes.

12

Q. Did you believe that you had been brought back from

13

Oklahoma the second time because of your race?

14

A. I had no idea of knowing. I didn't know the

15

company's intention. I wasn't informed, you know. I was

16

told to corne back horne. I did. The company didn't give

17

me an explanation. I questioned. I still didn't get

18

one. Race could have been an issue. I had no knowledge,

19

but with me it had to have been because of the way I

20

perceived it.

21

Q. Okay. So, at the time you thought it was race, you

22

just didn't have any support for that?

23

A. I didn't know what the issue was. Like I said, at

24

that particular time when I was transferred back, there

25

were two elements involved, me being a black man and,

EXCEL REPORTING & ASSOCIATES

(409) 632-2442

(800) 259-7095

Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 148 of 178

379 Ross - Cross

1

MR. GARRIGAN: Okay. Pass the witness.

2

.CROSS-EXAMINATION

3

BY MR. BACON:

4

Q. This Perry Bill, was he a manager?

5

A. He was a black supervisor.

6

Q. He was your supervisor?

7

A. Yes.

8

Q. And he was black?

9

A. Black.

10

Q. And his supervisor -- do you know who his supervisor

11

was?

12

A. Gerald Coutee. I think Gerald was over the whole

13

department.

14

Q. Okay. And Gerald was black, as well?

15

A. He's black, as well.

16

Q. Was this your first job graduating from high school?

17

A. Yeah. I just graduated from high school.

18

Q. Had you had some other jobs before that?

19

A. No, sir.

20

Q. Had you worked anywhere before Lufkin Industries?

21

For example, in the summer?

22

A. No, sir.

23

Q. All right. When you say that -- I think you've

24

submitted an affidavit. Do you remember submitting an

25

affidavit previously in this case?

EXCEL REPORTING & ASSOCIATES

(409) 632-2442

(800) 259-7095

Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 149 of 178

·rr

>

r

• rs

Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 150 of 178

1

1

IN THE UNITED STATES DISTRICT COU'{T

FOR THE EASTERN DISTRICT OF TEXAS

2

LUFKIN DIVISION

3

SYLVESTER MCCLAIN, et al. *

4 Plaintiffs,
5

* * * CIVIL ACTION NO. 9:97CV063

v.

*

6

*

LUFKIN INDUSTRIES,

*

7

*

Defendant.

*

8

9

********************************************************

10

ORAL DEPOSITION OF

11

SHERRY LYNN CALLOWAY SWINT

12

JUNE 16, 2003

13

********************************************************

14

15

THE ORAL DEPOSITION OF SHERRY LYNN CALLOWAY SWINT, duly

16

sworn, produced as a witness at the instance of the

17

Defendant, Lufkin Industries, was taken in the

18

above-styled and numbered cause on the 16th day of June,

19

2003, from 9:03 a.m. to 3:30 p.m., before Lisa Reyes,

20

CSR, in and for the State of Texas, reported by machine

21

shorthand, at the Offices of Lufkin Industries Career

22

Development Center, Douglas at Ellis, Lufkin, Texas,

23

pursuant to the Federal Rules of Civil Procedure and the

24

provisions stated on the record or attached therein.

25

Ascii Disk. Enclosed

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Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 151 of 178

97

1

your resignation?

2

A. Yes, sir.

3

Q. And again I'm just trying to establish a

4

chronology here. You believe that you probably worked

5

in the new building as a technical secretary -- I mean,

6

new, it was a different building -- for maybe six, seven

7

months?

8

A. Yeah. Depending on whenever the move was, I

9

moved into the new location as a technical secretary.

10

Q. Okay. And it was -- I'm sorry.

11

A. And the foundry material supervisor position

12

came after that.

13

Q. Now, and again I don't want to confuse you.

14

I'm just trying to get a clear record here.

15

A. Okay.

16

Q. While you are -- in that six and seven months

17

where you're in the new building, which I would say

18

second half of 1994, you applied for a job -- is it the

19

materials -- what is the job that you -- the buyer's

20

position.

21

A. The buyer's --

22

MR. KONECKY: Slow down.

23

Objection, form.

24

Q. (BY MR. BACON) Is that correct? You applied

25

for the buyer's position while -- after you moved to the

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38

1

new building but before you were assigned the job you

2

didn't want.

3

A. I believe that I applied for the buyer's

4

position sometime in '94. Now, if it's the last six

5

months, the first six months, I believe it was sometime

6

in 1994.

7

Q. And you could have conceivably applied for the

8

buyer's position before you guys moved to the new

9

building?

10

MR. KONECKY: Objection, form.

11

A. I honestly don't remember the exact dates.

12

Q. (BY MR. BACON) Well, here is my next question:

13

After you applied for the buyer's position, which you

14

didn't get, was there any other position that you

15

applied for that you did not get that you wanted? And I

16

know you said you've applied for several positions or

17

quite a few positions. I'm just trying to determine the

18

timing. Was there any position that you sought after

19

you sought the buyer's position in 1994?

20

MR. KONECKY: Objection to form.

21

A. I don't remember the time frame. I don't

22

remember the time frame. I do know that I applied for

23

the buyer's position. Whether that was the last

24

position I applied for and didn't get, I can't answer

25

that. I don't remember because I have applied for so

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Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 153 of 178

99

1

many positions at Lufkin Industry. I don't remember

2

that.

3

Q. (BY MR. BACON) Was the buyer's position

4

posted?

5

A. Yes, it was.

6

Q. Did you put your name on a posting?

7

A. Yes, I did.

8

Q. Do you know who else put their name on that

9

posting?

10

A. Linda Schanfish was one.

11

Q. Were there other people who put their name on

12

that posting?

13

A. I believe that there were other people.

14

Q. Linda --

15

A. I don't remember.

16

Q. I'm sorry.

17

A. I don't remember who they were.

18

Q. Okay. Linda Schanfish was the person who got

19

the job.

20

A. Yes.

21

Q. All right. Were you interviewed for the

22

buyer's position?

23

A. Yes, I was.

24

Q. Who interviewed you?

25

A. I believe it was Dewayne Howell.

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100

1

Q. And who is Dewayne Howell?

2

A. He was the project manager for that phase of

3

the government contract.

4

Q. Was this buyer position a part of the

5

government project?

6

A. Yes. Yes, I believe it was.

7

Q. Did Mr. Brewer encourage you to apply for this

8

job?

9

A. I don't recall Mr. Brewer encouraging me to

10

apply for it, but he may have. I don't remember.

11

Q. Did anybody encourage you to apply for it?

12

A. I don't remember anyone encouraging me to apply

13

for the position.

14

Q. How did you find out that Linda Schanfish had

15

been awarded that job?

16

A. Well, it was -- it was either announced. She

17

was either introduced. I trained her for the position

18

and I did not know that that was the position that I was

19

training her for.

20

Q. Do you know what the buyer position did?

21

A. To my recollection, the buyer position, that

22

individual was

duties involved buying materials,

23

machinery, buying production items that was needed to

24

produce the contract that we were awarded through the

25

government.

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101

1

Q. What experience did you have doing that kind of

2

a job?

3

MR. KONECKY: Objection to form.

4

A. The experience I had with doing that kind of

5

job was the four years of experience I already had

6

incurred through working with the government contract.

7

Q. (BY MR. BACON) Had you bought materials?

8

A. I had allocated cost of materials through that

9

position of technical secretary.

10

Q. Had you bought materials?

11

A. No.

12

MR. KONECKY: Objection, form.

13

A. I had not bought materials, no, sir.

14

Q. (BY MR. BACON) Okay. When you did not get the

15

job, did you complain to anybody about not getting the

16

job?

17

A. Yes, I did.

18

Q. Who did you complain to?

19

A. I complained to Trent Williams.

20

Q. Anybody besides Trent Williams?

21

A. I believe I complained to Thomas Brewer as

22

well.

23

Q. What did Thomas Brewer tell you?

24

A. I don't recall what Thomas told me, if he told

25

me anything. I don't know what he -- I don't remember

Word For Word Reporting
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Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 156 of 178 102

1

what he told me.

2

Q. What do you recall -- when you complained to

3

Thomas Brewer, what did you tell him? What was the

4

nature of your complaint?

5

A. I remember complaining about applying for all

6

of the positions that I applied for and not receiving

7

them and I was beginning to conclude that there was a

8

reason I wasn't receiving those other than my ability to

9

perform the job that I applied for.

10

Q. Did Thomas Brewer suggest to you that it would

11

be a good idea if you got more education?

12

A. At that time, no, sir, I don't believe he did.

13

Q. Did he -- you don't recall what he told you at

14

the time?

15

A. I remember us discussing it. I remember us

16

discussing it. And I don't know what advice or

17

information he gave me.

18

Q. Did you suggest to Thomas Brewer that you

19

thought you were being discriminated on the basis of

20

your race?

21

MR. KONECKY: Objection, form.

22

A. I don't recall if I actually said that I did

23

not get or I was being discriminated based on my race

24

with Mr. Brewer, but I know I was -- I did communicate

25

that with others.

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103

J.

Q. (BY MR. BACON) Okay. You don't recall ever

2

telling Mr. Brewer that you thought YDU were being

3

discriminated on the basis of your race?

4

A. I don't remember that I did.

5

Q. Would you have felt comfortable sharing that

6

with Mr. Brewer?

7

MR. KONECKY: Objection, form.

8

A. Mr. Brewer and I had a good working

9

relationship and I do believe that I could have gone to

10

him with issues that I may have been going through

11

there, but I believe if I would share with him about

12

being discriminated at Lufkin Industries and he as a

13

manager over me and if he's questioned by other managers

14

over him, that it would put him in a very compromisable

15

position. And I wouldn't want to do that.

16

Q. (BY MR. BACON) Mr. Brewer is black?

17

A. Yes, he is.

18

Q. Okay. So you don't recall ever talking to

19

Mr. Brewer about your concerns that you might be a

20

victim of race discrimination?

21

A. I do remember us discussing it. All of the

22

details of the discussion I don't remember.

23

Q. Do you recall what he told you if you suggested

24

that to him?

25

A. No, I do not recall what he told me to do.

Word For Word Reporting
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Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 158 of 178 108

1

Q. Did he tell you that Lufkin was going to have

2

to move you to a different position?

3

A. He told me that Lufkin would have to place me

4

in a buyer's position or in a equivalent position with

5

the same

6

Q. With the same?

7

A. I don't know if he said an equivalent position,

8

but he did say that they had to place me in a buyer's

9

position when one became available or a similar

10

position. That's what I believe he -- is what he told

11

me.

12

(Swint Exhibit No. 11 was marked.)

13

Q. I'm handing you what is marked as Exhibit 11.

14

And this is a conciliation agreement between the

15

Department of Labor and Lufkin Industries. And I don't

16

need you to read the whole thing. I just want to know

17

if you've ever seen this document before I ask you

18

questions about it.

19

A. I don't recall if I've seen this document or

20

not.

21

Q. Did Mr. Williams ever send you any

22

documentation from the OFCCP?

23

A. I want to believe that he did, but for a

24

certainty I can't say at this time.

25

Q. When you were moved to the position of working

Word For Word Reporting (713) 847-8984

Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 159 of 178
109

1

foreman, were you given a raise?

2

A. The foundry material supervisor position?

3

Q. Yeah.

4

A. Yes, I was.

5

Q. Do you recall that your salary was raised at

6

one point to 1,783?

7

A. That -- that amount sound familiar.

8

Q. Do you recall having a meeting with Paul Perez

9

where he explained to you that Lufkin had entered into a

10

conciliation agreement with respect to your employment?

11

A. Yes, I do remember meeting with Paul Perez.

12

Whether or not it was a -- if -- he may have said

13

conciliation agreement at that time. I don't remember

14

what he called -- what it was called.

15

Q. I'd like you

take a look at page 3 of this

16

agreement and there's an entire section here that deals

17

with you and where -- you see where the word "remedy" at

18

the top is?

19

A. Yes, sir.

20

Q. Right below there. These are things that this

21

document said Lufkin was supposed to do. I'm going to

22

go through them and ask you if these things happened.

23

No.1, it says, "On February 20, 1995, Sherry

24

Calloway'S salary will be increased to $1,783."

25

Did that happen?

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Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 160 of 178

110

1

A. I do believe that happened.

2

Q. Okay. "B," it says, "On February 20, 1995,

3

Sherry Calloway's position of Working Foreman Warehouse

4

will be converted to an exempt salaried employee

5

position."

6

Did that happen?

7

A. As I said before, I was under the impression

8

that the position I had was foundry material supervisor.

9

Q. Do you know if it was converted to an exempt

10

salaried position, the one you had, the position that

11

you had?

12

A. I'm not sure. I'm not sure.

13

Q. All right.

14

A. Let me say this: I do remember that whereas

15

before I was

yeah, I was salary nonexempt. It did

16

become salary exempt. Yes, it did.

17

Q. Okay.

18

A. Yes, it did.

19

Q. "C" was award Ms. Calloway $318 in back pay.

20

Were you ever given $318 in back pay?

21

A. Yes, sir, I was.

22

Q. Okay. Were you told that you would be

23

considered for upcoming buyer positions for which you

24

qualified?

25

A. I don't remember that I was told that.

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Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 161 of 178
111

1

Q. All right. Did you know that you would be

2

considered for -- I mean, did anybody -- because I think

3

you testified a moment ago that Mr. Williams told you

4

that.

5

A. Mr. Williams --

6

MR. KONECKY: Wait.

7

Q. Did

8

MR. KONECKY: Objection, form.

9

Q.

Mr. Williams tell you that?

10

A. Did he tell me that I would be

11

Q. -- considered for a buyer position if one

12

became available.

13

A. He did say I would be considered for a buyer's

14

position or a position similar to that.

15

Q. Okay.

16

A. So that's the same.

17

Q. Do you know if there were any buyer positions

18

that came open between this time and the time you left

19

Lufkin Industries?

20

A. I don't recall any that became available.

21

Q. Okay. "E" says award retroactive seniority and

22

all other fringe benefits, including, but not limited to

23

salary adjustments, vacation accruals, profit-sharing,

24

insurance, retirement, overtime.

25

Were you not paid any of these benefits that I

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112

1

just descrited that you were supposed to get?

2

MR. KONECKY: Objection, form.

3

A. I received $318.

4

Q. (BY MR. BACON) Okay. Now, I think your

5

testimony was

was this -- this agreement was not

6

acceptable to you, is that what you're telling me?

7

MR. KONECKY: Objection, form.

8

A. At this time I don't remember all of these

9

details with this agreement. I do remember that the

10

OFCCP found Lufkin guilty. I do remember Mr. Williams

11

telling me that there would be remedies and that they

12

would have to consider me or offer me a buyer's

13

position. That, I do remember. All the others that's

14

listed here at this time I'm not remembering. I know

15

number "E," I did not receive any of that. Only thing I

16

received during my meeting with Mr. Perez was the $318.

17

(Swint Exhibit No. 12 was marked.)

18

Q. Okay. I'm handing you what has been marked as

19

Exhibit 12.

20

A. Okay.

21

Q. Is this your handwriting?

22

A. It looks like my handwriting.

23

Q. All right. It appears to be a memorandum that

24

you sent to Paul Perez

25

A. Uh-huh.

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Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 163 of 178

Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 164 of 178

Conciliation Agreement Between the U.S. Department of Labor Office of Federal Contract Compliance Programs
and Lufkin Industries, Inc.
P. O. Box 849 Lufkin, TX 75902

-Part--l-I.-----.G~EtM'lERAL PROVISIONS: .'
I. This Agreement is between the Office of Federal Contract Compliance Programs (hereinafter OFCCP) and Lufkin Industries, Inc. (hereinafter Lufkin).

2. The violations identified in this Agreement were found during a compliance review of Lufkin which began on October 3, 1994 and they were specified in a Notice of Violations issued January 31, 1995. OFCCP alleges that Lufkin has violated Executive Order 11246, as amended, and implementing regulations at 41 CFR Chapter 60 due to specific violations cited in Part IT below.

3. This Agreement does not constitute an admission by Lufkin of any violation of Executive Order 11246, as amended, Section 503 of the Rehabilitation Act of 1973, as amended, and/or the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended, 38 U.S.c. 4212 and implementing regulations.

4. The provisions of this Agreement will become 'part of Lufkin's AAP. Subject to the performance by Lufkin of all promises and representations contained herein and in its AAP, all named violations in regard to the compliance of Lufkin with all OFCCP programs will be deemed resolved. However, Lufkin is advised that the commitments contained in this Agreement do not preclude future determinations of noncompliance based on a finding that the commitments are not sufficient to achieve compliance.

5. Lufkin agrees that OFCCP may review compliance with this Agreement. As part of such review, OFCCP may require written reports, inspect the premises, interview witnesses, and examine and copy documents, as may be relevant to the matter under investigation and pertinent to Lufkin's.compliance. Lufkin shall pennit access to its premises during normal business hours for these purposes.

5~-1/ri-
EXHIBIT NO.4-
L. REYES

L 22592

Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 165 of 178

6. Nothing herein is intended to relieve Lufkin from the obligation to comply with the requirements of Executive Order 11246, as amended, Section 503 of the Rehabilitation Act of 1973, as amended, or the Vietnam Era Veterans' Readjusttnent Assistance Act of 1974, as amended, 38 V.S.c. 4212 and implementing regulations, or any other equal employment statute or executive order or its implementing regulations.
7. Lufkin agrees that there will be no retaliation of any kind against any beneficiary of this Agreement or against any person who has provided infonnation or assistance, or who files a complaint, or who participates in any manner in any proceedings under Executive Order 11246, as amended, Section 503 of the Rehabilitation Act of 1973, as amended, and/or, the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended, 38 V.S.c. 4212.
8. This Agreement will be deemed to have been accepted by the Government on the date of signature by the District Director for OFCCP, unless the Regional Director or the Director, OFCCP indicates otherwise within 45 days of the District Director's signature of this Agreement.
9. If at any time in the future, OFCCP believes that Lufkin has violated any portion of this Agreement during the tenn of this Agreement, Lufkin will be promptly notified of that fact in writing. This notification will include a statement of the facts and circumstances relied upon in forming that belief. In addition, the notification will provide Lufkin with 15 days from receipt of the notification to respond in 'writing, except where OFCCP alleges that such a delay would result in irreparable injury.
Enforcement proceedings for violation of this Agreement may be initiated at any time after the 15-day P!!riod has elapsed (or sooner, if irreparable injury is alleged) without issuing a Show Cause Notice.
Where OFCCP believes that Lufkin has violated this Conciliation Agreement, evidence regarding the entire scope of Lufkin's alleged noncompliance which gave rise to the Notice of Violations from which this Conciliation Agreement resulted, in addition to the evidence regarding Lufkin's alleged violation of the Conciliation Agreement, may be introduced at enforcement proceedings.

2

L 22593

Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 166 of 178

Liability for violation of this Agreement may subject Lufkin to sanctions set forth in Section 209 of the Executive Order, 41 CFR 60-250.28 and/or 41 CFR 60-741.28 and/or other appropriate relief.
Part ll. SPECIFIC PROVISIONS:
1. Violation: Lufkin's selection practices with regard to promotion resulted in the disparate treatment of a minority female. This is in violation of 41 CFR 60-1.4(a).
Remedy: At minimum:
(a) On February 20, 1995 Sherry Calloway's salary will be increased to $1,783.00;.
(b) On February 20, 1995 Sherry Calloway's position of Working Foreman Warehouse will be converted to an exempt salaried employee position.
(c) Award Ms. Calloway $318.00 in back pay. Disbursement of funds will be in accordance with the instructions outlined in Part ill of this Agreement.
(d) Lufkin will consider Sherry Calloway for upcoming Buyer positions for which she qualifies.
(e) Award retroactive seniority and all other. fringe benefits including,: but not limited to salary adjustments, vacation accruals, profit sharing, insurance, retirement, overtime, etc. as applicable.
(f) On February 20, 1995 Lufkin developed a plan of action with time frames to insure the elimination of elements which caused the disparate treatment.
2. Violation: Lufkin's placement practices has resulted in minorities being relegated to jobs with less desirable working conditions than non-minorities with similar experience and qualifications. This is in violation of 41 CFR 60-1.4(a).
Remedy: At a minimum:
(a) Lufkin will recruit minorities into all departments within the facility at a rate not less than availability.

3

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Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 167 of 178

(b) On February 20, 1995 Lufkin developed a plan of action with time frames to ensure the elimination of elements which caused the disparate treatment.

3. Violation: Lufkin failed to adequately develop and execute actionoriented programs designed to eliminate specific problems, as required by 41 CFR 60-2.13 (f).

Remedy: On February 20, 1995 Lufkin developed and is now executing action-oriented programs to eliminate specific problems using 41 CFR 60-2.23 as a guide. Action programs include:

(a) a specific plan of action to increase the representation of minorities and females in the workforce.

(b) contact with minority and female recruitment sources and community organizations verbally and in writing in an effort to remedy areas of underutilization.

(c) careful selection and EEO/affirmative action training for managers responsible for employment related processes.

lufkin will make every good faith effort to preclude violations 1-3 from recurring.

Part ill. REPORTING:

No disbursement of funds covered by this Agreement will be made until

forty-five (45) days from the date the District Director signs this

Agreement. All disbursement of funds shall be less standard legal

deductions. In accordance with this Agreement, funds will be disbursed not

later than fifteen (15) days after notification that the 45-day period has

elapsed. Such notificat!pn will be transmitted by certified mail, return

receipt requested.

'Yr. k;- (0 ...f... IS"

Lufkin will furnish the OFCCP, 2320 LaB ranch , Room 1103, Houston, TX 77004 with reports as outlined below:

Within thirty (30) days after the notification that the above referenced 45-day period has elapsed, Lufkin will submit:

1. A photocopy of the back pay check tendered pursuant to Part II of this Agreement.

4

L 22595

Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 168 of 178

~.
~.

A copy of the personnel action fonn adjusting Ms. Calloway's salary and position status in accordance with Remedy I (a) and (b). Documentation will include the effective date of the adjustment, status (i.e. exempt or nonexempt) and current salary.
Proof of other retroactive benefits tendered to include description of benefit(s), amount(s) and/or date(s) as appropriate.

Copies of front pay checks tendered, if applicable. These will be compiled each calendar quarter and will be submitted, if required fifteen (15) days after the end of each quarter. Copies will be due in the Houston District Office, OFCCP no later than April 15, 1995, July 15, 1995 and October 15, 1995 and will continue until Ms. Calloway has attained her rightful place.

B. By July IS, 1995:

A narrative report on good faith efforts undertaken to correct the problem identified in Violation #2 to include:

1. Workforce profile as of June 1, 1995 by the job title within department, indicating the total number of employees and the total number of IT'.inorities by eutmic group.

2. Identification of minorities by ethnic group transferred, hired or

otherwise placed to increase the representation of minorities in

underrepresented departments.

.

C. By January IS, 1996:

1. A narrative report to address good faith efforts undertaken to correct the problem identified in Violation #2 to include:

a. Workforce profile as of January I, 1996 by job title within department, indicating the total number of employees and the total number of minorities by ethnic
group.

b. Identification of minorities by ethnic group transferred, hired or otherwise placed to increase the representation of minorities in underrepresented departments.

2. All recruitment efforts undertaken during the period January 1, 1995 - December 31, 1995 to include:

5

L 22596 '

Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 169 of 178
a. recruitment sources, community organizations, and other referral sources contacted;
b. contact persons and telephone numbers;
c. dates of contact;
3. A report to address good faith efforts undertaken during the period January 1, 1995 - December 31, 1995 to include the following:
a. A list of job groups where goals were set for minorities and females during the 1995 AAP year.
b. The actual percentage goals which were set for females.
c. A workforce profile by job group for January 1, 1995 and December 31, 1995 to include total employees, total minorities and total females.
d. Summary of support data to include applicant flow (a listing of each appiicant to include the following information: name, sex, date of application; vacancy; if rejected, reasons for rejection; if hired, date of hire and position); if promoted, name, sex, date of promotion, job promoted _from, job promoted' to indicating total employees, total males and total females for the covered period January 1, 1995 - December 31, 1995.
e. A narrative explanation of good faith efforts undertaken for job groups where goals were not attained.
Retain all records pertinent to the violations resolved by this Conciliation Agreement and to the reports submitted under it (including the underlying datalinfonnation on which this report is based) until the expiration date of the Conciliation Agreement or consistent with regulatory requirements, whichever is later.
This Agreement will remain in full force and in effect until the final progress report has been approved by the District Director.
6 L 22597

Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 170 of 178

Part IV: SIGNAlURES:
The Conciliation Agreement is hereby executed by and between the Office of Federal Contract Compliance Programs and Lufkin Industries, Inc., Lufkin, TX 75902.

Date

7

1RENT W1LLlAMS Compliance Officer Houston District Office Houston, TX

Date

d!~ Si:tant . ~TRITB istrict Director

Houston District Office

Houston. TX

APPROVED:

At~ IS

MER N

istnct uector

Houston DlStnct Office

Houston. TX

- . s ~- ;;2.1{ - ..,

.

Date

7
L 22598

Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 171 of 178

Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 172 of 178

1

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

2

LUFKIN DIVISION

3

SYLVESTER MCCLAIN, et al.,

4

Plaintiffs,

5

VS.

6

LUFKIN INDUSTRIES,

7

Defendant.

)C.A. NO. 9:97CV063
) ) ) )

8

9
*************************************************

10 ORAL DEPOSITION OF

11

WALTER BUTLER

MAY 27, 2003

12

*************************************************

13

14

15

ORAL DEPOSITION of WALTER BUTLER, produced as a witness

16

at the instance of the Defendant, and duly sworn, was

.

17

taken in the above-styled and numbered cause on May 27,

18

2003, from 9:08 a.m. to 5:09 p.m., before Lorri Lucas,

19

CSR in and for the State of Texas, reported by machine

20

shorthand, at the offices of Lufkin Industries, 409

21

Ellis Street, Lufkin, Texas, pursuant to the Federal

22

Rules of Civil Procedure and the provisions stated on

23

the record or attached hereto.

24

25

Dtsk Enclosed

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(713) 847-8984

Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 173 of 178

255

1

A. Yes. I'm supposed to do that.

2

Q. Do you believe that you should be getting,

3

then, the maximum recovery that they would be allowed by

4

law?

5

MR. GARRIGAN: Objection, privilege. You

6

don't have to answer that.

7

MR. HAMEL: I'm not asking him about

8

privileged conversation. I'm asking him what he

9

believes as a named class representative.

10

Q. Do you believe that the employees should get

11

the maximum recovery that they are allowed by law?

12

MR. GARRIGAN: If you want to discuss

13

settlement, Doug, you can come talk to me about it.

14

Okay?

15

MR. HAMEL: Are you instructing him not

16

to answer?

17

MR. GARRIGAN: Yes.

18

MR. HAMEL: Then let's call the hot line.

19

(Recess from 4:49 to 5:00)

20

MR. HAMEL: In an off-the-record

21

telephone conversation with Judge Cobb, Judge Cobb has

22

ruled that the witness need not answer the question: Do

23

you believe that the employees should get the maximum

24

recovery that they are allowed by law? And Judge Cobb

25

has invited us to certify that question for his review

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Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 174 of 178

256

1

and we would so certify the question.

2

Q. Mr. Butler, I want to ask you some more

3

questions along that line. I believe your counsel 1S

4

probably going to instruct you not to answer but he can

5

do so with respect to the individual questions.

6

Did you or have you ever had a meeting

7

with all the named class representatives?

8

A. I believe I have. I don't know whether all of

9

them was there or not, though. I had -- I've been to

10

about, I guess, three or four meetings is all.

11

Q. And in the three or four meetings that you've

12

had, how many people were present?

13

A. I didn't count them, so I couldn't tell you.

14

Q. Can you give me an estimate?

15

A. Oh. I wouldn't

I'd be scared to say. I

16

know sometimes it would be quite a few, though.

17

Q. Were the lawyers present at these meetings?

18

A. Yes.

19

Q. At all of them?

20

A. Everyone I've been to they were at.

21

Q. All right.

22

A. I don't know of --

23

Q. Now, sir, are you aware that in this complaint

24

that you are asserting that you are asserting a cause of

25

action which includes that blacks have been

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Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 175 of 178
257

1

intentionally discriminated against at Lufkin

2

Industries?

3

A. Corne back with that again, now.

4

Q. Yes. Are you aware, in the complaint that you

5

have made, that it includes a complaint that blacks have

6

been intentionally discriminated against at Lufkin

7

Industries?

8

A. I don't know whether they --

9

MR. GARRIGAN: Objection, form. Go

10

ahead.

11

A. I don't know whether the discrimination's on

12

the part of the company but there's some of the people

13

that's in the company that do things that's undesirable

14

that you think -- you know, the company, all they're

15

looking at is the bottom line or the bottom dollar. But

16

some of the peoples you've got representing the company

17

might have discriminatory action there but you don't

18

Q. Okay. You don't think the company, as a

19

whole, discriminates against blacks; do you?

20

A. I don't think the company as a whole, no. No.

21

Q. You think it is possible that some few

22

supervisors or managers may?

23

A. Some supervisors but the company's still

24

responsible because they put them in that position.

25

Q. I understand -- I understand that. But, for

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Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 176 of 178
258

1

example, do you think that there are any vice presidents

2

of the company that discriminate against blacks?

3

MR. GARRIGAN: Objection, form.

4

A. I

you know, I can't speak about the vice

5

presidents. You have some, you have some good vice

6

presidents and you have some that is not so good of vice

7

president, so, you know

8

Q. Who do you think is not so good of vice

9

president?

10

A. Well, you know, to me, they all treated me

11

well, you know. All I can speak is for myself. But

12

judging from the -- what some of them think they -- a

13

lot of them think Mr. Barber wasn't a good shop

14

superintendent. But Mr. Barber, he was the type that

15

you couldn't blow smoke up under. He can walk out there

16

and he can -- he can spot a soft place in a minute. You

17

know, he's been around trailers. You can't -- you can't

18

fool that man. And, you know, they didn't like him for

19

his attitude and the way he do -- he might walk by you

20

and not speak, wouldn't say a word or walk by and look

21

at you like you're dirt and keep going, you know.

22

Q. Did he do that with everybody?

23

A. Well, mostly everybody. Some of them he

24

stopped and talked to.

25

Q. Did he do it with blacks and whites alike?

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Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 177 of 178

259

1

A. Well, yeah. He'd pass a bunch of whites, too,

2

but there's some whites he talked to.

3

Q. About how many supervisors or managers do you

4

think engage in any discrimination against blacks --

5

A. Well --

6

Q. -- as a percentage of the total?

7

A. Well, back there, I'd say they had five or

8

six.

9

Q. Five or six total?

10

A. Yeah.

11

Q. Out of all the supervisors and managers?

12

A. I mean, in the Trailer Division that I can,

13

you know, think of.

14

Q. And who are those people?

15

A. I think Earl Dover was -- I think he was

16

trying to pull some shenanigans around.

17

Q. Who else?

18

A. Let's see. Earl Dover. A.C. Warren, Carter

19

Olds, Ed Root, Gary Lawson. That's all I can think of

20

right now. I'll think of some of them other ones later.

21

Q. Did you ever participate in a decision that,

22

as named class representatives, you would not seek the

23

maximum recovery possible for class members?

24

MR. GARRIGAN: Objection, privilege. You

25

don't have to answer that.

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Case 9:97-cv-00063-HC Document 219 Filed 07/28/2003 Page 178 of 178

260

1

Q. Are you aware that the present complaint for

2

which you are named as a class representative does not

3

seek the maximum damages that may be payable under law

4

to the class?

5

MR. GARRIGAN: Objection, privilege. You

6

don't have to answer that.

7

Q. Did you ever give your permission not to seek

8

the maximum damages allowable under law?

9

MR. GARRIGAN: Objection, privilege. You

10

don't have to answer that.

11

MR. HAMEL: That's all the questions we

12

have at this time.

13

MR. GARRIGAN: I just have a couple of

14

questions to try to clarify something.

15

EXAMINATION

16

BY MR. GARRIGAN:

17

Q. Mr. Butler, you testified earlier about

18

initially being hired into Lufkin Industries.

19

A. Um-hmm.

20

Q. Do you recall that?

21

A. Laborer?

22

Q. Yes.

23

A. Um-hmm.

24

Q. What was your initial position?

25

A. A laborer.

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(713) 847-8984

 
 Case 9:97-cv-00063-HC Document 510-1 Filed 03/24/2005 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION

SYLVESTER MCCLAIN, on his own

§

behalf and on behalf of a class of similarly §

situated persons, et al.,

§

§

Plaintiffs,

§

vs.

§

§

LUFKIN INDUSTRIES,

§

§

Defendant.

§

CIVIL ACTION NO. 9:97-CV-063 JUDGE COBB

DEFENDANT LUFKIN INDUSTRIES, INC.’S RESPONSE TO PLAINTIFFS’ MOTION REQUESTING THE COURT TO TAKE JUDICIAL NOTICE OF RELEVANT FACTS CONTAINED IN THE RECORD OF ANOTHER CASE BEFORE THIS COURT AND IN THE PUBLIC RECORD (“MOTION
FOR JUDICIAL NOTICE”)

The Court has already ruled that Lufkin Industries, Inc.’s (“Lufkin”) counsel’s billing

rates in this case are not relevant. See Order of February 28, 2005 (granting Lufkin’s motion for

protection from Plaintiffs’ fifth request for production of documents). Nevertheless, Plaintiffs

now ask the Court to take judicial notice of Lufkin’s counsel’s law firm’s transactional attorneys’

billing rates in an unrelated bankruptcy proceeding in a bankruptcy court. In doing so, Plaintiffs

confuse judicial notice and judicial admissions and misapply Federal Rule of Evidence (“FRE”)

201(a).

I. As an Initial Matter, Plaintiffs Confuse Judicial Notice and Judicial Admissions. In support of their claim that the billing rates of Vinson & Elkins (“V&E”) transactional

attorneys in an unrelated bankruptcy proceeding in a bankruptcy court can be judicially noticed,

Plaintiffs state that “[a]s a general rule, the pleading of a party made in another action, as well as

pleadings in the same action which have been superseded by amendment, withdrawn or

dismissed, are admissible as admissions of the pleading party to the facts alleged therein,

Case 9:97-cv-00063-HC Document 510-1 Filed 03/24/2005 Page 2 of 7
assuming of course the usual tests of relevancy are met,” citing Cont’l Ins. Co. of N.Y. v. Sherman, 439 F.2d 1294, 1298 (5th Cir. 1971). (Motion at 1-2) (emphasis added). In citing this authority, it is evident that Plaintiffs have confused judicial admissions with judicial notice. Judicial admissions are concerned only with pleadings, which are defined narrowly in the Federal Rules of Civil Procedure as “a complaint and an answer; a reply to a counterclaim denominated as such; an answer to a cross-claim, if the answer contain a cross-claim; a thirdparty complaint, if a person who was not an original party is summoned under the provisions of Rule 14; and a third-party answer, if a third-party complaint is served. FED. R. CIV. P. 7(a). To state the obvious, the first through fourth interim applications for fees and expenses submitted in In Re Food Fast Holdings, Ltd. are not pleadings and thus, cannot be judicially admitted.
Additionally, Lufkin was not a party to In Re Food Fast Holdings, Ltd., which also precludes its use as a judicial admission. V&E has many clients besides Lufkin. A pleading filed by a different party, even if represented by V&E, cannot be used as judicial admission against Lufkin. II. Plaintiffs Also Misunderstand the Doctrine of Judicial Notice.
The doctrine of judicial notice is governed by FRE 201. FED. R. EVID. 201 (“Judicial Notice of Adjudicative Facts”). FRE 201(a) states that “this rule governs only judicial notice of adjudicative facts.” FED. R. EVID. 201(a) (emphasis added). An adjudicative fact is defined as “a controlling or operative fact, rather than a background fact; a fact that concerns the parties to a judicial or administrative proceeding and that helps the court or agency determine how the law applies to those parties.” BLACK’S LAW DICTIONARY, 7th ed. (1999).
“[T]he kinds of things about which courts ordinarily take judicial notice are (1) scientific facts: for instance, when the sun rises or sets; (2) matters of geography: for instance, what are the boundaries of a state; or (3) matter of political history: for instance, who was president in 1958.”
2

Case 9:97-cv-00063-HC Document 510-1 Filed 03/24/2005 Page 3 of 7
Shahar v. Bowers, 120 F.3d 211, 214 (11th Cir. 1997). Judicial notice is reserved for those things that there is no reason why a party should have to tender testimonial or documentary evidence, such as the fact that March 27, 2005 lands on a Sunday, the fact that there was a full moon on a particular night, the time that the sun rose on a particular date in a particular locale, or the listing price of a particular stock on the New York Stock Exchange at a particular moment in time. Exhibits filed in another case showing the billing rates of V&E transactional attorneys in an unrelated bankruptcy matter and the affidavit testimony of a former judge are not the kinds of things that a court would take judicial notice of. Ordinarily, a party seeking to admit such things would have to establish an evidentiary foundation for their admission and demonstrate that those documents are relevant in the present case. Given that an opposing counsel’s billing rates in the same case are irrelevant in the Fifth Circuit, Harkless v. Sweeny Indep. School Dist., 608 F.2d 594, 598 (5th Cir. 1979), it is clear that Plaintiffs would be unable to establish that these documents that relate to attorneys’ fees in a different case are relevant here.
Moreover, a court cannot take judicial notice of the factual findings of another court. See Taylor v. Charter Med. Corp., 162 F.3d 827, 830 (5th Cir. 1998); Int'l Star Class Yacht Racing Ass'n v. Tommy Hilfiger U.S.A., Inc., 146 F.3d 66, 70 (2d Cir. 1998); Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1082-83 & n. 6 (7th Cir. 1997); Holloway v. Lockhart, 813 F.2d 874, 878-79 (8th Cir.1987); Wyatt v. Terhune, 315 F.2d 1108, 1114 (9th Cir. 2003); U.S. v. Jones, 29 F.3d 1549, 1553 (11th Cir. 1994). III. In Any Event, the Billing Rates of V&E Transactional Attorneys in an Unrelated Bankruptcy Proceeding are Irrelevant.
In granting Lufkin’s motion for protection from Plaintiffs’ attempt to discover Lufkin’s counsel’s billing rates (among other things), the Court recognized that 1) the Fifth Circuit has determined that a fee opponent’s fee records, including billing rates, are irrelevant to the inquiry
3

Case 9:97-cv-00063-HC Document 510-1 Filed 03/24/2005 Page 4 of 7
into whether a fee request is reasonable, and 2) a fee opponent’s attorneys’ fees is not one of the twelve Johnson factors the Fifth Circuit considers in evaluating the reasonableness of a proposed fee award. See Order of February 28, 2005 (“For the reasons set forth in defendant’s motion for protection from plaintiffs’ fifth request for production of documents, the motion for protection is GRANTED…” (emphasis added)).
Plaintiffs, however, seek to circumvent the Court’s Order in their attempt to get the Court to take judicial notice of V&E’s transactional lawyers’ billing rates in another case. However, if V&E’s billing rates in this case are not relevant, the fees of different lawyers from that firm in a different case are even less relevant. In Ruiz v. Estelle, 553 F. Supp. 677 (S.D. Tex. 1982), a prison litigation case that Plaintiffs cite, the court noted that “[i]n an action for which no adequate parallel can be found, the best example of a fee paid for similar work is that paid by opposing counsel in the same action” (emphasis added). It also bears noting that Ruiz was a case that was “unprecedented in scope and complexity,” which justified looking at the billing rates of opposing counsel in that particular case. Ruiz, 553 F. Supp. at 584. There is no precedent (including Ruiz) that would support Plaintiffs’ claim that the billing rates in In Re Food Fast Holdings, Ltd. would be relevant to the Plaintiffs’ counsel’s billing rates in this class action.
In U.S. Golf Corp. v. Eufaula Bank & Trust Co., 639 F.2d 1197 (5th Cir. 1981), also cited by Plaintiffs, the Fifth Circuit did not “affirm[] the relevance of opposing counsel’s fees as one factor among several that informed the court’s determination of the customary fees of attorneys who work in Eufaula, Alabama,” as Plaintiffs claim. (Motion at 6). To the contrary, the court ignored opposing counsel’s fees and chose, instead, to rely only on the witness testimony of several other lawyers from Eufaula. See U.S. Golf, 639 F.2d at 1200-01, 1207.
4

Case 9:97-cv-00063-HC Document 510-1 Filed 03/24/2005 Page 5 of 7
In this Circuit, a court must examine “the experience, reputation, and ability of the attorneys” and “awards in similar cases in determining the reasonableness of fee applicants’ rates.” Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974) (two of the twelve Johnson factors, emphasis added); accord Blum, 465 U.S. at 895 n.11 (“To inform and assist the court in the exercise of its discretion, the burden is on the fee applicant to produce satisfactory evidence…that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation”). Examining and comparing experience alone, as Plaintiffs wish to do, is not enough nor allowed in this Circuit. Similar cases must be compared. Because of market conditions, and less competition from small boutiques, transactional lawyers in large firms generally bill at substantially higher rates than litigators. This is not surprising, for “[t]he type of services rendered by lawyers, as well as their experience, skill and reputation, varies extensively – even within a law firm.” Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984).
To attempt to make these comparisons, as Plaintiffs do, violates this Circuit’s well-settled law.
CONCLUSION For all the reasons cited above, Plaintiffs’ Motion for Judicial Notice should be denied.
5

Case 9:97-cv-00063-HC Document 510-1 Filed 03/24/2005 Page 6 of 7

OF COUNSEL:
VINSON & ELKINS L.L.P. 1001 Fannin Street Houston, Texas 77002-6760

Respectfully submitted,
____________/s/__________________ DOUGLAS E. HAMEL Attorney-In-Charge dhamel@velaw.com State Bar No. 08818300 CHRISTOPHER V. BACON Of Counsel State Bar No. 01493980 2300 First City Tower 1001 Fannin Street Houston, Texas 77002-6760 (713) 758-2036 (Telephone) (713) 615-5388 (Telecopy)
Attorneys for Defendant, LUFKIN INDUSTRIES, INC.

6

Case 9:97-cv-00063-HC Document 510-1 Filed 03/24/2005 Page 7 of 7 CERTIFICATE OF SERVICE
I certify that on this 24th day of March, 2005, a copy of the foregoing Defendant Lufkin Industries, Inc.’s Response to Plaintiffs’ Motion Requesting the Court to Take Judicial Notice of Relevant Facts Contained in the Record of Another Case Before This Court and in the Public Record (“Motion for Judicial Notice”) was filed electronically through the Court’s CM/ECF System and was automatically copied to Plaintiffs through the Court’s electronic filing system.
_____________/s/________________ Attorney for Defendant
7

 
 Case 9:97-cv-00063-HC Document 536-1 Filed 05/17/2005 Page 1 of 15

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION

SYLVESTER MCCLAIN, on his own behalf and on behalf of a class of similarly situated persons, et al.,
Plaintiffs,
v.
LUFKIN INDUSTRIES,
Defendant.

§ § § § § § § CIVIL ACTION NO. 9:97-CV-063 § § § §

DEFENDANT’S RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION FOR APPOINTMENT OF A SPECIAL MASTER AND COURT-APPOINTED EXPERT WITNESS

Notwithstanding this Court’s repeated denial of Plaintiffs’ Motion to Bifurcate, Plaintiffs

now move essentially to reopen the trial record including the taking of evidence for the

determination of specific injunctive relief. Plaintiffs’ request for the appointment of a Special

Master and a Rule 706 expert to “develop[], examin[e], and implement[] policies, practices and

procedures for the initial assignment, training and promotion of employees” impermissibly

invades the district court’s province, indeed obligation, to hear the evidence and to make findings

on the central issues of liability and relief. Any evidence concerning the entry of an injunction

should have been presented at trial. Plaintiffs should not be allowed to re-litigate their claims

and submit additional evidence after the trial has concluded. Finally, Plaintiffs’ motion should

be denied as unnecessary or, alternatively, premature, in the absence of any evidence that Lufkin

needs assistance or has failed to comply with any mandatory injunction entered by the district

court. Simply put, the appointment of a special master or a Rule 706 expert to take evidence,

determine substantive issues, and recommend specific injunctive relief, as opposed to

compliance, is not authorized under the rules of procedure and evidence and is not warranted

Case 9:97-cv-00063-HC Document 536-1 Filed 05/17/2005 Page 2 of 15
upon an examination of the actual facts. As more fully stated below, Lufkin opposes Plaintiffs Motion for Appointment of a Special Master and Court-Appointed Expert Witness.
BACKGROUND Following the trial of this case, the Court entered a mandatory injunction and, in it, indicated that it might appoint a “monitor” to “oversee Lufkin’s compliance efforts and ensure the smooth implementation of the listed requirements.” (Docket No. 461, pp. 37-38). To date, Lufkin has taken a number of steps to comply with the Court’s injunction and to ensure the smooth implementation of the specific elements of injunctive relief identified by the Court. These steps include the following: (i) Retaining an expert to provide diversity training to Lufkin management and
advise Lufkin on its personnel policies and procedures consistent with the Court’s injunction. (ii) Instructing the TWC that it should refer applicants for entry level positions and that its procedures should ensure that referrals can come only from a requisition for a single position. (iii) Requesting and attending a bargaining session with the unions to consider specific revisions to Lufkin’s promotion processes. Notably, Plaintiffs’ motion does not complain about Lufkin’s efforts to comply with the Court’s injunction, nor does it seek the appointment of a special master to monitor Lufkin’s continued compliance, as the Court originally opined. Rather, Plaintiffs’ motion requests the Court to appoint a special master and a Rule 706 expert to draft and/or refine the injunction already entered by the Court.
ARGUMENT AND AUTHORITIES A. The Standard for Appointing a Post-Trial Special Master
Rule 53 authorizes the appointment of a post-trial master to handle matters that cannot be addressed effectively and in a timely fashion by an available district judge or magistrate judge. FED. R. CIV. P. 53(a)(1)(C). A special master, however, does not displace the court and should
-2-

Case 9:97-cv-00063-HC Document 536-1 Filed 05/17/2005 Page 3 of 15
not be appointed to determine substantial issues of liability and relief. La Buy v. Howes Leather Co., 352 U.S. 249, 356 (1957); see also Sierra Club v. Clifford, 257 F.3d 444, 447 (5th Cir. 2001) (reference to special master to make recommendation on summary judgment motion relating to liability and remedy issues was abuse of discretion); Stauble v. Warrob, Inc., 977 F.2d 690, 691 (1st Cir. 1992) (referral of fundamental issues of liability to special master was impermissible: “Determining bottom line legal questions is the responsibility of the court itself.”); United States v. Microsoft Corp., 147 F.3d 935, 953-54 (D.C. Cir. 1998) (reference of issues related to interpretation of consent decree to special master impermissible, in absence of exceptional circumstances, even if district court reserved power to review master’s findings de novo).
Rule 53 requires the demonstration of some exceptional condition before a court may appoint a master to make or recommend findings of fact on issues to be decided by the court without a jury. FED. R. CIV. P. 53(a)(1)(B). Rule 53 also contemplates the use of post-trial masters on matters that cannot be addressed effectively and timely by an available district judge or magistrate judge of the district. Although there is no longer an express requirement of some exceptional condition prior to the appointment of a post-trial master, the Advisory Committee notes reiterate that masters should remain the exception and not the rule. FED. R. CIV. P. ADVISORY COMMITTEE NOTES ¶ 1. This is particularly apt in non-jury cases and of heightened importance where the appointment is opposed by the litigants. See Kaufman, Masters in the Federal Courts: Rule 53, 58 COLOM. L. REV. 452, 459 (1958) (concluding that “the utilization of special masters to hear and report on the main issues in litigation under Rule 53 has little support in the non-jury area. With a few minor exceptions, references in non-jury cases run counter to the spirit and purpose of judicial administration in the federal courts.”); Mark A. Fellows & Roger S. Haydock, Federal Court Special Masters: A Vital Resource in the Era of Complex
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Case 9:97-cv-00063-HC Document 536-1 Filed 05/17/2005 Page 4 of 15
Litigation, 31 WILLIAM MITCHELL L. REV. 1269 (2005) (noting that opposed appointment “will need a rather high exceptional condition to justify the reference”).
In La Buy v. Howes Leather Co., 352 U.S. 249, 258-59 (1957), the United States Supreme Court considered the “exceptional condition” requirement and expressly held that a congested docket, the complexity of issues, and the extensive amount of time required for a trial or a proceeding do not, either individually or as a whole, constitute an exceptional condition justifying a Rule 53 reference to a special master in a non-jury antitrust action. The Fifth Circuit applied La Buy in Piper v. Hauck, 532 F.2d 1016, 1019 (5th Cir. 1976), and held that a crowded docket and the plaintiff’s filing of sixteen different lawsuits in the same court did not constitute an exceptional condition under Rule 53.
The La Buy decision and its progeny set a high legal threshold for the appointment of a special master. This factor, combined with the more practical observation that the use of masters is expensive and frequently leads to delay, has led courts and commentators alike to conclude that reference to a special master should be reserved only for the “very rare cases.” Wright, et al, 9A FED. PRAC. & PROC. at § 2601.
1. Plaintiffs’ request for a special master to draft an injunction is an impermissible delegation of the court’s judicial authority.
In La Buy, the Supreme Court held that referral of the “general issue,” including the issues of damages, if any, and the question concerning the issuance of an injunction, was an abuse of discretion and “amounted to little less than an abdication of the judicial function depriving the parties of a trial before the court on the basic issues involved in the litigation.” 352 U.S. at 256.
Citing La Buy, numerous other courts have made similar observations and refused to sanction referrals on central issues of liability and relief. See cases cited supra; see also In re Bituminous Coal Operators’ Assoc., 949 F.2d 1165, 1166 (D.C. Cir. 1991) (holding that blanket
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reference of case to special master, over defendant’s objection was beyond district court’s authority); New York v. Microsoft Corp., 224 F. Supp.2d 76, 179-80 (D.D.C. 2002) (appointment of master to evaluate a third party’s complaints under an injunctive decree not warranted where master would have determined rights and obligations of the parties under the final judgment, which was role reserved exclusively for the district court); United States v. Hooker Chem. & Plastics Corp., 123 F.R.D. 62, 63 (W.D.N.Y. 1988) (vacating plan to refer all discovery and case management issues to special master, concluding that plan “present[ed] an unacceptable risk of having significant, potentially dispositive issues taken away from the court”).
The Rule 53 referral Plaintiffs propose is no different from the references considered and rejected in the above cases. Specifically, Plaintiffs’ motion proposes the appointment of a special master -- not to monitor compliance as the Court originally suggested it might consider -but to take additional evidence and ultimately to rewrite the injunction that the Court already entered. This is an impermissible use of Rule 53.
It is axiomatic that an injunction does not exist in a vacuum, but must be based on specific liability findings supporting each element of relief. FED. R. CIV. P. 65. If the Court appoints a special master to undertake the task of deciding the question of injunctive relief, the special master will be required at minimum to make findings of fact based on the master’s own interpretation of the trial record. Plaintiffs have further proposed that the master be given the authority to hear additional evidence and draft an injunction on the basis of this evidence as well. In either case, the special master will be required not only to make additional liability findings but also to determine whether those findings support the entry of additional specific injunctive relief. This is tantamount to determining the rights and obligations of the parties on a central issue in this case. Because this is an inherently judicial function, it is not subject to referral under Rule 53.
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2. Plaintiffs have failed to demonstrate any “exceptional condition.” Plaintiffs do not seek the appointment of a typical post-trial master -- such as a compliance monitor like that referred to in the Court’s Memorandum and Opinion. Instead, notwithstanding the fact that they have raised the issue post-trial, Plaintiffs seek the appointment of a master to interpret and compel evidence and to recommend findings of fact on the central issue of injunctive relief. Consequently, Plaintiffs should be required to demonstrate the existence of “some exceptional condition” pursuant to Fed. R. Civ. P. 53(a)(1)(B). At best, Plaintiffs suggest, without the benefit of any explanation, that an appointment of a special master is justified because any proceeding to determine additional or specific measures of injunctive relief “may be time-consuming and technical.” (Motion, p. 2). This falls far short of the rigorous legal standard warranting a Rule 53 reference and was specifically rejected by the United States Supreme Court in La Buy. Further, even post-trial, if this were sufficient to warrant a special master referral, then with the crowded dockets that exist today, practically every Title VII case would be a candidate for referral. This is clearly contrary to the intent of Rule 53. Plaintiffs’ suggestion is likewise factually unsupported. First, to the extent Plaintiffs’ hypothecated injunction proceedings “may be” time-consuming and technical, it cannot be gainsaid that the appointment of a special master unfamiliar with the parties or the issues will diminish the complexity of any additional proceedings on the Court’s injunction. Indeed, if Plaintiffs’ concern is efficiency, it follows that the district court is in the best position to interpret its own findings and dispose of any remaining issues concerning injunctive relief. See La Buy, 352 U.S. at 255-56 (concluding that judge’s knowledge of case at time of reference, combined with long experience in antitrust field, “points to the conclusion that he could dispose of the litigation with greater dispatch and less effort than anyone else.”)
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Second, Plaintiffs have offered no evidence that the district court is incapable of resolving any remaining issues in a timely manner. The district court has handled probably hundreds of Title VII cases since taking the bench, presumably without the assistance of a special master. It has also personally supervised the handling of this litigation over the last seven years, from class certification to, what Lufkin believes, is the entry of a mandatory injunction, again, all without the assistance of a special master.
Finally, the issues related to injunctive relief for which Plaintiffs seek the appointment of a special master are relatively straightforward and limited to two discrete employment actions. This is not the type of case for which a special master is typically appointed.1 In sum, absent proof of an exceptional condition to justify a non-consensual reference in a non-jury trial, or, alternatively, even a compelling need for a post-trial special master, such an appointment is not warranted.
3. Plaintiffs’ motion should be denied because the appointment of a special master will occasion further delay.
It is well-settled that any procedural advantage that might be derived from a reference to a master must be considered in light of the expense and delay to which the litigants will be subjected by a reference under Rule 53.2 Wright, et al., 9A FED. PRAC. & PROC. at § 2603.

1

The use of special masters in discrimination and civil rights cases has generally been reserved for

those involving major structural injunctions. Compare Apex Fountain Sales, Inc. v. Kleinfeld, 818 F.2d

1089, 1096-97 (3d Cir. 1987) (reference improper, contempt motion was distinguishable from those the

"Who's Who" of cases involving supervision of major structural injunction) (distinguishing Ruiz v.

Estelle, 679 F.2d 1115, 1161-62 (5th Cir. 1982) (appointment of special master appropriate to oversee

court order dramatically restructuring Texas prison system); Halderman v. Pennhurst State School &

Hosp., 612 F.2d 84 (3d Cir. 1979) (special master appropriate to supervise reorganization of major health

institution); Gary W. v. State of Louisiana, 601 F.2d 240 (5th Cir. 1979) (special master appropriate to

supervise multi-year implementation of court order affecting care of all mentally retarded children in

Louisiana)).

2

The Seventh Circuit has made the following observation: "Litigants are entitled to a trial by the

court, in every suit, save where exceptional circumstances are shown. It is a matter of common

knowledge that references greatly increase the cost of litigation and delay and postpone the end of

litigation. References are expensive and time-consuming. The delay in some instances is unbelievably

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According to the plan Plaintiffs have proposed to the Court, the special master will have to review all of the evidence and then interpret the district court’s findings of facts and conclusions of law to determine if any additional injunctive relief is necessary or supported in the record. Additionally, if the Court adopts Plaintiffs’ proposal, the special master may also go outside the four corners of the district court’s opinion and compel additional testimony. Not only is this an end-run around the 20-hour time limitation imposed by the Court on the presentation of evidence, but it introduces another lengthy delay in the adjudicative process.3
Procedurally, the process is also sweeping and broad. Once the special master’s review of the evidence is complete, he or she is to submit a report to the district court. Then, once the district court receives the report, the parties may “state support for, object to, or otherwise comment on the final written recommendations of the Special Master.” (Plaintiffs’ Proposed Order, p. 2). The district court is then charged with reviewing the recommendations and all of the evidence de novo and, if warranted, make additional findings or enter additional relief.
The only certain results inherent in this procedure are (i) the district court’s work load will not be substantially reduced, (ii) the conclusion of this lawsuit in the district court will be delayed for a minimum of 90 days and could extend indefinitely, and (iii) the process will be costly. Id. The purpose of Rule 53 is to streamline the judicial process, not delay it. Where, as here, there is no apparent procedural advantage by a reference to a special master or correlative reduction in the Court’s workload, but the delay and cost inherent in the appointment is a

long. Likewise, the increase in cost is heavy. For nearly a century, litigants and members of the bar have been crying against this avoidable burden of costs and this inexcusable delay. Likewise, the litigants prefer, and are entitled to, the decision of the judge of the court before whom the suit is brought. Greater confidence in the outcome of the contest and more respect for the judgment of the court arise when the trial is by the judge." Good Eating, Inc. v. Best Places to Eat, Inc., 131 F.2d 809, 815 (7th Cir. 1942).

3

Defendant Lufkin tailored its trial presentation, to the extent possible, on the time limits

established by the Court. To the extent additional evidence is now taken on remedial issues, Lufkin will

be prejudiced because it necessarily was foreclosed from using this time as it determined appropriate in its

trial presentation.

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certainty, a Rule 53 reference is not warranted. See Wright, et al., 9A FED. PRAC. & PROC. at § 2603 (citing cases).
4. The appointment of a special master is unnecessary or, alternatively, premature.
The appointment of a Special Master is unnecessary for purposes of crafting an injunction for the fundamental reason that the Court has already entered an injunction. Second, a review of Plaintiffs’ motion and proposed order indicates that their primary objective is to create an opportunity to present the district court with specific remedial measures they would like to see Lufkin implement. Plaintiffs have already had three opportunities to do this -- at trial, in their proposed findings of fact and conclusions of law, and in their “meet and confer” report to the Court. The appointment of a special master to repeat the same process is redundant and inherently unfair.
Plaintiffs further fail to explain why, at this juncture, Lufkin requires assistance to interpret or implement the district court’s injunction. Indeed, other than to posit -- incorrectly -that “. . . Lufkin has been disinterested in obtaining objective advice and singularly resistant to seeking or receiving any input inconsistent with its repeated assertion that it has done nothing wrong in any respect,” Plaintiffs have offered no proof that the appointment of a special master is necessary in order to comply with the district court’s injunction.
Finally, the only purpose for which the district court has stated that it will consider the appointment of a special master is with respect to compliance. If, as Plaintiffs suggest, the Court has not really entered an injunction, the appointment of a special master to oversee compliance is not ripe for review. Alternatively, if, as Lufkin believes, the Court has entered an affirmative injunction, Lufkin has taken substantial steps to implementing the prescribed relief, as it will report to the Court. Lufkin believes that on this record, the appointment of a special master to draft or refine the Court’s injunction under the guise that Lufkin will not or cannot comply with
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the Court’s original order is unsupported by any evidence and, alternatively, the appointment of a special master to monitor compliance is unnecessary and/or premature in the absence of any record of noncompliance.
5. Alternatively, if the Court appoints a special master, it should refer this matter to an available Magistrate Judge.
Reference to an extra-judicial official should only be made if there is no available magistrate judge. See FED. R. CIV. P. 53 ADVISORY NOTES ¶ 14. Plaintiffs offer no evidence of the unavailability of a magistrate judge or any explanation why a magistrate judge would not be capable of such an appointment.4 B. Rule 706 Expert
Rule 706 gives courts discretion to appoint their own expert witnesses on the general theory that this may be an appropriate check on any weaknesses in the adversary process. See generally Charles Alan Wright & Victor James Gold, 29 FED. PRAC. & PROC. EVID. § 6302 (Supp. 2005). The appointment of a Rule 706 expert requires a careful consideration of the facts and circumstances of each case to determine whether court appointment of an expert witness is appropriate and consistent with the purpose of Rule 706. Id.
Rule 706 does not prescribe any standard for when a court should appoint an expert witness. Id. A review of the caselaw, however, indicates that the most important factor in favor of appointing an expert is that the case involves a complex or esoteric subject beyond the trierof-fact’s ability to adequately understand without expert assistance. Id. For example, there is precedent for appointing experts to deal with scientific or technical issues involving DNA evidence, mental capacity, computers, patents, medicine, and bankruptcy administration. Id. (footnotes omitted). See also Quiet Tech. DC-8, Inc. v. Hurel Dubois UK, Ltd., 326 F.3d 1333, 1348 (11th Cir. 2003) (concluding that Rule 706(a) is “especially appropriate where the evidence

4

The Court previously referred this lawsuit to Magistrate Judge Radford for mediation.

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or testimony at issue is scientifically or technically complex”); Webster v. Sowders, 846 F.2d 1032, 1038-39 (6th Cir. 1988) (cited by Plaintiffs, appointment of technical expert to determine if defendant was complying with federal regulations regarding asbestos removal approved where alternative was to close down prison facility to protect the safety of inmates).
But even where the case involves complex matters, “the courts usually decline to appoint an expert if they can rely on the parties’ experts to educate the trier of fact.” Wright, et al., 29 FED. PRAC. & PROC. EVID. at § 6304. According to Professors Wright and Gold: “As a consequence, courts are more inclined to exercise their Rule 706 powers where testimony from the parties’ experts lack credibility, fail adequately to address the issues, or give conflicting opinions that are irreconcilable. . . . Appointment of a court expert also may be justified where the parties entirely fail to present expert testimony or only some parties present such testimony, thus depriving the trier of fact of a balanced view of the issues.” Id. (footnotes omitted).
The well-accepted rule is that the decision to appoint an expert under Rule 706 should be made before trial. Where the appointment is not made until trial, the effectiveness and fairness of the subdivision (a) procedures, including the right to depose the expert and to cross-examine the expert, may be serious compromised. Where it is too late effectively and fairly to implement these procedures, the appointment of an expert under Rule 706 may be an abuse of discretion. Id. (citing U.S. v. Weathers, 618 F.2d 663, 664 n.1 (10th Cir. 1980) (where presentation of evidence was completed and case submitted, court committed error in ordering, sua sponte, further examination and report by independent expert, “[T]here is serious doubt whether the procedure employed by the trial court in seeking additional expert testimony comported with the requirements of Fed. R. Evid. 706, which was designed in part to lessen the risk that the adversary system would be encroached upon by a judge’s assumed inquisitorial power.”)
1. It would be an abuse of discretion to appoint a post-trial Rule 706 expert.
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It would be an abuse of discretion to appoint a Rule 706 expert at this stage of the litigation. Rule 706 experts are essentially testifying experts appointed by the Court. As such, they are subject to the normal rules of discovery and cross-examination at trial. The appointment and use of a Rule 706 expert after a trial has concluded essentially strips Rule 706 of all of its procedural safeguards. Here, among other things, there is no opportunity in Plaintiffs’ proposal for Lufkin (i) to depose the expert to discover his or her findings, (ii) to cross-examine the expert on his or her findings, (iii) to present witnesses to rebut the findings of the court-appointed expert, or (iv) to present the findings of any rebuttal expert to the Court. Absent these procedural safeguards, it is an abuse of discretion to appoint a Rule 706 expert. See Weathers, 618 F.2d at 664 n.1.
It is also contrary to the policy behind Rule 706. Allowing a witness to testify on a central issue in a case after the evidence has been closed, without the opportunity for discovery or cross-examination by the opposing party and rebuttal evidence ensures a one-sided opinion, perpetuates an image of bias in the expert’s opinion, and undermines as opposed to enhances accurate fact-finding. To the extent the district court has the authority to enter additional injunctive relief, it should be made on the record already before the district court, not the posttrial testimony of an undisclosed Rule 706 expert.
2. It would be procedurally improper and inherently unfair to appoint a Rule 706 expert at this stage of the proceedings.
This was not a bifurcated proceeding. Indeed, Plaintiffs’ motion to bifurcate was expressly denied by the Court as was their follow-up motion for reconsideration. (Docket Nos. 144, 205, 210, & 225). Plaintiffs were thus on notice early on that it was incumbent upon them to present all of their evidence on both liability and a remedy, including any aspect of injunctive relief, at the trial because there would not be a Stage 2 proceeding. If Plaintiffs
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thought a Rule 706 expert was necessary to carry this burden, the proper time to request an appointment was before trial, or, at the latest, during trial.
Equally undisputed, Plaintiffs had the unfettered opportunity to present any evidence they wanted at trial. Although the Court only allowed each side 20 hours for the presentation of its case, Plaintiffs did not object to the time limitation and have never complained that they were prevented from presenting any evidence at trial. To allow Plaintiffs to present additional testimony through a Rule 706 expert after the close of evidence is simply a device to circumvent the 20-hour time limitation and should not be tolerated by the Court.
3. Plaintiffs have not demonstrated the need for a Rule 706 expert sufficient to justify the substantial delay and cost that the appointment will cause.
The power to appoint a Rule 706 expert should be used sparingly and only upon demonstrated need, consistent with the purposes of Rule 706. Plaintiffs have failed to identify a tangible need for a Rule 706 expert, other than to speculate that there may be “complex” issues involved in formulating an injunction. The apparent “complexity” Plaintiffs allude is not of a scientific or technical nature, but essential involves interpreting the testimony and evidence, which is a function solely for the district court. Compare Webster v. Sowders, 846 F.2d 1032, 1038-39 (6th Cir. 1998) (cited by Plaintiffs, expert appointed to advise court on compliance with complex environmental laws); see also Apex Fountain Sales, Inc. v. Kleinfeld, 818 F.2d 1089, 1097 (3d Cir. 1989) (setting aside appointment of special master, concluding that single question of whether exhibition of fountain was in compliance with consent decree, concluding that this was not comparable to cases involving major structural injunctions).
In comparison to those cases where a Rule 706 expert has been appointed, this case is limited to two discrete employment practices, both of which are composed of a series of objective steps and procedures. Courts have been devising Title VII remedies for decades in cases exactly like this without the necessity of a post-trial technical expert. Finally, Plaintiffs
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provide no authority for the proposition that Rule 706 authorizes the appointment of an independent expert to advise Lufkin on how to implement the district court’s injunction or that “Lufkin will flounder in any attempts to reform its practices.” In any event, as discussed above Lufkin has already retained a highly qualified independent expert to provide diversity training and advice regarding its employment practices and policies. C. If the Court appoints a special master or Rule 706 expert, Lufkin requests the
opportunity at that time to comment on the scope of the special master’s and/or expert’s duties and responsibilities and his or her compensation. Because Lufkin’s comments will depend on the nature of the appointment of a special master or Rule 706 expert, Lufkin requests the opportunity at that time to comment on the scope of their respective duties and responsibilities. For example, if the court appoints a special master to craft an injunction and a Rule 706 expert to advise the special master in this regard, Lufkin’s comments will likely be substantially different than its comments regarding the appointment of a compliance monitor. Among other things, if the court appoints a special master to craft an injunction, Lufkin would request that he or she be prohibited from imposing non-contempt sanctions or recommending contempt sanctions, compelling, taking, or recording evidence, requiring the submission of remedial proposals, consulting with any court-appointed technical or other expert, or undertaking any task which involves the consideration of matters outside the trial record. Similarly, if the court appoints a Rule 706 expert, Lufkin requests that the Court provide it with the full panoply of procedural protections set forth in Rule 706 and the opportunity to present rebuttal evidence with respect to such expert. Finally, Lufkin believes that Plaintiffs, as the requesting party, should bear all or a portion of the master’s and expert’s fees.
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CONCLUSION

For all the reasons stated above, Plaintiffs’ motion should be denied. If there are

additional proceedings to be conducted, they should be conducted by the district court in a

timely manner based on the evidence submitted at trial.

Respectfully submitted,

OF COUNSEL: VINSON & ELKINS, L.L.P. First City Tower Houston, Texas 77002-6760

________________/s/_______________ DOUGLAS E. HAMEL Attorney-In-Charge State Bar No. 08818300 Christopher V. Bacon Of Counsel State Bar No. 01493980 2300 First City Tower 1001 Fannin Street Houston, Texas 77002-6760 (713) 758-2036 (Telephone) (713) 615-5388 (Telecopy)

CERTIFICATE OF SERVICE

I certify that on this ___ day of __________ 2005, a copy of the foregoing was filed electronically though the Court’s CM/ECF system and was automatically copied to Plaintiffs through the court’s electronic filing system.

________________/s/_______________ Attorney for Defendant
Response to Plaintiffs_ Motion for Appointment of a Special Master and Court-Appointed Witness.DOC

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 Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 108 of 295
STATISTICAL ANALYSIS OF RACIAL PA'I"I'ERNS
IN LUFKIN WORKFORCE
Richard Drogin, Ph. D.
June 2003
Drogin, Kakigi & Associates 3104 Shattuck Avenue, Berkeley, CA 94705
(510) 540-5071

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 109 of 295
Statistical Analysis of Racial Patterns in Lufkin Workforce
Prepared by Richard Drogin, Ph. D. June 2003
A. INTRODUCTION
L I hold a Ph.D. in statistics from the University ofCalifornia at Berkeley, earned in 1970. I am currently an Emeritus Professor in the Department of Statistics at California State University, Hayward, where I have taught graduate and undergraduate courses in data analysis, non-parametric methods, regression analysis, sample surveys, probability theory, queuing theory, simulation methods, and design of statistical software. I have been employed at California State University, Hayward, since 1973, and became an Emeritus Professor in 1996.
2. I am a partner in the statistical consulting fmn ofDrogin, Kakigi & Associates. This fmn provides consulting services and computerized database management We have experience in designing sample surveys, supplying census demographic data, organizing and managing large database systems, stochastic modeling, and performing advanced statistical analysis. Our fmn has served as statistical consultants to both governmental agencies and the private sector for over twenty years. I have testified as an expert witness (statistical analysis, computer processing) in numerous state, and federal courts. A copy of my curriculum vitae is attached as Appendix 1
3. I have been retained by Plaintiffs' counsel to analyze statistical questions raised in the McLain v. Lufkin Industries litigation. The purpose of my study was to obtain descriptive summaries of computer data, and prepare various statistical analyses relevant to the issues in the case. I examined statistics pertaining to workforce summaries, job assignment and advancement patterns, and compensation levels.
4. In order to conduct my study, I was provided with computer-readable personnel and compensation data received through discovery as well as documentation and clarification regarding this data, contained in letters, depositions, and telephonic conferences with Lufkin personnel familiar with their personnel and payroll systems. The first data files turned over by defendants were received in August 2000.
5. This report will describe the data provided to me, how it was processed, the statistical methodology, and the results of my analysis

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 110 of 295
Data Sources 6_ Lufkin haS maintained their personnel database in computerized fonn in two
systems, referred to as the Mainframe system, and Cyborg system_ Initially Lufkin used the Mainframe system, and then in 1998 the company changed over to a Cyborg system_ In August 2000, I received electronic copies of both Mainframe and Cyborg personnel and payroll data from plaintiffs' counseL Cyborg personnel and payroll updates were received in June 200 I, and March 2003_ Various documentation files and record layouts were also received with the raw data. Other databases received in August 2000, were HRMS, HRDATA, and Attendance data_ An update of the Attendance data was received June 2003. In September 200 I, I received electronic bid data from plaintiffs counseLI
7. The Mainframe history data had records from before 1950 through records in 1998. Cyborg history data covers the period 1998 through March 9, 2003, and also has earlier data, which was input from the Mainframe during the conversion period. When combined, and adjustments are made for redundant data, the Mainframe and Cyborg personnel data provides complete work history data2 for approximately 11,500 distinct Lufkin employees. For each person, the database includes basic identification information such as employee ID, social security number, name, address, phone number, gender, and race, as well as extensive information on the person's job history. The job history gives a chronological account of the jobs held, departments where the person worked, salary changes, personnel actions such as promotion or transfers, status changes indicating whether the person was active or on leave or terminated, and whether the person was fulltime or part-time, and whether the person was salaried or hourly.
8. Mainframe and Cyborg payroll data consisted ofearnings per pay period for each employee. The Mainframe earnings data covered years 1983 through 1998. The Cyborg earnings data covered years 1998 through March 9,2003_ Annual earnings, hours worked and number of pay periods were computed from the payroll data.
9. My understanding of the data is based on a number of conference calls with defendant and its computer database specialists; a meeting with defendant's counsel and consulting statistician, defendant's written responses to questions submitted by plaintiffs; and Rule 30(b)(6) depositions of persons most knowledgeable regarding the data. Based
I I understand that this bid database was constructed from paper records by defendant's expert, during the mediation period. 2 Based on the Rule 30(b)(6) depositions of Stephen Conway and John Havard.
2

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on this information, the Mainframe and Cyborg personnel data contains complete work history information for Lufkin employees. Both the Mainframe and Cyborg personnel data consists ofvarious segments. Each segment contains specific work history information. For example, the ZF segment in the Cyborg data contains pay rate change information. Information from the payroll data and relevant segments in the personnel data were extracted and merged to create a combined Mainframe-Cyborg history file, year-end file containing snapshots of the workforce as of December 31, a promotion file including one record for each promotion with information about the positions promoted from and to, and a hires file containing one record for each hire giving the job and status at time of hire. There are 184,475 records in the history file. The year-end file includes 24,455 records covering the years 1993 through March 9,2003.
10. I have proposed to PlaintitTs counsel that experts on both sides confer and agree upon a common database created from relevant portions of the Mainframe-Cyborg data to be used by both sides during this litigation. Such a common database would lead to more accurate use ofthe available data for both sides, and eliminate data interpretation issues at trial. There might be differences in opinion between the parties regarding the proper analysis of the raw data, but there would be no disagreement about the contents of the raw data and the correct way to merge the Mainframe and Cyborg data. I am informed by PlaintitTs counsel that Defendant's counsel has refused to participate in the creation of a common database.
B. DESCRIPTION OF WORKFORCE
Size II. For all Lufkin departments, companywide, there were approximately 4900
individuals employed by Lufkin during the period 1994 through March 2003, including approximately 780 black employees. The total workforce at Lufkin at any particular time varied between approximately 1550 and 2250 employees during 1994-2002. The percentage of black employees in the workforce has varied between 14% and 16% during 1994-2002.
Distribution of Employees 12. Lufkin reports employees in numerous worksites or departments. Each
department is coded with a four letter code. A list of these departments with the composition of employees by race in each department is shown in Appendix 5b to this report. As reflected in Appendix 5b blacks have been primarily employed in the following
3

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 112 of 295

departments: Foundry (LUFF), Gear Repair (LUFG), Oilfield Division (LUFO), Power Transmission (LUFP), Trailer Division (LUFT), and Corporate office (LUFC) locations in Lufkin, Texas. I refer to these as the "LUF" departments.

13. Table I below shows the distribution of employees by department for employees active at year-end 2000. More detailed tables showing results for all years 19942002 are given in Appendices Sa and 5b. Table I below shows that 8CJOio of black employees worked in LUF departments in 2000.

Table I

Workforce Distribution by Departmenf

Year-End 2000

De:Qartment

Total White

Black

Total, LUFF LUFT LUFP LUFO LUFG LUFC

Companywide

1723 345 230 279 234 105 38

1111 124 161 235 150 93 34

Nbr % 257 14.9
89 25.8 48 20.9 26 9.3 57 24.4
7 6.7 3 7.9

Lufkin Depts Outside "LUF" Depts 492 314

27 5.5

Overall Pay Differences 14. The summary tables in this section are restricted to the 6 "LUF" departments.
In addition, in calculating pay differences, I removed the highly paid executives ofthe Company".4 It should be noted that, with one exception, all ofthese positions are held by whites, and no blacks have been in any of these positions at any time during the period covered by the data.

15. Table 2 below shows the racial composition of the workforce at year-end for
each year 1994-20025, and the average hourly rates by race. The average hourly rate for
blacks was about $1.50 to $4lhour less than the average for whites during 1994-2002. As
3 Non-Production includes all departments other than those starting with 'LUF'. 4 A list of all the job codes which were excluded from the summary tables and analysis is ~iven in Appendix 2
I am advised by Plaintiffs' counsel that the period covered by the lawsuit, as certified by the Court, commences on March 6, 1994. For ease of analysis, I have used a start date of January I, 1994 for the descriptive swrunaries shown in this section.

4

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 113 of 295

shown in Table 3, the hourly pay rate gap results in an gross earnings shortfall for blacks compared to whites of between about $1250 and $10500 per year during 1994-2002, among the full-time employees working the entire year.

Table 2 Summary of Workforce and Average Pay Rate, by Year' Restricted to Employees Active at Year-End

Year 1994 1995 1996 1997 1998 1999 2000 2001 2002

Workforce Tot Wht Black 1569 1085 266 17.0 1645 1118 282 17.1 1489 994 258 17.3 1766 1157 332 18.8 1504 991 279 18.6 1184 796 209 17.7 1231 797 230 18.7 1107 737 197 17.8 1181 798 201 17.0

Average ~LHour

Tot White Black

10.79 11.31

9.74

11.00 11.54

9.93

11.93 12.64 10.67

11.89 12.55 10.71

12.87 13.65 11.51

13.66 14.49 12.24

14.18 15.28 12.39

15.23 16.25 13.43

16.31 17.69 13.50

Diff 1.57 1.60 1.97 1.84 2.14 2.25 2.89 2.82 4.18

Table 3 Summary of Workforce and Average Total Earnings, by Year7 Restricted to Full-Time Employees Working All Year

Year 1994 1995 1996 1997 1998 1999 2000 2001 2002

Tot 1252 1394 1387 1350 1455 1169 1143 1085 1162

Workforce Wht Black 900 202 16.1 951 235 16.9 930 241 17.4 886 246 18.2 962 268 18.4 782 208 17.8 738 212 18.5 721 194 17.9 782 200 17.2

Tot 29832. 29865. 29833. 32810. 31140. 33265. 35509. 38684. 38173.

Average Earnings White Black Diff 30160. 28916. 1244. 30792. 28635. 2156. 31322. 27237. 4085. 33807. 31349. 2458. 32904. 28431- 4473. 35002. 30837. 4165. 37406. 32147. 5259. 40587. 35579. 5008. 41562. 30888.10674.

Workforce Stratification by Race 16. The difference in pay rates and earnings between black and white employees is
primarily due to differences in distribution of employees among different levels of the
6 Extracted from Appendix 3. 1 Extracted from Appendix 4.
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company. Table 4 below compares the average pay rates among EEO categories', and shows that higher pay rates occur in EEO categories with relatively lower percentage of blacks9 •
Table 4 Workforce by EEO Category and Average Pay Rate - Year 200010 Restricted to Those Active at Year-End

Workforce

Average

EEO Tot Wht Black $!Hour

Total 1231 797 230 18.7 14.18

6-8 928 527 206 22.2 12.56

8 44 13 14 31. 8 9.06

7 267 120 84 31.5 11.42

6 617 394 108 17.5 13.30

5 28 23

4 14.3 11.58

4 17 17

0 0.0 18.87

3 86 77

5 5.8 15.70

2 56 55

1 1.8 21.42

1 114 97 13 11.4 22.73

Pay Rate Differences within EEO Category 17. The difference in distribution of blacks and whites in EEO categories only partly
explains gross salary and earnings disparities. In each of the 8 EEO categories the average pay rate of blacks is below the average pay rate of whites in the same category, for almost every year during 1994-2002. The following table summarizes this pattern for the year 2000. A more detailed chart showing results for all years is given in Appendix 6.

8 The federal government requires employers to report annually the race, gender and ethnic composition of their workforces in each of nine "EEO" categories:
I Officials and Managers 2 Professionals 3 Technicians 4 Sales 5 Office and Clerical 6 Craft workers (skilled) 7 Operatives (semi-skilled) 8 Laborers (unskilled) 9 Service workers Lufkin~s workforce database includes a designation ofthe EEO category ofeach job held by its employees. Employees in EEO 9 comprise less than I% of Lufkin employees and are excluded from the tables in this section. 9 The Office and Clerical category, EEO 5, is an exception, but this category includes only about 3% of the workforce. 10 Extracted from Appendix Sa.
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Table 5
Pay Rate Differences Within EEO Category - Year 2000
Restricted to Those Active at Year-End
EEO White Black Diff Total 15.28 12.39 2.89
6-8 13.07 12.01 1.06
8 9.09 9.01 0.08 7 11.55 11.33 0.21 6 13.67 12.93 0.74 5 11.91 10.40 1.51 4 18.87 0.00 0.00 3 15.87 14.42 1.45 2 21.54 15.00 6.54 1 23.46 18.31 5.15

18. Within EEO category 6 there are certain desirable higher paying jobs in which blacks are under-represented in comparison with their representation in that EEO category and the "LUF" department in which the job is located. Table 6 below lists these higher paying jobs, and shows the number of employees by race and the average pay rate. At the bottom of the table, the total for all EEO 6 jobs is shown for comparison. A more detailed chart is given in Appendix 7.

Table 6

Racial Composition Pay Rate of Desirable EEO 6 Jobs, Year 2000

Average

Job

Tot Wht Blk $/Hr

------------------------------

--------- - - - --

4681 ELECTRICAL DEPT SPEC

2

2

0 0.0 14.68

6766 FDRY MECHANIC A

25 20 2 8.0 13.33

3661 INSPECTOR SPECIALIST

5

5

0 0.0 14.34

3642 MACHINIST

85 74

2 2.4 14.60

3656 MAINT MECH SPECIALIST

6

6

0 0.0 15.11

9919 MAINT, MECHANIC-CLASS A

5

5

0 0.0 13.37

4706 MASTER ASSEMBLY

1

1

0 0.0 15.14

6818 MASTER MAINT SPEC

1

1

0 0.0 18.75

Total Selected jobs (above) 130 114 4 3.1 14.36

Total All Jobs in EEO 6

617 394 108 17.5 13.30

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The average hourly rate of pay ofemployees in these selected positions is $14.36 compared to an average pay rate of$13.30 for all employees in EEO 6 positions, and an average pay rate of $12.93 for blacks in EEO 6 positions.

Pay Rate Differences within Seniority Groupings J 9. Pay rate differences between white and black employees persist across seniority
groupings of both newer and longer term employees. The following tables show whites and blacks active at year-end 2000 broken down by number ofyears since hire. The fIrst chart includes all Lufkin employees, and the second chart is restricted to employees in EEO categories 6, 7, and 8. Both charts are restricted to "LUF" employees. A more detailed chart showing results for all years, by EEO category, is given in Appendix 6.
Table 7 Pay Rate Differences Within Seniority Grouping - Year 2000 All Employees in "LUF" Restricted to Those Active at Year-End

Nbr Years Nbr Employees Average Pay Rate

Since Hire White Black White Black Diff

< 1

54

18 13 .43 9.58 3.85

1

10

2 21.58 10.58 11. 00

2

14

6 18.67 10.62 8.05

3

42

12 12.90 10.97 1.93

4

8

5 16.29 12.39 3.91

5- 9

79

17 15.23 11.17 4.07

10-14

75

12 14.71 12.45 2.26

15-19

99

27 15.43 12.30 3.13

20-24

188

51 15.20 12.95 2.25

>25

228

80 15.83 13.34 2.50

Total

797 230 15.28 12.39 2.89

Table 8 Pay Rate Differences Within Seniority Grouping - Year 2000 Restricted to Employees in EEO 6, 7, and 8 Restricted to Those Active at Year-End

Nbr Years Nbr Employees Average Pay Rate

Since Hire White Black White Black Diff

< 1

33

16

10.78 9.68 1.10

1

0

0

0,00 0.00 0.00

2

6

5 - 11.06 9.74 1.32

3

37

12

12.47 10.97 1.50

4

5

4

13.64 11.86 1. 78

5- 9

49

16

12.88 10.98 1. 90

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Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 117 of 295

10-14 15-19 20-24
>25
Total

45

12

69 21

125 47

158

73

527 206

13.59 13.01 13.28 13.53

12.45 11.63 12.65 12.71

1.15 1.38 0.62 0.82

13.07 12.01 1.06

C. INFERENTIAL STATISTICS
Statistical Methodology' 20. In statistics a distinction is made between descriptive and inferential statistics.
Descriptive statistics simply report or summarize counts, percentages, or averages, based upon some given data set. Descriptive statistics speak for themselves, they make no asswnptions about the underlying population or how the data was selected; there is no probability model asswned Inferential statistics attempt to measure whether certain disparities, calculated from descriptive statistics, are within the range of what might be expected if variation were due simply to random fluctuation.
21. Inferential statistics ask the question, "Is the observed disparity consistent with what would be expected from random fluctuation?" To answer this question requires some definition of random fluctuation. Random fluctuation is usually represented by a random selection process, where all individuals in a certain pool are assumed to have the same chance of selection. The probability model determines which results are expected and which results are unlikely.
22. The likelihood that a disparity as big as the one actually observed will occur by random fluctuation is called the significance probability. If this probability is very low then doubt is raised as to whether the disparity is the result of random fluctuation expected from the modeL
23. The significance probability of an observed result can be expressed in terms ofa Z-value, which gives the size of the disparity in terms ofstandard deviations. Significance probabilities and Z-values are equivalent. That is, one can be determined from the other. A Z-value of 1.96 indicates that a disparity has I chance in 20 of occurring by random fluctuation. A Z-value of2.58 ~+ or -) indicates that a disparity has 1 chance in 100 of occurring by random fluctuation. The following table summarizes the appropriate correspondence between Z-values and significance probabilities:

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Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 118 of 295

Table 9 Z-Values and Probability of Occurrence

Z-Value 1.96 2.58 3.08 3.3 3.9 5.0 6.0

Probability ofOccurrence I chance in 20 (.05) 1 chance in 100 (.01) 1 chance in 500 (.002) 1 ch~nce in 1,000 (.001) 1 chance in 10,000(.0001) 1 chance in 1,000,000 (.000001) I chance in 100,000,000 (.00000001)

D. INITIAL ASSIGNMENT
24. Nearly all entry level new hires into Lufkin production jobs begin as either General Foundryman in the Foundry department or Helper outside the Foundry departmene I. Once employees start in a particular department, it is rare that they will subsequently change departments, since the union contracts require a loss of seniority after a change in department seniority roster. Most of the desirable jobs listed in Table 6 are outside the Foundry department,'2 so entry level hires placed in the Foundry department have no access to a majority of desirable job positions. If blacks are disproportionately placed in the Foundry department, they have practically no chance ofobtaining one of these desirable job positions outside of the Foundry department. To determine if black entry level hires are disproportionately placed in the Foundry department, black hires were compared to

II During the period March 6, 1994, through March 9,2003, there were 2185 EEO 6-8 new hires into Lufkin production departments, and of these, 1,235 were entry EEO level 8 jobs. Forty-four percent of these entry level hires were placed in the Foundry department (LUFF) almost exclusively as General Foundryman Gob code 6796). Ninety-two percent of the remaining entry level hires were into Helper Gob code 9906). Details are in Appendix 12. 12 In Table 5, only 106766 FDRY MECHANIC A and 106818 MASTER MAINT SPEC are Foundry department jobs, comprising 26 of the 130 desirable job positions in year 2000.
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white and also to non-black hires into Lufkin production departmentsl ) during March 6, 1994-March 9,2003. The analysis is summarized in Table lO below.

Table 10 Disproportionate Initial Assignment of Black New Hires into Foundry Department Restricted to Hires during March 6, 1994- ~arch 9, 2003
Restricted to Hires with EEO Code = 8 into Lufkin production departments

Subgrou2

Total White Black HisQ.

Tot Hires

1213 592 353 256

n Into nonLUFF 671 430 163

69

n Into LUFF

542 162

90 187

% Into LUFF 44.7 27.4 53.8 73.0

nonBlk 860 508 352
40.9

25. The analysis shows that 53.8% of black new hires were assigned to the Foundry department compared to only 27.4% of white new hires, resulting in a disparity of 58.94 more blacks than expected assigned to the Foundry department. The Z-value for this disparity is 8.14. This disparity is statistically significant, and would occur less than one time in 1()() trillion by random fluctuation alone.

26. The analysis also shows that 53.8% of black new hires were assigned to the Foundry department compared to only 40.9% of non-black new hires, resulting a disparity of32.69 more blacks than expected assigned to the Foundry department. The Z-value for this disparity is 3.76\. This disparity is statistically significant, and would occur less than 2 times in 10,000 by random fluctuation alone.
27. It is my unders~ding that entry level hire candidates are submitted to Lufkin by the Texas Workforce Commission on a per job demand basis. Thus it is theoretically possible that black candidates were submitted by the Commission only on days when Foundry department jobs were available. To control for this possibility, I have repeated my analysis of assignment of entry level hires to the Foundry department only comparing candidates with exactly the same start date. The analysis computes a separate disparity for each start date, and accumulates these disparities over all start dates to obtain and overall measure ofdisparity. My analyses shows that blacks compared to whites are significantly

\l New hire dates were dermed as the effective date of the first Cyborg ZC record with activity code beginning with "00", or else the hire date on the first Mainframe F record, or else the earliest effective data. Job, department, EEO level at hire were as of the hire date. Entry level hires are those with EEO level 8. Lufkin production departments are LUFF, LUFT, LUFP, LUFO, LUFG.

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Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 120 of 295
over assigned to the Foundry with an overall Z score of 5.33, which would occur less than 2 times in one million. I repeated the same analysis, except comparing assignment rates of blacks and non-blacks to Foundry, finding that blacks are significantly over assigned to the Foundry with an overall Z score of 3.45, which would occur less than 8 times in 10,000. Details of this analysis is contained in Appendix t 1a and t lb.
E. ANALYSIS OF PROMOTIONS
Methodology 28. As described above, blacks are under-represented in higher paid EEO 6 and
.EEO I positionsl 4, compared to their representation in the workforce. Most hourly employees start in entry level positions and reach higher level positions through promotion. The disparity between the percentage of black employees in higher paid EEO 6 and EEO I positions, and their percentage in the workforce is a result of Lutkin's failure to promote blacks at the same rate it promotes similarly situated non-blacks. The following sections will describe my analysis ofthis pattern.
29. The promotion analysis is restricted to moves where the feeder joblS is in EEO categories 6-8, the hourly blue collar jobs. The analysis determines an availability pool for each promotion, based on factors determined from the prior position of the person promoted. From the availability pools, the expected number of black promotions is computed and compared to the actual number of black promotions.16 To perform this analysis, it is frrst necessary to identify the percentage of blacks in the availability pool for the promotions.
Determining the Availability Pool for Promotions 30. There are two methods that are often used for determining the availability pool
for a promotion. One method is to use applicant flow (or bid) data, and a second method is to determine the availability pool from the incumbents who were similarly situated to the
14 EEO 6 includes skilled crafts workers, and EEO I includes officials and managers. As of year-end 2000, there were 114 employees in EEO I positions in the "LUF" departments, including 13 blacks (11%) and 97 whites (85%), as shown in Appendix 5a. IS «Feeder Job" is defmed as the job held by the person promoted immediately prior to the
~romotion.
6 A disparity is computed for each promotion, giving the difference between the number of blacks actually promoted (i.e. 0 or I) and the number expected (i.e. the proportion ofblacks in the availability pool). These disparities are computed for each promotion can then be accumulated by year, department, or target job, in order to determine subgroups ofyears or jobs where disparities may be greater.
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Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 121 of 295
promotee prior to the promotion. Using applicant flow data to determine availability is useful when all job vacancies are posted, complete data is maintained on applicants and selections, and the fairness of the job posting system is not contested. If these criteria are not met, then it may be impossible to use applicant flow data, or using applicant flow data to determine availability pools will not give useful results.
31. Lufkin has used a job posting system to collect some applicant data, pursuant to union contracts. However, the available bid data is of no value for accurately determining applicant flow and analyzing promotions, because the bid and selection data was maintained in some instances in largely illegible hand-written paper record form and has been incompletely retained. Accordingly, it is impossible to accurately identify who is on the retained bid lists, and the pool ofbidders for promotions where there is no corresponding bid list retained In addition, there are allegations by class members that they are discouraged from entering their names on bid lists, even when they are qualified, and that they are sometimes discouraged from actually accepting promotions they have been awarded 17
32. Due to the limitations ofthe bid data described in the previous paragraph, availability pools for the promotion analysis presented in this report are determined from the incumbents who are similarly situated to those promoted, based on the computerized personnel data contained in the Mainframe and Cyborg systems.
33. In particular, the pool for each promotion included all employees in the same job, department and seniority roster as the promotee, at year-end in the year prior to the year of the promotion, restricted to include only those who had the same or earlier seniority date as the person promoted. Stated in statistics parlance, the promotion analysis controls for the job, department, seniority roster ofthe feeder job, and seniority.
34. By using prior job held by person promoted in determining the feeder pool for that promotion, any discrimination by Lufkin in selecting the job positions from which promotions are made would not be reflected in the promotion analysis. To illustrate this point, consider a hypothetical example where there were two jobs, one with all whites and one with all blacks. Assume that employees in each of these jobs were equally qualified for promotion. If Lufkin always selected from the job with all whites, then the availability pool
17 I am informed by Plaintiffs Counsel that they sought to discover a bid database Lufkin created for the litigation, but that Lufkin refused to produce the database.
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Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 122 of 295

would be 1000/0 white, and there would be no disparities observed in the promotion analysis controlling for job.

35. Overall, during March 6, 1994 through 2002 there were 2311 promotions, including 1312 to whites and 472 to blacks. Blacks received fewer promotions than expected from their representation in the availability pool in each year during 1994-2002. In total, blacks received 113 promotions less than expected. TIlls disparity has a Z-value of -6.94, indicating a statistically significant under-promotion ofblacks. The results are shown in the following table. A detailed summary of results broken down by EEO category, Department, and year is given in Appendix 8.

Table 11

Summary of Promotion Analysis, by Year

For Promotions out ofjobs in EEO categories 6-8

Controlling for Year, Department, Job, Seniority, and Roster

Comparing Blacks to Non-Black

Ave

Promotions

% Blk

------------------------ in

Year

Tot Wht Blk % Blk Pool Diff

- - ---

- - - --

------

1994

191 III

29 15.2 16.4 -2.27

1995

303 193

54 17.8 24.8 -21.16

1996

338 180

66 19.5 21.8 -7.67

1997

455 285

92 20.2 25.0 -21.72

1998

318 194

63 19.8 27.2 -23.61

1999

197 109

46 23.4 36.6 -26.09

2000

207

96

48 23.2 24.4 -2.51

2001

219

90

62 28.3 29.8 -3.17

2002

83

54

12 14.5 21.3 -5.65

Tot

2311 1312 472

-113.86

Z-Val
------
-0.56 -3.48 -1.23 -3.08 -3.41 -4.69 -0.70 -0.57 -2.49 -6.94

36. The pattern of black shortfalls in promotions is consistent across years. There was a shortfall of black promotions each year during 1994 through 2002. The disparities are statistically significant in 5 out of the 8 years for which complete year data is shown.I8

37. These promotion results were also accumulated over EEO level in order to see . whether there was under-promotion of blacks out ofjobs at different EEO levels and departments. The analysis summarized in the following table shows that there were

18 Data from 1994 includes partila year from March 6 through December 31. 14

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 123 of 295

statistically significant shortfalls in black promotions out ofjobs at EEO levels 6. 7. and 8. Over 90% of black employees hold jobs in these EEO categories.

Table 12 Summary of Promotion Analysis, by EEO and Department19 For Promotions out ofjobs in EEO categories 6-8 Controlling for Year, Department. Job, Seniority, and Roster Comparing Blacks to Non-Blacks

From EEO De:Qt
8 Tot 8 LUFF 8 LUFT 8 LUFP
7 Tot 7 LUFF 7 LUFT 7 LUFO 7 LUFP
6 Tot 6 LUFF 6 LUFT 6 LUFO 6 LUFP

Promotions

Tot Wht Blk

929 436 236

304

69

77

568 328 150

37

30

3

Diff -66.67
-9.74 -55.60
-1.33

Z-Val -5.41 -1.40 -5.56 -0.71

901 501 183 -22.14 -2.49

227

51

41 -0.72 -0.16

222 142

47 -7.18 -1.50

185 100

54

2.11 0.73

245 189

39 -16.36 -3.19

481 375

87

45

61

50

99

79

228 197

53 -25.04 -4.02 18 -7.32 -2.55
6 -9.19 -3.25 7 -7.60 -2.51 21 -1. 77 -0.49

38. Table 12 shows there was a statistically significant shortfall in promotion of black employees out ofjobs in each of the EEO categories 6, 7, and 8. Blacks received 66.67 fewer promotions out of EEO 8 positions than expected. 22.14 fewer promotions from EEO 7 jobs, and 25.04 promotions fewer than expected out ofEEO 6 jobs, for a total of 113.86 less promotions than expected. There were 60 promotions out ofEEO 6 into EEO 1 level jobs.20

39. Most of the shortfall in black promotions comes from the failure to promote blacks who worked in the LUFF. and LUFT departments in EEO 8 jobs, blacks who work in the LUFP department at EEO level 7. and blacks who work in the LUFF, LUFT, and LUFO departments at EEO level 6.
19 Only EEOlDepartment combinations with 25 or more promotions during March 6, 1994 through 2002 are shown in this table. Total row includes all promotions from that EEO level. Complete results by EEO, Department, and year are given in Appendix 8. 20 A listing ofthe complete histories for these 60 employees is given in Appendix 13.

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40. Table 13 below shows the promotion disparities broken out by feeder jobs, for the jobs from which most promotions were made from EEO 6-8. This table shows that there was a statistically significant shortfall of promotions to blacks holding the jobs of Machine Operator Class A (3643) and Welder-Specialist (9903) in EEO 6, Machinist Helper (3619) in EEO 7, and Helper (9906) and General Foundryman (6796) in EEO 8.

Table 13 Summary of Promotion Analysis, by From Job For Promotions in EEO categories 6-8 Controlling for Year, Department, Job, Seniority, and Roster Comparing Blacks to Non-Black

From

Promotions

Ave %

Job

----------------- Blk in

EEO Code Job Title

Tot Wht Blk %Blk Pool. Diff Z-Val

-- - ---- -----------------

- -- -- -

------ - - ---

6 3643 MACHINE OPERATOR-CL A 125 101 6 4.8 11.8 -8.72 -2.72

6 3642 MACHINIST

48 45 0 0.0 0.8 -0.37 -0.62

6 3644 MACHINE OPERATOR-CL B 31 23 5 16.1 13.7 0.75 0.48

6 9903 WELDER-SPECIALIST

22 20 2 9.1 35.0 -5.71 -2.73

7 3648 MACH OP TRAINEE

164 110 33 20.1 21.0 -1.48 -0.41

7 3619 MACHINIST HELPER

113 81 19 16.8 30.4 -15.39 -3.87

7 9901 TRAILER BUILDER-CL A 65 48 12 18.5 20.0 -0.99 -0.32

7 9904 WELDER-CLASS A

65 47 8 12.3 13 .9 -1.00 -0.38

7 6754 CHIPPER GRINDER

51 7 7 13.7 17.8 -2.06 -0.82

7 6741 CRANE OP LEARNER-FOR 39 8 5 12.8 14.0 -0.45 -0.30

8 9906 HELPER 8 6796 GENERAL FOUNDRYMAN 8 3629 LABORER 8 9922 CLEANER GRINDER

567 325 147 285 62 72
30 23 4 29 15 9

25.9 25.3 13.3 31.0

35.2 -52.43 -5.33 28.7 -9.74 -1.40 17.8 -1. 33 -0.71 42.0 -3.17 -1. 79

41. Table 14 shows the promotion results broken out for the ten jobs with the largest number of promotions into them. There is a shortfall in black promotions into 8 out of these 10 jobs, and the shortfall is statistically significant for 5 of the 10 jobs

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Table 14 Summary of Promotion Analysis, by Target Job21 For Promotions in EEO categories 6-8 Controlling for Year, Department, Job, Seniority, and Roster Comparing Blacks to Non-Black

Into

Promotions

Ave %

Job

----------------- Blk in

EEO Code Job Title
-----------------

Tot Wht Blk %Blk Pool Diff Z-Val
------

6 3642 MACHINIST

106 87 5 4.7 11.1 -6.76 -2.38

6 3643 MACHINE OPERATOR-CLA 117 86 18 1504 18.3 -3044 -1.06

6 3644 MACHINE OPERATOR-CLA 52 29 15 28.8 23.5 2.78 1.22

6 6784 CHIP GRINDER FINISHER 73 13 13 17.8 30.1 -8.94 -2.43

6 9903 WELDER-SPECIALIST

63 45 8 12.7 16.1 -2.12 -0.77

7 3648 MACH OP TRAINEE

112 87 13 11.6 22.2 -11.89 -3.37

7 6754 CHIPPER GRINDER

120 17 30 25.0 27.7 -3.29 -0.70

7 9901 TRAILER BUILDER-CLAS 374 226 93 24.9 36.4 -43.07 -5.51

7 9904 WELDER-CLASS A

76 53 16 21.1 34.7 -10040 -2.98

8 9922 CLEANER GRINDER

52 24 17 32.7 31.2 0.78 0.26

F. ANALYSIS OF COMPENSATION
Pay Rate Regressions 42. Descriptive statistics of the Lufkin workforce indicate that blacks are paid less
than whites, on the average. These pay differences could be due to extraneous factors such as how much seniority a person has. Regression analySeS were conducted to make comparisons between black and white salary rates and between black and non-black salary rates, takirtg into account various possible neutral explanatory variables
43. Regression analysis is widely used by statisticians to make comparisons between pay rates for two groups, while accounting for the effects ofany extraneous factors. In a regression model, pay rates are assumed to be a function of the independent variables plus a random error. The basic steps in this procedure are outlined as follows:

21 The table shows only the results for the jobs with 50 or more promotions into them during the liability period. Complete results for all jobs promoted into is given in Appendix 9.
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Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 126 of 295
a. Use all the data to estimate the function of the independent variables, including a variable for black or non-black.
b. Detennine the 'race coefficient' of the resulting regression function.
c. Determine ifthe race coefficient is statistically significant
44. Race coefficients for these regressions are expressed in dollars and represent the dollar difference in hourly rates between blacks and whites. For example, if the race coefficient is -0.30, then this means that blacks earn 30 cents per hour less than similarly situated whites. Statistical significance is determined by a t-value, which measures the size ofthe race coefficient in standard deviation units, and t-values larger than 2.00 are considered statistically significant. If the race coefficient is statistically significant, the disparity cannot be explained by chance variation and the coefficient indicates a real difference between black and non-black pay rates.
45. The neutral explanatory variables are selected to represent factors that could account for pay differences, but were not controlled by the employer during the liability period. These factors are referred to as controlfactors, or independent variables in regression analysis. The independent variables used in the regressions include race, year of hire, part-time or full-time status, the EEO category of the employee, and whether the employee was active or non-active at the end of the year of the regression. These controls account for the effects of tenure at Lufkin, whether someone terminated or not, their parttime or full-time status and EEO category during the liability period.
46. Separate regressions comparing hourly pay rates ofblacks and whites were performed for each year 1994-2002 for Lufkin production departmenf2hourly employees in EEO level 6-8 jobs. The results are summarized in Table 15a below. The regressions show that the black hourly pay rate is, on average, between 16 to 60 cents per hour less than for whites during 1994-2002, after taking into account the explanatory factors. These salary rate shortfalls were statistically significant in each year, with p-values indicating results which are highly unlikely to occur by random fluctuation.
22 Departments LUFF, LUFT, LUFP, LUFG or LUFO,.
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Year 2002 2001 2000 1999 1998 1997 1996 1995 1994

Table 15a

Pay Rate Regressions - Black v. White

Nbr Nbr

Total Black Coeff F ratio Q-value

737 200 -0.60 39.55 <.0001

891 276 -0.51 40.44 <.0001

888 251 -0.46 37.40 <.0001

992 270 -0.37 35.41 <.0001

1273 341 -0.31 33.68 <.0001

1481 393 -0.20 17.00 <.0001

1215 314 -0.16

8.88 0.0029

1342 319 -0.16 12.49 0.0004

1300 303 -0.17 14.61 0.0001

R-squared 0.5261 0.7008 0.6528 0.6701 0.7594 0.8102 0.7569 0.8074 0.8281

tscore -6.29 -6.36 -6.12 -5.95 -5.80 -4.12 -2.98 -3.53 -3.82

47. Regressions comparing pay rates ofblacks and non-blacks were performed for each year 1994-2002 using the same constraints and control factors described in the previous paragraph comparing pay rates of black and white employees. The results are swnmarized in Table ISb below. The regressions show that the black hourly pay rate is, on average, between 9 to 36 cents per hour less than for non-blacks during 1994-2002, after taking into account the explanatory factors. These salary rate shortfalls were statistically significant in each year except 1996, with p-values indicating results which are highly unlikely to occur by random fluctuation.

Table ISb

Pay Rate Regressions - Black v. non-Black

Nbr Year 2002 2001 2000 1999 1998 1997 1996 1995 1994

Nbr

Total Black Coeff F ratio Q-value

923 200 -0.36 13.58 0.0002

1142 276 -0.30 13.57 0.0002

1109 251 -0.32 18.48 <.0001

1234 270 -0.25 16.51 <.0001

1570 341 -0.25 23.52 <.0001

1804 393 -0.12

6.94 0.0085

1487 314 -0.09

3.09 0.0790

1605 319 -0.11

6.41 0.0114

1559 303 -0.12

7.39 0.0066

R-squared 0.4797 0.6508 0.6241 0.6434 0.7503 0.7987 0.7490 0.7977 0.8236

tscore -3.69 -3.68 -4.30 -4.06 -4.85 -2.63 -1.76 -2.53 -2.72

19

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 128 of 295
G. CONCLUSIONS
48. The discussion above gives a descriptive comparison of the distribution of whites and blacks in the Lufkin workforce, and summarizes pay differences. A detailed statistical analysis was also performed, focusing on initial assignment, promotions, and pay disparities. Based on my review and analysis of the Lufkin workforce data, I conclude
a) Among active employees at year-end 2000, 8CJOio of all blacks were employed in Lufkin production departments23 in Lufkin, Texas, compared to only 72% ofall whites.
b) Among all active employees at year-end 2000, 88% of all blacks concentrated in three EEO categories, 6 (skilled craft workers), 7 (semi-skilled operatives) and 8 (unskilled laborers), compared to only 58% of whites.
c) Among active employees at year-end 2000 in Lufkin production departments and in EEO category 6 (skilled craft workers), 17.5% are black, compared to only 3.1% black among the desirable EEO category 6 jobs of Electrical Department Specialist, Foundry Mechanic A, Inspector Specialist, Master Assembly, Machinist, Maintenance Mechanic Class A, Maintenance Mechanic Specialist, Master Maintenance Specialist.24 The average hourly. rate of pay for these desirable jobs in 2000 was $14.36 per hour compared to an average of $13.30 per hour for all EEO 6 jobs.
d) Among year-end active employees company wide, during years 1994-2002, the percentage of blacks among those in EEO category 1jobs (officials and managers) ranged from 5% to 8%. On the other hand, the percentage of whites among those in EEO category I jobs (officials and managers) ranged from 88% to 92%.
e) Among year-end active employees, company-wide, during years 1994-2002 there has never been more than 2 blacks in EEO category 2 (professionals). At year-end 2002 there was only I black in EEO category 2, who was a "Buyer" in Lutkin's Oilfield Division with a hire date of January 19, 1998. 23 Lufkin production departments are Foundry (LUFF), Oil (LUFO), Power Transmission (LUFP), Trailer (LUFT), and Gear (LUFG). 14 See Table 6.
20

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 129 of 295
Appendix 1 DECLARATIONS and TESTIMONY
since 1990 Dr. Richard Drogin
as ofJune, 2003
RICHISON v. AMERICAN CEMWOOD, Case No. 005532, San Jouquin County Superior Court, State of California;'declarations, deposition, 2002-3.
DUKES v. WAL-MART, INC., C-O 1-2252 MH,. U.S. District Court, Northern District, California, various declaration and deposition, 2003.
SALGADU v. MABUBANI, et. ai, No, CVO1-04360 FMC, Central District ofCalifornia, declaration 2002, deposition January, 2003.
MITCHELL, et. at v.METROPOLITAN LIFE INSURANCE CO., 01 Civ.2112 (WHP) declaration December 2002 and deposition January, 2003.
SAVAGLIO V. WAL-MART STORES, CASE NO. 835687-7 Superior Court of The State of California, County of Alameda; declaration and deposition, December 2002.
STONE V. FIRST UNION CORP., NO. 94-6932-CIV-GOLD, U.S. District Court, Southern District of Florida, Miami Division, declaration, 2002.
BELL V. FARMERS INSURANCE, NO.774013-0, Alameda County Superior Court, State of California; declarations, deposition, I999-200 I, trial testimony 2001;
YBARRA et al V. CALIFORNIA REDI-DATE COMPANY, No. CV 00-7043/7044 U.S. District Court, Northern District, California, declaration and deposition, 200 I;
AGUARDO et al. V. PIZZA HUT, San Francisco County Superior Court, State of California, Case No. 994947; declaration February 2001;
BROOKS V. FIRST UNION, Superior Court ofNew Jersey, Middlesex Country, No. L-2401-99; declaration February 200I;
SINGLETON V. REGENTS OF THE UNIVERSITY OF CALIFORNIA, No. 807233-1, Alameda County Superior Court, State of California; declarations and deposition 2000-2;
BECKMANN V. WCCO et. al., File No. 3-96 Civ. 1172, declaration and deposition, 1999;
CHARLES V. SECRETARY OF NAVY,C 91-2153 MHP,declaration, 1998;
JARVAlSE V. RAND Corp, NO I:96CV02680 (HHG); declaration and deposition, 1998;
TURNER V. TOROTEL, INC., No. 96-0646-CV-W-5, declaration and deposition, 1998;
-5-

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 130 of 295
Appendix 1 BUTLER v. HOME DEPOT U.S.A., INC., No. C 95-2182 SI. U.S. District Court, Northern District, California, various declaration and deposition, 1997; CANADY V. ALLSTATE INSURANCE COMPANY, ET AL., NO. 96-0174-CV-W-2, U.S. District Court, Western District of Missouri, Western Division; declaration 1997;
BYRD v. SPRINT CORPORATION, ET AL., No. CV92-18979, Circuit Court of Jackson County, Missouri at Kansas City; declaration 1996;
SHORES v. PUBLIX SUPER MARKETS, INC., No. 95-1 I62-CIV-T-25E, U.S. District Court, Middle District of Florida, Tampa Division; declarations submitted for class certification, 1995; presentation to mediator in settlement talks 1996; PLUMMER v. DON COTE, ALAMEDA COUNTY, C-94-0838 EFL, Superior Court, Alameda County, California; declaration submitted, February, 1996;
JONES v. FORD MOTOR COMPANY, No. 95-MD-I044, 95-71123, 3-93-370, Eastern District of Michigan, Southern Division; declarations submitted for class certification, deposition, 19951996,1998;
APPLETON, v. DELOITTE & TOUCHE, No. 3-95-0483 (Middle District of Tennessee); declaration submitted for class certification, deposition, 1995, 1996;
FRANK V. UNITED AIRLINES, INC., N.D. Cal. Case No e92 0692 CAL declarations and deposition, 1995-96;
ROBERT ADAMS, JR. v. PINOLE POINT STEEL COMPANY, NO. C-92-1962 MHP, U.S. District Court, Northern District, California; declaration submitted for class certification, deposition 1993,1994, 1995;
SONDRA W. HYMAN v. FIRST UNION CORPORATON, Civil No. 94-1043 (EGS), U.S. District Court, District ofColumbia; various declarations, 1994, 1995, 1997;
WHITING v. HUNTER, MO. 676752-50H, Alameda Country Superior Court, California; deposition and trial testimony, 1995, 1996;
BABBITT v. ALBERTSON'S INC., No. C92 1883 SBA (PJH), Northern District of California; declarations, 1994;
TAYLOR v. O'CHARLEY'S, No. 3:94-0489, U.S. District Court, Middle District ofTennessee; declarations, 1994;
BARBARA JEAN HERRING v. SAVE MART, No. C-90-3571 BAC, U.S. District Court,
-6-

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 131 of 295 Appendix 1
Northern District, California, December 17, 1993; NANCY J. STENDER Y. LUCKY STORES, Inc, No. C-88-1467 MHP, U.S. District Court, Northern District, California, 1991 & 1992, deposed and submitted reports for liability and damage trials; HAYNES Y. SHONEY, No. PCA 89-30093-RV, US. District Court, Northern District of Florida; declaration submitted for class certification, 1991; PINES Y. STATE FARM, SA CV 89 - 631 AHS (RWRx), U.S. District Court, central District of California; declaration submitted for class certification, 1991; SIBI SOROKA, SUE URRY, and WILLIAM D'ARCANGELO Y. DAYTON HUDSON CORP.,
dba TARGET STORES, No. H-143579-3, Superior Court, County of Alameda, California; declaration 1990;
-7-

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 132 of 295 Appendix 1

DROGIN. KAKIGI & ASSOCIATES Statistical Consultants 3104 Shattuck Avenue Berkeley, CA 94105 (510) 540-5011 www.dkstatcom

FEE SCHEDULE as of June. 2003
L Consulting. analysis, development Partners Staff programmer
2. Deposition/Testimony

$250/hour $125/hour
$350/hour

-8-

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 133 of 295

Appendix 2

Page 1

========================================
List of Higher Level EEO 1 Mgmt Jobs Excluded from Analysis
========================================

Job Code Title

100280 100300 100308 100309 100402. 100711 100714 100778 100787 100788 100796 100797 100798 100807 100815 100816 100817 100818 100819 100820 100830 100834 100888 100889 100941 101020 101038 102609 102854 260011 280102

President, CEO VP MSAL VP Eng. Secretary-Treasurer VP Trailer Div. Vice-President, HR Sr. VP VP Machine Div. FD GM FDRY Div. GM Fabrication Gen Mgr. Mach. VP/GM Gear Repair VP Gear Sales GM Trailer Div. VP OF Mfg./Foundry VP OF Sales/Mkt'g GM Gear Mfg. VP Eur. Gears VP Gear Repair GM Ind. Supply Div. VP/GM Power Transmission VP/GM Trailer Div. FD GM FDRY Div. VP/GM OF Products Div. VP Business Devel. Treasurer/Dir. Finan Opr. OF GM Lufkin Automation GM Nabla GM OF Service GM Nabla GM OF Service

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 134 of 295

Appendix 3
Summary of Workforce and Average Salary Restricted to Those Active at Year-End, and With positive Earnings for Year Restricted to # LUF. # Departments Excludes employees in upper level Mgmt jobs

Workforce

Average Salary

Year EEO Tot Wht

Black

Total White Black Diff

1994 Tot 1569 1085 266 17.0

1994 6-8 1260 799 249 19.8

1994 7-8 618 331 140 22.7

1994

1 125 112 10 8.0

1994

2 44 43

1 2.3

1994 1994

3 76 72 4 23 23

3 3.9
o 0.0

1994

5 38 33

3 7.9

1994

6 642 468 109 17.0

1994

7 468 268 95 20.3

1994

8 150 63 45 30.0

10.79 9.91 8.85
16.36 16.73 12.50 13.78
9.81 10.92
9.38 7.21

11.31 10.19
9.02 16.32 16.84 12.61 13.78 10.07 11. 02
9.43 7.28

9.74 1. 57 9.64 0.56 8.76 0.26 12.49 3.83 11.83 5.01 10.10 2.51 0.00 0.00 8.08 1.99 10.77 0.26 9.53 -0.10 7.14 0.13

1995 Tot 1645 1118 282 17.1

1995 6-8 1314 816 261 19.9

1995 7-8. 666 356 155 23.3

1995

1 123 107 13 10.6

1995

2 62 57

2 3.2

1995

3 85 81

3 3.5

1995

4 17 17

0 0.0

1995

5 41 37

3 7.3

1995

6 648 460 106 16.4

1995

7 523 299 117 22.4

1995

8 143 57 38 26.6

11.00 9.98 9.00
17.56 17.05 12.64 15.28 10.08 10.99
9.45 7.32

11.54 10.22
9.08 17.75 17.08 12.67 15.28 10.25 11.11
9.43 7.24

9.93 1.60 9.77 0.45 9.01 0.07 12.65 5.09 12.62 4.46 11.85 0.82 0.00 0.00 8.33 1. 92 10.89 0.21 9.55 -0.12 7.34 -0.11

1996 Tot 1489 994 258 17.3

1996 6-8 1161 688 242 20.8

1996 7-8 457 214 120 26.3

1996

1 121 110 10 8.3

1996

2 59 56

2 3.4

1996

3 85 81

2 2.4

1996

4 20 20

o 0.0

1996

5 40 36

2 5.0

1996

6 704 474 122 17.3

1996

7 411 195 106 25.8

1996

8 46 19 14 30.4

11.93 10.80
9.74 18.53 18.50 13.30 16.62 10.12 11.48
9.93 8.03

12.64 11.09
9.88 18.88 18.71 13 .40 16.62 10.27 11.63 10.06
8.07

10.67 10.56
9.73 12.89 13 .60 12.46
0.00 7.93 11.37 9.96 7.97

1. 97 0.53 0.15 5.98 5.10 0.94 0.00 2.34 0.26 0.10 0.10

1997 1997 1997 1997 1997 1997 1997 1997 1997 1997 1997

Tot 1766 1157 6-8 1462 875 7-8 694 364
1 117 105 2 52 50 3 85 81 4 14 14 5 36 32 6 768 511 7 514 267 8 180 97

332 315 172
10
1 3
o
3 143 119
53

18.8 21.5 24.8
8.5 1.9 3.5 0.0 8.3 18.6 23.2 29.4

11.89 10.77
9.57 20.26 19.75 14.49 17.06 10.73 11.86 10.25
7.65

12.55 11.00
9.58 20.45 19.87 14.52 17.06 10.87 12.00 10.29
7.64

10.71 1.84 10.48 0.52
9.47 0.11 16.87 3.58 15.68 4.19 13.92 0.60
0.00 0.00 9.41 1.46 11.69 0.31 10.24 0.04 7.75 -0.11

1998 Tot 1504 991 279 18.6

1998 6-8 1194 708 259 21.7

1998 7-8 527 264 129 24.5

1998 1998

1 126 111 12 9.5

2 48 48

o 0.0

1998 1998

3 94 86 4 12 12

5 5.3
o 0.0

12.87 11.57 10.51 20.9·7 20.43 14.60 16.85

13.65 11.83 10.57 21.59 20.43 14.77 16.85

11.51 2.14 11.250.58 10.33 0.24 16.86 4.73
0.00 0.00 12.42 2.34
0.00 0.00

Page 1

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 135 of 295

1998 1998 1998 1998

~ 30 26

3 10.0

6 667 444 130 19.5

7 467 238 106 22.7

8 60 26 23 38.3

1999 Tot 1184 796 209 17.7

1999 6-8 896 536 188 21.0

1999 7-8 288 142 75 26.0

1999

1 115 100 13 11.3

1999

2 44 44

0 0.0

1999

3 88 81

3 3.4

1999

4 15 15

0 0.0

1999

5 25 19

5 20.0

1999

6 608 394 113 18.6

1999

7 265 128 69 26.0

1999

8 23 14

6 26.1

2000 Tot 1231 797 230 18.7

2000 6-8 928 527 206 22.2

2000 7-8 31-1 133 98 31- 5

2000

1 114 97 13 11.4

2000

2 56 55

1 1.8

2000

3 86 77

5 5.8

2000

4 17 17

0 0.0

2000

5 28 23

4 14.3

2000

6 617 394 108 17.5

2000

7 267 120 84 31.5

2000

8 44 13 14 31.8

2001 Tot 1107 737 197 17.8

2001 6-8 813 479 171 21.0

2001 7-8 202 92 61 30.2

2001

1 109 91 14 12.8

2001

2 52 51

1 1.9

2001

3 80 73

4 5.0

2001

4 21 20

a 0.0

2001

5 28 20

6 21.4

2001

6 611 387 110 18.0

2001

7 200 90 61 30.5

2001

8

2

2

0 0.0

2002 Tot 1181 798 201 17.0

2002 6-8 811 467 175 21.6

2002 7-8 215 92 63 29.3

2002

1 137 120 12 8.8

2002

2 69 67

1 1-4

2002 2002

3 90 83 4 22 21

4 4.4
o 0.0

2002

5 42 34

5 11-9

2002

6 596 375 112 18.8

2002

7 ~r96 86 58 29.6

2002

8 19

6

5 26.3

11.43 12.40 10.75
8.70
13 .66 12.20 11.14 21.15 21.36 15.11 16.05 11.32 12.71 11.30
9.29
14.18 12.56 11.09 22.73 21.42 15.70 18.87 11.58 13.30 11.42
9.06
15.23 13.47 12.28 23.68 22.64 16.10 22.74 12.56 13 .86 12.30 10.31
16.31 13.53 12.09 28.11 24.34 16.89 25.58 13.57 14 .05 12.34
9.56

Appendix 3

11-63 12.58 10.76
8.84

10.63 12.17 10.73
8.49

1.01 0.41 0.03 0.35

14.49 12.50 11.17 21.84 21. 36 15.22 16.05 11.85 12.98 11-36
9.37

12.24 2.25 11.93 0.57 11.12 0.05 17.02 4.82
0.00 0.00 15.55 -0.33
0.00 0.00 9.83 2.02 12.46 0.52 11.31 0.05 8.90 0.47

15.28 13.07 11. 31 23.46 21-54 15.87 18.87 il.91 13.67 11.55
9.09

12.39 12.01 11-00 18.31 15.00 14.42
0.00 10.40 12.93 11.33
9.01

2.89 1.06 0.31 5.15 6.54 1.45 0.00 1.51 0.74 0.21 0.08

16.25 13.90 12.37 24.64 22.78 16.13 22.63 12.97 l4.26 12.41 10.31

13.43 13.05 12.36 18.52 15.58 15.82
0.00 11-38 13.43 12.36
0.00

2.82 0.85 0.01 6.12 7.20 0.30 0.00 1-59 0.83 0.06 0.00

17.69 14.04 12.32 28.74 24.42 16.93 25.58 13.84 14.46 12.50
9.72

13 .50 13 .06 12.25 20.31 17.88 16.35
0.00 12.04 13.52 12.49
9.51

4.18 0.97 0.07 8.43 6.54 0.58 0.00 1.80 0.94 0.01 0.21

Page 2

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 136 of 295

Appendix 4
Summary of Workforce and Average Earnings Restricted to Those Active at Year-End, and With Positive Earnings for Year Restricted to 'LUF ' Departments Excludes employees in upper level Mgmt jobs

Workforce

Average Earnings

Year EEO Tot Wht

Black

Total White Black Diff

1994 Tot 1252 900 202 16.1 29832. 30160. 28916. 1244.

1994 6-8 965 635 185 19.2 27845. 27595. 28414. -818.

1994 7-8 358 194 79 22.1 24631. 23743. 25254. -1511.

1994

1 121 i08 10 8.3 42736. 41982. 42002. -20.

1994

2 39 38

1 2.6 36144. 36190. 34423. 1167.

1994 1994

3 71 67 4 21 21

3 4.2 32620. 32928. 23510. 9358.

o 0.0 37555. 37555.

o. o.

1994

5 33 29

3 9.1 22768. 23257. 19198. 3459.

1994

6 607 441 106 17.5 29740. 29290. 30169. -1478.

1994

7 336 184 13 21.7 25248. 23970. 26333.-2363.

1994

8 22 10

6 27.3 15216. 19548. 12116. 7432.

1995 Tot 1394 951 235 16.9 29865. 30792. 28635. 2156.

1995 6-8 1095 617 215 19.6 27600. 27928. 27846. 81.

1995 1-8 473 233 113 23.9 23855. 23578. 24703. -1125.

1995

1 122 106 13 10.7 44894. 44341. 42650. 1691.

1995

2 43 42

1 2.3 38360. 38432. 35346. 3085.

1995

3 79 75

3 3.8 33719. 33635. 30238. 3391.

1995

4 16 16

o 0.0 44161. 44161.

o. o.

1995

5 38 34

3 7.9 23538. 23929. 20600. 3329.

1995

6 622 444 102 16.4 30448. 30210. 31329.-1119.

1995

7 418 218 96 23.0 24583. 24061. 25654.-1593.

1995

8 55 15 17 30.9 18321. 16558. 19331.-27:73.

1996 Tot 1387 930 241 17.4 29833. 31322. 27237. 4085.

1996 6-8 1088 649 226 20.8 27160. 27743. 26600. 1143.

1996 7-8 411 192 109 26.5 23137. 23415. 22936. 479.

1996

1 118 107 10 8.5 47477. 47652. 42706. 4945.

1996

2 50 48

2 4.0 38338. 38525. 33851. 4668.

1996

3 75 73

1 1.3 36477.. 36433. 21459.14974.

1996

4 19 19

o 0.0 38221. 38221-

O.

O.

1996

5 35 32

2 5.7 22842. 23212. 18048. 5164.

1996

6 677 457 117 17.3 29602. 29561- 30014. -453.

1996

7 376 176 99 26.3 23940. .24186. 24044. 142 .

1996

8 35 16 10 28.6 14512. 14939. 11963. 2916.

1997 Tot 1350 886 246 18.2 32810. 33807. 31349. 2458.

1997 6-8 1074 630 230 21.4 30778. 30873. 30991. -119.

1997 7-8 368 170 92 25.0 26873 . 26482. 27275. -193.

1997

1 114 102 10 8.8 46950. 47465. 42551. 4908.

1997

2 45 44

1 2.2 41327. 41521. 32776. 8745.

1997 1997

3 77 73 4 11 11

3 3.9 36338. 36484. 29908. 6576.

o 0.0 46666. 46666.

O.

O.

1997

5 29 26

2 6.9 24673. 25318. 17888. 7429.

1997

6 706 460 138 19.5 32813 . 32496. 33469. -974.

1997

7 351 162 86 24.5 27414 . 26913 . 28085.-1172.

1997

8 17

8

6 35.3 15720. 17757. 15669. 2088.

1998 Tot 1455 962 268 18.4 31140. 32904. 28431. 4473.

1998 6-8 1156 688 249 21.5 28286. 28929. 27991. 931.

1998 7-8 489 244 119 24.3 24849. 24473. 25406. -933.

1998 1998

1 123 108 12 9.8 48287. 49808. 39015.10793.

2 43 43

o 0.0 43847. 43847.

o.

O.

1998 1998

3 94 86 4 12 12

5 5.3 36869. 37311. 27634. 9683.

o 0.0 49104. 49104.

o.

O.

Page 1

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 137 of 295

1998 1998 1998 1998

Appendix 4

5 27 25

2 7.4 27052. 27487. 21618. 5868.

6 667 444 130 19.5 30805. 31378. 30358. 1019.

7 439 219 102 23.2 25432. 25164. 26345.-1182.

8 50 25 17 34.0 19737. 18418. 19768.-1350.

1999 Tot 1169 782 208 17.8 33265. 35002. 30837. 4165.

1999 6-8 894 534 188 21.0 30189. 30836. 30160. 676.

1999 7-8 286 140 75 26.2 26702. 26329. 27423.-1094.

1999 1999

1 113 98 13 11.5 49670. 50965. 41591. 9374.

2 40 40

o 0.0 45937. 45937.

o. o.

1999 1999

3 85 78 4 14 14

3 3.5 37271. 37309. 35155. 2154.

0 0.0 46594. 46594.

o. O.

1999

5 22 17

4 18.2 27221. 28362. 24473. 3888.

1999

6 608 394 113 18.6 31828. 32437. 31977. 460.

1999

7 263 126 69 26.2 27237. 27027. 28055.-1028.

1999

8 23 14

6 26.1 20585. 20044. 20157. -112.

2000 Tot 1143 738 212 18.5 35509. 37406. 32147. 5259.

2000 6-8 865 491 190 22.0 32822. 33716. 31645. 2071.

2000 7-8 259 108 82 31.7 27398. 26787. 27948.-1161.

2000

1 114 97 13 11.4 51315. 53020. 42200.10820.

2000

2 44 43

1 2.3 44095. 44457. 28562.15895.

2000

3 79 71

4 5.1 40247. 40504. 34732. 5772.

2000

4 15 15

0 0.0 37101. 37101.

O.

O.

2000

5 25 20

4 16.0 25526. 26661. 21642. 5019.

2000

6 606 383 108 17.8 35141. 35670. 34452. 1217.

2000

7 234 99 74 31.6 28268. 27318. 29314.-1996.

2000

8 25

9

8 32.0 19253. 20946. 15313. 5633.

2001 Tot 1085 721 194 17.9 38684. 40587. 35579. 5008.

2001 6-8 800 470 168 21.0 35712. 36643. 35247. 1396.

2001 7-8 191 84 58 30.4 33004. 32808. 34435.-1627.

2001

1 109 91 14 12.8 56764. 58845. 45235.13610.

2001

2 50 49

1 2.0 46520. 46819. 31846.14973.

2001 2001

3 80 73 4 17 17

4 5.0 41016. 40725. 36863. 3862.

o 0.0 48149. 48149.

O.

O.

2001

5 25 18

6 24.0 28015. 29347. 25197. 4150.

2001

6 609 386 110 18.1 36561. 37477. 35675. 1802.

2001 2001

7 189 82 58 30.7 33113. 33052. 34435.-1382.

8

2

2

o 0.0 22772. 22772.

O.

O.

2002 Tot 1162 782 200 17.2 38173. 41562. 30888.10674.

2002 6-8 800 459 174 21.8 31555. 33022. 29900. 3122.

2002 7-8 205 85 62 30.2 25994. 26897. 26152_ 745.

2002

1 137 120 12 8.8 69639. 71039. 46979.24060.

2002

2 65 63

1 1.5 50518. 50728. 34914.15815.

2002

3 90 83

4 4.4 41970. 41919. 37675. 4243.

2002

4 19 18

0 0.0 56107. 55879.

O.

O.

2002

5 41 33

5 12.2 29378. 30187. 25529. 4658.

2002

6 595 374 112 18.8 33471. 34413. 31974. 2439.

2002

7 190 80 58 30.5 27002. 27563. 27176. 388.

2002

8 15

5

4 26.7 13226. 16246. 11310. 4936.

Page 2

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 138 of 295

Appendix Sa
Summary of Workforce and Average Pay Rates
==========================================
Restricted to Those Active at Year-End, and With Positive Earnings for Year Restricted to 'LUF ' Departments 'nonF' includes 'LUF ' Departments excluding Foundry Excludes employees in upper level Mgmt jobs

Workforce

Average $/Hr

Year EEO Dept Tot Wht Black

Total White Black Diff

1994 Tot Tot 1994 Tot LUFF 1994 Tot LUFT 1994 Tot LUFP 1994 Tot LUFO 1994 Tot LUFG 1994 Tot LUFC 1994 Tot nonF

1569 1085 266 17.0 10.79 11.31 9.74 1.57

407 173 106 26.0 10.23 11.58 9.71 1.87

544 382 102 18.8 10.07 10.28 9.47 0.81

480 410 47 9.8 11.66 11.86 10.41 1.45

57 47

6 10.5 10.93 11.20 9.66 1.54

52 46

4 7.7 11.25 11.42 10.35 1~07

29 27

1 3.4 16.63 15.83 7.36 8.47

1162 912 160 13.8 10.9~ 11.26 9.76 1.50

1994 6-8 Tot 1994 6-8 LUFF 1994 6-8 LUFT 1994 6-8 LUFP 1994 6-8 LUFO 1994 6-8 LUFG 1994 6-8 LUFC 1994 6-8 nonF

1260 799 249 19.8 9.91 10.19 9.64 0.56

343 118 98 28.6 9.45 10.02 9.57 0.45

451 296 98 21.7 9.55 9.65 9.37 0.28

374 3Q8 44 11. 8 10.69 10.77 10.26 0.51

49 39

6 12.2 10.22 10.36 9.66 0.70

38 33

5

5

3 7.9 10.37 10.36 11.35 -0.99
o 0.0 8.76 8.76 0.00 0.00

917 681 151 16.5 10.08 10.22 9.68 0.54

·1994 7-8 Tot 1994 7-8 LUFF 1994 7-8 LUFT 1994 7-8 LUFP 1994 7-8 LUFO 1994 7-8 LUFG 1994 7-8 LUFC 1994 7-8 nonF

618 331 140 22.7

181 46 44 24.3

308 195 69 22.4

98 67 23 23.5

24 17

2

1

5

5

4 16.7
o 0.0 o 0.0

437 285 96 22.0

8.85 8.36 8.96 9.35 9.41 6.61 8.76 9.06

9.02 8.49 9.04 9.26 9.53 5.97 8.76 9.10

8.76 0.26 8.33 0.17 8.75 0.29 9.56 -0.30 9.02 0.51 0.00 0.00 0.00 0.00 8.96 0.15

1994 1994 1994 1994 1994 1994 1994 1994

1 Tot 1 LUFF 1 LUFT 1 LUFP 1 LUFO 1 LUFG 1 LUFC 1 nonF

125 112

27 20

51 48

36 34

3

3

2

2

6

5

98 92

10 8.0 16.36 16.32 12.49 3.83
6 22.2 15.47 16.84 li.73 5.11
2 3.9 14.14 13.71 14.29 -0.58
2 5.6 17.67 17.95 12.97 4.98
o 0.0 17.93 17.93 0.00 0.00
o 0.0 17.59 17.59 0.00 0.00 o 0.0 30.19 26.72 0.00 0.00
4 4.1 16.61 16.21 13.63 2.58

1994 1994 1994 1994 1994 1994 1994· 1994

2 Tot 2 LUFF 2 LUFT 2 LUFP 2 LUFO 2 LUFG 2 LUFC 2 nonF

44 43

12 11

1

1

15 15

3

3

1

1

12 12

32 32

1 2.3 16.73 16.84 11.83 5.01
1 8.3 16.91 17.38 11.83 5.55
o 0.0 15.14 15.14 0.00 0.00 o 0.0 17.38 17.38 0.00 0.00 o 0.0 14.91 14.91 0.00 0.00 o 0.0 7.40 7.40 0.00 0.00 o 0.0 17.10 17.10 0.00 0.00 o 0.0 16.66 16.66 0.00 0.00

1994 1994 1994 1994 1994 1994 1994 1994

3 Tot 3 LUFF 3 LUFT 3 LUFP 3 LUFO 3 LUFG 3 LUFC 3 nonF

76 72

20 19

9

8

35 33

1

1

9

9

2

2

56 53

3 3.9 12.50 12.61 10.10 2.51
1 5.0 12.15 12.33 8.83 3.50
1 11.1 11.22 11.46 9.35 2.11
1 2.9 12.94 12.99 12.12 0.87
o 0.0 13.20 13.20 0.00 0.00 o 0.0 13.43 13.43 0.00 0.00 o 0.0 9.64 9.64 0.00 0.00
2 3.6 12.63 12.71 10.74 1. 98

Page 1

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 139 of 295

1994 1994 1994 1994 1994 1994
1994 1994 1994 1994 1994 1994 1994 1994
1994 1994 1994 1994 1994 1994 1994
1994 1994 1994 1994 1994 1994 1994 1994
1994 1994 1994 1994 1994 1994 1994

4 Tot 4 LUFF 4 LUFT 4 LUFP 4 LUFG
4 nonF
5 Tot 5 LUFF 5 LUFT 5 LUFP 5 LUFO 5 LUFG 5 LUFC 5 nonF
6 Tot 6 LUFF 6 LUFT 6 LUFP 6 LUFO 6 LUFG 6 nonF
7 Tot 7. LUFF 7 LUFT 7 LUFP 7 LUFO 7 LUFG 7 LUFC 7 nonF
8 Tot 8 LUFF 8 LUFT 8 LUFP 8 LUFO 8 LUFG 8 nonF

Appendix Sa

23 23

o 0.0 13.78 13.78 0.00 0.00

2

2· o 0.0 15.07 15.07 0.00 0.00

14 14

o 0.0 11.19 11. 19 0.00 0.00

6

6

o 0.0 18.39 18.39 0.00 0.00

1

1

o 0.0 19.88 19.88 0.00 0.00

21 21

o 0.0 13.66 13.66 0.00 0.00

38 33

3

3

17 14

13 13

1

1

1 o

3

2

35 30

3
o
1 5.9
o 0.0 o 0.0
1 100.0
1 33.3
3 8.6

9.81 10.07 9.58 9.58 9.91 10.18 10.13 10.13 10.65 10.65 7.36 0.00 8.66 9.31 9.84 10.12

8.08 0.00 9.52 0.00 0.00 7.36 7.36 8.08

1.99 0.00 0.66 0.00 0.00 0.00 1. 95 2.04

642 468 109 17.0 10.92 11.02 10.77 0.26

162 72 54 33.3 10.66 11.00 10.59 0.41

143 101 29 20.3 10.83 10.83 10.84 -0.01

276 241 21 7.6 11.17 11.19 11.03 0.16

25 22

2 8.0 11.00 11.00 10.92 0.08

36 32

3 8:3 10.58 10.49 11.35 -0.85

480 396 55 11.5 11.01 11.03 10.94 0.09

468 268

110 31

237 151

92 63

23 17

1

1

5

5

358 237

95 20.3
23 20.9
47 19.8
22 23.9
3 13.0
o 0.0 o 0.0
72 20.1

9.38· 9.11 9.48 9.49 9.52 5.97 8.76 9.46

9.43 9.04 9.56 9.38 9.53 5.97 8.76 9.48

9.53 -0.10 9.43 -0.39 9.49 0.07 9.68 -0.29 9.70 -0.17 0.00 0.00 0.00 0.00 9.56 -0.08

150 63 45 30.0 7.21 7.28 7.14 0.13

71 15 21 29.6 7.20 7.36 7.12 0.24

71 44 22 31.0 7.23 7.25 7.18 0.07

6

4

1 16.7 7.23 7.28 7.00 0.28

1

o

1 100.0 7.00 0.00 7.00 0.00

1

o

o 0.0 7.25 0.00 0.00 0.00

79 48 24 30.4 7.22 7.25 7.17 0.09

Page 2

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 140 of 295

Appendix 5a

Summary of Workforce and Average Pay Rates
===~======================================
Restricted to Those Active at Year-End, and With positive Earnings for Year Restricted to 'LUF ' Departments 'nonF' includes 'LUF ' Departments excluding Foundry Excludes employees in upper level Mgmt jobs

Workforce

Average $/Hr

Year EEO Dept

Tot Wht Black

Total White Black Diff

1995 1995 1995 1995 1995 1995 1995 1995

Tot Tot Tot Tot Tot Tot Tot Tot

Tot LUFF LUFT LUFP LUFO LUFG LUFC nonF

1645 1118 282 17.1 11.00 11.54 9.93 1.60

439 184 107 24.4 10.37 11.79 9.75 2.05

545 370 114 20.9 10.35 10.56 9.82 0.74

525 448 51 9.7 11.76 11.90 10.43 1.47

46 34

5 10.9 12.15 12.72 11.52 1.20

59 53

4 6.8 11.14 11.25 10.51 0.74

31 29

1 3.2 16.72 15.89 7.59 8.30

1206 934 175 14.5 11.23 11.49 10.05 1.44

1995 6-8 Tot 1995 6-8 LUFF 1995 6-8 LUFT 1995 6-8 LUFP 1995 6-8 LUFO 1995 6-8 LUFG 1995 6-8 LUFC 1995 6-8 nonF

1314 363 464 406 33 45 3 951

816 1i8 297. 335
23 40
3 698

261 99
108 48
3
3
o
162

19.9 27.3 23.3 11.8
9.1 6.7 0.0 17.0

9.98 10.22 9.77 0.45 9.52 10.07 9.56 0.52 9.75 9.80 9.69 0.11 10.59 10.64 10.26 0.38 10.50 10.68 10.57 0.11 10.25 10.20 11.48 -1.28 8.48 8.48 0.00 0.00 10.16 10.25 9.91 0.34

1995 7-8 Tot 1995 7-8 LUFF 1995 7-8 LUFT 1995 7-8 LUFP 1995 7-8 LUFO 1995 7-8 LUFG 1995 7-8 LUFC 1995 7-8 nonF

666 356 155 23.3

192 46 48 25.0

336 209 80 23.8

121 89 26 21.5

12

7

1 8.3

2

2

o 0.0

3

3

o 0.0

474 310 107 22.6

9.00 8.43 9.30 9.03 9.42 7.56 8.48 9.22

9.08 8.44 9.32 8.85 9.54 7.56 8.48 9.17

9.01 0.07 8.37 0.07 9.23 0.10 9.50 -0.64 9.85 -0.31 0.00 0.00 0.00 0.00 9.30 -0.12

1995 1995 1995 1995 1995 1995 1995 1995

1 Tot 1 LUFF 1 LUFT 1 LUFP 1 LUFO 1 LUFG 1 LUFC 1 nonF

123 107

30 22

47 42

34 33

4

3

2

2

6

5

93 85

13 10.6 17.56 17.75 12.65 5.09
7 23.3 16.02 17.50 12.15 5.35
4 8.5 15.65 15.40 13.30 2.09
1 2.9 19.16 19.32 13.76 5.56 1 25.0 17.23 18.82 12.46 6.36
o 0.0 18.25 18.25 0.00 0.00 o 0.0 31.07 27.28 0.00 0.00
6 6.5 18.05 17.81 13.24 4.57

1995 1995 1995 1995 1995 1995 1995 1995

2 Tot 2 LUFF 2 LUFT 2 LUFP 2 LUFO 2 LUFG 2 LUFC 2 nonF

62 57

18 16

2

2

20 18

7.

6

1

1

14 14

44 41

2 3.2 17.05 17.08 12.62 4.46
1 5.6 15.66 16.50 11.83 4.67
o 0.0 13.37 13.37 0.00 0.00 o 0.0 19.02 18.23 0.00 0.00
1 14.3 17.04 17.64 13.41 4.23
o 0.0 10.71 10.71 0.00 0.00 o 0.0 17.03 17.03 0.00 0.00
1 2.3 17.62 17.31 13.41 3.90

1995 1995 1995 1995 1995 1995 1995

3 Tot 3 LUFF 3 LUFT 3 LUFP 3 LUFO 3 LUFG 3 LUFC

85 81

22 22

10

9

43 40

1

1

7

7

2

2

3 3.5 12.64 12.67 11.85 0.82
o 0.0 12.11 12.11 0.00 0.00
1 10.0 11.01 11.17 9.63 1. 54
2 4.7 13.26 13.30 12.95 0.34
o 0.0 13.78 13.78 0.00 0.00 o 0.0 13.39 13.39 0.00 0.00 o 0.0 9.93 9.93 0.00 0.00

Page 3

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 141 of 295

1995
1995 1995 1995 1995 1995 1995
1995 1995 1995 1995 1995 1995 1995 1995
1995 1995 1995 1995 1995 1995 1995
1995 1995 1995 1995 1995 1995 1995 1995
1995 1995 1995 1995 1995

3 nonF
4 Tot: 4 LUFF 4 LUFT 4 LUFP 4 LUFG 4 nonF
5 Tot 5 LUFF 5 LUFT 5 LUFP 5 LUFO 5 LUFG 5 LUFC 5 nonF
6 Tot: 6 LUFF 6 LUFT 6 LUFP 6 LUFO 6 LUFG 6 nonF
7 Tot: 7 LUFF 7 LUFT 7 LUFP -; LUFO 7 LUFG 7 LUFC 7 nonF
8 Tot 8 LUFF 8 LUFT 8 LUFP 8 nonF

63 59

17 17

2

2

8

8

6

6

1

1

15 15

Appendix Sa
3 4.8 12.82 12.88 11.85 1.03
o 0.0 15.28 15.28 0.00 0.00 o 0.0 15.36 15.36 0.00 0.00 o 0.0 12.05 12.05 0.00 0.00 o 0.0 18.67 18.67 0.00 0.00 o 0.0 20.57 20.57 0.00 0.00 o 0.0 15.26 15.26 0.00 0.00

41 37

4

4

14 12

15 15

1

1

3

2

4

3

37 33

3 7.3 10.08 10.25 8.33 1.92
o 0.0 8.84 8.84 0.00 0.00
1 7.1 10.42 10.57 9.81 0.76
o 0.0 10.15 10.15 0.00 0.00 o 0.0 10.65 10.65 0.00 0.00
1 33.3 11.46 13.40 7.59 5.81
1 25.0 8.70 9.07 7.59 1.48
3 8.1 10.22 10.42 8.33 2.09

648 460 106 16.4 10.99 11.11 10.89 0.21

171 72 51 29.8 10.75 11.12 10.68 0.45

128 88 28 21. 9 10.93 10.92 11.02 -0.10

285 246 22 7.7 11.26 11.28 11.15 0.13

21 16

2 9.5 11.11 11.18 10.93 0.25

43 38

3 7.0 10.37 10.34 11.48 -1.14

477 388 55 1l.5 11.08 11.10 11.09 0.01

523 299 117 22.4

119 33 26 21.8

281 176 66 23.5

106 78 24 22.6

12

7

1 8.3

2

2

o 0.0

3

3

o 0.0

404 266 91 22.5

9.45 9.10 9.69 9.30 9.42 7.56 8.48 9.56

9.43 8.89 9.71 9.10 9.54 7.56 8.48 9.50

9.55 -0.12 9.28 -0.39 9.60 0.11 9.70 -0.59 9.85 -0.31 0.00 0.00 0.00 0.00 9.63 -0.13

143 57 38 26.6 7.32 7.24 7.34 -0.11

73 13 22 30.1 7.34 7.29 7.29 0.00

55 33 14 25.5 7.34 7.27 7.48 -0.20

15 11

2 13.3 7.13 7.07 7.07 0.00

70 44 16 22.9 7.29 7.22 7.43 -0.20

Page 4

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 142 of 295

Appendix 5a

Summary of Workforce and Average Pay Rates
==========================================
Restricted to Those Active at Year-End, and With positive Earnings for Year Restricted to 'LUF ' Departments 'nonF' includes 'LUF ' Departments excluding 'Foundry
Excludes employees in upper level Mgmt jobs

Workforce

Average $/Hr

Year EEO Dept

Tot Wht Black

Total White Black Diff

1996 Tot 1996 Tot 1996 Tot 1996.Tot 1996 Tot 1996 Tot 1996 Tot 1996 Tot

Tot LUFF LUFT LUFP LUFO LUFG LUFe nonF

1489 994 258 17.3 11.93 12.64 10.67 1.97

435 174 109 25.1 11.22 12.97 10.35 2.62

425 280 95 22.4 11.36 11.62 10.72 0.90

448 386 38 8.5 12.75 12.91 11.27 1.70

82 64 10 12.2 12.24 12.51 11.67 0.84

67 59

5 7.5 11.67 11.89 10.38 1.51

32 31

1 3.1 17.25 17.56 7.19 9.77

1054 820 149 14.1 12.22 12.51 10.89 1.68

1996 6-8 Tot 1996 6-8 LUFF 1996 6-8 LUFT 1996 6-8 LUFP 1996 6-8 LUFO 1996 6-8 LUFG 1996 6-8 LUFC 1996 6-8 nonF

1161 688 242 20.8 10.80 11.09 10.56 0.53

351 105 101 28.3 10.25 10.88 10.19 0.69

354 213 93 26.3 10.70 10.71 10.70 0.02

333 216 35 10.5 11.42 11.48 11.04 0.44

67 51

9 13.4 11.24 11.28 11.26 0.02

49 42

1

1

4 8.2' 10.64 10.68 10.95 -0.27
o 0.0 10.34 10.34 0.00 0.00

804 583 141 17.5 11.04 11.12 10.82 0.30

1996 7-8 Tot 1996 7-8 LUFF 1996 7-8 LUFT 1996 7-8 LUFP 1996 7-8 LUFO 1996 7-8 LUFC 1996 7-8 nonF

457 214 120 26.3 9.74 9.88 9.73 0.15

190 40 S4 28.4 9.32 9.42 9.25 0.17

171 104 41 27.5 10.03 10.03 10.02 0.01

71 55 11 22.1 9.97 9.83 10.32 -0.49

18 14

1

1

2 11.1 10.40 10.34 11.07 -0.73
o 0.0 10.34 10.34 0.00 0.00

267 174 66 24.7 10.04 9.99 10.13 -0.14

1996 1996 1996 1996 1996 1996 1996 1996

1 Tot 1 LUFF 1 LUFT 1 LUFP 1 LUFO 1 LUFG 1 LUFC 1 nonF

121 110

32 25

38 36

39 37

3

3

2

2

7

7

89 85

10 8.3 18.53 18.88 12.89 5.98
7 21.9 16.87 18.08 12.57 5.50
1 2.6 17.29 16.85 13.88 2.97
2 5.1 19.64 19.97 13.51 6.45
o 0.0 20.54 20.54' 0.00 0.00 o 0.0 18.78 18.78 0.00 0.00 o 0.0 25.70 25.70 0.00 0.00
3 3.4 19.12 19.11 13.64 5.48

1996 1996 1996 1996 1996 1996 1996

2 Tot 2 LUFF 2 LUFT 2 LUFP 2 LUFO 2 LUFC 2 nonF

59 S6

16 15

2

2

17 16

1

6

17 17

43 41

2 3.4 18.50 18.71 13.60 5.10
1 6.2 18.95 19.42 11.83 7.59
o 0.0 16.51 16.51 0.00 0.00 o 0.0 20.04 20.24 0.00 0.00
1 14.3 16.74 16.97 15.38 1.59
o 0.0 17.51 17.51 0.00 0.00
1 2.3 18.34 18.45 15.38 3.07

1996 1996 1996 1996 1996 1996 1996 1996

3 Tot 3 LUFF 3 LUFT 3 LUFP 3 LUFO 3 LUFG 3 LUFC 3. nonF

85 81

22 21

10

9

38 36

2

:2

11 11

2

2

63 60

2 2.4 13.30 13.40 12.46 0.94-
o 0.0 13.23 13.53 0.00 0.00
1 10.0 11.55 11.73 9.92 1.81
1 2.6 13.87 13.88 15.00 -~.12
o 0.0 13.53 13.53 0.00 0.00 o 0.0 13.53 .13.53 0.00 0.00 o 0.0 10.30 10.30 0.00 0.00
2 3.2 13.32 13.36 12.46 0.90

Page 5

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 143 of 295

1996 1996 1996 1996 1996 1996 1996
1996 1996 1996 1996 1996 1996 1996 1996
1996 1996 1996 1996 1996 1996 1996
1996 1996 1996 1996 1996 1996 1996
1996 1996 1996 1996

4 Tot 4 LUFF 4 LUFT 4 LUFP 4 LUFO 4 LUFG 4 nonF
5 Tot 5 LUFF 5 LUFT 5 LUFP 5 LUFO 5 LUFG 5 LUFC 5 nonF
6 Tot 6 LUFF 6 LUFT 6 LUFP 6 LUFO 6 LUFG 6 nonF
7 Tot 7 LUFF 7 LUFT 7 LUFP 7 LUFO 7 LUFC 7 nonF
8 Tot 8 LUFF 8 LUFT 8 nonF

20 20

1

1

8

8

6

6

1

1

4

4

19 19

Appendix Sa
o 0.0 16.62 16.62 0.00 0.00 o 0.0 19.47 19.47 0.00 0.00 o 0.0 12.21 12.21 0.00 0.00 o 0.0 20.86 20.86 0.00 0.00 o 0.0 23.94 23.94 0.00 0.00 o 0.0 16.55 16.55 0.00 0.00 o 0.0 16.47 16.47 0.00 0.00

40 36

6

6

13 12

14 14

2

1

1

o

4

3

34 30

2 5.0
o 0.0 o 0.0 o 0.0 o 0.0
1 100.0
1 25.0
2 5.9

10.12 10.21 9.74 9.14
10.62 10.10 10.21 10.27 10.26 11.00
8.08 0.00 9.00 9.41 10.19 10.38

7.93 0.00 0.00 0.00 0.00 8.08 7.79 1.93

2.34 0.00 0.00 0.00 0.00 0.00 1.62 2.44

104 414 122 17.3 11.48 11.63 11.37 0.26

167 65 47 28.1 11.30 11.17 11.26 0.51

183 109 46 25.1 11.33 11.37 11.39 -0.02

256 221 18 7.0 11.86 11.89 11.72 0.18

49 37

7 14.3 11.55 11.63 11.31 0.32

49 42

4 8.2 10.64 10.68 10.95 -0.27

537 409 75 14.0 11.54 11.60 11.43 0.17

411 195 106 25.8 9.93 10.06 9.96 0.10

162 33 46 28.4 9.56 9.70 9.53 0.17

153 92 41 26.8 10.24 10.28 10.25 0.03

77 55 17 22.1 9.97 9.83 10.32 -0.49

18 14

2 11.1 10.40 10.34 11.07 -0.13

1

1

o 0.0 10.34 10.34 0.00 0.00

249 162 60 24.1 10.17 10.14 10.30 -0.16

46 19 14 30.4 8.03 8.07 7.97 0.10

28

7

8 28.6 7.94 8.09 7.61 0.48

18 12

6 33.3 8.18 8.05 8.44 -0.39

18 12

6 33.3 8.18 8.05 8.44 -0.39

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 144 of 295

Appendix Sa

Summary of Workforce and Average Pay Rates

Restricted to Those Active at Year-End, and With positive Earnings for Year Restricted to 'LUF ' Departments 'nonF' includes 'LUF ' Departments excluding Foundry Excludes employees in upper level Mgmt jobs

Workforce

Average $/Hr

Year EEO Dept

Tot Wht Black

Total White Black Diff

1997 1997 1997 1997 1997 1997 1997 1997

Tot Tot Tot Tot Tot Tot Tot Tot

Tot LUFF LUFT LUFP LUFO LUFG LUFC nonF

1766 1157 332 18.8 11.89 12.55 10.71 1.84

464 172 124 26.7 11.38 12.99 10.77 2.22

5S6 393 126 21.5 10.87 11.13 10.18 0.96

433 366 43 9.9 13.28 13.54 11.69 1.85

154 112 29 18.8 11.93 12.12 11.52 0.60

104 92

8 7.7 12.67 12.94 10.63 2.31

25 22

2 8.0 17.85 18.77 8.05 10.72

1302 9S5 208 16.0 12.0S 12.48 10.67 1.S0

1997 6-8 Tot 1997 6-8 LUFF 1997 6-8 LUFT 1997 6-8 LUFP 1997 6-8 LUFO 1997 6-S LUFG 1997 6-S LUFC 1997 6-S nonF

1462 875 315 21.5 10.77 11.00 10.48 0.52

403 118 117 29.0 10.42 10.75 10.43 0.32

512 325 122 23.8 10.14 10.15 10.070.08

336 274 40 11.9 11.92 12.02 11.24 0.77

137 96 2S 20.4 11.18 11.13 11.37 -0.24

72 61

7 9.7 11.07 11.12 10.94 0.19

2

1

1 50.0 11.17 14.42 7.92 6.50

1059 757 198 18.7 10.91 11.03 10.51 0.52

1997 7-8 Tot 1997 7-S LUFF 1997 7-8 LUFT 1997 7-S LUFP 1997 7-S LUFO 1997 7-S LUFG 1997 7-8 LUFC 1997 7-8 nonF

694 364 172 24.S 9.57 9.58 9.47 0.11

231 61 63 27.3 9.50 9.41 9.40 0.01

332 210 SO 24.1 9.31 9.30 9.19 0.11

66 45 18 27.3 10.38 10.29 10.40 -0.12

62 46 10 16.1 10.35 10.32 10.72 -0.39

1

1

o 0.0 8.74. 8.74 0.00 0.00

2

1

1 50.0 11.17 14.42 7.92 6.50

463 303 109 23.5 9.61 9.61 9.52 0.10

1997 1997 1997 1997 1997 1997 1997 1997

1 Tot 1 LUFF 1 LUFT 1 LUFP 1 LUFO 1 LUFG 1 LUFC 1 nonF

117 105

2S 21

43 40

32 31

6

6

4

4

4

3

89 84

10 8.5 20.26 20.45 16.87 3.58
7 25.0 19.73 20.81 16.49 4.32
2 4.7 18.47 18.09 16.63 1.46
1 3.1 22.25 22.32 20.01 2.31
o 0.0 19.51 19.51 0.00 0.00 o 0.0 22.07 22.07 0.00 0.00 o 0.0 26.71 29.84 0.00 0.00
3 3.4 20.43 20.36 17.76 2.61

1997 1997 1997 1997 1997 1997 1997 1997

2 Tot 2 LUFF 2 LUFT 2 LUFP 2 LUFO 2 LUFG 2 LUFC 2 nonF

52 50

11 11

2

2

20 19

6

5

1

1

12 12

41 39

1 1.9 19.75 19.87 15.68 4.19
o 0.0 20.12 20.12 0.00 0.00 o 0.0 16.69 16.69 0.00 0.00 o 0.0 20.21 20.33 0.00 0.00
1 16.7 18.51 19.07 15.68 3.39
o 0.0 22.10 22.10 0.00 0.00 o 0.0 19.60 19.60 0.00 0.00
1 2.4 19.65 19.80 15.68 4.12

1997 1997 1997 1997 1997 1997 1997

3 Tot 3 LUFF 3 LUFT 3 LUFP 3 LUFO 3 LUFG 3 LUFC

85 81

18 IS

10

8

31 29

2

2

22 22

2

2

3 3.5 14.49 14.52 13.92 0.60
o 0.0 14.06 14.06 0.00 0.00
2 20.0 11.76 12.15 10.20 1.95
1 :l.2 15.22 15.06 21.35 -6.29
o 0.0 14.49 14.49 0.00 0.00 o 0.0 15.17 15.17 0.00 0.00
o 0.0 13.25 13.25 0.00 0.00

Page 7

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 145 of 295

1997
1997 1997 1997 1997 1997 1997 1997
1997 1997 1997 1997 1997 1997 1997 1997
1997 1997 1997 1997 1997 1997 1997
1997 1997 1997 1997 1997 1997 1997 1997
1997 1997 1997 1997 1997

3 nonF
4 Tot 4 LUFF 4 LUFT 4 LUFP 4 LUFO 4 LUFG 4 nonF
5 Tot 5 LUFF 5 LUFT 5 LUFP 5 LUFO 5 LUFG 5 LUFC 5 nonF
6 Tot 6 LUFF 6 LUFT 6 LUFP 6 LUFO 6 LUFG 6 nonF
7 Tot 7 LUFF 7 LUFT 7 LUFP 7 LUFO 7 LUFG 7 LUFC 7 nonF
8 Tot 8 LUFF 8 LUFT 8 LUFC 8 nonF

67 63

14 14

1

1

7

7

2

2

1

1

3

3

13 13

Appendix Sa
3 4.5 14.61 14.66 13.92 0.74
o 0.0 17.06 17.06 0.00 O~OO o 0.0 20.84 20.84 0.00 0.00 o 0.0 13.61 13.61 0.00 0.00 o 0.0 20.57 20.57 0.00 0.00 o 0.0 2~;12 27.12 0.00 0.00 o 0.0 18.15 18.15 0.00 0.00 o 0.0 16.76 16.76 0.00 0.00

36 32

3

3

12 11

12 11

2

2

2

1

5

4

33 29

3 8.3 10.73 10.87 9.41 1.46
o 0.0 10.99 10.99 0.00 0.00 o 0.0 11.46 11.57 0.00 0.00
1 8.3 9.79 9.63 11.54 -1.91
o 0.0 10.49 10.49 0.00 0.00
1 50.0 10.96 13.42 8.50 4.92
1 20.0 11.08 11.81 8.18 3.62
3 9.1 10.71 10.86 9.41 1.45

768 511 143 18.6 11.86 12.00 11.69 0.31

172 57 54 31.4 11.66 12.18 11.62 0.56

180 115 42 23.3 11.68 11.71 11.76 -0.05

270 229 22 8.1 12.30 12.36 11.93 0.43

75 50 18 24.0 11.86 11.87 11.73 0.14

71 60

7 9.9 11.10 11.16 10.94 0.23

596 454 89 14.9 11.91 11:98 11.73 0.25

514 267 119 23.2 10.25 10.29 10.24 0.04

177 44 46 26.0 10.06 10.01 10.06 -0.04

207 130 45 21.7 10.32 10.34 10.27 0.07

66 45 18 27.3 10.38 10.29 10.40 -0.12

62 46 10 16.1 10.35 10.32 10.72 -0.39

1

1

o 0.0 8.74 8.74 0.00 0.00

1

1

o 0.0 14.42 14.42 0.00 0.00

337 223 73 21.7 10.34 10.34 10.36 -0.02

180 97 53 29.4 7.65 7.64 7.75 -0.11

54 17 17 31.5 7.66 7.86 7.64 0.21

125 80 35 28.0 7.64 7.59 7.79 -0.20

1

o

1 100.0 7.92 0.00 7.92 0.00

126 80 36 28.6 7.65 7.59 7.80 -0.20

Page 8

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 146 of 295

Appendix 5a

Summary of Workforce and Average Pay Rates

Restricted to Those Active at Year-End, and With positive Earnings for Year Restricted to 'LUF ' Departments 'nonF' includes 'LUF I Departments excluding Foundry Excludes employees in upper level Mgmt jobs

Workforce

Average $/Hr

Year EEO Dept Tot Wht Black

Total White Black Diff

1998 Tot Tot 1998 Tot LUFF 1998 Tot LUFT 1998 Tot LUFP 1998 Tot LUFO 1998 Tot LUFG 1998 Tot LUFC 1998 Tot nonF

1504 991 279 18.6 12.87 13.65 11.51 2.14

368 145 91 24.7 12.57 14.36 11.92 2.44

539 346 124 23.0 11.73 12.24 10.78 1.45

370 312 37 10.0 13.7a 14.02 12.58 1.43

~7 61 19 21.8 13.06 13.30 12.10 1.20

112 101

7 6.2 14.32 14.63 11.54 3.09

28 26

1 3.6 20.33 21.12 11.54 9.58

1136 846 188 16.5 12.97 13.53 11.30 2.23

1998 6-8 Tot 1998 6-8 LUFF 1998 6-8 LUFT 1998 6-8 LUFP 1998 6-8 LUFO 1998 6-8 LUFG 1998 6-8 nonF

1194 708 259 21.7 11.57 11.83 11.25 0.58

303 89 83 27.4 11.37 11.74 11.51 0.23

459 273 119 25.9 10.88 11.00 10.68 0.32

285 232 33 11.6 12.57 12.68 12.00 0.68

77 52 19 24.7 12.17 12.13 12.10 0.03

70 62

5 7.1 12.15 12.22 12.32 -0.11

891 619 176 19.8 11.64 11.84 11.13 0.71

1998 7-8 Tot 1998 7-8 LUFF 1998 7-8 LUFT 1998 7-8 LUFP 1998 7-8 LUFO 1998 7-8 nonF

527 264 129 24.5 10.51 10.57 10.33 0.24

152 39 34 22.4 10.62 10.49 10.70 -0.20

312 184 78 25.0 10.26 10.39 9.91 0.48

41 25 12 29.3 11.47 11.51 11.34 0.17

22 16

5 22.7 11.52 11.38 11.90 -0.52

375 225 95 25.3 10.47 10.59 10.20 0.39

1998 1998 1998 1998 1998 1998 1998 1998

1 Tot 1 LUFF 1 LUFT 1 LUFP 1 LUFO 1 LUFG 1 LUFC 1 nonF

126 111

31 23

46 42

29 27

6

5

9

9

5

5

95 88

12 9.5 20.97 21.59 16.86 4.73
7 22.6 20.13 21.42 17.10 4.32
3 6.5 18.99 19.37 15.27 4.10
2 6.9 22.32 22.60 18.42 4.19
o 0.0 20.18 20.62 0.00 0.00 o 0.0 24.99 24.99 0.00 0.00 o 0.0 30.34 30.34 0.00 0.00
5 5.3 21.25 21.63 16.53 5.10

1998 1998 1998 1998 1998 1998 1998 1998

2 Tot 2 LUFF 2 LUFT 2 LUFP 2 LUFO 2 LUFG 2 LUFC 2 nonF

48 48

11 11

4

4

12 12

3

3

3

3

15 15

37 37

o 0.0 20.43 20.43 0.00 0;00 o 0.0 20.66 20.66 0.00 0.00
o 0.0 18.40 18.40 0.00 0.00 o 0.0 20.20 20.20 0.00 0.00
o 0.0 19.10 19.10 0.00 0.00
o 0.0 20.47 20.47 0.00 0.00
o 0.0 21.24 21.24 0.00 0.00 o 0.0 20.36 20.36 0.00 0.00

1998 1998 1998 1998 1998 1998 1998

3 Tot 3 LUFF 3 LUFT 3 LUFP 3 LUFG 3 LUFC 3 nonF

94 86

16 15

15 12

35 33

25 23

3

3

78 71

5 5.3 14.60 14.77 12.42 2.34 1 6.2 13.91 14.15 10.38 3.77 2 13.3 12.36 12.68 10.01 2.67 1 2,9 15.29 15.14 21.35 -6.21 1 4.0 15.76 16.10 10.38 5.72
o 0.0 11.89 11.89 0.00 0.00
4 5.1 14.75 14.90 12.94 1.96

1998 1998

4 Tot 4 LUFF

12 12

3

3

o 0.0 16.85 16.85 0.00 0.00 o 0.0 19.83 19.83 0.00 0.00

Page 9

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 147 of 295

1998 1998 1998 1998
1998 1998 1998 1998 1998 1998 1998
1998 1998 1998 1998 1998 1998 1998
1998 1998 1998 1998 1998 1998
1998 1998 1998 1998

4 LUFT 4 LUFO 4 LUFG 4 nonF
5 Tot 5 LUFF 5 LUFT 5 LUFP 5 LUFG 5 LUFC 5 nonF
6 Tot 6 LUFF 6 LUFT 6 LUFP 6 LUFO 6 LUFG 6 nonF
7 Tot 7 LUFF. 7 LUFT 1 LUFP 7 LUFO 7 nanF
8 Tat 8 LUFF 8 LUFT 8 nanF

Appendix Sa

6

6

o 0.0 14.09 14.09 0.00 0.00

1

1

o 0.0 20.36 20.36 0.00 0.00

2

2

o 0.0 18.92 18.92 0.00 0.00

9

9

o 0.0 15.86 15.86 0.00 0.00

30 26

4

4

9

9

3 10.0 11.43 11.63 10.63 1.01
o 0.0 11.45 11.45 0.00 0.00 o 0.0 12.01 12.01 0.00 0.00

9

8. 1 11.1 10.1~ 9.95 11.54 -1.59

3

2

1 33.3 11.55 12.93 8.80 4.13

5

3

1 20.0 12.62 14.35 11.54 2.81

26 22

3 11.5 il.42 11.67 10.63 1.04

667 444 130 19.5 12.40 12.58 12.17 0.41

151 50 49 32.5 12.13 12.71 12.07 0.65

147 89 41 27.9 12.21 12.26 12.16 0.10

244 207 21 8.6 12.76 12.82 12.37 0.44

55 36 14 25.5 12.43 12.46 12.18 0.29

70 62

5 7.1 12.15 12.22 12.32 -0.11

516 394 81 15.7 12.48 12.56 12.23 0.34

467 238 106 22.7 10.75 10.76 10.73 0.03

141 33 32 22.7 10.70 10.64 10.77 -0.14

263 164 57 21. 7 10.59 10.61 10.47 0.14

41 25 12 29.3 11.47 11.51 11.34 0.17

22 16

5 22.7 11.52 11.38 11.90 -0.52

326 205 74 22.7 10.76 10.78 10.71 0.08

60 26 23 38.3 8.70 8.84 8.49 0.35

11

6

2 18.2 9.60 9.70 9.49 0.21

49 20 21 42.9 8.50 8.58 8.40 0.18

49 20 21 42.9 8.50 8.58 8.40 0.18

Page 10

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 148 of 295

Appendix 5a

Summary of Workforce and Average Pay Rates
==========================================
Restricted to Those Active at Year-End, and With positive Earnings for Year Restricted to 'LUF ' Departments 'nonF' includes 'LUF ' Departments excluding Foundry
Excludes employees in upper level Mgmt jobs

Workforce

Average $/Hr

Year EEO Dept Tot Wht Black

Total White Black Diff

1999 Tot 'rot 1999 Tot LUFF 1999 Tot LUFT 1999 Tot LUFP 1999 Tot LUFO 1999 Tot LUFG 1999 Tot LUFC 1999 Tot nonF

1184 796 209 17.7 13.66 14.49 12.24 2.25

284 112 69 24.3 13.22 15.25 12.58 2.68

396 259 85 21.5 12.60 13.08 11.81 1.27

282 239 29 10.3 14.52 14.80 12.97 1.83

87 66 16 18.4 13.02 13.27,12.19 1.08

102 91

7 6.9 14.57 14.82 12.34 2.49

33 29

3 9.1 21.61 23.27 9.84 13.43

900 684 140 15.6 13.80 14.37 12.08 2.28

1999 6-8 Tot 1999 6-8 LUFF 1999 6-8 LUFT 1999 6-8 LUFP 1999 6-8 LUFO 1999 6-8 LUFG 1999 6-8 nonF

896 536 188. 21.0 12.20 12.50 11.93 0.57

233 69 61 26.2 11.95 12.63 12.04 0.59

317 189 80 25.2 11.65 11.72 11.62 0.10

206 166 27 13.1 13.04 13.17 12.35 0.82

79 58 16 20.3 12.56 12.67 12.19 0.48

61 54

4 6.6 12.75 12.80 12.29 0.51

663 467 127 19.2 12.29 12.48 11.87 0.61

1999 7-8 Tot 1999 7-8 LUFF 1999 7-8 LUFT 1999 7-8 LUFP 1999 7-8 LUFO 1999 7-8 nonF

288 142 74 19
166 94 26 15 22 14
214 123

75 26.0 11.14 11.17 11.12 0.05 18 24.3 11.17 11.05 11.34 -0.29 41 24.7 10.95 11.01 10.83 0.18
8 30.8 11.67 11.61 11.57 0.04 8 36.4 11.80 11.90 11.62 0.28 57 26.6 11.13 11.18 11.05 0.14

1999 1999 1999 1999 1999 1999 1999 1999

1 Tot
1 LUFF 1 LUFT 1 LUFP 1 LUFO 1 LUFG 1 LUFC 1 nonF

115 100

25 18

42 36

26 25

4

4

10

9

8

8

90 82

13 11. 3 21.15 21.84 17.02 4.82 7 28.0 21.00 22.36 17.52 4.84
4 9.5 18.63,19.22 15.88 3.34
1 3.8 23.03 23.12 20.68 2.44
o 0.0 19.83 19.83 0.00 0.00
1 10.0 20.93 21.65 14.41 7.24
o 0.0 29.69 29.69 0.00 0.00
6 6.7 21.19 21.73 16.44 5.29

1999 1999 1999 1999 1999 1999 1999 1999

2 Tot 2 LUFF 2 LUFT 2 LUFP 2 LUFO 2 LUFG 2 LUFC 2 nonF

44 44

9

9

5

5

12 12

1

1

1

1

16 16

35 35

o 0.0 21.36 21.36 0.00 0.00 o 0.0 20.82 20.82 0.00 0.00 o 0.0 19.06 19.06 0.00 0.00 o 0.0 20.75 20.75 0.00 0.00 o 0.0 14.98 14.98 0.00 0.00 o 0.0 19.33 19.33 0.00 0.00
o 0.0 23.37 23.37 0.00 0.00
o 0.0 21.50 21.50 0.00 0.00

1999 1999 1999 1999 1999 1999 1999 1999

3 Tot 3 LUFF 3 LUFT 3 LUFP 3 LUFO 3 LUFG 3 LUFC 3, nonF

88 81

12 11

15 13

31 29

2

2

25 23

3

3

76 70

3 3.4 15.11 15.22 15.55 -0.33
1 8.3 14.62 14.98 10.69 4.29
o 0.0 13.13 13.42 0.00 0.00
1 3.2 15.69 15.50 21.98 -6.48
o 0.0 14.81 14.81 0.00 0.00
1 4.0 16.19 16.42 13.97 2.45
o 0.0 12.21 12.21 0.00 0.00
2 2.6 15.19 15.25 17.98 -2.72

1999

4 Tot

15 15

o 0.0 16.05 16.05 0.00 0.00

Page 11

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 149 of 295

1999 1999 1999 1999 1999
1999 1999 1999 1999 1999 1999 1999
1999 1999 1999 1999 1999 1999 1999
1999 1999 1999 1999 1999 1999
1999 1999 1999 1999

4 LUFF 4 LUFT 4 LUFO 4 LUFG 4 nonF
5 Tot 5 LUFF 5 LUFT 5 LUFP 5 LUFG 5 LUFe 5 nonF
6 Tot 6 LUFF 6 LUFT 6 LUFP 6 LUFO 6 LUFG 6 nonF
7 Tot 7 LUFF 7 LUFT 7 LUFP 7 LUFO 7 nonF
8 Tot 8 LUFF 8 LUFT 8 nonF

2

2

9

9

1

1

3

3

13 13

Appendix Sa
o 0.0 22.47 22_47 0.00 0_00 o 0.0 13.94 13_94 0_00 0.00 o 0_0 16.91 16.91 0_00 0.00 o 0.0 17.80 17,80 0.00 0.00 o 0.0 15_06 15.06 0_00 0_00

25 19

3

3

8

7

7

7

2

1

5

1

22 16

5 20.0 11.32 11.85 9.83 2.02
o 0.0 12_38 12.38 0.00 0.00
1 12.5 12.16 12.36 10.81 1.55
o 0.0 10.67 10.67 0.00 0.00
1 50.0 10_53 12_26 8.80 3.46
3 60_0 10.55 14.48 9.84 4.64
5 22_7 11_18 11_75 9.83 1.92

608 394 113 18_6 12.71 12.98 12.46 0.52

159 50 43 27.0 12.31 13.23 12.33 0.90

151 95 39 25.8 12_41 12_4~ 12.45 -0.03

180 151 19 10.6 13.24 13.33 12.69 0_64

57 44

8 14_0 12.85 12.91 12.76 0_16

61 54

4 6.6 12_75 12.80 12.29 0.51

449 344 70 15.6 12.85 12:94 12_54 0_40

265 128 72 17
145 82 26 15 22 14
193 111

69 26.0 11_30 11_36 11_31 0_05 18 25.0 11_21 11_20 11.34 -0_14 35 24.1 11.20 11_26 11.16 0_09
8 30.8 11_67 11_61 11_57 0_04 8 36.4 11_80 11_90 11.62 0.28 51 26.4 11_33 11_39 11.30 0.09

23 14

2

2.

21 12

21 12

6 26.1
o 0_0
6 28_6 6 28_6

9_29 9_72 9_25 9.25

9_37 9.72 9.31 9.31

8.90 0.00 8.90 8.90

0.47 0.00 0.41 0.41

Page 12

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 150 of 295

~ppendix Sa

Summary of Workforce and Average Pay Rates

Restricted to Those Active. at Year-End, and With Positive Earnings for Year Restricted to 'LUF ' Departments 'nonF' includes 'LUF ' Departments excluding Foundry Excludes employees in upper level Mgmt jobs

Workforce

Average $/Hr

Year EEO Dept Tot Wht Black

Total White Black Diff

2000 Tot Tot 2000 Tot LUFF 2000 Tot LUFT 2000 Tot LUFP 2000 Tot LUFO 2000 Tot LUFG 2000 Tot LUFe 2000 Tot nonF

1231 797 230 18.7. 14.18 15.28 12.39 2.89

345 124 89 25.8 12.95 15.12 12.17 2.95

230 161 48 20.9 14.02 14.66 12.68 1.97

279 235 26 9.3 15.37 15.66 13.37 2.29

234 150 57 24.4 13.15 13.80 11.97 1.83

105 93

7 6.7 15.66 15.85 14.47 1.39

38 34

3 7.9 19.81 21.~i 8.83 12.28

886 673 141 15.9 14.66 15.31 12.53 2.78

2000 6-8 Tot 2000 6-8 LUFF 2000 6-8 LUFT 2000 6-8 LUFP 2000 6-8 LUFO 2000 6-8 LUFG 2000 6-8 nonF

928 527 206 22.2 12.56 13.07 12.01 1.06

293 82 81 27.6 11.75 12.43 11.64 0.80

169 106 44 26.0 12.47 12.54 12.44 0.10

198 158 24 12.1 13.60 13.77 12.61 1.15

204 125 53 26.0 12.37 12.68 11.83 0.86

64 56

4 6.2 13.88 13.94 13.74 0.20

635 .445 125 19.7 12.93 13.19 12.26 0.94

2000 7-8 Tot 2000 7-8 LUFF 2000 7-8 LUFT 2000 7-8 LUFP 2000 7-8 LUFO 2000 7-8 nonF

311 133 122 29
52 32 34 20 103 52 189 104

98 31.5 11.09 11.31 11.00 0.31 37 30.3 10.53 10.35 10.48 -0.13 15 28.8 11.68 11.78 11.56 0.22 10 29.4 11.42 11.44 11.24 0.19 36 35.0 11.34 11.50 11.23 0.26 61 32.3 11.45 11.57 11.31 0.26

2000 2000 2000 2000 2000 2000 2000 2000

1 Tot 1 LUFF 1 LUFT 1 LUFP 1 LUFO 1 LUFG 1 LUFe 1 nonF

114 97 13 11.4 22.73 23.46 18.31 5.15

25 16

7 28.0 22.11 24.57 18.52 6.05

32 28

3 9.4 20.68 21.30 16.65 4.65

27 25

1 3.7 24.78 24.61 22.07 2.54

11 10

1 9.1 18.51 18.95 14.13 4.82

10

9

1 10.0 24.07 24.27 22.29 1.98

9

9

o 0.0 29.28 29.28 0.00 0.00

89 81

6 6.7 22.91 23.25 18.07 5.17

2000 2000 2000 2000 2000 2000 2000 2000

2 Tot 2 LUFF 2 LUFT 2 LUFP 2 LUFO 2 LUFG 2 LUFe 2 nonF

56 55

8

8

5

5

18 18

8

7

1

1

16 16

48 47

1 1.8 21.42 21.54 15.00 6.54
o 0.0 22.08 22.08 0.00 0.00 o 0.0 20.15 20.15 0.00 0.00 o 0.0 21.38 21.38 0.00 0.00
1 12.5 20.91 21.76 15.00 6.76
o 0.0 21.80 21.80 0.00 0.00 o 0.0 21.76 21.76 0.00 0.00
1 2.1 21.31 21.45 15.00 6.45

2000 2000 2000 2000 2000 2000 2000 2000
2000

3 Tot 3 LUFF 3 LUFT 3 LUFP 3 LUFO 3 LUFG 3 LUFe 3 nonF
4 Tot

86 77

15 14

8

7

28 26

6

4

25 22

4

4

71 63

17 17

5 5.8 15.70 15.8714.42 1.45 1 6.7 15.40 15.71 11.04 4.67
o 0.0 13.35 13.89 0.00 0.00
1 3.6 16.17 15.95 22.75 -6.80 1 16.7 15.68 16.28 14.28 2.00 2 8.0 16.44 16.88 12.02 4.86
o 0.0 13.54 13.54 0.00 0.00
4 5.6 15.76 15.91 15.27 0.65
o 0.0 18.87 18.87 0.00 0.00

Page 1.3

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 151 of 295

2000 2000 2000 2000 2000
2000 2000 2000 2000 2000 2000 2000 2000
2000 2000 2000 2000 2000 2000 2000
2000 2000 2000 2000 2000 2000
2000 2000 2000 2000 2000

4 LUFF 4 LUFT 4 LUFO
4 LUFG
4 nonF
5 Tot 5 LUFF 5 LUFT 5 LUFP 5. LUFO 5 LUFG 5 LUFC 5 nonF
6 Tot 6 LUFF 6 LUFT 6 LUFP 6 LUFO 6 LUFG 6 nonF
7 Tot 7 LUFF 7 LUFT 7 LUFP 7 LUFO 7 nonF
8 Tot 8 LUFF 8 LUFT 8 LUFP 8 nonF

1

1

10 10

3

3

3

3

16 16

Appendix Sa
o 0.0 25.94 25.94 0.00 0.00 o 0.0 16.85 16.85 0.00 0.00
o 0.0 22.44 22.44 0.00 0.00
0' 0.0 19.67 19.67 0.00 0.00
o 0.0 18.43 18.43 0.00 0.00

28 23

3

3

6

5

8

8

2

1

2

2

7

4

25 20

4 14.3. 11.58 11.91 10.40 1.51
o 0.0 13.21 13.21 0.00 0.00
1 16.7 13.27 13.63 11.47 2.16
o 0.0 11~10 11.10 0.00 0.00
1 50.0 10.73 9.81 11.64 -1.83
o 0.0 11.81 11.81 0.00 0.00
2 28.6 10.16 10.97 9.25 1.72
4 16.0 11.39 11.71 10.40 1.31

617 394 108 17.5 13.30 13.67 12.93 0.74

171 53 44 25.7 12.62 13.57 12.60 0.96

117 74 29 24.8 12.82 12.87 12.90 -0.03

164 138 14 8.5 14.05 14.11 13.59 0.51

101 73 17 16.8 13.43 13.53 13.09 0.44

64 56

4 6.2 13.88 13.94 13.74 0.20

446 341 64 14.3 13.56 13.69 13.15 0.53

267 120 84 19 47 29 33 20
103 52 183 101

84 31.5 11.42 11.55 11.33 0.21 25 29.8 11.22 11.05 11.21 -0.16 14 29.8 11.94 12.03 11.72 0.32
9 27.3 11.49 11.44 11.46 -0.03 36 35.0 11.34 11.50 11.23 0.26 59 32.2 11.52 11.64 11.38 0.26

44 13 14 31.8 9.06 9.09 9.01 0.08

38 10 12 31.6 9.02 9.03 8.96 0.07

5

3

1 20.0 9.27 9.27 9.27 0.00

1

o

1 100.0 9.27 0.00 9.27 0.00

6

3

2 33.3 9.27 9.27 9.27 0.00

Page 14.

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 152 of 295

Appendix Sa

Summary of Workforce and Average Pay Rates

Restricted to Those Active at-. Year-End, and With positive Earnings for Year Restricted to 'LUF ' Departments 'nonF' includes 'LUF ' Departments excluding Foundry Excludes employees in upper level Mgmt jobs

Workforce

Average $/Hr

Year EEO Dept Tot Wht Black

Total White Black Diff

2001 Tot Tot 2001 Tot LUFF 2001 Tot LUFT 2001 Tot LUFP 2001 Tot LUFO 2001 Tot LUFG 2001 Tot LUFC 2001 Tot nonF

1107 737 197 17.8 15.23 16.25 13.43 2.82

283 105 70 24.7 14.19 16.61 13.46 3.15

162 118 34 21.0 14.86 15.55 13.15 2.39

293 245 27 9.2 16.01 16.27 14.03 2.24

224 141 56 25.0 14.24 14.78 13.28 1.49

104 92 '6 5.8 16.60 16.84 15.51 1.34

41. 36

4 9.8 20.18 21.58 10.20 11.38

824 632 127 15.4 15.58 16.19 13.41 2.77

2001 6-8 Tot 2001 6-8 LUFF 2001 6-8 LUFT 2001 6-8 LUFP 2001 6-8 LUFO 2001 6-8 LUFG 2001 6-8 nonF

813 479 171 21.0 13.47 13.90 13.05 0.85

230 63 61 26.5 12.71 13.40 12.79 0.61

116 76 31 26.7 12.99 13.09 12.94 0.16

209 168 24 11.5 14.20 14.36 13.23 1.12

195 118 51 26.2 13.43 13.57 13.18 0.39

63 54

4 6.3 14.79 14.89 14.98 -0.09

583 416 110 18.9 13.77 13.97 13.19 0.78

2001 7-8 Tot 2001 7-8 LUFF 2001 7-8 LUFT 2001 7-8 LUFP 2001 7-8 LUFO 2001 7-8 nonF

202 92 61 30.2 12.28 12.37 12.36 0.01

71 17 18 25.4 11.74 11.28 12.08 -0.80

28 17

9 32.1 12.37 12.48 12.13 0_35

31 21

7 22.6 12.13 12.35 11.19 1.16

72 ")7 27 37.5 12.85 12.82 12.91 -0.09

131 75 43 32.8 12.57 12.61 12.47 0.14

2001 2001 2001 2001 2001 2001 2001 2001

1 Tot 1 LUFF 1 LUFT 1 LUFP 1 LUFO 1 LUFG 1 r,UFC 1 nonF

109 91 14 12.8 23.68 24.64 18.52 6.12

26 16

8 30.8 22.75 25.63 18.79 6.84

27 24

2 7.4 21.90 22.56 17.13 5.43

27 25

1 3.7 25.21 25.00 22.77 2.23

10

8

2 20.0 18.50 19.53 14.38 5.16

11 10

8

8

1 9.1 25.37 25.59 23.19 . 2.40
o 0.0 31.71 31.71 0.00 0.00

83 75

6 7.2 23.97 24.43 18.16 6.27

2001 2001 2001 2001 2001 2001 2001 2001

2 Tot 2 LUFF 2 LUFT 2 LUFP 2 LUFO 2 LUFG 2 LUFC 2 nonF

52 51

9

9

1

1

17 17

7

6

1

1

17 17

43 42

1 1.9 22.64 22.78 15.58 7.20
o 0.0 22.50 22.50 0.00 0.00 o 0.0 18.95 18.95 0.00 0.00 o 0.0 21.70 21.70 0.00 0.00
1 14.3 23.82 25.19 15.58 9.61
o 0.0 24.81 24.81 0.00 0.00 o 0.0 23.25 23.25 0.00 0.00
1 2.3 22.67 22.84 15.58 7.26

2001 2001 2001 2001 2001 2001 2001 2001
2001

3 Tot 3 LUFF 3 LUFT 3 LUFP 3 LUFO 3 LUFG 3 LUFC 3 nonF
4 Tot

80 73

15 15

6

6

27 24

7

5

22 20

3

3

65 58

21 20

4 5.0 16.10 16.13 15.82 0.30
o 0.0 16.31 16.31 0.00 0.00
o 0.0 14.46 14.46 0.00 0_00
2 7.4 16.57 16.39 19_28 -2.90 1 14.3 15.86 16.08 14.77 1.31 1 4.5 16.24 16.56 9.95 6.61
o 0.0 13.67 13.67 0.00 0.00
4 6.2 16.05 16.08 15.82 0.26
o 0.0 22.74 22.63 0.00 0.00

Page 15

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 153 of 295

2001 2001 2001 2001 2001 2001
2001 2001 2001 2001 2001 2001 2001 2001
2001 2001 2001 2001 2001 2001 2001
2001 2001 2001 2001 2001 2001
2001 2001

4 LUFF 4 LUFT 4 LUFP 4 LUFO 4 LUFG 4 nonF
5 Tot. 5 LUFF. 5 LUFT 5 LUFP 5 LUFO 5. LUFG 5 LUFe 5 nonF
6 Tot 6 LUFF 6 LUFT 6. LUFP 6 LUFO 6 LUFG 6 nonF
7 Tot 7 LUFF 7 LUFT 7 LUFP 1 LUFO 7 nonF
8 Tot 8 LUFF.

1

1

6

6

5

4

4

4

5

5

20 19

Appendix Sa
o 0.0 26.98 26.98 0.00 0.00 o 0.0 20.12 20.12 0.00 0.00 o 0.0 25.32 25.38 0.00 0.00 o 0.0 23.53 23.53 0.00 0.00 o 0.0 21.84 21.84 0.00 0.00 o 0.0 22.53 22.40 0.00 0.00

28 20

2

1

6

5

8

7

1 o

2

2

9

5

26 19

6 21.4
1 50.0
1 16.7
o 0.0
1 100.0
o 0.0
3 33.3
5 19.2

12.56 12.97 11.38 13.73 15.84 11.61 13.91 14.32 11.88 12.41 12.19 0.00 12.23 0.00 12.23 12.30 12.30 0.00 11.62 12.41 10.85 12.47 12.82 11.33

1.59 4.23 2.44 0.00 0.00 0.00 1.57 1.49

611 387 110 18.0 13.86 14.26 13.43 0.83

159 46 43 27.0 13.14 14.1& 13.09 1.10

88 59 22 25.0 13.18 13.27 13.26 0.00

178 147 17 9.6 14.56 14.64 14.07 0.57

123 81 24 19.5 13.78 13.91 13.49 0.42

63 54

4 6.3 14.79 14.89 14.98 -0.09

452 341 67 14.8 14.11 14.21 13.65 0.62

200 90 61 30.5 12.30 12.41 12.36 0.06

69 15 18 26.1 11.78 11.41 12.08 -0.67

28 17

9 32.1 12.37 12.48 12.13 0.35

31 21

7 22.6 12.13 12.35 11.19 1.16

72 37 27 31.5 12.85 12.82 12.91 -0.09

131 75 43 32.8 12.57 12.61 12.47 0.14

2

2

o 0.0 10.31 10.31 0.00 0.00

2

2

o 0.0 10.31 10.31 0.00 0.00

Page 16

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 154 of 295

Appendix Sa

Summary of Workforce and Average Pay Rates
==========================================
Restricted to Those Active at Year-End, and With Positive Earnings for Year
Restricted to 'LUF ' Departments 'nonF' includes 'LUF ' Departments excluding Foundry
Excludes employees in upper level Mgmt jobs

Workforce

Average $/Hr

Year ERO Dept

Tot Wht Black

Total White Black biff

2002 2002 2002 2002 2002 2002 2002 2002

Tot Tot Tot Tot Tot Tot Tot Tot

Tot LUFF LUFT LUFP LUFO LUFG LUFC nonF

1181 798 201 17.0 16.31 17.69 13.50 4.18

272 101 64 23.5 14.44 17.02 13.73 3.29

202 124 55 27.2 13.92 15.01 12.59 2.42

300 257 22 7.3 18.10 18.49 14.89 3.60

233 163 47 20.2 16.12 17.13 13.69 3.44

102 90

6 5.9 17.35 17.61 16.08 1.53

72 63

7 9.7 21.71 22.30 10.79 11.51

909 697 137 15.1 16.86 17.78 13.40 4.39

2002 6-8 Tot 2002 6-8 LUFF 2002 6-8 LUFT 2002 6-8 LUFP 2002 6-8 LUFO 2002 6-8 LUFG 2002 6-8 LUFC 2002 6-8 nonF

811 467 175 21.6 13.53 14.04 13.06 0.97

225 63 57 25.3 12.85 13.63 12.91 0.72

170 94 53 31.2 12.48 12.82 12.43 0.39

177 142 20 11.3 14.57 14.68 13.98 0.70

177 114 42 23.7 13.74 13.84 13.46 0.38

61 53

3 4.9 15.35 15.42 15.54 -0.12

1

1

o 0.0 11.03 11.03 0.00 0.00

586 404 118 20.1 13.79 14.10 13.14 0.96

2002 7-8 Tot 2002 7-8 LUFF 2002 7-8 LUFT 2002 7-8 LUFP 2002 7-8 LUFO 2002 7-8 LUFC 2002 7-8 nonF

215 92 63 29.3 12.09 12.32 12.25 0.07

69 18 15 21.7 11.88 11.86 12.09 -0.23

74 30 24 32.4 11.50 11.87 11.52 0.34

17 13

3 17.6 12.63 12.67 12.39 0.28

54 30 21 38.9 13.04 12.93 13.17 -0.24

1

1

o 0.0 11.03 11.03 0.00 0.00

146 74 48 32.9 12.20 12.43 12.30 0.13

2002 2002 2002 2002 2002 2002 2002 2002

1 Tot 1 LUFF 1 LUFT 1 LUFP 1 LUFO 1 LUFG 1 LUFC 1 nonF

137 120 23 14 19 18 37 34 26 24 11 10. 21 20
114 106

12 8.8 28.11 28.74 20.31 8.43 7 30.4 24.62 27.95 20.38 7.57 1 5.3 24.92 25.14 21.02 4.12 1 2.7 29.92 30.28 23.63 6.65 2 7.7 28.45 29.47 16.23 13.25 1 9.1 26.39 26.62 24.00 2.62
o 0.0 32.08 30.07 0.00 0.00
5 4.4 28.81 28.84 20.22 8.62

2002 2002 2002 2002 2002 2002 2002

2 Tot 2 LUFF 2 LUFT 2 LUFP 2 LUFO 2 LUFC 2 nonF

69 67

9

9

2

2

29 28

7

6

22 22

60 58

1 1.4 24.34 24.42 17.88 6.54
o 0.0 23.69 23.69 0.00 0.00 o 0.0 22.32 22.32 0.00 0.00 o 0.0 25.24 25.23 0.00 0.00
1 14.3 22.70 23.50 17.88 5.62
o 0.0 24.14 24.14 0.00 0.00
1 1.7 24.44 24.54 17.88 6.66

2002 2002 2002 2002 2002 2002 2002 2002

3 Tot 3 LUFF 3 LUFT 3 LUFP 3 LUFO 3 LUFG 3 LUFC 3 nonF

90 83

12 12

4

4

33 31

15 13

22 19

4

4

78 71

4 4.4 16.89 16.93 16.35 0.58
o 0.0 16.97 16.97 0.00 0.00 o 0.0 15.56 15.56 0.00 0.00
1 3.0 17.31 17.13 24.26 -7.13
1 6.7 16.62 16.68 15.29 1.39
2 9.1 17.05 17.51 12.93 4.58
o 0.0 14.62 14.62 0.00 0.00
4 5.1 16.88 16.92 16.35 0.57

Page 17

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 155 of 295

2002 2002 2002 2002 2002 2002 2002
2002 2002 2002 2002 2002 2002 2002 2002
2002 2002 2002 2002 2002 2002 2002
2002 2002 2002 2002 2002 2002 2002
2002 2002 2002 2002

4 Tot 4 LUFF 4 LUFT 4 LUFP 4 LUFO 4 LUFG 4 nonF
5 Tot 5 LUFF 5 LUFT 5 LUFP 5 LUFO 5 LUFG 5 LUFC 5 nonF
6 Tot 6 LUFF 6 LUFT 6 LUFP 6 LUFO 6 LUFG 6 non"F
7 Tot 7 LUFF 7 LUFT 7 LUFP 7 LUFO 7 LUFC 7 nonF
8 Tot 8 LUFF 8 LUFT 8 nonF

22 21

1

1

1

1

9

8

5

5

6

6

21 20

Appendix Sa
o 0.0 25.58 25.58 0.00 0.00 o 0.0 22.12 22.12 0.00 0.00 o 0.0 22.52 22.52 0.00 0.00 o 0.0 27.05 27.22 0.00 0.00 o 0.0 26.41 26.41 0.00 0.00 o 0.0 23.78 23.78 0.00 0.00 o 0.0 25.75 25.75 0.00 0.00

42 34

2

2

6

5

15 14

3

1

2

2

14 10

40 32

5 11.9 13.57 13.84 12.041.80
o 0.0 15.05 15.05 0.00 0.00
1 16.7 14.42 14.80 12.49 2.31
o 0.0 13.12 13.01 0.00 0.00
1 33.3 14.63 17.03 12.72 4.31
o 0.0 12.74 12.74 0.00 0.00
3 21.4 13.36 14.17 11.67 2.50
5 12.5 13.49 13.76 12.04 1.72

596 375 112 18.8 14.05 14.46 13.52 0.94

156 45 42 26.9 13.28 14.34 13.20 1.14

96 64 29 30.2 13.24 13.26 13.18 0.09

160 129 17 10.6 14.78 14.89 14.27 0.62

123 84 21 17.1 14.05 14.17 13.74 0.43

61 53

3 4.9 15.35 15.42 15.54 -0.12

440 330 70 15.9 14.32 14.47 13.71 0.76

196 86. 58 29.6 12.34 12.50 12.49 0.01

64 15 14 21. 9 12.00 12.18 12.22 -0.04

60 27 20 33.3 12.02 12.17 11.96 0.20

17 13

3 17.6 12.63 12.67 12.39 0.28

54 30 21 38.9 13.04 12.93 13.17 -0.24

1

1

o 0.0 11.03 11.03 0.00 0.00

132 71 44 33.3 12.51 12.56 12.57 -0.01

19

6

5 26.3 9.56 9.72 9.51 0.21

5

3

1 20.0 10.29 10.28 10.31 -0.03

14

3

4 28.6 9.30 9.17 9.32 -0.15

14

3

4 28.6 9.30 9.17 9.32 -0.15

Page 18

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 156 of 295

Appendix 5b
Summary of Workforce and Average Pay Rates
==========================================
Restricted to Those Active at Year-End, and With Positive Earnings for Year Includes All Departments 'Oth' includes all Departments other than , LUF' 'nonF' includes all Departments other than LUFF Excludes employees in upper level Mgmt jobs

Workforce

Average $/Hr

Year EEO Dept Tot Wht Black

Total White Black Diff

1994 Tot Tot 199.4 Tot LUFF 1994 Tot LUFT 1994 Tot LUFP 1994 Tot LUFO 1994 Tot LUFG 1994 Tot LUFC 1994 Tot Oth 1994 Tot nonF·

1925 1372 310 16.1 11.17 11.77 9.80 1.97

407 173 106 26.0 10.23 11.58 9.71 1.87

544 382 102 18.8 10.07 10.28 9.47 0.81

480 410 47 9.8 11.66 11.86 10.41 1.45

57 47

6 10.5 10.93 11.20 9.66 1.54

52 46

4 7.7 11.25 11.42 ·10.35 1.07

29 27

1 3.4 16.63 15.83 7.36 8.47

356 287 44 12.4 12.83 13.48 10.13 3.35

1518 1199 204 13.4 11.42 11.79 9.84 1.95

1994 6-8 Tot 1994 6-8 LUFF 1994 6-8 LUFT 1994 6-8 LUFP 1994 6-8 LUFO 1994 6-8 LUFG 1994 6-8 LUFC 1994 6-8 Oth 1994 6-8 nonF

1406 895 285 20.3 9.94 10.21 9.73 0.48

343 118 98 28.6 9.45 10.02 9.57 0.45

451 296 98 21.7 9.55 9.65 9.37 0.28

374 308 44 11.8 10.69 10.77 10.26 0.51

49 39

6 12.2 10.22 10.36 9.66 0.70

38 33

3 7.9 10.37 10.36 11.35 -0.99

5

5

o 0.0 8.76 8.76 0.00 0.00

146 96 36 24.7 10.21 10.38 10.35 0.02

1063 777 187 17.6 10.10 10.24 9.81 0.43

1994 7-8 Tot 1994 7-8 LUFF 1994 7-8 LUFT 1994 7-8 LUFP 1994 7-8 LUFO 1994 7-8 LUFG 1994 7-8 LUFC 1994 7-8 Oth 1994 7-8 nonF

689 377 158 22.9

181 46 44 24.3

308 195 69 22.4

98 67 23 23.5

24 17

2

1

5

5

4 16.7
o 0.0 o 0.0

71 46 18 25.4

508 331 114 22.4

8.93 8.36 8.96 9.35 9.41 6.61 8.76 9.61 9.14

9.12 8.49 9.04 9.26 9.53 5.97 8.76 9.84 9.21

8.89 0.23 8.33 0.17 8.75 0.29 9.56 -0.30 9.02 0.51 0.00 0.00 0.00 0.00 9.91 -0.07 9.11 0.10

1994 1994 1994 1994 1994 1994 1994 1994 1994

1 Tot 1 LUFF 1 LUFT 1 LUFP 1 LUFO 1 LUFG 1 LUFC lOth 1 nonF

196 179

27 20

51 48

36 34

3

3

2

2

6

5

71 67

169 159

11 5.6 17.26 17.40 12.52 4.88
6 22.2 15.47 16.84 11.73 5.11
2 3.9 14.14 13.71 14.29 -0.58
2 5.6 17.67 17.95 12.97 4.98
o 0.0 17.93 17.93 0.00 0.00
o 0.0 17.59 17.59 0.00 0.00
o 0.0 30.19 26.72 0.00 0.00
1 1.4 18.85 19.20 12.81 6.39 5 3.0 17.55 17.47 13.46 4.00

1994 1994 1994 1994 1994 1994 1994 1994 1994

2 Tot 2 LUFF 2 LUFT 2 LUFP 2 LUFO 2 LUFG 2 LUFC 20th 2 nonF

69 67

12 11

1

1

15 15

3

3

1

1

12 12

25 24

57 56

1 1.4 17.08 17.16 11.83 5.33
1 8.3 16.91 17.38 11.83 5.55
o 0.0 15.14 15.14 0.00 0.00 o 0.0 17.38 17.38 0.00 0.00 o 0.0 14.91 14.91 0.00 0.00 o 0.0 7.40 7.40 0.00 0.00 o 0.0 17.10 17.10 0.00 0.00 o 0.0 17.71 17.73 0.00 0.00 o 0.0 17.12 17.12 0.00 0.00

1994 1994

3 Tot 3 LUFF

116 111 20 19

4 3.4 12.65 12.72 10.82 1.90 1 5.0 12.15 12.33 8.83 3.50

Page 1

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 157 of 295

1994 1994 1994 1994 1994 1994 1994
1994 1994 1994 1994 1994 1994 1994
1994 1994 1994 1994 1994 1994 1994 1994 1994
1994 1994 1994 1994 1994 1994 1994 1994
1994 1994 1994 1994 1994 1994. 1994 1994 1994
1994 1994 1994 1994 1994 1994 1994 1994

3 LUFT 3 LUFP 3 LUFO 3 LUFG 3 . LUFC 3 Ot.h 3 nonF
4 Tot. 4 LUFF 4. LUFT 4 LUFP 4 LUFG 4 Ot.h 4 nonF
5 Tot. 5 LUFF 5 LUFT 5 LUFP 5 LUFO 5 LUFG 5 LUFC 50th 5 nonF
6 Tot 6 LUFF 6 LUFT 6 LUFP 6 LUFO 6 LUFG 60th 6 nonF
7 Tot. 7 LUFF 7 LUFT 7 LUFP 7 LUFO 7 LUFG 7 LUFC 70th 7 nonF
8 Tot 8 LUFF 8 LUFT 8 LUFP 8 LUFO 8 LUFG 8 Ot.h 8 nonF

9

8

35 33

1

1

9

9

2

2

40 39

96 92

31 29

2

2

14 14

6

6

1

1

8

6

29 27

Appendix 5b
1 11.1 11.22 11.46 9.35 2.11 1 2.9 12.94 12.99 12.12 0.87
o 0.0 13.20 13.20 0.00 0.00 o 0.0 13.43 13.43 0.00 0.00 o 0.0 9.64 9.64 0.00 0.00
1 2.5 12.93 12.93 12.98 -0.05 3 3.1 12.75 12.80 11.48 1.32
o 0.0 14.06 14.04 0.00 0.00 o 0.0 15.07 15.07 0.00 0.00 o 0.0 11.19 11.19 0.00 0.00 o 0.0 18.39 18.39 0.00 0.00 o 0.0 19.88 19.88 0.00 0.00 o 0.0 14.84 15.03 0.00 0.00 o 0.0 13.99 13.96 0.00 0.00

94 82

3

3

17 14

13 13

1

1

1 o

3

2

56 49

91 79

5 5.3
o 0.0
1 5.9
o 0.0 o 0.0
1 100.0
1 33.3 2 3.6
5 5.5

10.25 10.44 9.58 9.58 9.91 10.18
10.13 10.13 10.65 10.65
7.36 0.00 8.66 9.31 10.54 10.69 10.27 10.47

8.79 0.00 9.52 0.00 0.00 7.36 7.36 9.86 8.79

1.64 0.00 0.66 0.00 0.00 0.00 1.95 0.82 1.68

717 518 127 17.7 10.91 11.01 10.77 0.24

162 72 54 33.3 10.66 11.00 10.59 0.41

143 101 29 20.3 10.83 10.83 10.84 -0.01

276 241 21 7.6 11.17 11.19 11.03 0.16

25 22

2 8.0 11.00 11.00 10.92 0.08

36 32

3 8.3 10.58 10.49 11.35 -0.85

75 50 18 24.0 10.78 10.87 10.80 0.07

555 446 73 13.2 10.98 11.01 10.91 0.11

533 312 113 21.2

110 31 23 20.9

237 151 47 19.8

92 63 22 23.9

23 17

3 13.0

1

1

0 0.0

5

5

0 0.0

65 44 18 27.7

423 281 90 21.3

9.44 9.11 9.48 9.49 9.52 5.97 8.76 9.87 9.53

9.50 9.04 9.56 9.38 9.53 5.97 8.76 9.95 9.55

9.59 -0.08 9.43 -0.39 9.49 0.07 9.68 -0.29 9.70 -0.17 0.00 0.00 0.00 0.00 9.91 0.04 9~63 -0.07

156 65 45 28.8 7.20 7.28 7.14 0.14

71 15 21 29.6 7.20 7.36 7.12 0.24

71 44 22 31.0 7.23 7.25 7.18 0.07

6

4

1 16.7 7.23 7.28 7.00 0.28

1

o

1 100.0 7.00 0.00 7.00 0.00

1

o

o 0.0 7.25 0.00 0.00 0.00

6

2

o 0.0 6.85 7.40 0.00 0.00

85 50 24 28.2 7.20 7.26 7.17 0.09

Page 2

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 158 of 295

Appendix 5b

Summary of Workforce and Average Fay Ra~es

Res~ric~ed ~o Those Ac~ive a~ Year-End, and Wi~h Positive Earnings for Year Includes All Depar~men~s 'O~h' includes all Depar~men~s other ~han 'LUF' 'nonF' includes all Depar~men~s o~her ~han LUFF Excludes employees in upper level Mgm~ jobs

Workforce

Average $/Hr

Year EEO Dep~

To~ Wht Black

Total White Black Diff

1995 1995 1995 1995 1995. 1995 1995 1995 1995

Tot
To~ To~ To~ To~ To~ To~ To~ To~

To~
LUFF LUFT LUFP LUFO LUFG LUFC
O~h
nonF

2014 1412 326

439 184 107

545 370 114

525 448 51

46 34

5

59 53

4

31 29

1

369 294. 44

1575 1228 219

16.2 24.4 20.9
9.7 10.9
6.S 3.2 11. 9 13.9

11.38 12.00 9.98 10.37 11.79 9.75 10.35 10.56 9.82 11.76 11.90 10.43 12.15 12.72 11.52 11.14 11.25 10.51 16.72 15.89 7.59 13.08 13.76 10.25 11.67 12.03 10.09

2.02 2.05 0.74 1.47 1.20 0.74 8.30 3.50 1.94

1995 6-8 To~ 1995 6-8 LUFF 1995 6-8 LUFT 1995 6-8 LUFF 1995 6-S LUFO 1995 6-8 LUFG 1995 6-8 LUFC 1995 6-8 O~h 1995 6-S nonF

1468 915 298 20.3 10.02 10.25 9.87 0.38

363 118 99 27.3 9.52 10.07 9.56 0.52

464 297 108 23.3 9.75 9.80 9.69 0.11

406 335 48 l1.B 10.59 10.64 10.26 0.38

33 23

3 9.1 10.50 10.68 10.57 0.11

45 40

3

3

3 6.7 10.25 10.20 11.48 -1.28
o 0.0 8.48 8.48 0.00 0.00

154 99 37 24.0 10.35 10.48 10.52 -0.05

1105 797 199 1B.O 10.18 10.27 10.02 0.25

1995 7-S Tot 1995 7-8 LUFF 1995 7-S LUFT 1995 7-8 LUFP 1995 7-8 LUFO 1995 7-8 LUFG 1995 7-S LUFC 1995 7-8 O~h 1995 7-S nonF

738 402 173 23.4

192 46 48 25.0

336 209 80 23.8

121 89 26 21.5

12

7

1 8.3

2

2

o 0.0

3

3

o 0.0

72 46 18 25.0

546 356 125 22.9

9.07 8.43 9.30 9.03 9.42 7.56 8.48 9.73 9.29

9.18 9.12 0.06 8.44 8.37 0.07 9.32 9.23 0.10 8.B5 9.50 -0.64 9.54 9.85 -0.31 7.56 0.00 0.00 8.48 0.00 0.00 9.93 10.07 -0.15 9.27 9.41 -0.14

1995 1995 1995 1995 1995 1995 1995 1995 1995

1 Tot 1 LUFF 1 LUFT 1 LUFP 1 LUFO 1 LUFG 1 LUFC
1 O~h
1 nonF

194 174

30 22

47 42

34 33

4

3

2

2

6

5

71 67

164 152

14 7.2 18.26 18.52 12.69 5.83
7 23.3 16.02 17.50 12.15 5.35
4 8.5 15.65 15.40 13.30 2.09
1 2.9 19.16 19.32 13.76 5.56
1 25.0 17.23 18.82 12.46 6.36
o 0.0 18.25 18.25 0.00 0.00 o 0.0 31.07 27.28 0.00 0.00
1 1.4 19.49 19.76 13.18 6.5S
7 4.3 18.67 18.67 13.23 5.44

1995 1995 1995 1995 1995 1995 1995 1995 1995

2 Tot 2 LUFF 2 LUFT 2 LUFF 2 LUFO 2 LUFG 2 LUFC
2 O~h
2 nonF

95 88

IS 16

2

2

20 18

7

6

1

1

14 14

33 31

77 72

2 2.1 16.BO 16.89 12.62 4.27
1 5.6 15.66 16.50 11.83 4.67
o 0.0 13.37 13.37 0.00 0.00 o 0.0 19.02 18.23 0.00 0.00
1 14.3 17.04 17.64 13.41 4.23
o 0.0 10.71 10.71 0.00 0.00 o 0.0- 17.03 17.03 0.00 0.00 o 0.0 16.32 16.53 0.00 0.00
1 1.3 17.06 16.97 13.41 3.56

1995

3 Tot

122 118

3 2.5 12.84 12.87 11.85 1.02

Page 3

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 159 of 295

1995 1995 1995 1995 1995 1995 1995 1995
1995 1995 1995 1995 1995 1995 1995
1995 1995 1995 1995 1995 1995 1995 1995 1995
1995 1995 1995 1995 1995 1995 1995 1995
1995 1995 1995 1995 1995 1995 1995 1995 1995
1995 1995 1995 1995 1995 1995

3 LUFF 3 LUFT 3 LUFP 3 LUFO 3 LUFG 3 LUFC 30th 3 nonF
4 Tot 4 LUFF 4 LUFT 4 LUFP 4 LUFG 40th 4 nonF
5 Tot 5 LUFF 5 LUFT 5 LUFP 5 LUFO 5 LUFG 5 LUFC 50th 5 nonF
6 Tot 6 LUFF 6 LUFT 6 LUFP 6 LUFO 6 LUFG 60th 6 nonF
7 Tot 7 LUFF 7 LUFT 7 LUFP 7 LUFO 7 LUFG 7 LUFC 70th 7 nonF
8 Tot 8 LUFF 8 LUFT 8 LUFP 80th 8 nonF

22 22

10

9

43 40

1

1

7

7

2

2

37 37

100 96

29 26

2

2

8

8

6

6

1

1

12

9

27 24

Appendix· 5b
o 0.0 12.11 12.11 0.00 0.00
1 10.0 11.01 11.17 9.63 1.54
2 4.7 13.26 13.30 12.95 0.34
o 0.0 13.78 13.78 0.00 0.00 o 0.0 13.39 13.39 0.00 0.00 o 0.0 9.93 9.93 O.O~ 0.00
o 0.0 13.30 13.30 0.00 0.00
3 3.0 13.00 13.04 11.85 1.19
o 0.0 14.97 15.09 0.00 0.00 o 0.0 15.36 15.36 0.00 0.00 o 0.0 12.05 12.05 0.00 0.00 o 0.0 18.67 18.67 0.00 0.00 o 0.0 20.57 20.57 0.00 0.00 o 0.0 14.54 14.75 0.00 0.00 o 0.0 14.94 15.07 0.00 0.00

95 84

4

4

14 12

15 15

1

1

3

2

.4

3

54 47.

91 80

5 5.3 10.53 10.67 9.08 1.59
o 0.0 8.84 8.84 0.00 0.00
1 7.1 10.42 10.57 9.81 0.76
o 0.0 10.15 10.15 0.00 0.00 o 0.0 10.65 10.65 0.00 0.00
1 33.3 11.46 13.40 7.59 5.81
1 25.0 8.70 9.07 7.59 1.48
2 3.7 10.87 11.00 10.19 0.80
5 5.5 10.60 10.76 9.08 1.68

730 513 125 17.1 10.98 11.09 10.90 0.19

171 72 51 29.8 10.75 11.12 10.68 0.45

128 88 28 21.9 10.93 10.92 11.02 -0.10

285 246 22 7.7 11.26 11.28 11.15 0.13

21 16

2 9.5 11.11 11.18 10.93 0.25

43 38

3 7.0 10.37 10.34 11.48 -1.14

82 53 19 23.2 10.90 10.95 10.95 0.01

559 441 74 13.2 11.06 11.09 11.06 0.03

586 340 135 23.0 9.52 9.52 9.62 -0.10

119 33 26 21.8 9.10 8.89 9.28 -0.39

281 176 66 23.5 9.69 9.71 9.60 0.11

106 78 24 22.6 9.30 9.10 9.70 -0.59

12

7

1 8.3 9.42 9.54 9.85 -0.31

2

2

0 0.0 7.56 7.56 0.00 0.00

3

3

0 0.0 8.48 8.48 0.00 0.00

63 41 18 28.6 10.07 10.18 10.07 0.11

467 307 109 23.3 9.63 9.59 9.70 -0.11

152 62 38 25.0 7.32 7.28 7.34 -0.06

73 13 22 30.1 7.34 7.29 7.29 0.00

55 33 14 25.5 7.34 7.27 7.48 -0.20

15 11

2 13.3 7.13 7.07 7.07 0.00

9

5

o 0.0 7.35 7.82 0.00 0.00

79 49 16 20.3 7.30 7.28 7.43 -0.14

Page 4

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 160 of 295

Appendix 5b

Summary of Workforce ~nd Average Pay Rates

Restricted to Those Active at Year-End, and With Positive Earnings for Year Includes All Departments 'Oth' includes all Departments other than 'LUF' 'nonF' includes all Departments other than LUFF Excludes employees in upper level Mgmt jobs

Workforce

Average $/Hr

Year EEO Dept Tot Wht Black

Total White Black Diff

1996 Tot Tot 1996 Tot LUFF 1996 Tot LUFT 1996 Tot LUFP 1996 Tot LUFO 1996 Tot LUFG 1996 Tot LUFC 1996 Tot Oth 1996 Tot nonF

1824 1271 292 16.0 12.36 13.10 10.69 2.41

435 174 109 25.1 11.22 12.97 10.35 2.62

425 280 95 22.4 11.36 11.62 10.72 0.90

448 386 38 8.5 12.75 12.97 11.27 1.70

82 64 10 12.2 12.24 12.51 11.67 0.84

67 59

S 7.5 11.67 11.89 10.38 1.51

32 31

1 3.1 17.25 17.56 7.79 9.77

335 277 34 10.1 14.26 14.76 10.85 3.91

1389 1097 183 13.2 12.71 13.12 10.89 2.24

1996 6-8 Tot 1996 6-8 LUFF 1996 6-8 LUFT 1996 6-8 LUFP 1996 6-8 LUFO 1996 6-8 LUFG 1996 6-8 LUFC 1996 6-8 Oth 1996 6-8 nonF

1282 770 271 21.1 10.82 11.11 10.62 0.49

357 105 101 28.3 10.25 10.88 10.19 0.69

354 213 93 26.3 10.70 10.71 10.70 0.02

333 276 35 10.5 11.42 11.48 11.04 0.44

67 51

9 13.4 11.24 11.28 11.26 0.02

49 42

4 8.2 10.64 10.68 10.95 -0.27

1

1

0 0.0 10.34 10.34 0.00 0.00

121 82 29 24.0 11.08 11.28 11.12 0.16

925 665 170 18.4 11.05 11.14 10.87 0.27

1996 7-8 Tot 1996 7-8 LUFF 1996 7-8 LUFT 1996 7-8 LUFP 1996 7-8 LUFO 1996 7-8 LUFC 1996 7-8 Oth 1996 7-8 nonF

508 247

190 40

171 104

.77 55

18 14

1

1

51 33

318207

133 54 47 17
2
o
13 79.

26.2 28.4 27.5 22.1 11.1
0.0 25.5 24.8

9.82 10.02 9.83 0.19 9.32 9.42 9.25 0.17 10.03 10.03 10.02 0.01 9.97 9.83 10.32 -0.49 10.40 10.34 11.07 -0.73 10.34 10.34 0.00 0.00 10.54 10.90 10.75 0.15 10.12 10.14 10.23 -0.09

1996 1996 1996 1996 1996 1996 1996 1996 1996

1 Tot 1 LUFF 1 LUFT 1 LUFP 1 LUFO 1 LUFG 1 LUFC 10th 1 nonF

188 173

32 25

38 36

39 37

3

3

2

2

7

7

67 63

156 148

11 5.9 19.39 19.66 12.96 6.70
7 21.9 16.87 18.08 12.57 5.50
1 2.6 17.29 16.85 13.88 2.97
2 5.1 19.64 19.97 13.51 6.45
o ··0.0 20.54 20.54 0.00 0.00 o 0.0 18.78 18.78 0.00 0.00 o 0.0 25.70 25.70 0.00 0.00
1 1.5 20.94 21.02 13.59 7.43 4 2.6 19.90 19.92 13.63 6.30

1996 1996 1996 1996 1996 1996 1996 1996

2 Tot 2 LUFF 2 LUFT 2 LUFP 2 LUFO 2 LUFC 20th 2 nonF

94 88

16 15

2

2

17 16

7

6

17 17

35 32

78 73

2 2.1 18.31 18.43 13.60 4.82
1 6.2 18.95 19.42 11.83 7.59
o 0.0 16.51 16.51 0.00 0.00 o 0.0 20.04 20.24 0.00 0.00
1 14.3 16.74 16.97 15.38 1.59
o 0.0 17.51 17.51 0.00 0.00 o 0.0 18.00 17.93 0.00 0.00
1 1.3 18.18 18.22 15.38 2.84

1996 1996 1996

3 Tot :1 LUFF 3 LUFT

121 117

22 21

10

9

2 1.7 13.41 13.49 12.46 1.03
o 0.0 13.23 13.53 0.00 0.00
1 10.0 11.55 11.73 9.92 1.81

Page 5

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 161 of 295

1996 1996 1996 1996 1996 1996
1996 1996 1996 1996 1996 1996 1996 1996
1996 1996 1996 1996 1996 1996 1996 1996 1996
1996 1996 1996 1996 1996 1996. 1996 1996
1996 1996 1996 1996 1996 1996 1996 1996
1996 1996 1996 1996 1996

3 LUFP 3 LUFO 3 LUFG 3 LUFC 30th 3 nonF
4 To): 4 LUFF 4 LUFT 4 LUFP 4 LUFO 4 LUFG 4 Oth 4 nonF
5 Tot 5 LUFF 5 LUFT 5 LUFP 5 LUFO 5 LUFG 5 LUFC 5 Oth 5 nonF
6 Tot 6 LUFF 6 .LUFT 6 LUFP
6 LUFO
6 LUFG 60th 6 nonF
7 Tot 7 LUFF 7 LUFT 7 LUFP 7 LUFO 7 LUFC 70th 7 nonF
8 Tot 8 LUFF 8 LUFT 8 Oth 8 nonF

38 36

2

2

11 11

2

2

36 36

99 96

38 34

1

1

8

8

6

6

1

1

4

4

18 14

37 33

Appendix 5b
1 2.6 13.87 13.88 15.00 -1.12
o 0.0 13.53 13.53 0.00 0.00 o 0.0 13.53 13.53 0.00 0.00 o 0.0 10.30 10.30 0.00 0_00 o 0.0 13.68 13.68 0.00 0.00
2 2.0 13.45 13.48 12.46 1.02
o 0.0 16.61 16.72 0.00 0.00
o '0.0 19.47 19.47 0.00 0.00
o 0.0 12.21 12.21 0.00 0.00
o 0.0 20.86 20.86 0.00 0.00 o 0.0 23.94 23.94 0.00 0.00 o 0.0 16.55 16.55 0.00 0.00 o 0.0 16.60 16.87 0.00 0.00 o 0.0 16.54 16.64 0.00 0.00

89 80

6

6

13 12

14 14

2

1

1

o

4

3

49 44

83 74

3 3.4
o 0.0 o 0.0 o 0.0 o 0.0
1 100.0
1 25.0
1 2.0
3

10.70 10.80 8.98 9.74 9.74 0.00
10.62 10.70 0.00 10.27 10.27 0.00 10.26 11.00 0.00
8.08 0.00 8.08 9.00 9.41 7.79 11.17 11.22 11.08

1.81 0.00 0.00 0.00 0.00 0.00 1.62 0.14

774 523 138 17.8 11.48 11.62 11.38 0.24

167 65 47 28.1 11.30 11.77 11.26 0.51

183 109 46 25.1 11.33 11.37 11.39 -0.02

256 221 18 7.0 11.86 11.89 11.72 0.18

49 37

7 14.3 11.55 11.63 11.31 0.32

49 42

4 8.2 10.64 10.68 10.95 -0.27

70 49 16 22.9 11.48 11.54 11.43 0.11

607 458 91 15.0 11.53 11.60 11.43 0.16

456 226 119 26.1 10.03 10.20 10.05 0.15

162 33 46 28.4 9.56 9.70 9.53 0.17

153 92 41 26.8 10.24 10.28 10.25 0.03

77 55 17 22.1 9.97 9.83 10.32 -0.49

18 14

2 11.1 10.40 10.34 11.07 -0.73

1

1

0 0.0 10.34 10.34 0.00 0.00

45 31 294 193

13 28.9 10.92 11.06 10.75 0.31 73 24.8 10~29 10.28 10.38 -0.09

52 21 14 26.9 8.00 8.10 7.97 0.13

28

7

8 28.6 7.94 8.09 7.61 0.48

18 12

6

2

6 33.3
o 0.0

8.18 8.05 8.44 -0.39 7.74 8.39 0.00 0.00

24 14

6 25.0 8.07 8.10 8.44 -0.34

Page 6

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 162 of 295

Appendix 5b

Summary of Workforce and Average Pay Rates
==========================================
Restricted to Those Active at Year-End, and With positive Earnings for Year Includes All Departments 'Oth' includes all Departments other than , LUF'
'nonF' includes all Departments other than LUFF Excludes employees in upper level Mgmt jobs

Workforce

Average $/Ur

Year EEO Dept Tot Wht Black

Total White Black Diff

1997 Tot Tot 1997 Tot LUFF 1997 Tot LUFT 1997 Tot LUFP 1997 Tot LUFO 1997 Tot LUFG 1997 Tot LUFe 1997 Tot Oth 1997 Tot nonF

2259 1518 363 16.1 12.48 13.41 10.75 2.66

464 172 124 26.7 11.38 12.99 10.77 2.22

586 393 126 21.5 10.87 11.13 10.18 0.96

433 366 43 9.9 13.28 13.54 11.69 1.85

154 112 29 18.8 11.93 12.12 11.52 0.60

104 92

8 7.7 12.67 12.94 10.63 2.31

25 22

2 8.0 17.85 18.77 8.05 10.72

493 361 31 6.3 14.56 16.14 11.16 4.98

1795 1346 239 13.3 12.76 13.46 10.74 2.72

1997 6-8 Tot 1997 6-8 LUFF 1997 6-8 LUFT 1997 6-8 LUFP 1997 6-8 LUFO 1997 6-8 LUFG 1997 6-8 LUFe 1997 6-8 Oth 1997 6-8 nonF

1674 980 338 20.2 10.65 10.96 10.52 0.44

403 118 117 29.0 10.42 10.75 10.43 0.32

512 325 122 23.8 10.14 10.15 10.07 0.08

336 274 40 11.9 11.92 12.02 11.24 0.77

137 96 28 20.4 11.18 11.13 11.37 -0.24

72 61

7 9.7 11.07 11.12 10.94 0.19

2

1

1 50.0 11.17 14.42 7.92 6.50

212 105 23 10.8 9.78 10.63 11.04 -0.41

1271 862 221 17.4 10.72 10.99 10.57 0.42

1997 7-8 Tot 1997 7-:8 LUFF 1997 7-8 LUFT 1997 7-8 LUFP 1997 7-8 LUFO 1997 7-8 LUFG 1997 7-8 LUFe 1997 7-8 Oth 1997 7-8 nonF

811 408 185 22.8 9.46 9.61 9.54 0.07

231 61 63 27.3 9.50 9.41 9.40 0.01

332 210 80 24.1 9.31 9.30 9.19 0.11

66 45 18 27.3 10.38 10.29 10.40 -0.12

62 46 10 16.1 10.35 10.32 10.72 -0.39

1

1

o 0.0 8.74 8.74 0.00 0.00

2

1

1 50.0 11.17 14.42 7.92 6.50

117 44 13 11.1 8.81 9.82 10.39 -0.57

580 347 122 21.0 9.45 9.64 9.61 0.03

1997 1997 1997 1997 1997 1997 1997 1997 1997

1 Tot 1 LUFF 1 LUFT 1 LUFP 1 LUFO 1 LUFG 1 LUFe 10th 1 nonF

205 186

28 21

43 40

32 31

6

6

4

4

4

3

88 81

177 165

11 5.4 21.33 21_51 16.63 4.88
7 25.0 19.73 20.81 16.49 4.32 2 4.7 18.47 18.09 16.63 1.46
1 3.1 22.25 22.32 20.01 2.31
o 0.0 19.51 19.51 0.00 0.00 o 0.0 22.07 22.07 0.00 0.00 o 0.0 26.71 29.84 0.00 0.00
1 1.1 22.75 22.88 14.26 8.62
4 2.3 21.58 21.60 16.88 4.72

1997 1997 1997 1997 1997 1997 1997 1997 1997

2 Tot 2 LUFF 2 LUFT 2 LUFP 2 LUFO 2 LUFG 2 LUFe 20th 2 nonF

104 99

11 11

2

2

20 19

6

5

1

1

12 12

52 49

93 88

2 1.9 20.72 20.82 17.54 3.28
o 0.0 20.12 20.12 0.00 0.00 o 0.0 16.69 16.69 0.00 0.00 o 0.0 20.21 20.33 0.00 0.00
1 16.7 18.51 19.07 15.68 3.39
o 0.0 22.10 22.10 0.00 0.00 o 0.0 19.60 19.60 0.00 0.00
1 1.9 21.68 21.79 19.40 2.39
2 2.2 20.79 20.91 17.54 3.37

1997

3 Tot

126 120

4 3.2 14.48 14.46 14.37 0.09

Page 7

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 163 of 295

1997 1997 1997 1997 1997 1997 1997 1997
1997 1997 1997 1997 1997 1997 1997 1997
1997 1997 1997 1997 1997 1997 1997 1997 1997
1997 1997 1997 1997 1997 1997 1997 1997
1997 1997 1997 1997 1997 1997 1997 1997 1997
1997 1997 1997 1997 1997 1997

3 LUFF 3 LUFT 1 LUFP 3 LUFO 3 LUFG 3 LUFC 30th 3 nonF
4 Tot 4 LUFF 4 LUFT 4 LUFP 4 LUFO 4 LUFG 4 Oth 4 nonF
5 Tot 5 LUFF 5 LUFT 5 LUFP 5 LUFO 5 LUFG 5 LUFC 50th 5 nonF
6 Tot 6 LUFF 6 LUFT 6 LUFP 6 LUFO 6 LUFG 60th 6 nonF
7 Tot 7 LUFF 7 LUFT 7 LUFP 7 LUFO 7 LUFG 7. LUFC 70th 7 nonF
8 Tot 8 LUFF 8 LUFT 8 LUFC 80th 8 nonF

18 18

10

8

31 29

2

2

22 22

2

2

41 39

108 102

46 42

1

1

7

7

2

2

1

1

3

3

32 28

45 41

Appendix 5b
o 0.0 14.06 14.06 0.00 0.00
2 20.0 11.76 12.15 10.20 1.95
1 3.2 15.22 15.06 21.35 -6.29
o 0.0 14.49 14.49 0.00 0.00 o 0.0 15.17 15.17 0.00 0.00 o 0.0 13.25 13.25 0.00 0.00
1 2.4 14.47 14.34 15.73 -1.39
4 3.7 14.55 14.54 14.37 0.16
o 0.0 18.31 18.53 0.00 0.00 o 0.0 20.84 20.84 0.00 0.00
o 0.0 13.61 13.61 0.00 0.00
o 0.0 20.57 20.57 0.00 0.00 o 0.0 27.12 27.12 0.00 0.00 o 0.0 18.15 18.15 0.00 0.00 o 0.0 18.86 19.27 0.00 0.00 o 0.0 18.26 18.47 0.00 0.00

92 83

3

3

12 11

12 11

2

2

2

1

5

4

56 51

89 80

4 4.3 10.95 11.00 9.97 l.03
o 0.0 10.99 10.99 0.00 0.00 o 0.0 11.46 11.57 0.00 0.00
1 8.3 9.79 9.63 11.54 -1.91
o 0.0 10.49 10.49 0.00 0.00
1 50.0 10.96 13.42 8.50 4.92
1 20.0 11.08 11.81 8.18 3.62
1 1.8 11.09 11.08 11.65 -0.57
4 4.5 10.95 11.00 9.97 1.03

863 572 153 17.7 11.76 11.92 11.70 0.22

172 57 54 31.4 11.66 12.18 11.62 0.56

180 115 42 23.3 11.68 11.71 11.76 -0.05

270 229 22 8.1 12.30 12.36 11.93 0.43

75 50 18 24.0 11.86 11.87 11.73 0.14

71 60

7 9.9 11.10 11.16 10.94 0.23

95 61 10 10.5 10.98 11.22 11.89 -0.67

691 515 99 14.3 11.79 11.89 11.75 0.14

621 306 132 21.3 10.01 10.25 10.26 -0.01

177 44 46 26.0 10.06 10.01 10.06 -0.04

207 130 45 21.7 10.32 10.34 10.27 0.07

66 45 18 27.3 10.38 10.29 10.40 -0.12

62 46 10 16.1 10.35 10.32 10.72 -0.39

1

1

o 0.0 8.74 8.74 0.00 0.00

1

1

o 0.0 14.42 14.42 0.00 0.00

107 39 13 12.1 8.85 10.00 10.39 -0.39

444 262 86 19.4 9.98 10.29 10.37 -0.08

190 102

54 17

125 80

1

o

10

5

136 85

53 27.9
17 31.5
35 28.0
1 100.0
o 0.0
36 26.5

7.69 7.66 7.64 7.92 8.35 7.70

7.68 7.86 7.59 0.00 8.45 7.64

7.75 7.64 7.79 7.92 0.00 7.80

-0.07 0.21
-0.20 0.00 0.00
-0.15

Page 8

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 164 of 295

Appendix 5b

Summary of Workforce and Average Pay Rates

Restricted to Those Active at Year-End, and With Positive Earnings for Year Includes All Departments 'Oth' includes all Departments other than 'LUF' 'nonF i includes all Departments other than LUFF Excludes employees in upper level Mgmt jobs

Workforce

Average $/Hr

Year EEO Dept Tot Wht Black

Total White Black Diff

1998 Tot Tot 1998 Tot LUFF 1998 Tot LUFT 1998 Tot LUFP 1998 Tot LUFO 1998 Tot LUFG 1998 Tot LUFe 1998 Tot Oth 1998 Tot nonF

1935 1304 300 15.5 13.43 14.50 11.51 2.99

368 145 91 24.7 12.57 14.36 11.92 2.44

539 346 124 23.0 11.73 12.24 10.78 1.45

370 312 37 10.0 13.78 14.02 12.58 L43

87 61 19 2L8 13.06 13.30 12.10 L20

112 101

7 6 . 2 14 . 32 14. 63 1 L 54 3 . 09

28 26

1 3.6 20.33 21.12 11.54 9.58

431 313 21 4.9 15.37 17.19 11.52 5.67

1567 1159 209 13.3 13.63 14.52 11.33 3.19

1998 6-8 Tot 1998 6-8 LUFF 1998 6-8 LUFT 1998 6-8 LUFP 1998 6-8 LUFO 1998 6-8 LUFG 1998 6-8 Oth 1998 6-8 nooF

1390 809 272 19.6 11.39 11.75 11.25 0.50

303 89 83 27.4 11.37 11.74 11.51 0.23

459 273 119 25.9 10.88 1LOO 10.68 0.32

285 232 33 11.6 12.57 12.68 12.00 0.68

77 52 19 24.7 12.17 12.13 12.10 0.03

70 62

5 7.1 12.15 12.22 12.32 -0.11

196 101 13 6.6 10.27 11.16 11.23 -0.07

1087 720 189 17.4 11.39 11.75 11.14 0.61

1998 7-8 Tot 1998 7-8 LUFF 1998 7-8 LUFT 1998 7-8 LUFP 1998 7-8 LUFO 1998 7-8 Oth 1998 7-8 oooF

640 314 137 2L4 10.30 10.49 10.34 0.14

152 39 34 22.4 10.62 10.49 10.70 -0.20

312 184 78 25.0 10.26 10.39 9.91 0.48

41 25 12 29.3 11.47 11.51 11.34 0.17

22 16

5 22.7 11.52 11.38 11.90 -0.52

113 50

8 7.1 9.33 10.05 10.62 -0.58

488 275 103 2L1 10.20 10.49 10.23 0.26

1998 1998 1998 1998 1998 1998 1998 1998 1998

1 Tot 1 LUFF
1 LUFT 1 LUFP 1 LUFO 1 LUFG 1 LUFe
lOth 1 nooF

210 189

31 23

46 42

29 27

6

5

9

9

5

5

84 78

179 166

13 6.2 22.32 22.84 16.70 6.14
7 22.6 20.13 21.42 17.10 4.32
3 6.5 18.99 19.37 15.27 4.10
2 6.9 22.32 22.60 18.42 4.19
o 0.0 20.18 20.62 0.00 0.00 o 0.0 24.99 24.99 0.00 0.00
o 0.0 30.34 30.34 0.00 0.00
1 L2 24.34 24.64 14.84 9.80 6 3.4 22.70 23.04 16.25 6.80

1998 1998 1998 1998 1998 1998 1998 1998 1998

2 Tot 2 LUFF 2 LUFT 2 LUFP 2 LUFO 2 LUFG 2 LUFe 20th 2 nooF

86 83

11 11

4

4

12 12

3

3

3

3

15 15

38 35

75 72

1 L2 21.37 21.46 19.40 2.06
o 0.0 20.66 20.66 0.00 0.00 o 0.0 18.40 18.40 0.00 0.00 o 0.0 20.20 20.20 0.00 0.00 o 0.0 19.10 19.10 0.00 0.00 o 0.0 20.47 20.47 0.00 0.00 o 0.0 21.24 21.24 0.00 0.00
1 2.6 22.57 22.87 19.40 3.47
1 1.3 21.48 21.58 19.40 2.18

1998 1998 1998 1998

3 Tot 3 LUFF 3 LUFT 3 LUFP

124 115 16 15 15 12 35 33

6 4.8 14.72 14.84 12.97 1.86 1 6.2 13.91 14.15 10.38 3.77 2 13.3 12.36 12.68 10~01 2.67 1 2.9 15.29 15.14 21.35 -6.21

Page 9

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 165 of 295

1998 1998 1998 1998
1998 1998 1998 1998 1998 1998 1998
1998 1998 1998 1998 1998 1998 1998 1998
1998 1998 1998 1998 1998 1998 1998 1998
1998 1998 1998 1998 1998 1998 1998
1998 1998 1998 1998 1998

3 LUFG 3 LUFe 30th 3 nonF
4 Tot 4 LUFF 4 LUFT 4 LUFO 4 LUFG 40th 4 nonF
5 Tot 5 LUFF 5 LUFT 5 LUFP 5 LUFG 5 LUFC 50th 5 nonF
6 Tot 6 LUFF 6 LUFT 6 LUFP 6 LUFO 6 LUFG 60th 6 nonF
7 Tot 7 LUFF 7 LUFT 7 LUFP 7 LUFO 70th 7 nonF
8 Tot 8 LUFF 8 LUFT 80th 8 nonF

Appendix 5b

25 23

1 4.0 15.76 16.10 10.38 5.72

3

3

o 0.0 11.89 11.89 0.00 0.00

30 29

1 3.3 15.07 15.05 15.73 -0.68

108 100· 5 4.6 14.84 14.94 13.49 1.45

50 46

3

3

6

6

1

1

2

2

38 34

47 43

o 0.0 19.15 19.12 0.00 0.00 o 0.0 19.83 19.83 0.00 0.00
o 0.0 14.09 14.09 0.00 0.00
o 0.0 20.36 20.36 0.00 0.00 o 0.0 18.92 18.92 0.00 0.00
o 0.0 19.87 1~.92 0.00 0.00 o 0.0 19.10 19:07 0.00 0.00

67 58

4

4

9

9

9

8

3

2

5

3

37 32

63 54

5 7.5 11.61 11.77 10.50 1.27
o 0.0 11.45 11.45 0.00 0.00 o 0.0 12.01 12.01 0.00 0.00
1 11.1 10.13 9.95 11.54 -1.59
1 33.3 11.55 12.93 8.80 4.13
1 20.0 12.62 14.35 11.54 2.81
2 5.4 11.75 11.88 10.32 1.56
5 7.9 11.62 11.79 10.50 1.29

750 495 135 18.0 12.31 12.55 12.17 0.38

151 50 49 32.5 12.13 12.71 12.07 0.65

147 89 41 27.9 12.21 12.26 12.16 0.10

244 207 21 8.6 12.76 12.82 12.37 0.44

55 36 .14 25.5 12.43 12.46 12.18 0.29

70 62

5 7.1 12.15 12.22 12.32 -0.11

83 51

5 6.0 11.56 12.26 12.21 0.05

·599 445 86 14.4 12.36 12.53 12.22 0.30

576 284 114 19.8 10.48 10.67 10.72 -0.05

141 33 32 22.7 10.70 10.64 10.77 -0.14

263 164 57 21. 7 10.59 10.61 10.47 0.14

41 25 12 29.3 11.47 11.51 11.34 0.17

22 16

5 22.7 11.52 11.38 11.90 -0.52

109 46

8 7.3 9.35 10.17 10.62 -0.45

435 251 82 18.9 10.41 10.67 10.70 -0.03

64 30 23 35.9 8.69 8.81 8.49 0.32

11

6

2 18.2 9.60 9.70 9.49 0.21

49 20 21 42.9 8.50 8.58 8.40 0.18

4

4

o 0.0 8.62 8.62 0.00 0.00

53 24 21 39.6 8.51 8.59 8.40 0.19

Page 10

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 166 of 295

Appendix 5b

Summary of Workforce and Average Pay Rates
==========================================
Restricted to Those Active at Year-End, and 'With Positive Earnings for Year
Includes All Departments 'Oth' includes all Departments other than 'LUF'
'nonF' includes all D"epartments other than LUFF Excludes employees in upper level Mgmt jobs

Workforce

Average $/Hr

Year EEO Dept Tot Wht Black

Total White Black Diff

1999 Tot Tot 1999 Tot LUFF 1999 Tot LUFT 1999 Tot LUFP 1999 Tot LUFO 1999 Tot LUFG 1999 Tot LUFC 1999 Tot oth 1999 Tot nonF

1607 1082 232 14.4 14.23 15.36 12.22 3.14

284 112 69 24.3 13.22 15.25 12.58 2.68

396 259 85 21.5 12.60 13.08 11.81 1.27

282 239 29 10.3 14.52 14.80 12.97 1.83

87 66 16 18.4 13.02 13.27 12.19 1.08

102 91

7 6.9 14.57 14.82 12.34 2.49

33 29

3 9.1 21.61 23.27 9.84 13.43

423 286 23 5.4 15.81 17.78 12.03 5.75

1323 970 163 12.3 14.44 15.37 12.07 3.30

1999 6-8 Tot 1999 6-8 LUFF 1999 6-8 LUFT 1999 6-8 LUFP 1999 6-8 LUFO 1999 6-8 LUFG 1999 6-8 Oth 1999 6-8 nonF

1100 625 204 18.5 11.93 12.35 11.93 0.42

233 69 61 26.2 11.95 12.63 12.04 0.59

317 189 80 25.2 11.65 11.72 11.62 0.10

206 166 27 13.1 13.04 13.17 12.35 0.82

79 58 16 20.3 12.56 12.67 12.19 0.48

61 54

4 6.6 12.75 12.80 12.29 0.51

204 89 16 7.8 10.74 11.46 11.97 -0.50

867 S56 143 16.5 11.93 12.32 11.88 0.44

1999 7-8 Tot 1999 7-8 LUFF 1999 7-8 LUFT 1999 7-8 LUFF 1999 7-8 LUFO 1999 7-8 Oth 1999 7-8 nonF

402 189 74 19
166 94 26 15 22 14
114 47 328 170

83 20.6 10.74 10.98 11.07 -0.09 18 24.3 11.17 11.05 11.34 -0.29 41 24.7 10.95 11.01 10.83 0.18
8 30.8 11.67 11.61 11.57 0.04 8 36.4 11.80 11.90 11.62 0.28 8 7.0 9.75 10.42 10.60 -0.18 65 19.8 10.65 10.97 10.99 -0.02

1999 1999 1999 1999 1999 1999 1999 1999 1999

1 Tot 1 LUFF 1 LUFT 1 LUFP 1 LUFO 1 LUFG 1 LUFC 10th 1 nonF

195 172

25 18

42 36

26 25

4

4

10

9

8

8

80 72

170 154

14 7.2 22.92 23.31 16.90 6.41
7 28.0 21.00 22.36 17.52 4.84
4 9.5 18.63 19.22 15.88 3.34 1 3.8 23.03 23.12 20.68 2.44
o 0.0 19.83 19.83 0.00 0;00
1 10.0 20.93 21.65 14.41 7.24
o 0.0 29.69 29.69 0.00 0.00
1 1.2 25.46 25.35 15.29 10.06 7 4.1 23.20 23.42 16.27 7.15

1999 1999 1999 1999 1999 1999 1999 1999 1999

2 Tot 2 LUFF 2 LUFT 2 LUFP 2 LUFO 2 LUFG 2 LUFC 20th 2 nonF

75 72

9

9

S

S

12 12

1

1

1

1

16 16

31 28

66 63

1 1.3
o 0.0 o 0.0 o 0.0
o 0.0 o 0.0 o .~ 0.0
1 3.2
1 1.5

22.51 22.43 20.56 20.82 20.82 0.00 19.06 19.06 0.00 20.75 20.75 0.00 14.98 14.98 0.00 19.33 19.33 0.00 23.37 23.37 0.00 24.14 24.11 20.56 22.74 22.66 20.56

1.87 0.00 0.00 0.00 0.00' 0.00 0.00 3.55 2.10

1999 1999 1999 1999

3 Tot 3 LUFF 3 LUFT 3 LUFP

116 108 12 11 15 13 31 29

3 2.6 15.39 15.44 15.55 -0.10
1 8.3 14.62 14.98 10.69 4.29
o 0.0 13.13 13.42 0.00 0.00
1 3.2 15.69 15.50 21.98 -6.48

Page 11

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 167 of 295

1999 1999 1999 1999 1999
1999 1999 1999 1999 1999 1999 1999
1999 1999 1999
199~
1999 1999 1999 1999
1999 1999 1999 1999 1999 1999 1999 1999
1999 1999 1999 1999 1999 1999 1999
1999 1999 1999 1999 1999

3 LUFO 3 LUFG 3 LUFC 30th 3 nonF
4 Tot 4 LUFF 4 LUFT 4 LUFO 4 LUFG 40th 4 nonF
5 Tot 5 LUFF 5 LUFT 5 LUFP 5 LUFG 5 LUFC 5 Oth 5 nonF
6 Tot 6 LUFF 6 LUFT 6 LUFP 6 LUFO 6 LUFG 60th 6 nonF
7 Tot 7 LUFF 7 LUFT 7 LUFP 7 LUFO 70th 7 nonF
8 Tot 8 LUFF 8 LUFT 80th 8 nonF

2

2

25 23

3

3

28 27

104 97

51 48

2

2

9

9

1

1

3

3

36 33

49 46

00.0
1 4.0
o 0.0 o 0.0
2 1.9

Appendix 5b
14.81 14.81 0.00 0.00 16.19 16.42 13.97 2.45 12.21 12.21 0.00 0.00 16.26 16.12 0.00 0.00 15.48 15.49 17.98 -2.48

o 0.0 19.73 19.71 0.00 0.00 o 0.0 22.47 22.47 0.00 0.00 o 0.0 13.94 13.94 0.00 o.~o o 0.0 16.91 16.91 0.00 0.00 o 0.0 17.80 17.80 0.00 0.00 o 0.0 21.27 21.38 0.00 0.00
o 0.0 19.62 19.59 0.00 0.00

61 52

3

3

8

7

7

7

2

1

5

1

36 JJ

58 49

7 11.5 11.54 11.77 10.34 1.43
o 0.0 12.38 12.38 0.00 0.00
1 12.5 12.16 12.36 10.81 1.55
o 0.0 10.67 10.67 0.00 0.00
1 50.0 10.53 12.26 8.80 3.46
3 60.0 10.55 14.48 9.84 4.64
2 5.6 11.70 11.73 11.61 0.11
7 12.1 11.50 11.73 10.34 1.40

698 436 121 17.3 12.61 12.95 12.52 0.43

159 50 43 27.0 12.31 13.23 12.33 0.90

151 95 39 25.8 12.41 12.42 12.45 -0.03

180 151 19 10.6 13.24 13.33 12.69 0.64

57 44

8 14.0 12.85 12.91 12.76 0.16

6154

4 6.6 12.75 12.80 12.29 0.51

90 42

8 8.9 11.99 12.63 13.33 -0.70

539 386 78 14.5 12.70 12.91 12.62 0.29

374 173 72 17
145 82 26 15 22 14
109 45 302 156

75 20.1 10.86 11.13 11.29 -0.16 18 25.0 11.21 11.20 11.34 -0.14 35 24.1 11.20 11.26 11.16 0.09
8 30.8 11.67 11.61 11.57 0.04 8 36.4 11.80 11.90 11.62 0.28 6 5.5 9.78 10.46 11.01 -0.55 57 18.9 10.77 11.12 11.27 -0.15

28 16.

2

2

21 12

5

2

26 14

8 28.6
o 0.0
6 28.6
2 40.0 8 30.8

9.23 9.72 9.25' 8.95 9.19

9.38 9.72 9.31 9.50 9.34

9.02 0.00 8.90 9.38 9.02

0.37 0.00 0.41 0.12 0.32

Page 12

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 168 of 295

Appendix 5b

Summary of Workforce and Average Pay Rates

Restricted to Those Active at Year-End, and With positive Earnings for Year Includes All Departments 'Oth' includes all Departments other than 'LUF' 'nonF' includes all Departments. other than LUFF Excludes employees in upper level Mgmt jobs

Workforce

Average $/Hr

Year EEO Dept Tot Wht Black

Total White Black Diff

2000 Tot Tot 2000 Tot LUFF 2000 Tot LUFT 2000 Tot LUFP 2000 Tot LUFO 2000 Tot LUFG 2000 Tot LUFC 2000 Tot Oth 2000 Tot nonF

1723 1111 257 14.9 14.60 16.00 12.33 3.67

345 124 89 25.8 12.95 15.12 12.17 2.95

230 161 48 20.9 14.02 14.66 12.68 1.97

279 235 26 9.3 15.37 15.66 13.37 2.29

234 150 57 24.4 13.15 13.80 11.97 1.83

105 93

7 6.7 15.66 15.85 14.47 1.39

38 34

3 7.9 19.81 21.11 8.83 12.28

492 314 27 5.5 15.64 17.83 11.82 6.01

1378 987 168 12.2 15.01 16.11 12.41 3.70

2000 6-8 Tot 2000 6-8 LUFF 2000 6-8 LUFT 2000 6-8 LUFP 2000 6-8 LUFO 2000 6-8 LUFG 2000 6-8 Oth 2000 6-8 nonF

1205 649 227 18.8 12.20 12.80 11.97 0.83

293 82 81 27.6 11.75 12.43 11.64 0.80

169 106 44 26.0 12.47 12.54 12.44 0.10

198 158 24 12.1 13.60 13.77 12.61 1.15

204 125 53 26.0 12.37 12.68 11.83 0.86

64 56

4 6.2 13.88 13.94 13.74 0.20

277 122 21 7.6 10.99 11.61 11.54 0.06

912 567 146 16.0 12.34 12.85 12.15 0.70

2000 7-8 Tot 2000 7-8 LUFF 2000 7-8 LUFT 2000 7-8 LUFP 2000 7-8 LUFO 2000 7-8 Oth 2000 7-8 nonF

478 201 111 23.2 10.71 11.03 10.96 0.07 122 29 37 30.3 10.53 10.35 10.48 -0.13
52 32 15 28.8 11.68 11.78 11.56 0.22 34 20 10 29.4 11.42 11.44 11.24 0.19 103 52 36 35.0 11.34 11.50 11.23 0.26 167 68 13 7.8 10.01 10.50 10.67 -0.17 356 172 74 20.8 10.77 11.15 11.20 -0.05

2000 2000 2000 2000 2000 2000 2000 2000 2000

1 Tot 1 LUFF 1 LUFT 1 LUFP 1 LUFO 1 LUFG 1 LUFC 1 Oth 1 nonF

197 172

25 16

32 28

27 25

11 10

10

9

9

9

83 75

172 156

15 7.6 24.30 24.71 18.03 6.69 7 28.0 22.11 24.57 18.52 6.05 3 9.4 20.68 21.30 16.65 4.65 1 3.7 24.78 24.61 22.07 2.54 1 9.1 18.51 18.95 14.13 4.82 1 10.0 24.07 24.27 22.29 1.98
o 0.0 29.28 29.28 0.00 0.00
2 2.4 26.45 26.33 16.16 10.17 8 4.7 24.62 24.73 17.60 7.13

2000 2000 2000 2000 2000 2000 2000 2000 2000

2 Tot 2 LUFF 2 LUFT 2 LUFP 2 LUFO 2 LUFG 2 LUFC 20th 2 nonF

82 79

8

8

5

5

18 18

8

7

1

1

16 16

26 24

74 71

1 1.2 22.61 22.60 15.00 7.60
o 0.0 22.08 22.08 0.00 0.00 o 0.0 20.15 20.15 0.00 0.00 o 0.0 21.38 21.38 0.00 0.00
1 12.5 20.91 21.76 15.00 6.76
o 0.0 21.80 21.80 0.00 O.O~ o 0.0 21.76 21.76 0.00 0.00 o 0.0 25.19 25.02 0.00 0.00
1 1.4 22.67 22.65 15.00 7.65

.2000 2000 2000 2000

3 Tot 3 LUFF 3 LUFT 3 LUFP

112 101

15 14

8

7

28 26

5 4.5 16.01 16.11 14.42 1.69
1 6.7 15.40 15.71 11.04 4.67
o 0.0 13.]5 1].89 0.00 0.00
1 3.6 16.17 15.95 22.75 -6.80

Page 13

/

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 169 of 295

2000 2000 2000 2000 2000
2000 2000 2000 2000 2000 2000 2000
2000 2000 2000 2000 2000 2000 2000 2000 2000
2000 2000 2000 2000 2000 2000 2000 2000
2000 2000 2000 2000 2000 2000 2000
2000 2000 2000 2000 2000 2000

3 LUFO 3 LUFG 3 LUFC 30th 3 nonF-
4 Tot 4 LUFF 4 LUFT 4 LUFO 4 LUFG 40th 4 nonF
5 Tot 5 LUFF 5 LUFT 5 LUFP 5 LUFO 5 LUFG 5 LUFC 50th 5 nonF
6 Tot 6 LUFF 6 LUFT 6 LUFP 6 LUFO 6 LUFG 60th 6 nonF
7 Tot 7 LUFF 7 LUFT 7 LUFP 7 LUFO 70th 7 nonF
8 Tot 8 LUFF 8 LUFT 8 LUFP 80th 8 nonF

6

4

25 22

4

4

26 24

97 87

55 51

1

1

10 10

3

3

3

3

38 34

54 50

Appendix 5b
1 16_7 15.68 16.28 14_28 2_00 2 8.0 16.44 16.88 12.02 4_86
o 0.0 13.54 13.54 0_00 0.00 o 0_0 17.07 16_87 0_00 0.00
4 4.1 16.11 16_17 15.27 0.91
o 0.0 21.64 21.71 0.00 0_00 o 0.0 25.94 25.94 0.00 0_00
o 0.0 16.85 16.85 0.00 0_00 o 0_0 22.44 22.44 0.00 0.00
o 0_0 19.67 19.67 0.00 0.00 o 0_0 22_87 23_13 0.00 0.00 o 0.0 21.56 21.62 0.00 0.00

63 54

3

3

6

5

8

8

2

1

2

2

7

4

35 31

60 51

6 9.5 11.87 12.04 11.12 0.92
o 0.0 13.21 13.21 0.00 0.00
1 16~7 13.27 13.63 11.47 2.16
o 0.0 11.10 11.10 0.00 0.00
1 50.0 10.73 9.81 11.64 -1.83
0 0.0 11.81 11.81 0.00 0.00
2 28.6 10.16 10.97 9.25 1.72
2 5.7 12.10 12.14 12.56 -0.42
6 10.0 11.80 11.97 11.12 0.85

727 448 116 16.0 13.17 13.59 12.93 0.66

171 53 44 25.7 12.62 13.57 12.60 0.96

117 74 29 24.8 12.82 12.87 12.90 -0.03

164 138 14 8.5 14.05 14.11 13.59 0.51

101 73 17 16.8 13.43 13.53 13.09 0.44

64 56

4 6.2 13.88 13.94 13.74 0.20

110 54

8 7.3 12.47 12.99 12.96 0.03

556 395 72 12.9 13.34 13.59 13.13 0.46

425 184 84 19 47 29 33 20
103 52 158 64 341 165

93 21. 9 10.91 11.19 11.32 -0.13 25 29.8 11.22 11.05 11.21 -0.16 14 29.8 11.94 12.03 11.72 0.32
9 27.3 11.49 11.44 11.46 -0.03 36 35.0 11.34 11.50 11.23 0.26
9 5.7 10.05 10.53 11.22 -0.68 68 19.9 10.84 11.21 11.36 -0.15

53 17 18 34.0 9.12 9.30 9.10 0.20

38 10 12 31. 6 9.02 9.03 8.96 0.07

5

3

1 20.0 9.27 9.27 9.27 0.00

1

o

1 100.0 9.27 0.00 9.27 0.00

9

4

4 44.4 9.42 10.00 9.44 0.56

15

7

6 40.0 9.36 9.69 9.38 0.31

Page 14

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 170 of 295

Appendix 5b

Summary of Workforce and Average Pay Rates

Restricted to Those Active at Year-End, and With Positive Earnings for Year Includes All Departments 'Oth' includes all Departments other than 'LUF' 'nonF' includes all Departments other than LUFF Excludes employees in upper level Mgmt jobs

Workforce

Average $/Hr

Year EEO Dept Tot Wht Black

Total White Black Diff

2001 Tot Tot 2001 Tot LUFF 2001 Tot LUFT 2001 Tot LUFP 2001. Tot LUFO 2001 Tot LUFG 2001 Tot LUFC 2001 Tot Oth 2001 Tot nonF

1631 1061 283 105 162 118 293 245 224 141 104 92 41 36 524 324
1348 956

226 70 34 27 56. 6 4 29
156

13.9 24.7 21.0
9.2 25.0
5.8 9.8 5.5 11.6

15.51 16.93 13.23 3.70 14.19 16.61 13.46 3.15 14.86 15.55 13.15 2.39 16.01 16.27 14.03 2.24 14.24 14.78 13.28 1.49 16.60 16.84 15.51 1.34 20.18 21.58 10.20 11.38 16.09 18.4B 11.88 6.60 15.78 16.97 13.13 3.84

2001 6-8 Tot 2001 6-8 LUFF 2001 6-8 LUFT 2001 6-8 LUFP 2001 6-8 LUFO 2001 6-8 LUFG 2001 6-8 Oth 2001 6-8 nonF

11],8 606 195 17.4 12.94 13.51 12.90 0.61

230 63 61 26.5 12.71 13.40 12.79 0.61

116 76 31 26.7 12.99 13.09 12.94 0.16

209 168 24 11.5 14.20 14.36 13.23 1.12

195 118 51 26.2 13.43 13.57 13.18 0.39

63 54

4 6.3 14.79 14.89 14.98 -0.09

305 127 24 7.9 11.53 12.04 11.81 0.23

888 543 134 15.1 13.00 13.52 12.94 0.58

2001 7-8 Tot 2001 7-8 LUFF 2001 7-8 LUFT 2001 7-8 LUFP 2001 7-8 LUFO 2001 7-8 Oth 2001 7-8 nonF

385 162 71 17 28 17 31 21 72 37
183 70 314 145

77 20.0 11.45 11.74 12.11 -0.38 18 25.4 11.74 11.28 12.08 -0.80
9 32.1 12.37 12.48 12.13 0.35 7 22.6 12.13 12.35 11.19 1.16 27 37.5 12.85 12.82 12.9L -0.09 16 8.7 10.53 10.90 11.19 -0.28 59 18.8 11.39 11.79 12.12 -0.33

2001 2001. 2001 2001 2001 2001 2001 2001 2001

1 Tot 1 LUFF 1 LUFT 1 LUFP 1 LUFO 1 LUFG 1 LUFC 10th 1 nonF

191 167

26 16

27 24

27 25

10

8

11 10

8

8

82 76

165 151

15 7.9 25.51 26.00 18.38 7.62 8 30.B 22.75 25.63 18.79 6.84 2 7.4 21.90 22.56 17.13 5.43 1 3.7 25.21 25.00 22.77 2.23 2 20.0 18.50 19.53 14.38 5.16 1 9.1 25.37 25.59 23.19 2.40
o 0.0 31.71 31.71 0.00 0.00
1 1.2 27.93 27.62 16.38 11.24 7 4.2 25.94 26.04 17.91 8.13

2001 2001 2001 2001 2001 2001 2001 2001 2001

2 Tot 2 LUFF 2 LUFT 2 LUFP 2 LUFO 2 LUFG 2 LUFC 20th 2 nonF

80 77

9

9

1

1

17 17

7

6

1

1

17 17

28 26

71 68

1 1.2 23.73 23.70 15.58 8.12
o 0.0 22.50 22.50 0.00 0.00 o 0.0 18.95 18.95 0.00 0.00 o 0.0 21.70 21.70 0.00 0.00
1 14.3 23.82 25.19 15.58 9.61
o 0.0 24.81 24.81 0.00 0.00 o 0.0 23.25 23.25 0.00 0.00 o 0.0 25.77 25.50 0.00 0.00
1 1.4 23.89 23.85 15.58 8.27

2001 2001 2001 .2001

3 Tot 3 LUFF 3 LUFT 3 LUFP

106 97

15 15

6

6

27 24

4 3.B 16.50 16.47 15.82 0.65
o 0.0 16.31 16.31 0.00 0.00 o 0.0 14.46 14.46 0.00 0.00
2 7.4 16.57 16.39 19.2B -2.90

Page 15

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 171 of 295

2001 2001 2001 2001 2001
2001 2001 2001 2001 2001 2001 2001 2001
2001 2001 2001 2001 2001 2001 2001 2001 2001
2001 2001 2001 2001 2001 2001 2001 2001
2001 2001 2001 2001 2001 2001 2001
2001 2001 2001 2001

3 LUFO 3 LUFG 3 LUFC 30th 3 nonF
4 Tot 4 LUFF 4 LUFT 4 LUFP
4 LUFO
4 LUFG 40th 4 nonF
5 Tot 5 LUFF 5 LUFT 5 LUFP 5 LUFO 5 LUFG 5 LUFC 50th 5 nonF
6 Tot 6 LUFF 6 LUFT 6 LUFP 6 LUFO 6 LUFG 60th 6 nonF
7 Tot 7 LUFF 7 LUFT 7 LUFP 7 LUFO 70th 7 nonF
8 Tot 8 LUFF 80th 8 nonF

7

5

22 20

3

3

26 24

91 82

57 53

1

1

6

6

5

4

4

4

5

5

36 33

56 52

Appendix 5b
1 14.3 15.86 16.08 14.77 1.31 1 4.5 16.24 16.56 9.95 6.61
o 0.0 13.67 13.67 0.00 0.00 o 0.0 17.74 17.52 0.00 0.00
4 4.4 16.54 16.50 15.82 0.68
o 0.0 23.75 23.84 0.00 0.00 o 0.0 26.98 26.98 0.00 0.00 o 0.0 20.12 20.12 0.00 0.00 o 0.0 25.32 25.38 0.00 0.00 o 0.0 23.53 23.53 0.00 0.00 o 0.0 21.84 21.84 0.00 0.00 o 0.0 24.34 24.57 0.00 0.00 o 0.0 23.6~ 23.78 0.00 0.00

71 56

2

1

6

5

8

7

1

o

2

2

9

5

43 36

69 55

8 11.3
1 50.0
1 16.7.
o 0.0
1 100.0
o 0.0
3 33.3

12.38 12.61 11.68 13.73 15.84 11.61 13.91 14.32 11.88 12.41 12.19 0.00 12.23 0.00 12.23 12.30 12.30 0.00 11.62 12.41 10.85

0.93 4.23 2.44 0.00 0.00 0.00 1.57

733 444 118 16.1 13.72 14.15 13.41 0.75

159 46 43 27.0 13.14 14.18 13.09 1.10

88 59 22 25.0 13.18 13.27 13.26 0.00

178 147 17 9.6 14.56 14.64 14.07 0.57

123 81 24 19.5 13.78 13.91 13.49 0.42

63 54

4 6.3 14.79 14.89 14.98 -0.09

122 57

8 6.6 13.03 13.43 13.06 0.37

574 398 75 13.1 13.88 14:15 13.59 0.56

378 157 69 15 28 17 31 21, 72 37
178 67 309 142

76 20.1 11.49 11.81 12.14 -0.33 18 26.1 11.78 11.41 12.08 -0.67
9 32.1 12.37 12.48 12.13 0.35 7 22.6 12.13 12.35 11.19 1.16 27 37.5 12.85 12.82 12.91 -0.09 15 8.4 10.57 11.01 11.26 ·0.26 58 18.8 11.42 11.86 12.16 -0.30

7

5

1 14.3 9.55 9.27 10.00 -0.73

2

2

0 0.0 ~0.31 10.31 0.00 0.00

5

3

1 20.0 9.25 8.58 10.00 -1.42

5

3

1 20.0 9.25 8.58 10.00 -1.42

Page 16

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 172 of 295

Appendix Sb

Summary of Workforce and Average Pay Rates

Restricted to Those Active at Year-End, and With Positive Earnings for Year Includes All Departments 'Oth' includes all Departments other than 'LUF' , "nonF' includes all Departments other than LUFF Excludes employees in upper level Mgmt jobs

Workforce

Average $/Hr

Year EEO Dept Tot WhtBlack

Total White Black Diff

2002 Tot 2002 Tot 2002 Tot 2002 Tot 2002 Tot 2002' Tot 2002 Tot 2002 Tot 2002 Tot

Tot LUFF LUFT LUFP LUFO LUFG LUFe Oth nonF

1569 1010 272 101 202 124 300 257 233 163 102 90 72 63 388 212
1297 909

219 64 55 22 47 6 7 18
155

14.0,15.95 17.52 13.41 4.11 23.5 14.44 17.02 13.73 3.29 27.2 13.92 15.01 12.59 2.42
7.3 18.10 18.49 14.89 3.60 20.2 16.12 17.13 13.69 3.44
5.9 17.35 17.61 16.08 1.53 9.7 21.71 22.30 10.79 11.51 4.6 14.85 16.88 12.36 4.52 12.0 16.26 17.57 13.28 4.30

2002 6-8 Tot 2002 6-8 LUFF 2002 6-8 LUFT 2002 6-8 LUFP 2002 6-8 LUFO 2002 6-8 LUFG 2002 6-8 LUFe 2002 6-8 Oth 2002 6-8 nonF

1070 225 170 177 177 61 1 259 845

570 63 94
142 114
53 1
103 507

190 57 53 20 42
3
o
15 133

17.8 25.3 31.2 11.3 23.7
4.9 0.0 5.8 15.7

13.05 13.65 12.99 0.65 12.85 13.63 12.91 0.72 12.48 12.82 12.43 0.39 14.57" 14.68 13.98 0.70 13.74 13.84 13.46 0.38 15.35 15.42 15.54 -0.12 11.03 11.03 0.00 0.00 11.55 11.88 12.16 -0.28 13.10 13.65 13.03 0.62

2002 7-8 Tot 2002 7-8 LUFF 2002 7-8 LUFT 2002 7-8 LUFP 2002 7-8 LUFO 2002 7-8 LUFe 2002 7-8 Oth 2002 7-8 nonF

368 154

69 18

74 30

17 13

54 30

1

1

153 62

299 136

70 19.0 11.44 11.77 12.10 -0.34 15 21. 7 11.88 11.86 12.09 -0.23 24 32.4 11.50 11.87 11.52 0.34
3 17.6 12.63 12.67 12.39 0.28 21 38.9 13.04 1i.93 13.17 -0.24
o 0.0 11.03 11.03 0.00 0.00
7 4.6 10.52 10.95 10.79 0.17 55 18.4 11.34 11.76 12.11 -0.35

2002 2002 2002 2002 2002 2002 2002 2002 2002

1 Tot 1 LUFF 1 LUFT 1 LUFP 1 LUFO 1 LUFG 1 LUFe 10th 1 nonF

191 166 23 14 19 18 37 34 26 24 11 10 21 20 54 46
168 152

13 6.8 7 "30.4
1 5.3 1 2.7 2 7.7 1 9.1
o 0.0
1 1.9 6 3.6

26.87 27.38 19.82 7.56 24.62 27.95 20.38 7.57 24.92 25.14 21.02 4.12 29.92 30.28 23.63 6.65 28.45 29.47 16.23 13.25 26.39 26.62 24.00 2.62 32.08 30.07 0.00 0.00 23.73 23.84 13.95 9.89 27.18 27.]3 19.17 8.15

2002 2002 2002 2002 2002 2002 2002 2002

2 Tot 2 LUFF 2 LUFT 2 LUFP 2 LUFO 2 LUFe 20th 2 nonF

80 77

9

9

2

2

29 28

7

6

22 22

11 10

71 68

1 1.2 24.01 23.91 17.88 6.03
o 0.0 23.69 23.69 0.00 0.00 o 0.0 22.]2 22.32 0.00 0.00 o 0.0 25.24 25.23 0.00 0.00
1 14.3 22.70 23.50 17.88 5.62
o 0.0 24.14 24.14 0.00 0.00 o 0.0 21.94 20.48 0.00 0.00
1 1.4 24.05 23.94 17.88 6.06

2002 2002 2002

3 Tot 3 LUFF 3 LUFT

98 89

12 12

4

4

4 4.1 17.24 17.21 16.35 0.86
o 0.0 16.97 16.97 0.00 0.00 o 0.0 15.56 15.56 0.00 0.00

Page 17

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 173 of 295

2002 2002 2002 2002 2002 2002
2002 2002 2002 2002 2002 2002 2002 2002
2002 2002 2002 2002 2002 2002 2002 2002 2002
2002 2002 2002 2002 2002 2002 2002 2002
2002 2002 2002 2002 2002 2002 2002 2002
2002 2002 2002 2002 2002

3 LUFP 3 LUFO 3 LUFG 3 LUFC 30th 3 nonF
4 Tot 4 LUFF 4 LUFT 4 LUFP 4 LUFO 4 LUFG 40th 4 nonF
5 Tot 5 LUFF 5 LUFT 5 LUFP 5 LUFO 5 LUFG 5 LUFC 50th 5 nonF
6 Tot 6 LUFF 6 LUFT 6 LUFP 6 LUFO 6 LUFG 60th 6 nonF
7 Tot 7 LUFF 7 LUFT 7 LUFP 7 LUFO 7 LUFC 7 Oth 7 nonF
8 Tot 8 LUFF 8 LUFT 80th 8 nonF

33 31

15 13

22 19

4

4

8

6

86 77

Appendix Sb
1 3.0 17.31 17.13 24.26 -7.13 1 6.7 16.62 16.68 15.29 1.39 2 9.1 17.05 17.51 12.93 4.58
o 0.0 14.62 14.62 0.00 0.00 o 0.0 21.25 21.20 0.00 0.00
4 4.7 17.28 17.25 16.35 0.90

55 50

1

1

1

1

9

8

5

5

6

6

33 29

54 49

o 0.0 24.77 24.93 0.00 0.00 o 0.0 22.12 22.12 0.00 0.00 o 0.0 22.52 22.52 0.00 0.00 o 0.0 27.05 27.22 0.00 0.00
o 0.0 26.41 26.41 0.00 0.00
o 0.0 23.78 23.78 0.00 0.00 o 0.0 24.23 24.47 0.00 0.00 o 0.0 24.82 24.99 0.00 0.00

65 52

2

2

6

5

15 14

3

1

2

2

14 10

23 18

63 50

7 10.8 13.04 13.21 12.34 0.87
o 0.0 15.05 15.05 0.00 0.00
1 16.7 14.42 14.80 12.49 2.31
o 0.0 13.12 13.01 0.00 0.00
1 33.3 14.63 17.03 12.72 4.31
o 0.0 12.74 12.74 0.00 0.00
3 21.4 13.36 14.17 11.67 2.50
2 8.7 12.07 12.02 13.07 -1.06
7 11.1 12.97 13.13-12.34 0.80

702 416 120 17.1 13.89 14.34 13.51 0.83

156 45 42 26.9 13.28 14.34 13.20 1.14

96 64 29 30.2 13.24 13.26 13.18 0.09

160 129 17 10.6 14.78 14.89 14.27 0.62

123 84 21 17.1 14.05 14.17 13.74 0.43

61 53

3 4. 9 15.35 15.42 15.54 -0.12

106 41

8 7.5 13.03 13.27 13.36 -0.09

546 371 78 14.3 14.07 14.34 13.68 0.67

346 147

64 15

60 27

17 13

54 30

1

1

150 61

282 132

64 18.5 11.56 11.86 12.34 -0.47 14 21.9 12.00 12.18 12.22 -0.04 20 33.3 12.02 12.17 11.96 0.20
3 17.6 12.63 12.67 12.39 0.28 21 38.9 13.04 12.93 13.17 -0.24
o 0.0 11.03 11.03 0.00 0.00
6 4.0 10.53 10.97 10.92 0.05 50 17.7 11.46 11.83 i2.37 -0.54

22

7

6 27.3 9.64 9.76 9.60 0.17

5

3

1 20.0 10.29 10.28 10.31 -0.03

14

3

4 28.6 9.30 9.17 9.32 -0.15

3

1

1 33.3 10.17 10.00 10.00 0.00

17

4

5 29.4 9.45 9.38 9.45 -0.08

Page 18

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 174 of 295

Appendix 6
Summary of Average. Hourly Rate by Year, EEO Category, and Years Since Hire

Year
1994 1994 1994 1994 1994 1994 1994 1994 1994 1994 1994
1994 1994 1994 1994 1994 1994 1994 1994 1994 1994 1994
1994 1994 1994 1994 1994 1994 1994 1994 1994 1994 1994
1994 1994 1994 1994 1994 1994 1994 1994 1994
1994 1994 1994 1994 1994 1994 1994 1994 1994 1994

Nbr Employees
Sen'ty ------------------------EEO Group Tot Wht Blk Oth % Blk

Hourly Rate Tot Wht Blk DUf

Total Total 1569 1085 266 218 17.0 10.79 11.31 9.74 1.57

Total

< 1 308.176 64 68 20.8 8.53 9.04 7.84 1.20

Total

1 37 29

4

4 10.8 11.43 10.70 9.95 0.75

Total

2 12 11

0

1 0.0 13.33 13.82 0.00 0.00

Total

3 62 42

7 13 11.3 9.71 10.14 8.26 1. 88

Total

4 96 57

8 31 8.3 10.15 10.79 9.40 1.39

Total 5- 9 121 95

9 17 7.4 11.26 11.65 10.10 1.55

Total 10-14 299 223 40 36 13.4 11.30 11.68 10.33 1.35

Total 15-19 316 213 60 43 19.0 11.09 11.47 10.35 1.12

Total 20-24 162 110 49

3 30.2 11.57 12.01 10.68 1.32

Total

>25 156 129 25

2 16.0 12.95 13.23 10.73 2.49

6-8 Total 1260 799 249 212 19.8 9.91 10.19 9.64 0.56

6-8

< 1 287 156 64 67 22.3 8.18 8.45 7.84 0.61

6-8

1 27 20

4

3 14.8 9.17 9.12 9.95 -0.83

6-8

2

7

6

o

1 0.0 10.11 10.46 0.00 0.00

6-8

3 49 30

6 13 12.2 9.37 9.68 8.41 1.27

6-8

4 76 38

7 31 9.2 9.73 10.22 9.48 0.74

6-8

5- 9 80 57

7 16 8.8 10.31 10.47 10.20 0.26

6-8 10-14 226 156 35 35 15.5 10.53 10.72 10.27 0.45

6-8 15-19 265 166 57 42 21.5 10.52 10.67 10.30 0.36

6-8 20-24 136 87 46

3 33.8 10.74 10.90 10.46 0.44

{i-8

>25 107 83 23

1 21.5 10.92 11.02 10.54 0.48

7-8 Total 618 331 140 147 22.7 8.85 9.02 8.76 0.26

7-8

< 1 252 129 61 62 24.2 7.88 8.07 7.71 0.36

7-8

1 20 15

3

2 15.0 8.57 8.54 9.52 -0.97

7-8

2

3

2

o

1 0.0 8.67 9.00 0.00 0.00

7-8

3 30 15

6

9 20.0 8.73 8.95 8.41 0.54

7-8

4 41 13

4 24 9.8 9.15 9.52 9.32 0.20

7-8

5- 9 31 17

4 10 12.9 9.36 9.24 9.38 -0.14

7-8 10-14 86 49 15 22 17.4 9.74 9.82 9.55 0.27

7-8 15-19 93 51 25 17 26.9 9.66 9.62 9.73 -0.11

7-8 20-24 36 23 13

7-8

>25 26 17

9

o 36.1 9.97 10.10 9.73 0.37
o 34.6 10.28 10.50 9.89 0.61

8 Total 150 63 45 42 30.0 7.21 7.28 7.14 0.13

8

< 1 128 53 39 36 30.5 7.13 7.16 7.11 0.05

8

1

3

2

o

1 0.0 7.92 7.88 0.00 0.00

8

2

1

1

o

o 0.0 9.00 9.00 0.00 0.00

8

3

4

o

3

1 75.0 7.28 0.00 7.37 0.00

8

4

1

o

o

1 0.0 8.11 0.00 0.00 0.00

8

5- 9

3

3

o

o 0.0 7.66 7.66 0.00 0.00

8 10-14

3

1

1

1 33.3 7.37 7.87 7.00 0.87

8 15-19

7

3

2

2 28.6 7.82 7.87 7.56 0.31

7 Total 468 268 95 105 20.3 9.38 9.43 9.53 -0.10

7

< 1 124 76 22 26 17.7 8.65 8.72 8.79 -0.07

7

1 17 13

3

1 17.6 8.69 8.65 9.52 -0.87

7

2

2

1

o

1 0.0 8.50 9.00 0.00 0.00

7

3 26 15

3

8 11.5 8.95 8.95 9.46 -0.50

7

4 40 13

4 23 10.0 9.17 9.52 9.32 0.20

7

5- 9 28 14

4 10 14.3 9.54 9.58 9.38 0.20

7 10-14 83 48 14 21 16.9 9.83 9.86 9.73 0.13

7 15-19 86 48 23 15 26.7 9.81 9.73 9.92 -0.19

7 20-24 36 23 13

o 36.1 9.97 10.10 9.73 0.37

Page 1

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 175 of 295

1994
1994 1994 1994 1994 1994 1994 1994 1994 1994 1994 1994
1994 1994 1994 1994 1994 1994 1994 1994 1994 1994 1994
1994 1994 1994 1994 1994 1994 1994 1994 1994
1994 1994 1994 1994 1994 1994 1994 1994 1994 1994
1994 1994 1994 1994 1994 1994 1994 1994 1994 1994 1994
1994 1994 1994 1994 1994 1994

Appendix 6

7

>25 26 17

9

o 34.6 10.28 10.50 9.89 0.61

6 Total 642 468 109 65 17.0 10.92 11.02 10.77 0.26

6

< 1 35 27

3

5 8.6 10.35 10.23 10.33 -0.10

6

1

7

5

1

1 14.3 10.89 10.85 11.25 -0.40

6

244

0

o 0.0 11.19 11.19 0.00 0.00

6

3 19 15

0

4 0.0 10.38 10.41 0.00 0.00

6

4 35 25

3

7 8.6 10.41 10.58 9.68 0.90

6

5- 9 49 40

3

6 6.1 10.91 10.99 11.31 -0.32

6 10-14 140 107 20 13 14.3 11.02 11.14 10.82 0.32

6 15-19 172 115 32 25 18.6 10.98 11.13 10.75 0.38

6 20-24 100 64 33

3 33.0 11.02 11.19 10.75 0.45

6

>25 81 66 14

1 17.3 11.12 11.16 10.97 0.19

5 Total 38 33

3

2 7.9 9.81 10.07 8.08 1.99

5

< 1

5

4

o

1 0.0 8.67 8.82 0.00 0.00

5

1

1

1

o

o 0.0 9.35 9.35 0.00 0.00

5

2

3

3

o

o 0.0 9.39 9.39 0.00 0.00

5

3

2

1

1

o 50.0 8.87 10.38 7.36 3.02

5

4

2

2

o

o 0.0 7.90 7.90 0.00 0.00

5

5- 9

3

1

1

1 33.3 7.637.07 7.36 -0.29

5 10-14

9

8

1

o 11.1 10.52 10.65 9.52 1.13

5 15-19

7

7

o

o 0.0 10.73 10.73 0.00 0.00

5 20-24

2

2

o

o 0.0 11.89 11.89 0.00 0.00

5

>25

4

4

o

o 0.0 10.52 10.52 0.00 0.00

4 Total 23 23

o

o 0.0 13.78 13.78 0.00 0.00

4

< 1

2

2

o

o 0.0 17.57 17.57 0.00 0.00

4

1

2

2

o

o 0.0 9.91 9.91 0.00 0.00

4

3

3

3

o

o 0.0 12.31 12.31 0.00 0.00

4

4

5

5

o

o 0.0 13.43 13.43 0.00 0.00

4

5- 9

5

5

o

o 0.0 14.52 14.52 0.00 0.00

4 10-14

2

2

o

o 0.0 10.70 10.70 0.00 0.00

4 15-19

2

2

a

o 0.0 14.31 14.31 0.00 0.00

4

>25

2

2

o

o 0.0 17.67 17.67 0.00 0.00

3 Total 76 72

3

1 3.9 12.50 12.61 10.10 2.51

3

< 1

5

5

o

o 0.0 11.32 11.32 0.00 0.00

3

1

3

3

o

o 0.0 10.77 10.77 0.00 0.00

3

3

3

3

o

o ·0.0 8.66 8.66 0.00 0.00

3

454

1

o 20.0 10.33 10.70 8.83 1.87

3

5- 9 13 12

1

o 7.7 12.88 12.94 12.12 0.82

3 10-14 17 16

o

1 0.0 12.37 12.39 0.00 0.00

3 15-19 20 19

1

o 5.0 13.13 13.33 9.35 3.98

3 20-24

7

7

o

o 0.0 13.68 13.68 0.00 0.00

3

>25

3

3

o

o 0.0 15.83 15.83 0.00 0.00

2 Total 44 43

2

< 1

5

5

2

1

3

3

2

2

1

1

2

3

3

3

2

4

5

5

2

5- 9

5

5

2 10-14 13 12

2 15-19

4

4

2 20-24

2

2

2

>25

3

3

1

a 2.3 16.73 16.84 11.83 5.01

o

o 0.0 17.57 17.57 0.00 0.00

o

a 0.0 22.10 22.10 0.00 0.00

a

o 0.0 26.74 26.74 0.00 0.00

o

a 0.0 12.13 12.13 0.00 0.00

o

o 0.0 13.62 13.62 0.00 0.00

o

o 0.0 14.82 14.82 0.00 0.00

1

o 7.7 16.70 17.10 11.83 5.27

o

o 0.0 18.35 18.35 0.00 0.00

o

a 0.0 19.93 19.93 0.00 0.00

o

o 0.0 15.43 15.43 0.00 0.00

1 Total 125 112 10

1

< 1

4

4

o

1

1

1

0

a

1

2

1

1

o

1

3

2

2

o

1

433

o

3 8.0 16:36 16.32 12.49 3.83
o 0.0 14.39 14.39 0.00 0.00
1 0.0 47.50 0.00 0.00 0.00
o 0.0 34.33 34.33 0.00 0.00
o 0.0 12.88 12.88 0.00 0.00 o 0.0 10.91 10.91 0.00 0.00

Page 2

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 176 of 295

1994 1994 1994 1994 1994

Appendix 6

1

5- 9 14 14

0

0 0.0 13.86 13.86 0.00 0.00

1 10-14 30 27

3

0 10.0 14.68 15.11 10.77 4.34

1 .15-19 18 15

2

1 11.1 15.40 16.17 12.19 3.98

1 20-24 15 12

3

0 20.0 17~OO 17.73 14.11 3.61

1

>25 37 34

2

1 5.4 18.39 18.24 12.93 5.30

Page 3

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 177 of 295

Appendix 6

Page 4

Summary of Average Hourly Rate by Year, EEG Category, and Years Since. Hire

Year
1995 1995 1995 1995 1995 1995 1995 1995 1995 1995 1995
1995 1995 1995 1995 1995 1995 1995 1995 1995 1995 1995
1995 1995 1995 1995 1995 1995 1995 1995 1995 1995
1995 1995 1995 1995 1995 1995 1995 1995 1995
1995 1995 1995 1995 1995 1995 1995 1995 1995 1995

Nbr. Employees Sen'ty EEG Group Tot Wht Blk Gth % Blk

Hourly Rate Tot Wht Blk Diff

Total Total 1645 1118 282 245 17_1 11_00 11_54 9_93 1_60

Total

< 1 245 161 47 37 19_2 8_88 9_09 8_25 0_84

Total

1 228 126 38 64 16_7 9_52 10_16 8_79 1_37

Total Total

2 20 16

3

1 15_0 14_02 12_52 10_03 2.48

3

6

6

o

o 0_0 17_44 17_44 0_00 0.00

Total

4 52 36

6 10 11.5 10.50 11_08 8.77 2_31

Total 5- 9 186 125 15 46 8.1 11.13 11.74 10_47 1-27

Total 10-14 213 163 31 19 14_6 11_64 12_09 10.32 1-77

Total 15-19 337 220 55 62 16_3 11.37 11.86 10.46 1.40

Total 20-24 180 117 59

4 32.8 11.76 12_27 10.84 1-43

Total

>25 178 148 28

2 15_7 13.04 13_30 10.89 2.41

6-8 Total 1314 816 261 237 19.9 9.98 10_22 9_77 0_45

6-8

< 1 214 134 46 34 21.5 8_08 8_12 8.14 -0_02

6-8

1 210 108 38 64 18.1 9_10 9.44 8_79 0.65

6-8

2 12

9

3

0 25.0 9.61 9.47 10_03 -0.56

6-8

3

1

1 0 0 O~O 12_00 12_00 0_00 0_00

6-8

4 37 22

5 10 13.5 9_95 10_38 9.00 1_38

6-8

5- 9 138 79 14 45 10_1 10.31 10_66 10.32 0_35

6-8 10-14 160 116 25 19 15_6 10_66 10_86 10_26 0.59

6-8 15-19 269 158 51 60 19.0 10_68 10_88 10_36 0.53

6-8 20-24 152 94 54

4 35.5 10_86 11.02 10.60 0.42

6-8

>25 121 95 25

1 20_7 10_97 11.05 10_65 0_40

7-8 Total 666 356 155 155 23.3 9_00 9.08 9_01 0_07

7-8

< 1 188 118 42 28 22.3 7.87 7_97 7.90 0.07

7-8

1 173 83 36 54 20.8 8.79 9.17 8_66 0.51

7-8

2 10

7

3

o 30_0 9_08 8_67 10_03 -1.36

7-8

4 21

8

5

8 23_8 9.43 9.84 9.00 0.83

7-8

5- 9 55 21

7 27 12_7 9.54 9_71 9.97 -0_27

7-8 10-14 60 36 14 10 23.3 9_90 10_04 9_70 0.34

7-8 15-19 93 41 24 28 25.8 9_89 9.79 9_81 -0_01

7-8 20-24 40 25 15

o 37.5 9_98 10.09 9.80 0_29

7-8

>25 26 17

9

o 34_6 10.09 10.15 9.98 0.17

8 Total 143 57 38 48 26_6 7.32 7.24 7.34 -0.11

8

< 1 88 42 21 25 23.9 7.18 7.13 7.24 -0.11

8

1 41 10 12 19 29_3 7.49 7_53 7.42 0.10

8

2

1

1

o

o 0_0 6_50 6.50 0_00 0.00

8

4

2

o 2

o 100.0 7.71 0.00 7_71 0_00

8

5- 9

4

2

o

2 0.0 7_91 7.95 0_00 0.00

8 10-14

2

o

1

1 50.0 7.32 0_00 7_07 0_00

8 15-19

4

1

2

1 50.0 8.06 8.20 7_71 0_49

8

>25

1

1

o

o 0_0 7.07 7.07 0_00 0_00

7 Total 523 299 117 107 22.4 9.45 9_43 9.55 -0.12

7

< 1 100 76 21

3 21.0 8.48 8_43 8_56 -0_13

7

1 132 73 24 35 18.2 9_20 9_39 9.28 0_12

7

2

9

6

3

0 33.3 9_37 9.04 10_03 -1.00

7

4 19

8

3

8 15.8 9_61 9.84 9_87 -0.03

7

5- 9 51 19

7 25 13.7 9.67 9_89 9.97 -0.08

7 10-14 58 36 13

9 22.4 9.99 10.04 9_90 0.14

7 15-19 89 40 22 27 24_7 9.98 9_83 10_00 -0.16

7 20-24 40 25 15

o 37.5 9_98 10_09 9_80 0_29

7

>25 25 16

9

o 36_0 10_21 10_34 9.98 0_36

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 178 of 295

1995 1995 1995 1995 1995 1995 1995 1995 1995 1995 1995
1995 1995 1995 1995 1995 1995 1995 1995 1995 1995
1995 1995 1995 1995 1995 1995 1995
1995 1995 1995 1995 1995 1995 1995 1995 1995 1995
1995 1995 1995 1995 1995 1995 1995 1995 1995 1995 1995
1995 1995 1995 1995 1995 1995 1995 1995 1995 1995

Appendix 6

6 Total 648 460 106 82 16.4 10.99 11.11 10.89 0.21

6

< 1 26 16

4

6 15.4 9.58 9.27 10.61 -1.35

6

1 .37 25

2 10 5.4 10.52 10.36 11.19 -0.83

6

2

2

2

0

o 0.0 12.25 12.25 0.00 0.00

6

3

1

1

0

o 0.0 12.00 12.00 0.00 0.00

6

4 16 14

0

2 0.0 10.63 10.69 0.00 0.00

6

5-. 9 83 58

7 18 8.4 10.83· 11.01 10.66 0.35

6 10-14 100 80 11

9 11.0 11.12 11.22 10.98 0.25

6 15-19 176 117 27 32 15.3 11.10 11.26 10.85 0.42

6 20-24 112 69. 39

4 34.8 11.17 11.36 10.90 0.46

6

>25 95 78 16

1 16.8 11.21 11.25 11.02 0.23

5 Total 41 37

3

1 7.3 10.08 10.25 8.33 1.92

5

< 1

3

3

o

o 0.0 7.31 7.31 0.00 0.00

5

1

4

4

o

o 0.0 9.53 9.53 0.00 0.00

5

3

3

3

o

o 0.0 9.75 9.75 0.00 0.00

5

4

3

2

1

o 33.3 8.81 9.42 7.59 1.83

5

5- 9

7

6

o

1 0.0 10.09 10.23 0.00 0.00

5 10-14

7

5

2

o 28.6 10.56 11.31 8.70 2.61

5 15-19

9

9

o

o 0.0 10.81 10.81 0.00 0.00

5 20-24

1

1

o

o 0.0 13.18 13.18 0.00 0.00

5

>25

4

4

o

o 0.0 10.65 10.65 0.00 0.00

4 Total 17 17

o

o 0.0 15.28 15.28 0.00 0.00

4

< 1

1

1

o

o 0.0 15.87 15.87 0.00 0.00

4

1

1

1

o

o 0.0 20.11 20.11 0.00 0.00

4

4

2

2

o

o 0.0 14.29 14.29 0.00 0.00

4

5- 9 10 10

o

o 0.0 14.63 14.63 0.00 0.00

4 10-14

1

1

o

o 0.0 12.40 12.40 0.00 0.00

4

>25

2

2

o

o 0.0 18.19 18.19 0.00 0.00

3 Total 85 81

3

1 3.5 12.64 12.67 11.85 0.82

3

< 1

6

6

o

o 0.0 11.15 11.15 0.00 0.00

3

1

4

4

o

o 0.0 11.40 11.40 0.00 0.00

3

2

3

3

o

o 0.0 11.20 11.20 0.00 0.00

3

4

5

5

o

o 0.0 10.74 10.74 0.00 0.00

3

5- 9 13 12

1

o 7.7 12.08 12.04 12.55 -0.51

3 10-14 12 12

o

o 0.0 12.54 12.54 0.00 0.00

3 15-19 26 23

3 20-24

8

8

3

>25

8

8

2

1 7.7 13.07 13.23 11.49 1.74

o

o 0.0 13.74 13.74 0.00 0.00

o

o 0.0 14.64 14.64 0.00 0.00

2 Total 62 57

2

3 3.2 17.05 17.08 12.62 4.46

2

< 1 19 15

1

3 5.3 15.85 15.29 13.41 1.88

2

1

6

6

o

o 0.0 17.66 17.66 O~OO 0.00

2

2

4

4

o

o 0.0 20.35 20.35 0.00 0.00

2

3

1

1

o

o 0.0 27.32 27.32 0.00 0.00

2

4

3

3

o

o 0.0 14.25 14.25 0.00 0.00

2

5- 9

8

8

o

o 0.0 15.49 15.49 0.00 0.00

2 10-14 10 10

o

o 0.0 17.82 17.82 0.00 0.00

2 15-19

6

5

1

o 16.7 17.92 19.14 11.83 7.31

2 20-24

3

3

o

o 0.0 19.83 19.83 0.00 0.00

2

>25

2

2

o

o 0.0 14.. 81 14.81 0.00 0.00

1 Total 123 107 13

1

< 1

1

1

o

1

1

3

3

o

1

2

1

o

o

1

3

1

1

o

1

4

2

2

o

1

5- 9

9

9

o

1 10-14 23 19

4

1 15-19 26 24

1

1 20-24 16 11

5

3 10.6 17.56 17.75 12.65 5.09
o 0.0 34.62 34.62 0.00 0.00 o 0.0 16.84 16.84 0.00 0.00
1 0.0 50.00 0.00 0.00 0.00
o 0.0 36.06 36.06 0.00 0.00 o 0.0 13.38 13.38 0.00 0.00 o 0.0 15.71 15.71 0.00 0.00
o 17.4 15.64 16.51 11.48 5.04
1 3.8 15.71 16.06 12.40 3.66
o 31.2 17.78 19.73 13.48 6.26

Page 5

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 179 of 295

1995

Appendix 6

>25 41 37

3

1 7.3 18.72 18.74 12.93 5.80

Page 6

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 180 of 295

Appendix 6

Summary of Average Hourly Rate by Year, EEO Category, and YearS Since Hire

Year
1996 1996 1996 1996 1996 1996 1996 1996 1996 1996 1996
1996 1996 1996 1996 1996 1996 1996 1996 1996 1996 1996
1996 1996 1996 1996 1996 1996 1996 1996 1996 1996 1996
1996 1996 1996 1996 1996 1996 1-996
1996 1996 1996 1996 1996 1996 1996 1996 1996 1996 1996

Nbr Employees Sen'ty EEO Group Tot Wht Blk Oth % Blk

Hourly Rate Tot Wht Blk Diff

Total Total 1489 994 258 237 17.3 11.93 12.64 10.67 1.97

Total

< 1 100 62 17 21 17.0 10.67 11.47 9.37 2.10

Total

1 121 76 24 21 19.8 10.89 11.58 10.09 1.49

Total

2 156 80 26 50 16.7 10.61 11.54 9.76 1.79

Total

3 21 16

4

1 19.0 12.87 13.60 10.54 3.06

Total

4 11 10

o

1 0.0 15.05 15.38 0.00 0.00

Total 5- 9 212 136 21 55 9.9 11.52 12.17 10.37 1.80

Total 10-14 162 114 27 21 16.7 11.94 12.51 10.63 1.88

Total 15-19 328 221 47 60 14.3 12.26 12.88 10.96 1.92

Total 20-24 .194 129 61

4 31.4 12.18 12.69 11.17 1.52

Total

>25 184 150 31

3 16.8 13.72 14.08 11.38 2.70

6-8 Total 1161 688 242 231 20.8 10.80 11.09 10.56 Oe53

6-8

< 1 72 38 16 18 22.2 9.22 9.37 9.02 0.35

6-8

1 102 58 23 21 22.5 9.75 9.86 9.86 0.00

6-8

2 138 62 26 50 18.8 9.93 10.29 9.76 0.54

6-8

3 14

9

4

1 28.6 10.90 11.10 10.54 0.56

6-8

4

6

5

0

1 0.0 11.62 11.60 0.00 0.00

6-8

5- 9 163 89 20 54 12.3 10.91 11.34 10.49 0.85

6-8 10-14 126 82 23 21 18.3 10.95 11.18 10.57 0.61

6-8 15-19 252 150 43 59 17.1 11.23 11.42 10.91 0.50

6-8 20-24 164 102 58

4 35.4 11.42 11.65 11.04 0.61

6-8

>25 124 93 29

2 23.4 11.48 11.57 11.21 0.36

7-8 Total 457 214 120 123 26.3 9.74 9.88 9.73 0.15

7-8

< 1 45 21 11 13 24.4 8.43 8.45 8.46 -0.01

7-8

1 65 31 17 17 26.2 9.19 9.15 9.39 -0.25

7-8

2 94 35 21 38 22.3 9.29 9.48 9.26 0.22

7-8

3

8

4

4

o 50.0 10.43 10.31 10.54 -0.23

7-8

4

1

1

o

o 0.0 13.00 13.00 0.00 0.00

7-8

5- 9 56 20 10 26 17.9 ,9.98 10.24 9.68 0.56

7-8 10-14 43 21 13

9 30.2 10.11 10.26 9.85 0.41

7-8 15-19 75 38 17 20 22.7 10.37 10.39 10.20 0.19

7-8 20-24 45 25 20

o 44.4 10.45 10.49 10.40 0.08

7-8

>25 25 18

7

o 28.0 10.54 10.62 10.32 0.30

8 Total 46 19 14 13 30.4 8.03 8.07 7.97 0.10

8

< 1 11

3

4

4 36.4 7.54 7.91 7.40 0.51

8

1

7

5

2

o 28.6 8.22 7.90 9.02 -1.13

8

2 16

5

4

7 25.0 8.13 7.91 8.08 -0.17

8

5- 9

5

2

2

1 40.0 8.04 8.27 7.84 0.44

8 10-14

2

1

1

o 50.0 7.81 8.00 7.61 0.39

8 15-19

5

3

1

1 20.0 8.64 8.66 8.27 0.39

7 Total 411 195 106 110 25.8 9.93 10.06 9.96 0.10

7

< 1 34 18

7

9 20.6 8.72 8.54 9.06 -0.52

7

1 58 26 15 17 25.9 9.30 9.39 9.44 -0.06

7

2 78 30 17 31 21.8 9.52 9.75 9.54 0.21

7

3

8

4

4

o 50.0 10.43 10.31 10.54 -0.23

7

4

1

1

o

o 0.0 13.00 13.00 0.00 0.00

7

5- 9 51 18

8 25 15.7 10.17 10.46 10.14 0.32

7 10-14 41 20 12

9 29.3 10.22 10.37 10.03 0.34

7 15-19 70 35 16 19 22.9 10.49 10.53 10.32 0.21

7 20-24 45 25 20

o 44.4 10.45 10.49 10.40 ~.08

7

>25 25 18

7

o 28.0 10.54 10.62 10.32 0.30

Page 7

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 181 of 295

1996 1996 1996 1996 1996 1996 1996 1996 1996 1996 1996
1996 1996 1996 1996 1996 1996 1996 1996 1996 1996 1996
1996 1996 1996 1996 1996 1996 1996 1996
1996 1996 1996 1996 1996 1996 1996 1996 1996 1996
1996 1996 1996 1996 1996 1996 1996 1996 1996 1996 1996
1996 1996 1996 1996 1996 1996 1996 1996

Appendix 6

6 Total 704 474 122 108 17.3 11.48 11.63 11.37 0.26

6

< 1 27 17

5

5 18.5 10.53 10.51 10.25 0.26

6

1 37 27

6

4 16.2 10.73 10.68 11.19 -0.51

6

2 44 27

5 12 11.4 11.31 11.34 11.83 -0.49

6

3

6

5.

0

1 0.0 11.53 11.74 0.00 0.00

6

4

5

4

0

1 0.0 11.35 11.25 0.00 0.00

6

5- 9 107 69 10 28 9.3 11.39 11.65 11.30 0.35

6 10-14 83 61 10 12 12.0 11.39 11.49 11.51 -0.02

6 15-19 177 112 26 39 14.7 11.59 11.77 11.38 0.39

6 20-24 119 77 38

4 31.9 11.79 12.03 11.38 0.65

6

>25 99 75 22

2 22.2 11.72 11.80 11.50 0.30

5 Total 40 36

2

2 5.0 10.12 10.27 7.93 2.34

5

< 1

5

4

o

1 0.0 9.91 10.00 0.00 0.00

5

1

3

3

o

o 0.0 7.66 7.66 0.00 0.00

5

2

4

4

o

o 0.0 10.18 10.18 0.00 0.00

5

3

1

1

o

o 0.0 10.50 10.50 0.00 0.00

5

4

3

3

o

o 0.0 10.08 10.08 0.00 0.00

5

5- 9

6

4

1

1 16.7 ~.30 9.51 8.08 1.43

5 10-14

5

4

1

o 20.0 10.41 11.06 7.79 3.27

5 15-19

8

8

o

o 0.0 10.89 10.89 0.00 0.00

5 20-24

1

1

o

o 0.0 12.69 12.69 0.00 0.00

5

>25

4

4

o

o 0.0 10.82 10.82 0.00 0.00

4 Total 20 20

o

o 0.0 16.62 16.62 0.00 0.00

4

< 1

1

1

o

o 0.0 23.94 23.94 0.00 0.00

4

2

1

1

o

o 0.0 20.71 20.71 0.00 0.00

4

5- 9 10 10

o

o 0.0 15.02 15.02 0.00 O.~O

4 10-14

2

2

o

o 0.0 13.12 13.12 0.00 0.00

4 15-19

3

3

o

o 0.0 18.30 18.30 0.00 0.00

4 20-24

1

1

o

o 0.0 18.46 18.46 0.00 0.00

4

>25

2

2

o

o 0.0 18.98 18.98 0.00 0.00

3 Total 85 81

2

2 2.4 13.30 13.40 12.46 0.94

3

< 1 10

8

1

1 10.0 12.30 12.64 15.00 -2.36

3

1

1

1

o

o 0.0 10.18 10.18 0.00 0.00

3

2

4

4

o

o 0.0 13.12 13.12 0.00 0.00

3

3

3

3

o

o 0.0 11.70 11.70 0.00 0.00

3

5- 9 14 14

o

o 0.0 11.97 11.97 0.00 0.00

3 10-14

8

8

o

o 0.0 14.28 14.28 0.00 0.00

3 15-19 24 22

1

1 4.2 13.60 13.82 9.92 3.90

3 20-24 12 12

o

o 0.0 14.16 14.16 0.00 0.00

3

>25

9

9

o

o 0.0 14.57 14.57 0.00 0.00

2 Total 59 56

2

1 3.4 18.50 18.71 13.60 5.10

2

< 1

9

8

o

1 0.0 18.16 18.34 0.00 0.00

2

1 11 10

1

o 9.1 17.09 17.26 15.38 1.88

2

266

o

o 0.0 18.71 18.71 0.00 0.00

2

3

3

3

o

o 0.0 24.04 24.04 0.00 0.00

2

4

1

1

o

o 0.0 27.32 27.32 0.00 0.00

2

5- 9

7

7

o

o 0.0 16.26 16.26 0.00 0.00

2 10-14

7

7

o

o 0.0 20.13 20.13 0.00 0.00

2 15-19

9

8

1

o 11.1 17.74 18.48 11.83 6.65

2 20-24

3

3

o

o 0.0 19.47 19.47 0.00 0.00

2

>25

3

3

o

o 0.0 18.61 18.61 0.00 0.00

1 Total 121 110 10

1

< 1

3

3

o

1

1

4

4

o

1

233

o

1

4

1

1

o

1

5- 9 11 11

o

1 10-14 13 10

3

1 15-19 31 29

2

1 8.3 18.53 18.88 12.89 5.98
o 0.0 14.41 14.41 0.00 0.00 o 0.0 25.62 25.62 0.00 0.00
o 0.0 19.68 19.68 0.00 0.00
o 0.0 38.22 38.22 0.00 0.00
o 0.0 15.35 15.35 0.00 0.00 o 23.1 16.17 17.42 12.01 5.41
o 6.5 17.99 18.39 12.15 6.24

Page 8

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 182 of 295

1996 1996

Appendix 6

1 20-24 13 10

3

o 23.1 17.70 18.90 13.69 5.21

1

>25 42 39

2

1 4.8 19.82 19.70 13.76 5.94

Page 9

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 183 of 295

Appendix 6

Summary of Average Hourly Rate by Year, EEO Category, and Years Since Hire

Year

Nbr Employees Sen'ty EEO Group Tot Wht Blk Oth %. Blk

Hourly Rate Tot Wht Blk Ditf

1997 1997 1997 1997 1997 1997 1997 1997 1997 1997 1997

Total Total 1766 1157 332 277 18.8 11.89 12.55 10.71 1.84

'Total

< 1 416 271 86 59 20.7 9.40 9.76 8.60 1.16

Total

1 54 36

7 11 13.0 11.83 12.89 9.82 3.07

Total

2 88 52 16 20 18.2 11.69 12.50 10.83 1.67

Total Total

3 137 72 22 43 16.1 11.33 12.15 10.54 1.61

4 '9

7

2

o 22.2 13.09 13.76 10.76 3.00

Total 5- 9 167 105 13 49 7.8 12.28 13.12 10.83 2.29

Total 10-14 174 114 30 30 17.2 12.29 12.84 11.41 1.43

Total 15-19 257 163 42 52 16.3 12.87 13.66 11.42 2.25

Total 20-24 232 157 65 10 28.0 12.90 13.43 11.80 1.63

Total

>25 232 180 49

3 21.1 14.10 14.55 12.07 2.48

1997 1997 1997 1997 1997 1997 1997 1997 1997 1997 1997

6-8 Total 1462 875 315 272 21.5 10.77 11.00 10.48 0.52

6-8

< 1 388 245 85 58 21.9 8.94 9.11 8.56 0.55

6-8

1 39 21

7 11 17.9 10.13 10.49 9.82 0.67

6-8

2 77 42 15 20 19.5 10.65 10.89 10.50 0.38

6-8

3 125 60 22 43 17.6 10.77 11.15 10.54 0.61

6-8

4

6,

4

2

o 33.3 11.19 11.40 10.76 0.63

6-8

5- 9 130 70 12 48 9.2 11.44 11.90 11.02 0.87

6-8 10-14 133 79 25 29 18.8 11.38 11.65 11.14 0.51

6-8 15-19 201 110 40 51 19.9 11.72 11.96 11.34 0.62

6-8 20-24 192 120 62 10 32.3 11.77 11.94 11.48 0.46

6-8

>25 171 124 45

2 26.3 11.91 12.06 11.52 0.54

1997 1997 1997 1997 1997 1997 1997 1997 1997 1997 1997

7-8 Total 694 364 172 158 24.8 9.57 9.58 9.47 0.11

7-8

< 1 326 194 80 52 24.5 8.62 8.73 8.46 0.27

7-8

1 26 10

5 11 19.2 9.75 9.88 9.73 0.15

7-8

2 42 18 11 13 26.2 10.15 10.20 10.32 -0.12

7-8

3 70 28 12 30 17.1 10.14 10.38 9.96 0.42

7-8

4

1

o 1

o 100.0 11.03 0.00 11.03 O.~O

7-8

5- 9 46 18

6 22 13.0 10.47 10.66 10.21 0.46

7-8 10-14 43 21 11 11 25.6 10.34 10.49 10.2Y 0.28

7-8 15-19 56 23 14 19 25.0 10.76 10.80 10.29 0.51

7-8 20-24 53 32 21

o 39.6 10.70 10.61 10.84 -0.23

7-8

'>25 31 20 11

o 35.5 10.85 11.07 10.44 0.63

1997 1997 1997 1997 1997 1997 1997 1997 1997

8 Total 180 97 53 30 29.4 7.65 7.64 7.75 -0.11

8

< 1 163 89 47 27 28.8 7.58 7.56 7.68 -0.12

8

2

4

3

1

o 25.0 8.89 8.63 9.67 -1.04

8

3

2

1

1

o 50.0 8.41 8.15 8.67 -0.52

8

5- 9

3

o 1

2 33.3 7.79 0.00 8.56 0.00

8 10-14

4

2

1

1 25.0 7.94 7.91 7.40 0.51

8 15-19

1

o 1

o 100.0 7.91 0.00 7.91 0.00

8 20-24

2

2

o

o 0.0 9.25 9.25 0.00 0.00

8

>25

1

o 1

o 100.0 7.40 0.00 7.40 0.00

1997 1997 1997 1997 1997 1997 1997 1997 1997

7 Total 514 267 119 128 23.2 10.25 10.29 10.24 0.04

7

< 1 163 105, 33 25 20.2 9.66 9.71 9.57 0.14

7

1 26 10

5 11 19.2 9.75 9.88 9.73 0.15

7

2 38 15 10 13 26.3 10.28 10.52 10.38 0.14

7

3 68 27 11 30 16.2 10.19 10.46 10.07 0.39

7

4

1

o 1

o 100.0 11.03 0.00 11.03 0.00

7

5- 9 43 18

5 20 11.6 10.66 10.66 10.54 0.13

7 10-14 39 19 10 10 25.6 10.59 10.76 10.49 0.27

7 15-19 55 23 13 19 23.6 10.81 10.80 10.47 0.33

page 10

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 184 of 295

1997 1997
1997 1997 1997 1997 1997 1997 1997 1997 1997 1997 1997
1997 1997 1997 1991 1997 1991 1997 1991 1991 1997
1997 1997 1991 1997 1997 1997 1997 1997
1997 1997 1997 1997 1997 1991 1997 1991 1997 1997 1997
1997 1991 1997 1997 1991 1997 1991 1997 1997 1997 1991
1991 1997 1991 1997 1997 1997

7 20-24 51 30 21

7

>25 30 20 10

Appendix 6
o 41.2 10.76 10.70 10.84 -0.14 o 33.3 10.96 11.07 10.75 0.32

6--Total

6

< 1

6

1

6

2

6

3

6

4

6

5- 9

6 10-14

6 15-19

6 20-24

6

>25

768 62 13 35 55 5 84 90
145 139 140

511 51 11 24 32 4 52 58 81 88
104

143, 5 2 4
10 1 6
14 26 41 34

114 6 0 7
13 0
26 18 32 10
2

18.~ 11.86 12.0~ 11.69 8.1 10.60 10.60 10.17
15.4 10.89 11.05 10.03 11.4 11.25 11.40 11.01 18.2 11.57 11.82 11.23 20.0 11.22 11.40 10.50
7.1 11.98 12.32 11.83 15.6 11.88 12.07 11.86 11.9 12.09 12.27 11.91 29.5 12.18 12.43 11.80 24.3 12.15 12.25 11.86

0.31 0.43 1.01 0.39 0.59 0.90 0.49
0~20
0.35 0.62 0.38

5 Total 36 32.

3

1 8.3 10.73 10.87 9.41 1.46

5

< 1

1

6

1

o 14.3 9.20 8.81 11.54 -2.73

5

1

1

1

o

o 0.0 8.79 8.19 0.00 0.00

5

3

2

2

o

o 0.0 11.69 11.69 0.00 0.00

5

4

1

1

o

o 0.0 10.96 10.96 0.00 0.00

5

5- 9

5

3

1

1 20.0 10.06 10.52 8.50 2.02

5 10-14

6

5

1

o 16.7 10.43 10.88 8.18 2.10

5 15-19

6

6

o

o 0.0 10.80 10.80 0.00 0.00

5 20-24

3

3

o

o 0.0 13.03 13.03 0.00 0.00

5

>25

5

5

o

o 0.0 12.41 12.41 0.00 0.00

4 Total 14 14

o

o 0.0 17.06 17.06 0.00 0.00

4

< 1

3

3

o

o 0.0 11.68 17.68 0.00 0.00

4

3

1

1

o

o 0.0 21.76 21.76 0.00 0.00

4

5- 9

4

4

o

o 0.0 16.67 16.67 0.00 0.00

4 10-14

2

2

o

o 0.0 13.24 13.24 0.00 0.00

4 15-19

2

2

o

o 0.0 18.00 18.00 0.00 0.00

4 20-24

1

1

o

o 0.0 18.44 18.44 0.00 0.00

4

>25

1

1

o

o 0.0 16.36 16.36 0.00 0.00

3 Total 85 81

3

1 3.5 14.49 14.52 13.92 0.60

3

< 1

8

8

o

o 0.0 16.51 16.57 0.00 0.00

3

1

6

6

o

o 0.0 13.31 13.31 0.00 0.00

3

2

2

2

()

o o . 0 16.14 16.14 0.00 0.00

3

3

3

3

o

o 0.0 12.98 12.98 0.00 0.00

3

4

1

1

o

o 0.0 13.33 13.33 0.00 0.00

3

5- 9 13 13

o

o 0.0 12.93 12.93 0.00 0.00

3 10-14 14 13

1

o 7.1 13.53 13.80 10.00 3.80

3 15-19 16 14

1

1 6.2 14.04 14.33 10.41 3.92

3 20-24 10 10

o

o 0.0 15.57 15.57 0.00 0.00

3

>25 12 11

1

o 8.3 16.40 15.95 21.35 -5.40

2 Total 52 50

1

1 1.9 19.75 19.87 15.68 4.19

2

< 1

7

6

o

1 0.0 18.10 18.13 0.00 0.00

2

1

6

6

o

o 0.0 19.43 19.43 0.00 0.00

2

2

6

5

1

o 16.7 18.47 19.03 15.68 3.35

2

3

4

4

o

o 0.0 18.56 18.56 O~OO 0.00

2

4

1

1

o

o 0.0 26.44 26.44 0.00 0.00

2

5- 9

6

6

o

o 0.0 18.69 18.69 0.00 0.00

2 10-14

5

5

o

o 0.0 21.05 21.05 0.00 0.00

2 15-19

6

6

o

o 0.0 20.00 20.00 0.00 0.00

2 20-24

7

7

o

o 0.0 18.55 18.55 0.00 0.00

2

>25

4

4

o

o 0.0 26~28 26.28 0.00 0.00

1 Total 117 105 10

1

< 1

3

3

o

1

1

2

2

o

1

2

3

3

o

1

3

2

2

o

1

5- 9

9

9

o

2 8.5 20.26 20.45 16.87 3.58
o 0.0 21.15 21.15 0.00 0.00 o 0.0 19.29 19.29 0.00 0.00 o 0.0 21.79 21.79 0.00 0.00 o 0.0 23.13 23.73 0.00 0.00 o 0.0 18.41 18.47 0.00 0.00

Page 11

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 185 of 295

1997 1997 1997 1997

1 10-14 14 10

1 15-19 26 25

1 20-24 19 16

i

>25 ' 39 35

Appendix 6

3

1 21.4 17.20 17.77 15.25 2.52

1

0 3.8 19.44 19.61 15.30 4.31

3

0 15.8 20.45 20.82 18.52 2.30

3· 1 7.7 21,91 21.87 17.36 4.50

Page 12

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 186 of 295

Appendix 6

Year
1998 1998 1998 1998 1998 1998 1998 1998 1998 1998 1998
1998 1998 1998 1998 1998 1998 1998 1998 1998 1998 1998
1998 1998 1998 1998 1998 1998 1998 1998 1998 1998 1998
1998 1998 1998 1998 1998 1998 1998 1998 1998
1998 1998 1998 1998 1998 1998 1998 1998 1998

Summary of Average Hourly Rate by Year! EEO Category,-and Yea~s Since Hire
===========================================

Nbr Employees
Sen'ty ------------------------EEO Group Tot Wht Blk oth % Blk

Hourly Rate Tot Wht Blk Diff

Total Total 1504 991 279 234 18.6 12.87 13.65 11.51 2.14

Total

< 1 48 29 11

8 22.9 11.34 12.95 8.55 4.40

Total

1 213 137 46 30 21.6 10.37 10.60 9.84 0.77

Total

2 36 21

6

9 16.7 12.81 14.37 11.05 3.32

Total

3 71 44 12 15 16.9 12.61 13.66 11.04 2.63

Total

4 112 56 17 39 15.2 11.73 12.37 11.21 1.17

Total 5- 9 136 87 13 36 9.6 12.83 13.70 11.15 2.55

Total 10-14 145 97 20 28 13.8 12.84 13.30 12.14 1.16

Total 15-19 214 140 28 46 13.1 13.75 14.76 11.96 2.80

Total 20-24 263 177 66 20 25.1 13.56 14.28 12.06 2.22

Total

>25 266 203 60

3 22.6 14.35 14.92 12.60 2.32

6-8. 6-8 6-8 6-8 6-8 6-8 6-8 6-8 6-8 6-8. 6-8

Total 1194 108 259 227 21.7 11.57 11.83 11.25 0.58

< 1 37 20 10

7 27.0 9.20 9.58 8.25 1.33

1 201 128 43 30 21.4 10.20 10.36 9.80 0.56

2 27 12

6

9 22.2 11.05 11.56 11.05 0.51

3 61 34 12 15 19.7 11.35 11.70 11.04 0.67

4 101 45 17 39 16.8 11.28 11.52 11.21 0.31

5- 9 102 54 12 36 11.8 11.94 12.49 11.35 1.14

10-14 III 69 16 26 14.4 11.97 12.22 11.78 0.45

15-19 153 84 26 43 17.0 12.03 12.33 11.69 0.63

20-24 205 124 62 19 30.2 12.11 12.37 11.81 0.56

>25 196 138 55

3 28.1 12.30 12.45 12.00 0.44

7-8 Total 527 264 129 134 24.5 10.51 10.57 10.33 0.24

7-8

< 1 37 20 10

7 27.0 9.20 9.58 8.25 1.33

7-8

1 169 101 40 28 23.1 10.01 10.11 9.70 0.41

7-8

2 15

4

2

9 13.3 10.39 10.51 10.32 0.19

7-8

3 34 14

8 12 23.5 10.80 11.02 10.80 0.22

7-8

4 63 24 11 28 17.5 10.60 10.54 10.70 -0.16

7-8

5- 9 40 16

7 17 17.5 11.08 11.34 10.71 0.63

7-8 10-14 33 16

6 11 18.2 10.95 11.02 10.76 0.26

7-8 15-19 43 18

9 16 20.9 10.89 11.03 10.61 0.43

7-8 20-24 56 27 23

7-8

>25 37 24 13

6 41.1 11.19 11.15 11.13 0.02
o 35.1 11.30 11.32 11.24 0.08

8 Total 60 26 23 11 38.3 8.70 8.84 8.49 0.35

8

< 1 10

1

6

3 60.0 8.26 8.13 8.01 0.12

8

1 32 16 13

3 40.6 8.51 8.55 8.46 0.09

8

2

3

2

o

1 0.0 10.11 10.40 0.00 0.00

8

3

4

1

2

1 50.0 9.53 9.41 9.60 -0.19

8

4

3

2

1

o 33.3 9.13 8.98 9.45 -0.47

8 10-14

2

1

o

1 0.0 8.74 8.15 0.00 0.00

8 15-19

2

o

o

2 0.0 8.14 0.00 0.00 0.00

8 20-24

4

3

1

o 25.0 9.31 9.53 8.65 0.88

7 Total 467 238 106 123 22.7 10.75 10.76 10.73 0.03

7

< 1 27 19

4

4 14.8 9.55 9.66 8.62 1.04

7

1 137 85 27 25 19.7 10.36 10.40 10.29 0.11

7

2 12

2

2

8 16.7 10.46 10.62 10.32 0.30

7

3 30 13

6 11 20.0 10.97 11.14 11.20 -0.06

7

4 60 22 10 28 16.7 10.67 10.68 10.82 -0.15

7

5- 9 40 16

7 17 17.5 11.08 11.34 10.71 0.63

7 10-14 31 15

6 10 19.4 11.09 11.21 10.76 0.45

7 15-19 41 18

9 14 22.0 11.03 11.03 10.61 0.43

Page 13

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 187 of 295

1998 1998
1998 1998 1998 1998 1998 1998 1998 1998 1998 1998
1998 1998 1998 1998 1998 1998 1998 1998 1998 1998
1998 1998 1998 1998 1998 1998 1998 1998 1998
1998 1998 1998 1998 1998 1998 1998 1998 1998 1998
1998 1998 1998 1998 1998 1998 1998 1998 1998 1998 1998
1998 1998 1998 1998 1998 1998 1998

7 20-24 52 24 22

7

>25 37 24 13

Appendix 6
6 42.3 11.33 11.36 11.24 0.11
o 35.1 11.30 11.32 11.24 0.08

6 Total 667 444 ~ 130 ~ ·93 19.512~.40. 12.58 12.17 0.41

6

1 32 27

3

2 9.4 11.21 11.29 11.15 0.15

6

2 12

8

4

o 33.3 11.87 12.09 11.42 0.67

6

3 27 20

4

3 14.8 12.04 12.18 11.51 0.68

6

4 38 21

6 11 15.8 12.41 12.64 12.14 0.50

6

5- 9 62 38

5 19 8.1 12.50 12.98 12.24 0.73

6 10-14 78 53 10 15 12.8 12.40 12.58 12.38 0.20

6 15-19 110 66 17 27 15.5 12.48 12.68 12.27 0.41

6 20-24 149 97 39 13 26.2 12.54 12.71 12.21 0.50

6

>25 159 114 42

3 26.4 12.54 12.68 12.24 0.45

5 Total 30 26

3

1 10.0 11.43 11.63 10.63 1.01

5

< 1

3

1

1

1 33.3 10.24 10.67 11.54 -0.87

5

1

3

2

1

o 33.3 9.21 8.04 11.54 -3.50

5

3

1

1

o

o 0.0 11.08 11.08 0.00 0.00

5

4

2

2

o

o 0.0 12.22 12.22 0.00 0.00

5

5- 9

4

3

1

o 25.0 10.78 11.44 8.80 2.64

5 10-14

3

3

o

o 0.0 11.19 11.19 0.00 0.00

5 15-19

4

4

o

o 0.0 11. 43 11.43 0.00 0.00

5 20-24

5

5

o

o 0.0 12.69 12.69 0.00 0.00

5

>25

5

5

o

o 0.0 .,.62 12.62 0.00 0.00

4 Total 12 12

o

o 0.0 16.85 16.85 0.00 0.00

4

1

1

1

o

o 0.0 13.24 13.24 0.00 0.00

4

2

1

1

o

o 0.0 19.98 19.98 0.00 0.00

4

4

1

1

o

o 0.0 14.74 14.74 0.00 0.00

4

5- 9

2

2

o

o 0.0 17.55 17.55 0.00 0.00

4 10-14

3

3

o

o o . 0 14.72 14.72 0.00 0.00

4 15-19

1

1

o

o 0.0 17.83 17.83 0.00 0.00

4 20-24

1

1

o

o 0.0 20.36 20.36 0.00 0.00

4

>25

2

2

o

o 0.0 18.42 18.42 0.00 0.00

3 Total 94 86

3

1

5

3

3

2

4

4

3

3

2

2

3

4

2

2

3

5- 9 14 14

3 10-14 13 12

3 15-19 16 14

3 20-24 21 19

3

>25 17 16

2 Total 48 48

2

< 1

5

5

2

1

2

2

2

2

3

3

2

3

4

4

2

4

3

3

2

5- 9

5

5

2 10.-14

4

4

2 15-19

8

8

2 20-24

9

9

2

>25

5

5

5

3 5.3 14.60 14.77 12.42 2.34

2

o 40.0 11.72 13.01 9.79 3.22

o

o 0.0 15.60 15.60 0.00 0.00

o

o 0.0 16.53 16.53 0.00 0.00

o ,0 0.0 15.06 15.06 0.00 0.00

o

o 0.0 13.46 13.46 0.00 0.00

1

o 7.7 14.15 14.47 10.38 4.09

o

2 0.0 14.25 14.34 0.00 0.00

1

1 4.8 15.52 15.89 10.81 5.08

1

o 5.9 15.41 15.04 21.35 -6.31

o

o 0.0 20.43 20.43 0.00 0.00

o

o 0.0 18.34 18.34 0.00 0.00

o

o 0.0 21.73 21.73 0.00 0.00

o

o 0.0 21.12 21.12 0.00 0.00

o

o 0.0 18.98 18.98 0.00 0.00

o

o 0.0 19.15 19.15 0.00 0.00

o

o 0.0 18.68 18.68 0.00 0.00

o

o 0.0 20.89 20.89 0.00 0.00

o

o 0.0 21.11 21.11 0.00 0.00

o

o 0.0 21.05 21.05 0.00 0.00

o

o 0.0 22.70 22.70 0.00 0.00

1 Total 126 111 12

1

< 1

3

3

o

1

1

1

1

o

1

2

1

1

o

1

3

3

3

o

1

4

3

3

o

1

5- 9

9

9

o

3 9.5 20.97 21.59 16.86
00.0 27.20 27.20 0.00
o 0.0 15.00 15.00 0.00 o 0.0 17.26 17.26 0.00 o 0.0 27.74 27.74 0.00 o 0.0 15.95 15.95 0.00 o 0.0 18.46 18.46 0.00

4.73 0.00 0.00 0.00 0.00 0.00 0.00

Page 14

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 188 of 295

1998 1998 1998 1998

Appendix 6

1 10-14 11

6

3

2 27.3 17.12 18.64 14.65 3.99

1 15-19 32 29

2

1 6.2 20.02 20.62 15.46 5.16

1 20-24 22 19

3

0 13 .6 21.42 22.02 17 .61 4.42

1

",25 41 37

4

0 9.8-22.71 23.15 18.65 4.50

Page 15

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 189 of 295

Appendix 6

Summary of Average Hourly Rate by Year, EEO Category, and Years Since Hire

Year
1999 1999 1999 1999 1999 1999 1999 1999 1999 1999 1999
1999 1999 1999 1999 1999 1999 1999 1999 1999 1999
1999 1999 1999 1999 1999 1999 1999 1999 1999 1999
1999 1999 1999 1999 1999 1999
1999 1999 1999 1999 1999 1999 1999 1999 1999 1999
1999 1999 1999

Nbr Employees
Sen'ty ------------------------EEO Group Tot Wht Blk Oth % Blk

Hourly Rate Tot Wht Blk Diff

Total Total 1184 796 209 179 17.7 13.66 14.49 12.24 2.25

Total

< 1 11 10

1

o 9.1 19.76 20.85 8.80 12.05

Total

1 15 12

1

2 6.7 16.20 17.62 12.00 5.62

Total

2 114 74 23 17 20.2 11.10 11.42 10.41 1.01

Total

3 18 14

3

1 16.7 16.12 17.25 12.71 4.53

Total

4 33 19

4 10 12.1 14.04 15.84 11.86 3.98

Total 5- 9 186 103 21 62 11.3 12.66 13.64 11.67 1.98

Total 10-14 71 49

7 15 9.9 13.43 14.19 11.45 2.74

Total 15-19 186 124 27 35 14.5 14.08 14.92 12.88 2.04

Total 20-24 272 185 54 33 19.9 13.79 14.46 12.46 2.01

Total

>25 278 206 68

4 24.5 14.44 15.05 12.76 2.29

6-8 Total 896 536 188 172 21.0 12.20 12.50 11.93 0.57

6-8

1

6

5

o

1 0.0 10.09 9.95 0.00 0.00

6-8

2 107 67 23 17 21.5 10.90 11.13 10.41 0.72

6-8

3 10

7

2

1 20.0 12.22 12.50 12.09 0.41

6-8

4 25 11

4 10 16.0 11.83 12.12 11.86 0.27

6-8

5- 9 147 66 20 61 13.6 11.95 12.55 11.81 0.75

6-8 10-14 51 31

6 14 11.8 12.45 12.91 11.91 LOO

6-8 15-19 135 82 21 32 15.6 12.46 12.72 12.18 0.54

6-8 20-24 206 124 50 32 24.3 12.52 12.73 12.20 0.53

6-8

>25 209 143 62

4 29.7 12.62 12.82 12.22 0.60

7-8 Total 288 142 75 71 26.0 11.14 11.17 11.12 0.05

7-8

1

6

5

o

1 0.0 10.09 9.95 0.00 0.00

7-8

2 75 40 20 15 26.7 10.44 10.54 10.27 0.28

7-8

3

2

1

o

1 0.0 11.07 11.59 0.00 0.00

7-8

4

7

4

1

2 14.3 11.55 11.61 11.59 0.02

7-8

5- 9 54 20 10 24 18.5 11.21 11.40 11.25 0.15

7-8 10-14 13

5

2

6 15.4 11.43 11.74 10.94 0.80

7-8 15-19 33 15

7 11 21.2 11.33 11.21 11.19 0.02

7-8 20-24 53 26 16 11 30.2 11.50 11.39 11.58 -0.19

7-8

>25 45 26 19

o 42.2 11.64 11.73 11.52 0.21

8 Total 23 14

6

3 26.1. 9.29 9.37 8.90 0.47

8

1

2

2

o

o 0.0 8.20 8.20 0.00 0.00

8

2 16

8

6

2 37.5 9.17 9.43 8.90 0.53

8 10-14

1

o

o

1 0.0 11.07 0.00 0.00 0.00

8 15-19

1

1

o

o 0.0 8.31 8.31 0.00 0.00

8 20-24

3

3

o

o 0.0 10.34 10.34 0.00 0.00

7 Total 265 128 69 68 26.0 11.30 11.36 11.31

7

1

4

3

o

1 0.0 11.03 11.12 0.00

7

2 59 32 14 13 23.7 10.79 10.82 10.85 -0.03

7

3

2

1

o

1 0.0 11.07 11.59 0.00 0.00

7

4

7

4

1

2 14.3 11.55 11.61 11.59 0.02

7

5- 9 54 20 10 24 18.5 11.21 11.40 11.25 0.15

7 10-14 12

5

2

5 16.7 11.46 11.74 10.94 0.80

7 15-19 32 14

7 11 21.9 11.42 11.42 11.19 0.23

7 20-24 50 23 16 11 32.0 11.56 11.53 11.58 -0.05

7

>25 45 26 19

o 42.2 11.64 11.73 11.52 0.21

6 Total 608 394 113 101 18.6 12.71 12.98 12.46 0.52

6

2 32 27

3

2 9.4 11.95 12.00 11.35 0.65

6

3

8

6

2

o 25.0 12.51 12.65 12.09 0.56

Page 16

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 190 of 295

1999 1999 1999 1999 1999 1999
1999 1999 1999 1999 1999 1999 1999 1999 1999 1999
1999 1999 1999 1999 1999 1999 1999 1999
1999 1999 1999 1999 1999 1999 1999. 1999 1999 1999
1999 1999 1999 1999 1999 1999 1999 1999 1999 1999 1999
1999 1999 1999 1999 1999 1999 1999 1999 1999 1999 1999

Appendix 6

6

4 18

7

3

8 16.7 11.94 12.42 11.95 0.47

6

5- 9 93 46 10 37 10.8 12.38 13.06 12.37 0.69

6 10-14 38 26

4

8 10.5 12.80 13.13 12.39 0.74

6 15-19 102 67 14 - 21 13.7 12.82 13.05 12.68 0.38

6 20-24 153 98 34 21 22.2 12.87 13.08 12.50 0.59

6

>25 164 117 43

4 26.2 12.89 13.06 12.53 0.54

5 Total 25 19

5

1 20.0 11.32 11.85 9.83 2.02

5

< 1

2

1

1

0 50.0 10.17 11.54 8.80 2.74

5

1

2

o

1

1 50.0 10.38 0.00 12.00 0.00

5

2

1

1

o

o 0.0 8.02 8.02 0.00 0.00

5

4

1

1

o

o 0.0 11.08 11.08 0.00 0.00

5

5- 9

4

3

1

o 25.0 11.44 12.32 8.80 3.52

5 10-14

3

2

1

o 33.3 9.77 10.29 8.72 1.57

5 15-19

2

2

o

o 0.0 12.35 12.35 0.00 0.00

5 20-24

8

7

1

o 12.5 12.29 12.50 10.81 1.69

5

>25

2

2

o

o 0.0 12.37 12.37 0.00 0.00

4 Total 15 15

o

o 0.0 16.05 16.05 0.00 0.00

4

< 1

1

1

o

o 0.0 13.24 13.24 0.00 0.00

4

3

2

2

o

o 0.0 18.21 18.21 0.00 0.00

4

5- 9

1

1

o

o 0.0 15.18 15;18 0.00 0.00

4 10-14

4

4

o

o 0.0 16.30 16.30 0.00 0.00

4 15-19

2

2

o

o 0.0 14.05 14.05 0.00 0.00

4 20-24

2

2

o

o 0.0 14.18 14.18 0.00 0.00

4

>25

3

3

o

o 0.0 18.08 18.08 0.00 0.00

3 Total 88 81

3

4 3.4 15.11 15.22 15.55 -0.33

3

< 1

3

3

o

o 0.0 20.70 20.70 0.00 0.00

3

2

2

2

o

o 0.0 9.83 9.83 0.00 0.00

3

3

3

2

1

o 33.3 15.03 15.57 13.97 1.60

3

4

2

2

o

o 0.0 18.55 18.55 0.00 0.00

3

5- 9 15 15

o

o 0.0 13.86 13.86 0.00 0.00

3 10-14

6

6

o

o 0.0 16.08 16.08 0.00 0.00

3 15-19 17 13

1

3 5.9 14.04 14.66 10.69 3.97

3 20-24 22 21

o

1 0.0 15.30 15.39 0.00 0.00

3

>25 18 17

1

o 5.6 15.90 15.54 21.98 -6.44

2 Total 44 44

o

o 0.0 21.36 21.36 0.00 0.00

2

< 1

3

3

o

o 0.0 21.63 21.63 0.00 0.00

2

1

6

6

o

o 0.0 20.29 20.29 0.00 0.00

2

2

3

3

o

o 0.0 18.79 18.79 0.00 0.00

2

3

1

1

o

o 0.0 26.20 26.20 0.00 0.00

2

4

3

3

o

o 0.0 21.07 21.07 0.00 0.00

2

5- 9

3

3

o

o 0.0 17.47 17.47 0.00 0.00

2 10-14

2

2

o

o 0.0 20.16 20.16 0.00 0.00

2 15-19

8

8

o

o 0.0 23.64 23.64 0.00 0.00

2 20-24

9

9

o

o 0.0 21.33 21.33 0.00 0.00

2

>25

6

6

o

o 0.0 22.28 22.28 0.00 0.00

1 Total 115 100 13

1

< 1

2

2

o

1

1

1

1

o

1

2

1

1

o

1

322

o

1

4-

2

2

o

1

5- 9 16 15

o

1 10-14

5

4

o

1 15-19 22 17

5

1 20-24 24 21

3

1

>25 40 35

5

2 11.3 21.15 21.84 17.02 4.82
o 0.0 28.36 28.36 0.00 0.00 o 0.0 39.98 39.98 0.00 0.00 o 0.0 15.00 15.00 0.00 0.00 o 0.0 30.12 30.12 0.00 0.00 o 0.0 28.09 28.09 0.00 0.00
1 0.0 17.26 17.61 0.00 0.00
1 0.0 17.55 18.18 0.00 0.00
o 22.7 20.73 22.04 16.27 5.77 o 12.5 21.05 21.60 17.19 4.41 o 12.5 21.98 22.59 17.67 4.92

Page 17

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 191 of 295

Appendix 6

Year
2000 2000 2000 2000 2000 2000 2000 2000 2000 2000 2000
2000 2000 2000 2000 2000 2000 2000 2000 2000 2000 2000
2000 2000 2000 2000 2000 2000 2000 2000 2000 2000 2000
2000 2000 2000 2000 2000 2000 2000 2000 2000
2000 2000 2000 2000 2000 2000 2000 2000 2000

Summary of Average Hourly Rate by Year.·~ EEO Category, and. Years Since Hire
===========================================

Nbr Employees
Sen'ty ------------------------EEO Group Tot Wht Blk oth % Blk

Hourly Rate Tot Wht Blk Diff

Total Total 1231 797 230 204 18.7 14.18 15.28 12.39 2.89

Total

< 1 83 54 18 11 21.7 12.01 13.43 9.58 3.85

Total

1 13 10

2

Total

2 27 14

6

7 22.2 14.58 18.67 10.~2 8.05

Total

3 71 42 12 17 16.9 12.00 12.90 10.97 1. 93

Total

4 15

8

5

2 33.3 14.24 16.29 12.39 3.91

Total 5- 9 149 79 17 53 11.4 13.55 15.23 11.17 4.07

Total 10-14 126 75 12 39 9.5 13.82 14.71 12.45 2.26

Total 15-19 141 99 27 15 19.1 14.50 15.43 12.30 3.13

Total 20-24 293 188 51 54 17.4 14.36 15.20 12.95 2.25

Total

>25 313 228 80

5 25.6 15.15 15.83 13.34 2.50

6-8 Total 928 527 206 195 22.2 12.56 13.07 12.01 1.06

6 -8

< 1 60 33 16 11 26.7 10.17 10.78 9.68 1.10

6-8

1

1

o o

1 0.0 11.24 0.00 0.00 0.00

6-8

2 17

6

5

6 29.4 10.29 11.06 9.74 1.32

6-8

3 66 37 12 17 18.2 11.69 12.47 10.97 1.50

6-8

4 11

5

4

2 36.4 12.46 13.64 11.86 1. 78

6-8

5- 9 118 49 16 53 13.6 12.14 12.88 10.98 1.90

6-8 10-14 93 45 12 36 12.9 12.78 13.59 12.45 1.15

6-8 15-19 104 69 21 14 20.2 12.67 13.01 11.63 1.38

6-8 20-24 222 125 47 50 21.2 12.98 13.28 12.65 0.62

6-8

>25 236 158 73

5 30.9 13.26 13.53 12.71 0.82

7-8 Total 311 133 98 80 31.5 11.09 11.31 11.00 0.31

7-8

< 1 49 22 16 11 32.7 9.82 10.32 9.68 0.64

7-8

1

1

o

o

1 0.0 11.24 0.00 0.00 0.00

7-8

2 14

5

5

4 35.7 10.07 10.72 9.74 0.98

7-8

3 31 12

8 11 25.8 10.60 10.84 10.51 0.33

7-8

4

3

o

2

1 66.7 11.06 0.00 11.51 0.00

7-8

5- 9 41 16

8 17 19.5 10.75 11.07 9.67 1.40

7-8 10-14 34 13

5 16 14.7 11.57 11.96 11.05 0.91

7-8 15-19 32 17 13

2 40.6 11.08 11.27 10.73 0.53

7-8 20-24 59 25 17 17 28.8 11.79 11.61 12.06 -0.46

7-8

>25 47 23 24

o 51.1 12.10 12.11 12.09 0.02

8 Total 44 13 14 17 31.8 9.06 9.09 9.01 0.08

8

< 1 19

4

6

9 31.6 8.66 8.56 8.67 -0.11

8

2

2

1

o

1 0.0 8.75 8.75 0.00 0.00

8

3

6

1

2

3 33.3 9.25 8.75 9.25 -0.50

8

4

1

o 1

o 100.0 10.01 0.00 10.01 0.00

8

5- 9

7

2

3

2 42.9 9.55 9.27 9.43 -0.16

8 10-14

1

o

o

1 0.0 9.79 0.00 0.00 0.00

8 15-19

4

2

2

o 50.0 8.95 9.27 8.64 0.64

8 20-24

4

3

o

1 0.0 9.64 9.76 0.00 0.00

7 Total 267 120 84 63 31.5 11.42 11.55 11.33 0.21

7

< 1 30 18 10

2 33.3 10.56 10.71 10.28 0.43

7

1

1

o

o

1 0.0 11.24 0.00 0.00 0.00

7

2 12

4

5

3 41.7 10.28 11.21 9.74 1.47

7

3 25 11

6

8 24.0 10.93 11.03 10.93 0.09

7

4

2

o

1

1 50.0 11.58 0.00 13.00 0.00

7

5- 9 34 14

5 15 14.7 11.00 11.33 9.82 1.51

7 10-14 33 13

5 15 15.2 11.63 11.96 11.05 0.91

7 15-19 28 15 11

2 39.3 11.38 11.53 11.11 0.42

Page 18

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 192 of 295

2000 2000
2000 2000 2000 2000 2000 2000 2000 2000 2000 2000
2000 2000 2000 2000 2000 2000 2000 2000 2000 2000
2000 2000 2000 2000 2000 2000 2000 2000
2000 2000 2000 2000 2000 2000 2000 2000 2000
2000 2000 2000 2000 2000 2000 2000 2000 2000 2000 .2000
2000 2000 2000 2000 2000 2000 2000 2000 2000

Appendix 6

7 20-24 55 22 17 16 30.9 11.95 11.86 12.06 -0.21

7

>25 47 23 24

o 51.1 12.10 12.11 12.09 0.02

·6 Total 617 394 lOS 115 ~7.5 13.30 13.67 12.93 0.74

6

< 1 11 11

o

0 0.0 11.70 11.70 0.00 0.00

6

2

3

1

o

2 0.0 11.35 12.78 0.00 0.00

6

3 35 25

4

6 11.4 12.66 13~25 11.89 1-36

6

4

8

5

2

1 25.0 12.98 13.64 12.20 1-43

6

5- 9 77 33

8 36 10.4 12.87 13.76 12.29 L46

6 10-14 59 32

7 20 11.9 13.47 14.26 13.44 0.82

6 15-19 72 52

8 12 11.1 13.37 13.58 13.09 0.50

6 20-24 163 100 30 33 18.4 13.42 13.69 12.99 0.70

6

>25 189 135 49

5 25.9 13.55 13.77 13.01 0.76

5 Total 28 23

4

1 14.3 11.58 11.91 10.40 1.51

5

< 1

2

2

o

o 0.0 9.81 9.81 0.00 0.00

5

131

2

o 66.7 11.01 11.88 10.58 1.30

5

2

1

0

o

1 0.0 8.76 0.00 0.00 0.00

5

3

2

2

o

o 0.0 9.25 9.25 0.00 0.00

5

5- 9

3

3

o

o 0.0 12.70 12.70 0.00 0.00

5

10~14

3

3

o

o 0.0 10.46 10.46 0.00 0.00

5 15-19

3

2

1

o 33.3 11.82 13.24 8.98 4.26

5 20-24

8

7

1

o 12.5 12.47 12.61 11.47 1.14

5

>25

3

3

o

o 0.0 13.20 13.20 0.00 0.00

4 Total 17 17

o

o 0.0 18.87 18.87 0.00 0.00

4

< 1

2

2

o

o 0.0 23.65 23.65 0.00 0.00

4

1

1

1

o

o 0.0 13.24 13.24 0.00 0.00

4

5- 9

2

2

o

o 0.0 16.97 16.97 0.00 0.00

4 10-14

4

4

o

o 0.0 19.87 19.87 0.00 0.00

4 15-19

1

1

o

o 0.0 10.00 10.00 0.00 0.00

4 20-24

4

4

o

o 0.0 19.70 19.70 0.00 0.00

4

>25

3

3

o

o 0.0 19.33 19.33 0.00 0.00

3 Total 86 77

5

4 5.8 15.70 15.87 14.42 1.45

3

< 1

7

6

1

o 14.3 13.49 14.15 9.52 4.63

3

1

3

3

o

o 0.0 21.15 21.15 0.00 0.00

3

4

2

1

1

o 50.0 16.11 17.71 14.51 3.20

3

5- 9

8

8

o

o 0.0 15.44 15.44 0.00 0.00

3 10-14 10 10

o

o 0.0 14.23 14.23 0.00 0.00

3 15-19 14 12

1

1 7e1 15.15 15.97 11.04 4.93

3 20-24 23 19

1

3 4.3 15.77 15.92 14.28 1.64

3

>25 19 18

1

o 5.3 16.80 16.47 22.75 -6.28

2 Total 56 55

1

o 1.8 21.42 21.54 15.00 6.54

2

< 1 11 11

o

o 0.0 19.77 19.77 0.00 0.00

2

1

3

3

o

o 0.0 22.37 22.37 0.00 0.00

2

2

7

6

1

o 14.3 20.66 21.60 15.00 6.60

2

3

3

3

o

o 0.0 20.67 20.67 0.00 0.00

2

4

1

1

o

o 0.0 14.43 14.43 0.00 0.00

2

5- 9

6

6

o

o 0.0 20.97 20.97 0.00 0.00

2 10-14

4

4

o

o 0.0 18.44 18.44 0.00 0.00

2 15-19

4

4

o

o 0.0 25.67 25.67 0.00 0.00

2 20-24

7

7

o

o 0.0 22.85 22.85 - 0.00 0.00

2

>25 10 10

o

o 0.0 23.17 23.17 0.00 0.00

1 Total 114 97 13

1

1

2

2

o

1

2

2

2

o

1

4

1

1 _0

1

5- 9 12 11

1

1 10-14. 12

9

o

1 15-19 15 11

4

1 20-24 29 26

2

1

>25 41 35

6

4 11.4 22.73 23.46 18.31 5.15
o 0.0 30.05 30.05 0.00 0.00 o 0.0 32.72 32.72 0.00 0.00 o 0.0 30.00 30.00 0.00 0.00 o 8.3 22.08 22.80 14.13 8.67
3 0.0 18.86 18.26 0.00 0.00
o 26.7 24.42 27.13 16.97 10.17
1 6.9 21.51 21.88 19.87 2.01
o 14.6 23.28 23.95 19.39 4.55

Page 19

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 193 of 295

Appendix 6

Page 20

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 194 of 295

Appendix 6

Year
2001 2001 2001 2001 2001 2001 2001 2001 2001 2001 2001
2001 2001 2001 2001 2001 2001 2001 2001 2001 2001 2001
2001 2001 2001 2001 2001 2001 2001 2001 2001 2001 2001
2001 2001
2001 2001 2001 2001 2001 2001 2001 2001 2001 2001 2001
2001 2001 2001 2001

Summary of Average Hourly Rate by Year, EEO Category, and Years Since Hire
===========================================

Nbr Employees Sen'ty EEO Group Tot Wht Blk oth % Blk

Hourly Rate Tot Wht Blk DUf

Total Total 1107 737 197 173 17.S 15.23 16.25 13.43 2.82

Total

< 1 17 11

3

3 17.6 15.0S 15.73 10.71 5.03

Total

1 49 39

9

1 18.4 14.84 15.61 11.76 3.84

Total

2

9

6

2

1 22.2 20.74 25.23 11.31 13.92

Total

3 IS 10

3

5 16.7 17.34 21.36 13.4S 7.S8

Total

4 55 3S

S

9 14.5 13.55 14.01 12.89 1.12

Total 5- 9 117 61 11 45 9.4 14.60 16.57 12.81 3.77

Total 10-14 141 89 13 39 9.2 14.S9 15.88 13.44 2.44

Total 15-19 100 65 20. 15 20.0 14.60 15.40 13.48 1.93

Total 20-24 272 179 43 50 15.8 15.43 16.41 13.72 2.69

Total

>25 329 239 85

5 25.8 15.70 16.46 13.72 2.73

6-S Total S13 479 171 163 21.0 13.47 13.90 13.05 0.S5

6-S

< 1 10

6

3

1 30.0 11.16 11.24 10.71 0.53

6-S

1 30 22

7

1 23.3 12.52 12.51 12.53 -0.02

6-S

2

1

o 0

1 0.0 12.69 0.00 0.00 0.00

6-S

3 10

4

2

4 20.0 12.59 13.24 12.43 0.81

6-S

4 51 34

8

9 15.7 13.36 13.78 12.89 0.90

6-S

5- 9 92 37 10 45 10.9 13.10 14.11 12.58 1.54

6-S 10-14 97 50 11 36 11.3 13.52 14.36 13.27 1.09

6-S 15-19 79 49 15 15 19.0 13.53 13.99 12.99 1.00

6-S 20-24 199 116 37 46 18.6 13.61 13.88 13.28 0.60

6-S

>25 244 161 78

5 32.0 13.72 14.01 13.15 0.87

7-S Total 202 92 61 49 30.2 12.28 12.37 12.36 0.01

7-S

< 1

8

5

3

o 37.5 10.75 10.77 10.71 0.07

'7-S

1 15

9

6

o 40.0 12.37 12.29 12.50 -0.21

7-S

2

1

o

o

1 0.0 1~.69 0.00 0.00 0.00

7-S

3

7

2

2

3 28.6 12:43 13.00 12.43 0.57

7-S

4 15

9

3

3 20.0 12.50 12.65 12.62 0.03

7-S

5- 9 15

2

3 10 20.0 11.58 12.02 12.19 -0.17

7-S 10-14 32 13

3 16 9.4 12.22 12.76 10.86 1.90

7-8 15-19 IS

9

6

3 33.3 12.25 12.34 12.17 0.17

7-8 20-24 46 22 11. 13 23.9 12.49 12.32 12.S2 -0.50

7-S

>25 45 21 24

o 53.3 12.49 12.45 12.53 -0.07

S Total

2

2

o

o 0.0 10.31 10.31 0.00 0.00

S 20-24

2

2

o

o 0.0 10.31 10.31 0.00 0.00

7 Total 200 90 61 49 30.5 12.30 12.41 12.36 0.06

7

< 1

S

5

3

o 37.5 10.75 10.77 10.71 0.07

7

.1 15

9

6

0 40.0 12.37 12.29 12.50 -0.21

7

2

1

o

o

1 0.0 12.69 0.00 0.00 0.00

7

3

7

2

2

3 28.6 12.43 13.00 12.43 0.57

7

4 15

9

3

3 20.0 12.50 12.65 12.62 0.03

7

5- 9 15

2

3 10 20.0 11.58 12.02 12.19 -0.17

7 10-14 32 13

3 16 9.4 12.22 12.76 10.86 1.90

7 15-19 18

9

6

3 33.3 12.25 12.34 12.17 0.17

7 20-24 44 20 11 13 25.0 12.59 12.52 12.82 -0.30

7

>25 45 21 24

0 53.3 12.49 12.45 12.53 -0.07

6 Total 611 387 110 114 18.0 13.86 14.26 13.43 0.83

6

< 1

2

1

o

1 0.0 12.S1 13.55 0.00 0.00

,6

1 15 13

1

1 6.7 12.66 12.66 12.69 -0.03

6

3

3

2

o

1 0.0 12.97 13.49 0.00 0.00

Page 21

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 195 of 295

2001 2001 2001 2001 2001 2001
2001 2001 2001 2001 2001 2001 2001 2001 2001 2001 2001
2001 2001 2001 2001 2001 2001 2001· 2001
2001 2001 2001 2001 2001 2001 2001
2001 2001 2001 2001 2001 2001 2001 2001 2001 2001 2001
2001 2001 2001 2001 2001 2001 2001 2001 2001

Appendix 6

6

4 36 25

5

6 13.9 13.72 14.19 13.05 1.14

6

5- 9 77 35

7 35 9.1 13.39 14.23 12.74 1.49

6 10-14 65 37

8 20 12.3 14.16 14.93 14.18 0.75

6 ·15-19 61 40

9 12 14.8 13.91 14.36 13.53 0.83

6 20-24 153 94 26 33 17.0 13.94 14.25 13,48 0.77

6

>25 199 140 54

5 27.1 14.00 14.25 13.42 0.83

5 Total 28 20

6

2 21.4 12.56 12.97 11.38 1.59

5

< 1

2

1

o

1 0.0 13.64 13.27 0.00 0.00

5

1

1

1

o

a 0.0 10.53 10.53 0.00 0.00

5

2

2

o

2

o 100.0 11.31 0.00 11.31 0.00

5

3

1

o

o

1 0.0 9.95 0.00 0.00 0.00

5

4

1

1

o

o 0.0 10.82 10.82 0.00 0.00

5

5- 9

2

2

o

o 0.0 13.91 13.91 0.00 0.00

5 10-14

2

2

o

o 0.0 10.66 10.66 0.00 0.00

5 15-19

4

2

2

o 50.0 12.11 13.77 10.44 3.33

5 20-24

7

5

2

o 28.6 12.46 12.48 12.39 0.10

5

>25

6

6

o

a 0.0 14.28 14.28 0.00 0.00

4 Total 21 20

o

1 0.0 22.74 22.63 0.00 0.00

4

< 1

4

3

o

1 0.0 23.83 23.41 0.00 0.00

4

1

1

1

o

o 0.0 30.90 30.90 0.00 0.00

4

2

1

1

o

o 0.0 22.64 22.64 0.00 0.00

4

5- 9

3

3

o

o 0.0 20.82 20.82 0.00 0.00

4 10-14

4

4

o

o 0.0 22.59 22.59 0.00 0.00

4 20-24

4

4

o

o 0.0 22.48 22.48 0.00 0.00

4

>25

4

4

o

o 0.0 21.51 21.51 0.00 0.00

3 Total 80 73

4

3 ·5.0 16.10 16.13 15.82 0.30

3

1

6

5

1

o 16.7 13.93 14.73 9.95 4.78

3

5- 9

7

6

1

o 14.3 15.23 15.26 15.09 0.16

3 10-14 15 15

o

o 0.0 14.78 14.78 0.00 0.00

3 15-19

8

8

o

o 0.0 16.39 16.39 0.00 0.00

3 20-24 24 20

1

3 4.2 16.51 16.69 14.77 1.92

3

>25 20 19

1

o 5.0 17.44 17.12 23.48 -6.36

2 Total 52 51

1

o 1.9 22.64 22.78 15.58 7.20

2

< 1

1

1

o

o 0.0 22.15 22.15 0.00 0.00

2

1 10 10

o

o 0.0 21.85 21.85 0.00 0.00

2

2

3

3

o

o 0.0 23.77 23.77 0.00 0.00

2

3

6

5

1

o 16.7 22.12 23.43 15.58 7.85

2

4

1

1

o

o 0.0 21.07 21.07 0.00 0.00

2

5- 9

6

6

o

o 0.0 21.74 21.74 0.00 0.00

2 10-14

6

6

o

o 0.0 19.32 19.32 0.00 0.00

2 15-19

4

4

o

o 0.0 27.25 27.25 0.00 0.00

2 20-24

5

5

o

o 0.0 23.91 23.91 0.00 0.00

2

>25 10 10

o

o 0.0 23.64 23.64 0.00 0.00

1 Total 109 91 14

1

2

2

2

o

1

3

1

1

o

1

4

1

1

o

1

5- 9

7

7

o

1 10-14 17 12

2

1 15-19

5

2

3

1 20-24 33 29

3

1

>25 43 37

6

4 12.8 23.68 24.64 18.52 6.12
o 0.0 28.71 28.71 0.00 0.00 o 0.0 43.44 43.44 0.00 0.00 o 0.0 23.08 23.08 0.00 0.00 o 0.0 25.19 25.19 0.00 0.00
3 11.8 19.93 20.51 14.38 6.13
o 60.0 20.38 24.02 17.96 6.07
1 9.1 24.11 24.86 19.67 5.19
o 14.0 24.30 25.06 19.61 5.44

Page 22

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 196 of 295

Appendix 6

Summary of Average Hourly Rate by Year, EEO Category, and Years Since Hire

Year
2002 2002 2002 2002 2002 2002 2002 2002 2002 2002 2002
2002 2002 2002 2002 2002 2002 2002 2002 2002 2002 2002
2002 2002 2002 2002 2002 2002 2002 2002 2002 2002 2002
2002 2002 2002 2002 2002 2002 2002
2002 2002 2002 2002 2002 2002 2002 2002 2002 2002 2002

Nbr Employees Sen'ty EEO Group Tot Wht Blk Oth % Blk

Hourly Rate Tot Wht Blk Diff

Total Total 1181 798 201 182 17.0 16.31 17.69 13.50 4.18

Total

< 1 12

9

1

2 8.3 17.03 19.91 8.40 11.51

Total

1 10

8

o

2 0.0 17.51 16.85 0.00 0.00

Total

2 33 27

5

1 15.2 16.98 18.11 11.58 6.53

Total

3

9

6

2

1 22.2 21.55 26.07 12.41 13.66

Total

4 19 11

3

5 15.8 16.96 20.44 14.25 6.20

Total 5- 9 173 92 22 59 12.7 15.22 17.05 12.63 4.42

Total 10-14 129 86 10 33 7.8 16.98 18.73 12.82 5.91

Total 15-19 128 84 24 20 18.8 15.47 16.71 13.44 3.27

Total 20-24 248 162 38 48 15.3 16.13 17.47 13.69 3.79

Total

>25 420 313 96 11 22.9 16.66 17.62 13.87 3.75

6-8 Total 811 467 175 169 21.6 13.53 14.04 13.06 0.97

6-8

< 1

6

3

1

2 16.7 9.82 11.24 8.40 2.84

6-8

1

4

4

o

o 0.0 11.02 11.02 0.00 0.00

6-8

2

13

9

3

1 23.1 13.10 13.08 13.04 0.04

6-8

3

1

o

o

1 0.0 12.69 0.00 0.00 0.00

6-8

4 11

5

2

4 18.2 12.08 12.74 12.43 0.31

6-8

5- 9 139 62 21 56 15.1 13.14 14.19 12.49 1. 70

6-8 10-14 79 40

8 31 10.1 13.66 14.62 12.86 1. 75

6-8 15-19 94 57 18 19 19.1 13.62 14.15 13.04 1.11

6-8 20-24 160 83 33 44 20.6 13.61 14.01 13.18 0.83

6-8

>25 304 204 89 11 29.3 13.79 14.03 13.25 0.78

7-8 Total 215 92 63 60 29.3 12.09 12.32 12.25 0.07

7-8

< 1

5

2

1

2 20.0 9.06 10.05 8.40 1.65

7-8

1

2

2

o

o 0.0 8.75 8.75 0.00 0.00

7-8

2

2

o 2

o 100.0 12.78 0.00 12.78 0.00

7-8

3

1

o

o

1 0.0 12.69 0.00 0.00 0.00

7-8

4

8

3

2

3 25.0 11.52 12.18 12.43 -0.25

7-8

5- 9 47 16 10 21 21.3 11.78 12.62 11.68 0.94

7-8 10-14 23

7

4 12 17.4 12.23 12.64 11.80 0.84

7-8 15-19 24 12

7

5 29.2 12.06 12.32 11.86 0.45

7-8 20-24 40 15 10 15 25.0 12.25 12.17 12.45 -0.28

7-8

>25 63 35 27

1 42.9 12.59 12.53 12.64 -0.12

8 Total 19

6

5

8 26.3 9.56 9.72 9.51 0.21

8

< 1

4

1

1

2 25.0 8.40 8.40 8.40 0.00

8

4

3

1

o

2 0.0 9.62 9.55 0.00 0.00

8

5- 9

7

1

2

4 28.6 9.87 10.21 9.66 0.55

8 10-14

1

o

1

o 100.0 10.31 0.00 10.31 0.00

8 20-24

1

1

o

o 0.0 9.55 ·9.55 0.00 0.00

8

>25

3

2

1

o 33.3 10.06 10.31 9.55 0.76

7 Total 196 86 58 52 29.6 12.34 12.50 12.49 0.01

7

< 1

1

1

o

o 0.0 11.69 11.69 0.00 0.00

7

1

2

2

o

o 0.0 8.75 8.75 0.00 0.00

7

2

2

o 2

o 100.0 12.78 0.00 12.78 0.00

7

3

1

o

o

1 0.0 12.69 0.00 O~OO 0.00

7

4

5

2

2

1 40.0 12.66 13.50 12.43 1.07

7

5- 9 40 15

8 17 20.0 12.11 12.78 12.18 0.59

7 10-14 22

7

3 12 13.6 12.31 12.64 12.30 0.34

7 15-19 24 12

7

5 29.2 12.06 12.32 11.86 0.45

7 20-24 39 14 10 15 25.6 12.32 12.35 12.45 -0.09

7

>25 60 33 26

1 43.3 12.72 12.66 12.76 -0.10

Page 23

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 197 of 295

2002 2002 2002 2002 2002 2002 2002 2002 2002 2002
2002 2002 2002 2002 2002 2002 2002 2002 2002 2002
2002 2002 2002 2002 2002 2002 2002 2002 2002 2002
2002 2002 2002 2002 2002 2002 2002
2002 2002 2002 2002 2002 2002 2002 2002 2002 2002 2002
2002 2002 2002 2002 2002 2002 2002 2002 2002

Appendix 6

6 Total 596 375 112 109 18.8 14.05 14.46 13.52 0.94

6

< 1

1

1

o

0 0.0 13.63 13.63 0.00 0.00

6

122

o

0 0.0 13.29 13.29 0.00 0.00

6

2 11

9

1

1 9.1 13.16 13.08 13.55 -0.47

6

432

o

1 0.0 13.58 13.57 0.00 0.00

6

5- 9 92 46 11 35 12.0 13.83 14.74 13.23 1.51

6 10-14 56 33

4 19 7.1 14.26 15.04 13.92 1.11

6 15-19 70 45 11 14 15.7 14.15 14.64 13.79 0.85

6 20-24 120 68 23 29 19.2 14.06 14.41 13.50 0.92

6

>25 241 169 62 10 25.7 14.10 14.34 13.51 0.83

5 Total 42 34

5

3 11.9 13.57 13.84 12.04 L80

5

1

2

1

o

1 0.0 14.15 13.73 0.00 0.00

5

2

1

1

o

o 0.0 10.96 10.96 0.00 0.00

5

3

2

o

2

o 100.0 12.41 0,00 12.41 0.00

5

4

1

o

o

1 0.0 10.36 0.00 0.00 0.00

5

5- 9

5

4

o

1 0.0 13.73 13.64 0.00 0.00

5 10-14

5

5

o

o 0.0 13.32 13.32 0.00 0.00

5 15-19

6

5

1

o 16.7 13.10 13.79 9.62 4.17

5 20-24 13 11

2

o 15.4 13.53 13.65 12.89 0.77

5

>25

7

7

o

o 0.0 15.08 15.08 0.00 0.00

4 Total 22 21

o

1 0.0 25.58 25.58 0.00 0.00

4

< 1

3

3

o

o 0.0 27.24 27.24 0.00 0.00

4

1

3

2

o

1 0.0 25.74 25.77 0.00 0.00

4

2

1

1

o

o 0.0 32.13 32.13 0.00 0.00

4

3

1

1

o

o 0.0 23.16 23.16 0.00 0.00

4

5- 9

1

1

o

o 0.0 28.21 28.21 0.00 0.00

4 10-14

4

4

o

o 0.0 27.05 27.05 0.00 0.00

4 15-19

1

1

o

o 0.0 22.52 22.52 0.00 0.00

4 20-24

3

3

o

o 0.0 23.58 23.58 0.00 0.00

4

>25 .5

5

o

o 0.0 23.78 23.78 0.00 0.00

3 Total 90 83

4

3 4.4 16.89 16.93 16.35 0.58

3

2

7

6

1

o 14.3 14.74 15.48 10.31 5.17

3

5- 9

9

7

1

1 11.1 15.62 15.49 15.54 -0.05

3 10-14 14 14

o

o 0.0 16.20 16.20 0.00 0.00

3 15-19

9

9

o

o 0.0 17.56 17.56 0.00 0.00

3 20-24 26 23

1

2 3.8 17.07 17.20 15.29 1.91

3

>25 25 24

1

o 4.0 17.90 17.63 24.26 -6.63

2 Total 69 67

2

< 1

3

3

2

1

1

1

2

2

8

8

2

3

3

3

2

4

6

5

2

5- 9

9

9

2 10-14 12 11

2 15-19

5

5

2 20-24

8

8

2

>25 14 14

1

1 1.4 24.34 24.42 17.88 6.54

o

o 0.0 21.25 21.25 0.00 0.00

o

o 0.0 25.48 25.48 0.00 0.00

o

o 0.0 21.51 21.51 0.00 0.00

o

o 0.0 24.60 24.60 0.00 0.00

1

o 16.7 22.35 23.24 17.88 5.36

o

o 0.0 25.91 25.91 0.00 0.00

o

1 0.0 23.36 23.19 0.00 0.00

o

o 0.0 27.33 27.33 0.00 0.00

o

o 0.0 24.09 24.09 0.00 0.00

o

o 0.0 26.25 26.25 O~OO 0.00

1 Total 137 120 12

1

222

o

1

3

2

2

o

1

4

1

1

o

1

5- 9

9

8

o

1 10-14 14 12

1

1 15-19 11

7

3

1 20-24 36 32

2

1

>25 62 56

6

5 8.8 28.11 28.74 20.31 8.43
o 0.0 31.61 31.61 0.00 0.00 o 0.0 29.75 29.75 0.00 0.00 o 0.0 44.96 44.96 0.00 0.00
1 0.0 36.40 31.93 0.00 0.00
1 7.1 29.94 30.78 15.14 15.64
1 27.3 25.71 30.10 18.74 11.37
2 5.6 25.52 26.21 22.10 4.11
o 9.7 27.98 28.69 21.36 7.32

Page 24

Appendix 7

Summary of Workforce and Average Salary

• • • • • • =.CB=~.=R.=a=.a

=•••••••••••••••••• ~

Selected Jobs

Restricted to Those Active at Year-End, and

With Positive Earnings for Year

EEO 6-8 restricted to 'LUF ' Departments

Year
2000 2000 2000 2000 2000 2000 2000 2000 2000 2000 2000 2000 2000 2000

EEO

Job

-------------------------------------

EEO.. 1 Total

EEO. 1 100125 DISTRICT MGR-MSAL

EEO.. 1 100928 FDRY MAINT FOREMAN

EEO.. 1 100930 FDRY PRODUCTION FRMN

EEO= 1 100929 FDRY PRODUCTION SUPRVSR

EEO.. 1 100070 FOREMAN 9

EEO.. 1 100931 GEAR REPAIR PROD SUPRVSR

EEO.. 1 100890 PT PRODUCTION MANAGER

EEO- 1 100891 PT PRODUCTION SUPERVISOR

EEO.. 1 100897 PT REPAIR ACCOUNTS MANAGER

EEO. 1 100028 SUPERVISOR 10

EEO. 1 100135 TRAILER BRANCH MGR

EEO.. 1 100919 TRLR PRODUCTION SUPERVISOR

EEO.. 1 Other

Nbr Employees

Average $/Hour

------------------------- -----------------------

Tot Wht Blk Oth %Blk Tot Wht Blk Diff

114 97 13

1

0

0

3

2

1

11

4

5

2 2 0

6

5

1

3

2

1

8 7 1

6 6 0

2 2 0

1

1

0

3 3 0

9 7 2

59 56 2

4 11.4 22.73 23.46 18.31 5.15 1 0.0 31.73 0.00 0.00 0.00 0 33.3 17.63 17.34 18.20 -0.86 2 45.5 17.21 17.90 17.55 0.35 0 0.0 22.79 22.79 0.00 0.00 0 16.7 13.82 13.76 14.13 -0.37 0 33.3 22.2922.29 22.29 0.00 0 12.5 22.28 22.31 22.07 0.24 0 0.018.8318.83 0.00 0.00 0 0.0 21.72 21.72 0.00 0.00 0 0.0 18.58 18.58 0.00 0'.00 0 0.0 19.45 19.45 0.00 0.00 0 22.2 19.30 19.53 18.50 1. 03 1 3.4 26.05 26.51 18.33 8.19

2000 2000 2000 2000 2000 2000 2000 2000 2000 2000 2000 2000 2000 2000 2000 2000 2000 2000 2000 2000 2000 2000 2000 2000

EEO.. 6 EEO.. 6 EEO. 6
EEO= 6 EEO. 6 EEO. 6 EEO.. 6 EEO. 6 EEO.. 6
EEO. 6 EEO.. 6 EEO. 6
EEO.. 6 EEO= 6 EEO. 6 EEO., 6
EEO. 6 EEO. 6 EEO.. 6 EEO.. 6 EEO.. 6 EEO.. 6
EEO.. 6
EEO= 6

Total 106784 CHIPPER GRINDER FINISHER 109926 CNC MACHINE OPERATOR 106746 CORE MACH OP-CLASS A 106740 CRANE OPERATOR-FDRY 104681 ELECTRICAL DEPT SPEC 106766 FDRY MECHANIC A 106803 FOUNDRY PROCESS INSPECTOR 109983 GEAR REPAIR SPECIALIST
103614 INSPECTOR
109907 INSPECTOR 103661 INSPECTOR SPECIALIST 103643 MACHINE OPERATOR-CLASS A
103642 MACHINIST 103656 MAINT MECH SPECIALIST 109919 MAINT, MECHANIC-CLASS A 104706 MASTER ASSEMBLY 106818 MASTER MAINT SPEC 106798 MELTER A 106732 MOLDING MACH OP-CLASS A 105704 STRUCTURAL WORKER-CLASS A 102009 TB MECHANIC A 109900 TRAILER BUILDER SPEC
105700 WELDER-CLASS A

617 394 108 115 17.5 13.30 13.67 12.93 0.74

54

4

8 42 14.8 11.54 11.53 11.31 0.22

7

7

0

0 0.0 13.14 13.14 0.00 0.00

II

2

2

7 18.2 12.12 12.32 12.32 0.00

19

2

8

9 42.1 12.42 12.55 12.55 0.00

2

2

0

0 0.0 14.68 14.68 0.00 0.00

25 20

2

3 8.0 13.33 13.22 14.23 -1.01

2

0

2

o 100.0 13.02 0.00 13.02 0.00

64 56

4

4 6.2 13.88 13.94 13.74 0.20

4

4

0

0 0.0 13.37 13.37 0.00 0.00

4

2

2

0 50.0 13.02 13.02 13.02 0.00

5

5

0

0 0.0 14.34 14.34 0.00 0.00

48 34

9 5 18.8 13.04 13.07 12.97 0.10

85 74

2

9 2.4 14.60 14.61 14.58 0.03

6

6

0

0 0.0 15.11 15.11 0.00 0.00

5

5

0

0 0.0 13.37 13.37 0.00 0.00

1

1

0

0 0.0 15.14 15.14 0.00 0.00

1

1

0

0 0.0 18.75 18.75 0.00 0.00

7

1

3

3 42.9 12.32 12.32 12.32 0.00

10

1

7

2 70.0 12.23 12.32 12.29 0.03

13

8

2

3 15.4 12.98 12.97 13.03 -0.06

16

7

3

6 18.8 12.72 12.84 13.90 -1.06

19 14

4

1 21.1 12.52 12.52 12.55 -0.03

24 17

4

3 16.7 13.02 13.02 13.03 -0.01

Page 1

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 198 of 295

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 199 of 295

Summary of Promotion Analysis

Appendix 8

Restricted to Promotions from EEO 6, 7, and 8, after March 6, 1994

Controlling for Year, Job, Dept, Sen'ty, Roster

Comparing Blacks to Non-Black

Ave

Promotions

% Blk

Job

in

EEO Code Dept Year

Tot Wht Blk % Blk Pool DUf

Var Z-Val

Tot Total Tot Tot Total Tot Tot Total Tot Tot Total Tot Tot Total Tot Tot Total Tot Tot Total Tot Tot Total Tot Tot Total Tot Tot Total Tot

1994 1995 1996 1991 1998 1999 2000 2001 2002 Tot

191 303 338 455 318 197 201 219
83 2311

111 193 180 285 194 109
96 90 54 1312

29 15.2 16.4 -2.27 16.28 -0.56

54 17.8 24.8 -21.16 37.04 -3.48

66 19.5 21.8 -7.67 38.98 -1.23

92 20.2 25.0 -21.72 49.66 -3.08

63 19.8 27.2 -23.61 47.94 -3.41

46 23.4 36.6 -26.09 30.95 -4.69

48 23.2 24.4 -2.51 12.75 -0.70

62 28.3 29.8 -3.17 30.66 -0.57

12 14.5 21.3 -5.65 5.14 -2.49

472

-113.86 269.39 -6.94

Tot Total LUFF 1994 Tot Total LUFF 1995 Tot Total LUFF 1996 Tot Total LUFF 1991 Tot Total LUFF 1998 Tot Total LUFF 1999 Tot Total LUFF 2000 Tot Total LUFF 2001 Tot Total LUFF 2002 Tot Total LUFF Tot

67

18

13 19.4 16.8 1. 73 4.04 0.86

72

21

12 16.7 21.1 -3.20 8.91 -1.07

134

31

31 23.1 24.5 -1. 81 11.71 -0.43

112

42

27 24.1 23.8 0.31 13 .10 0.09

70

14

19 27.1 33.7 -4.62 12.31 -1.32

15

3

4 26.7 28.4 -0.27 0.82 -0.29

52

11

7 13.5 18.7 -2.71 1.88 -1.97

81

21

21 24.1 31.9 -6.79 16.33 -1.68

9

4

2 22.2 27.2 -0.45 0.89 -0.47

618 165 136

-11.78 16.00 -2.04

Tot Total LUFT 1994 Tot Total LUFT 1995 Tot Total LUFT 1996 Tot Total LUFT 1997 Tot Total LUFT 1998 Tot Total LUFT 1999 Tot Total LUFT 2000 Tot Total LUFT 2001 Tot Total LUFT 2002 Tot Total LUFT Tot
Tot Total LUFC 1995 Tot Total LUFC 2002 Tot Total LUFC Tot
Tot Total LUFG 1995 Tot Total LUFG 1996 Tot Total LUFG 1991 Tot Total LUFG 1998 Tot Total LUFG 1999 Tot Total LUFG 2000 Tot Total LUFG Tot
Tot Total LUFO 1994 Tot Total LUFO 1995 Tot Total LUFO 1996 Tot Total LUFO 1997 Tot Total LUFO 1998 Tot Total LUFO 1999 Tot Total LUFO 2000 Tot Total LUFO 2001 Tot Total LUFO 2002 Tot Total LUFO Tot

18

53

13 16.7 14.7 1.54 8.44 0.53

123

82

33 26.8 33.6 -8.27 19.66 -1.87

51

26

16 31.4 31.4 0.00 6.66 0.00

189 118

42 22.2 33.0 -20.46 27.20 -3.92

151 104

36 22.9 34.0 -17.36 29.81 -3.18

144

78

34 23.6 43.2 -28.25 27.23 -5.41

52

28

14 26.9 26.0 0.47 9.03 0.16

24

13

7 29.2 23.5 1.35 2.43 0.87

33

18

8 24.2 27.2 -0.98 0.63 -1.24

851 520 203

-71.97 131.10 -6.29

1

1

o 0.0 0.0 0.00 0.00 0.00

1

1

o 0.0 0.0 0.00 0.00 0.00

2

2

o

0.00 0.00 0.00

5

3

1

1

14

12

5

4

4

3

1

1

30

24

o 0.0 0.0 0.00 o 0.0 0.0 0.00

1 7.1 7.5 -0.05

1 20.0 14.5 0.27

1 25.0 7.8 0.69

o 0.0 7.0 -0.07

3

0.84

0.00 0.00 0.91 0.46 0.27 0.07 1. 71

0.00 0.00 -0.05 0.41 1.31 -0.27 0.64

4

4

8

4

7

4

49

37

30

25

8

6

83

42

82

41

29

22

300 185

o 0.0 0.0 0.00 0.00 0.00

4 50.0 50.0 0.00 0.00 0.00

1 14.3 14.3 0.00 0.00 0.00

9 18.4 20.3 -0.94 1.14 -0.88

1 3.3 10.9 -2.26 2.22 -1.52

1 12.5 9.0 0.28 0.54 0.39

24 28.9 29.8 -0.77 1. 37 -0.66

25 30.5 28.1 1.95 9.00 0.65

2 6.9 19.8 -3.75 3.22 -2.09

67

-5.49 17.49 -1.31

Page 1

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 200 of 295

Tot Total LUFP 1994 Tot Total LUFP 1995 Tot. Total LUFP 1996 Tot Total LUFP 1997 Tot Total LUFP 1998 Tot Total LUFP 1999 Tot Total LUFP 2000 Tot Total LUFP 2001 Tot Total LUFP 2002 Tot Total LUFP Tot

8 Total Tot 8 Total Tot 8 Total Tot 8 Total Tot 8 Total Tot 8 Total. Tot 8 Total Tot 8 Total Tot 8 Total Tot 8 Total Tot

1994 1995 1996 1997 1998 1999 2000 2001 2002 Tot

8 Total LUFF 1994 8 Total LUFF 1995 8 Total LUFF 1996 8 Total LUFF 1997 8 Total LUFF 1998 8 Total LUFF 1999 8. Total LUFF 2000 8 Total LUFF 2001 8 Total LUFF Tot

8 Total LUFT 1994 8 Total LUFT 1995 8 Tota-l LUFT 1996 8 Total LUFT 1997 8 Total LUFT 1998 8 Total LUFT 1999 8 Total LUFT 2000 8 Total LUFT 2001 8 Total LUFT 2002 8 Total LUFT Tot

8 Total LUFC 1995 8 Total LUFC Tot

8 Total LUFG 1995 8 Total LUFG Tot

8 Total LUFO 1995 8 Total LUFO 2000 8 Total LUFO 2001 8 Total LUFO Tot

8 Total LUFP 1994 8 Total LUFP 1995 8 Total LUFP 1996 8 Total LUFP Tot

7 Total Tot 7 Total Tot 7 Total Tot 7 Total Tot 7 Total Tot

1994 1995 1996 1997 1998

Appendix 8

42 94 145 91 56 26 19 26 11 510
87 131 105 156 166 104
74 82 24 929
31 38 63 41 41
4 24 62 304
54 80 15 115 125 100 39 16 24 568
1 1
3 3
1 11
4
16
2 8 21 37
72 132 148 202
82

36 82 118 76 47 19 14 15
9 416
42 75 37 84 91 44 29 23 11 436
8 12 10 11
8
o
6 14 69
32 53
6 73 83 44 18
8 11 328
1 1
2 2
o
5 1 6
2 7 21 30
41 85 80 120 45

3 7.1 20.3 -5.54 3.79 -2.84

5 5.3 15.6 -9.69 8A7 -3.33

18 12.4 16.5 -5.86 14.60 -1.53

13 14.3 14.9 -0.58 7.31 -0.22

6 10.7 10.1 0.36 3.14 0.20

6 23.1 17.5 1-45 2.08 1.01

3 15.8 12.8 0.56 0040 0.89

9 34.6 33-4 0.32
o 0.0 4-3 -0.47

2.89 0.19 0.39 -0.76

63

-19.46 43.09 -2.96

17 19.5 15.3 3.66 8.26 1.27

32 24.4 31.2 -8.85 22.72 -1.86

27 25.7 29.1 -3.55 17.67 -0.84

40 25.6 30.6 -7.77 24048 -1.57

38 22.9 36.8 -23.09 34.14 -3.95

30 28.8 52.3 -24.44 22.09 -5.20

24 32.4 29.7 2.05 7.23 0.76

21 25.6 31.3 -4.68 15.19 -L20

7 29.2 29.2 0.00 0.00 0.00

236

-66.67 151.77 -5.41

5 16.1 12.9 1.00 L33 0.87

9 23.7 26.6 -LI0 6.09 -0.44

17 27.0 3004 -2.18 12.27 -0.62

13 3L7 20.2 4.71 6.06 1. 91

9 22.0 37.0 -6.15 8.55 -2.10

2 50.0 50.0 0.00 0.00 0.00

6 25.0 25.0 0.00 0.00 0.00

16 25.8 35.5 -6.03 13.88 -1.62

77

-9.74 48.19 -lAO

12 22.2 17.3 2.66 6.92 1.01

22 27.5 37.2 -7.76 16.64 -1.90

7 46.7 46.9 -0.03 L86 -0.02

27 23.5 34.3 -12.48 18.42 -2.91

29 23.2 36.8 -16.94 25.58 -3.35

28 28.0 52.4 -24.44 22.09 -5.20

13 33.3 28.1 2.05 7.23 0.76

5 3L2 22.8 1.35 1.31 1.18

7 29.2 29.2 0.00 0.00 0.00

150

-55.60 100.05 -5.56

o 0.0 0.0 0.00 0.00 0.00

o

0.00 0.00 0.00

o 0.0 0.0 0.00 0.00 0.00

o

0.00 0.00 0.00

1 100.0 100.0
5 45.5 45.5
o 0.0 0.0
6

0.00 0.00 0.00 0.00

o 0.0 o 0.0
3 11.1
3

0.0 0.0 16.0

0.00 0.00 -1. 33 -1. 33

0.00 0.00 0.00 0.00

0.00 0.00 0.00 0.00

0.00 0.00 3.54 3.54

0.00 0.00 -0.71 -0.71

10 13.9 20.0 -4.42 6.94 -1.68 19 14.4 22.8 -11.08 11.62 -3.25 24 16.2 17.9 -2.43 13.44 -0.66 42 20.8 25.5 -9.44 18.66 -2.19 20 2404 19.7 3.85 8.66 1. 31

Page 2

2000 EEO.. 6 109903 WELDER-SPECIALIST 2000 EEO. 6 Other

2000 2000 2000 2000 2000 2000 2000 2000 2000 2000 2000 2000 2000 2000 2000 2000 2000 2000 2000

EEO. 7 EEO. 7
EEO- 7 EEO. 7 EEO.. 7 EEO. 7 EEO.. 7
EEO- 7 EEO.. 7 EEO.. 7
EEO- 7 EEO. 7 EEO. 7 EEO.. 7 EEO.. 7 EEO. 7 EEO- 7
EEO- 7 EEO. 7

Total 105711 BC/CO MAKER 106810 CASTING FINISHER 106779 CASTING PAINTER
106812 CORE/MOLD FINISHER 106741 CRANE OP LEARNER-FDRY 109930 FORK LIFT OPERATOR 106743 FORK LIFT TOW MOTOR OPER 103648 MACH OP TRAINEE 109910 MACHINE OPERATOR-CLASS A 103644 MACHINE OPERATOR-CLASS B 103645 MACHINE OPERATOR-CLASS C 103619 MACHINIST HELPER 109912 PAINTER-CLASS A 106800 STOREKEEPER 109901 TRAILER BUILDER-CLASS A 109902 TRAILER BUILDER-CLASS B 109904 WELDER-CLASS A Other

2000 2000 2000 2000

EEO .. 8 EEO.. 8 EEO. 9 EEO- 8

Total 106796 GENERAL FOUNDRYMAN 109906 HELPER Other

Appendix 7
58 36 15 127 85 31

267 120 84

3 01

9 0 0

3

0

0

11

4

3

3

0

0

1

1

0

14

6

4

29 14 8

1

1

0

16 12 3

10

4

4

13

5

6

6

3

2

7 1 4

26 18

6

1

0

1

4 2 1

110 49 41

44 13 14

35

7 12

7 4 2

2 2 0

7 25.9 12.91 12.91 12.93 -0.02 11 24.4 13.62 13.84 13.31 0.53
63 31.5 11.4211.55 11.33 0.21 2 33.3 11.17 0.00 10.83 0.00 9 0.0 11.65 0.00 0.00 0.00 3 0.0 11.65. 0.00 0.00 0.00 4 27.3 12.04 11.55 12.32 -0.77 3 0.0 10.26 0.00 0.00 0.00 0 0.0 11.10 11.10 0.00 0.00 4 28.6 10.52 10.75 9.98 0.77 7 27.6 10.15 10.38 9.78 0.60 0 0.0 11. 94 11.94 0.00 0.00 1 18.8 12.26 12.30 12.05 0.25 2 40.0 12.15 12.32 12.05 0.27 2 46.2 10.28 10.59 9.93 0.66 1 33.3 12.32 12.32 12.32 0.00 2 57.1 10.92 9.54 11.43 -1.89 2 23.1 11.94 11.94 11.94 0.00
o 100.0 10.59 0.00 10.59 0.00
1 25.0 11.94 11.94 11.94 0.00 20 3'.3 11.62 11.66 11.65 0.01
17 31.8 9.06 9.09 9.01 0.08 16 34.3 8.96 8.72 9.96 -0.24
1 28.6 9.27 9.27 9.27 0.00 0 0.0 10.01 10.01 0.00 0.00

Page 2

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 201 of 295

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 202 of 295

7 Total Tot 7 Total Tot 7 Total Tot 7 Total Tot 7 Total. Tot

1999 2000 2001 2002 Tot

7 Total LUFF 1994 7 Total LUFF 1995 7 Total LUFF 1996 7 Total LUFF 1997 7 Total LUFF 1998 7 Total LUFF 1999 7 Total LUFF 2000 7 Total LUFF 2001 7 Total LUFF 2002 7 Total LUFF Tot

7 Total LUFT 1994 7 Total LUFT 1995 7 Total LUFT 1996 7 Total LUFT 1997 7 Total LUFT 1998 7 Total LUFT 1999 7 Total LUFT 2000 7 Total LUFT 2001 7 Total LUFT 2002 7 Total LUFT Tot

7 Total LUFC 2002 7 Total LUFC Tot

7 Total LUFG 1995 7 Total LUFG 1996 7 Total LUFG 1997 7 Total LUFG 1998 7 Total LUFG 1999 7 Total LUFG 2000 7 Total LUFG Tot

7 Total LUFO 1994 7 Total LUFO 1995 7 Total LUFO 1996 7 Total LUFO 1997 7 Total LUFO 1998 7 Total LUFO 1999 7 Total LUFO 2000 7 Total LUFO 2001 7 Total LUFO 2002 7 Total LUFO Tot

7 Total LUFP 1994 7 Total LUFP 1995 7 Total LUFP 1996 7 Total LUFP 1997 7 Total LUFP 1998 7 Total LUFP 1999 7 Total LUFP 2000 7 Total LUFP 2001 7 Total LUFF 2002 7 Total LUFP Tot

6 Total Tot 6 Total Tot 6 Total Tot 6 Total Tot

1994 1995 1996 1997

Appendix 8

50

32

11 22.0 22.1 -0.07 4.85 -0.03

88

38

19 21.6 22.9 -1.17 1.61 -0.92

108

47

35 32.4 30.2 2.39 11.98 0.69

19

13

3 15.8 14 .6 0.23 1.07. 0.23

901 501 183

-22.14 78.84 -2.49

29

7

6 20.7 18.2 0.73 2.71 0.45

28

6

2 7.1 16.8 -2.70 2.58 -1.68

49

12

5 10.2 10.5 -0.17 2.64 -0.10

49

13

11 22.4 29.4 -3.40 5.91 -1.40

25

4

10 40.0 26.2 3.46 3.13 1.96

8

2

2 25.0 19.8 0.42 0.41 0.65

17

2

o 0.0 3.2 -0.54 0.37 -0.89

19

4

4 21.1 15.9 0.98 1.59 0.78

3

1

1 33.3 16.7 0.50 0.25 1.00

227

51

41

-0.72 19.60 -0.16

18

15

33

21

32

17

60

34

22

15

35

26

9

6

6

3

7

5

222 142

1

1

1

1

1

1

1

1

12

10

4

3

2

2

1

1

21

18

2

2

5

2

4

1

29

21

18

14

2

2

58

26

63

29

4

3

185 100

1 5.6 7.3 -0.31 1.06 -0.30

9 27.3 27.1 0.05 1.64 0.04

9 28.1 26.3 0.60 4.41 0.28

14 23.3 31.5 -4.90 6.51 -1.92

4 18.2 22.4 -0.92 3.19 -0.51

6 17.1 20.4 -1.14 3.83 -0.58

1 11.1 17 .3 -0.56 1.17 -0.52

2 33.3 25.0 0.50 0.88 0.53

1 14.3 21.7 -0.52 0.38 -0.83

47

-7.18 23.06 -1. 50

o 0.0 0.0 0.00 0.00 0.00

o

0.00 0.00 0.00

o 0.0 0.0 0.00 o 0.0 0.0 0.00

1 8.3 8.8 -0.05

1 25.0 18.1 0.27
o 0.0 7.3 -0.15 o 0.0 7.0 -0.07

2

0.01

0.00 0.00 0.91 0.46 0.14 0.07 1.57

0.00 0.00 -0.05 0.41 -0.40 -0.27 0.00

o 0.0 0.0 0.00

3 60.0 60.0 0.00

1 25.0 25.0 0.00

8 27.6 27.6 0.00

1 5.6 7.1 -0.28
o 0.0 0.0 0.00

18 31.0 31.0 0.00

22 34.9 31.9 1.90

1 25.0 12.5 0.50

54

2.,11

0.00 0.00 0.00 0.00 1.02 0.00 0.00 7.03 0.25 8.30

0.00 0.00 0.00 0.00 -0.28 0.00 0.00 0.72 1.00 0.73

23

17

65

55

62

49

52

42

13

9

3

o

3

3

20

11

4

3

245 189

3 13.0
5 7.7 9 14.5 8 15.4
4 30.8 3 100.0
o 0.0
7 35.0
o 0.0
39

34.1 -4.84 20.7 -8.44 19.1 -2.86 17 .5 -1.09 20.7 1.31 73.3 0.80
0.0 0.00 39.9 -0.98
6.2 -0.25 -16.36

3.18 7.40 6.39 5.34 0.86 0.48 0.00 2.48 0.19 26.32

-2.72 -3.10 -1.13 -0.47
1.41 1.15 0.00 -0.62 -0.58 -3.19

32

28

2 6.2 11.0 -1.51 1.08 -1.45

40

33

3 7.5 10.6 -1.23 2.69 -0.75

85

63

15 17.6 19.6 -1.69 7.87 -0.60

97

81

10 10.3 15.0 -4.51 6.51 -1.77

Page 3

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 203 of 295

6 Total Tot 6 Total Tot 6 Total Tot 6 Total Tot 6 Total Tot 6 Total Tot

1998 1999 2000 2001 2002 Tot

6 Total LUFF 1994 6 Total LUFF 1995 6 Total LUFF 1996 6 Total LUFF 1997 6 Total LUFF 1998 6 Total LUFF 1999 6 Total LUFF 2000 6 Total LUFF 2001 6 Total LUFF 2002 6 Total LUFF Tot

6 Total LUFT 1994 6 Total LUFT 1995 6 Total LUFT 1996 6 Total LUFT 1997 6 Total LUFT 1998 6 Total LUFT 1999 6 Total LUFT 2000 6 Total LUFT 2001 6 Total LUFT 2002 6 Total LUFT Tot

6 Total LUFG 1995 6 Total LUFG 1997 6 Total LUFG 1998 6 Total LUFG 1999 6 Total LUFG Tot

6 Total LUFO 1994 6 Total LUFO 1995 6 Total LUFO 1996 6 Total LUFO 1997 6 Total LUFO 1998 6 Total LUFO 1999 6 Total LUFO 2000 6 Total LUFO 2001 6 Total LUFO 2002 6 Total LUFO Tot

6 Total LUFP 1994 6 Total LUFP 1995 6 Total LUFP 1996 6 Total LUFP 1997 6 Total LUFP 1998 6 Total LUFP 1999 6. Total LUFP 2000 6 Total LUFP 2001 6 Total LUFP 2002 6 Total LUFP Tot

70 43 45 29 40 481
7 6 22 22 4 3 11 6 6 87
6 10
4 14 10
9 4 2 2 61
1 2 1 2 6
2 2 3 20 12 6 14 15 25 99
17 21 56 39 43 23 16
6 7 228

58 J3 29 20 30 375
3 3 9 18 2 1 3 3 3 45
6 8 3 11 6 8 4 2 2 50
o
2 1 1 4
2 2 3 16 11 4 11 11 19 79
17 20 48 34 38 19 11
4 6 197

Appendix 8

5 7.1 13.4 -4.36 5.14 -1.92

5 11.6 15.3 -1.58 4.01 -0.79

5 11.1 18.6 -3.39 3.91 -1.71

6 20.7 23.8 -0.89 3.49 -0.48

2 5.0 19.7 -5.88 4.07 -2.92

53

-25.04 38.77 -4.02

2 28.6 28.6 0.00 0.00 0.00

1 16.7 6.7 0.60 0.24 1.22

9 40.9 38.5 0.54 2.80 0.32

3 13 .6 .18.2 -1.00
o 0.0 48.2 -1. 93

1.12 -0.94 0.62 -2.45

o 0.0 22.7 -0.68, 0.42 -1.06

1 9.1 28.8 -2.16 1.51 -1.76

1 16.7 45.7 -1.74 0.86 -1. 88

1 16.7 32.4 -0.95 0.64 -1.18

18

-7.32 8.21 -2.55

o 0.0 13.6 -0.82

2 20.0 25.7 -0.57

o 0.0 14.2 -0.57

1 7.1 29.1 -3.07

3 30.0 25.1 0.49

o 0.0 29.7 -2.67

o 0.0 25.5 -1.02

o 0.0 25.0 -0.50

o 0.0 23.3 -0.47

6

-9.19

0.47 1.39 0.39 2.27 1.03 1.31 0.63 0.25 0.25 8.00

-1.19 -0.48 -0.90 -2.04
0.49 -2.33 -1.28 -1.00 -0.94 -3.25

o 0.0 0.0 0.00 0.00 0.00 o 0.0 0.0 0.00 0.00 0.00 o 0.0 0.0 0.00 0.00 0.00

1 50.0 8.3 0.83 0.14 2.24

1

0.83 0.14 2.24

o 0.0 0.0 0.00 o 0.0 0.0 0.00 o 0.0 0.0 0.00

1 5.0 9.7 -0.94

o 0.0 16.5 -1. 98

1 16.7 11.9 0.28

1 7.1 12.6 -0.77

3 20.0 19.6 0.05

1 4.0 21.0 -4.25

7

-7.60

0.00 0.00 0.00 1.14 1.21 0.54 1.37 1.97 2.97 9.19

0.00 0.00 0.00 -0.88 -1. 80 0.39 -0.66 0.04 -2.46 -2.51

o 0.0 o 0.0
6 10.7
5 12.8
2 4.7
3 13.0
3 18.8
2 33.3
o 0.0
21

4.1 6.0 13.7 11.5 6.9 10.2 15.2 11.7 3.2

-0.70 -1.26 -1.67
0.51 -0.95
0.65 0.56 1.30 -0.22 -1.77

0.62 1.06 4.68 1.98 2.28 1. 60 0.40 0.41 0.20 13.23

-0.89 -1.22 -0.77
0.36 -0.63
0.52 0.89 2.03 -0.50 -0.49

Page 4

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 204 of 295

Appendix 9 Summary of Promotion Analysis by Target Job

Restricted to Promotions from EEO 6, 7, and 8, after March 6,
Controlling for Year, Job, Dept, Sen'ty, Roster
Comparing Blacks to Non-Black
Year = 2005 gives totals over all years 1994-2002

1994

E E
o Job Promoted Into

Promotions

Dept Year Tot Wht

Black

Diff

Var Z-Val

1100

LUFP 2000

1100

LUFP 2005

1105

LUFF 2001

1105

LUFF 2005

1128

LUFT 2002

1128

LUFT 2005

3710

LUFP 2000

3710

LUFP 2005

3711

LUFO 2002

3711

LUFO 2005

1 0028 SUPERVISOR 10

90 1994

1 0028 SUPERVISOR 10

90 2005

1 0070 FOREMAN 9

90 1994

1 0070 FOREMAN 9

90 1995

1 0070 FOREMAN 9

90 1996

1 0070 FOREMAN 9

90 1997

1 0070 FOREMAN 9

90 1998

1 0070 FOREMAN 9

90 2000

1 0070 FOREMAN 9

90 2001

1 0070 FOREMAN 9

90 2002

1 0070 FOREMAN 9

90 2005

1 0125 DISTRICT MGR-MSAL

l3 2002

1 0125 DISTRICT MGR-MSAL

l3 2005

1 0135 TRAILER BRANCH MGR

90 1999

1 0135 TRAILER BRANCH MGR

90 2005

1 0136 SERVICE MANAGER-TRLR 90 1996

1 0136 SERVICE MANAGER-TRLR 90 1997

1 0136 SERVICE MANAGER-TRLR 90 2005

1 0172 MGR,PARTS-TRLR BRANC 90 1994

1 0172 MGR,PARTS-TRLR BRANC 90 2005

1 0524 SUPV,MACH SHOP AREA 13 1994

1 0524 SUPV,MACH SHOP AREA 13 1996

1 0524 SUPV,MACH SHOP AREA

13 2005

1 0891 PT PRODUCTION SUPERV LUFP 1997

1 0891 PT PRODUCTION SUPERV LUFP 1999

1 0891 PT PRODUCTION SUPERV LUFP 2005

1 0919 TRLR PRODUCTION. SUPE 90 1997

1 0919 TRLR PRODUCTION SUPE 90 1998

1 0919 TRLR PRODUCTION SUPE 90 1999

1 0919 TRLR PRODUCTION SUPE 90 2001

1 0919 TRLR PRODUCTION SUPE 90 2005

1 0920 TRLR WAREHOUSE SUPER 90 1999

1 0920 TRLR WAREHOUSE SUPER 90 2005

1 0928 FDRY MAINT FOREMAN LUFF 1997

1 0928 FDRY MAINT FOREMAN LUFF 2000

1 0928 FDRY MAINT FOREMAN LUFF 2001

1. 0928 FDRY MAINT FOREMAN LUFF 2002

1 0928 FDRY MAINT FOREMAN LUFF 2005.

1 0930 FDRY PRODUCTION FRMN 11 1997

1 0930 FDRY PRODUCTION FRMN 11 1998

1 0930 FDRY PRODUCTION. FRMN 11 2000

1 0930 FDRY PRODUCTION FRMN 11 2001

1 0930 FDRY PRODUCTION FRMN 11 2002

1 0930 FDRY PRODUCTION FRMN 11 2005

1 1 o 0.0

0.00 0.00

1 1 o 0.0

0.00 0.00

1 1 o 0.0

0.00 0.00

1 1 o 0.0

0.00 0.00

1 1 o 0.0 46.7 -0.41 ,.0.94

1 1 o 0.0 46.7 -0.41 -0.94

1 1 o 0.0 0.0 0.00 0.00

1 1 o 0.0

0.00 0.00

11 8 o 0.0 24.4 -2.68 -1.92

11 8 o 0.0 24.4 -2.68 -1.92

1 1 o 0.0 0.0 0.00 0.00

1 1 o 0.0 0.0 0.00 0.00

6 4 2 33.3 38.6 -0.32 -0.68

9 6 3 33.3 24.5 0.80 0.74
1 1 o 0.0 0.0 0.00 0.00 1 1 o 0.0 0.0 0.00 0.00 1 1 o 0.0 30.0 -0.30 -0.65

3 2 1 33.3 l3.1 0.61 1.08

3 2 1 33.3 11.6 0.65 1.27
1 1 o 0.0 0.0 0.00 0.00

25 18 1 1 1 l 1 1 1 1 1 1
2 2 3 3 1 1 1 1
2 2 1 1
3 3 2 2 1 1 3 3

7 28.0 22.2 1.44 0.98
o 0.0 0.0 0.00 0.00 o 0.0 0.0 0.00 0.00 o 0.0 0.0 0.00 0.00 o 0.0 0.0 0.00 0.00 o 0.0 0.0 0.00 0.00 o 0.0 16.7 -0.33 -0.71 o 0.0 11.1 -0.33 -0.71 o 0.0 0.0 0.00 0.00 o 0.0 0.0 0.00 0.00 o 0.0 0.0 0.00 0.00
o 0.0 0.0 0.00 0.00
o 0.0 0.0 0.00 0.00 o 0.0 0.0 0.00 0.00
o 0.0 0.0 0.00 0.00 o 0.0 0.0 0.00 0.00

5 4 1 20.0 43.5 -1.17 -1.10

6 5 1 16.7 17.4 -0.04 -0.05
2 1 o 0.0 31.5 -0.75 -1.73 2 2 o 0.0 25.0 -0.50 -1.00

15 12 ·2 l3.3 29.8 -2.47 -1.62
1 1 o 0.0 0.0 0.00 0.00 1 1 o 0.0 0.0 0.00 0.00
2 2 o 0.0 0.0 0.00 0.00 1 1 o 0.0 0.0 0.00 0.00 1 1 o 0.0 50.0 -0.50 -1.00 1 1 o 0.0 8.3 -0.08 -0.30 5 5 o 0.0 1i.1 -0.58 -1.02 1 1 o 0.0 0.0 0.00 0.00
2 o o 0.0 15.0 -1.50 -2.45 2 o o 0.0 11.1 -0.22 -0.53 1 o 1 100.0 100.0 0.00 0.00 1 o o 0.0 14.3 -0.14 -0.41

7 1 1 14.3 40.9 -1.87 -2.28

Page 1

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 205 of 295

3 6788 ELECTRONICS TECH

11 2001

3 6788 ELECTRONICS TECH

11 2005

3 9925 ELECTRONIC TECHNICIA 90 1994

3 9925 ELECTRONIC TECHNICIA 90 1998

3 9925 ELECTRONIC TECHNICIA 90 2005

4 0745 PARTS & SERVICE SALE 90 1998

4 0745 PARTS & SERVICE SALE 90 1999

4 0745 PARTS & SERVICE SALE 90 2001

4 0745 PARTS & SERVICE SALE 90 2005

4 0899 PT REPAIR ORDER CONT 17 1996

4 0899 PT REPAIR ORDER CONT 17 2005

4 1022 TRAILER INSIDE SALES LUFO 1999

4 1022 TRAILER INSIDE SALES LUFO 2005

5 0223 SECRETARY B-ENGR

LUFP 1995

5 0223 SECRETARY B-ENGR

LUFP 2005

6 0556 MECHANIC CLASS A

90 1997

6 0556 MECHANIC CLASS A

90 2005

6 3601 TOOL MAKER

13 1997

6 3601 TOOL MAKER

13 2005

6 3602 TOOL GRINDER-CLASS A LUFT 1994

6 3602 TOOL GRINDER-CLASS. A LUFT 1995

6 3602 TOOL GRINDER-CLASS A LUFT 1996

6 3602 TOOL GRINDER-CLASS A LUFT 2002

6 3602 TOOL GRINDER-CLASS A LUFT 2005

6 3603 TOOL GRINDER SPECIAL LUFP 2000

6 3603 TOOL GRINDER SPECIAL LUFP 2002

6 3603 TOOL GRINDER SPECIAL LUFP 2005

6 3604 ASSEMBLE COMMERCIAL

13 1995

6 3604 ASSEMBLE COMMERCIAL

13 1996

6 3604 ASSEMBLE COMMERCIAL

13 1997

6 3604 ASSEMBLE COMMERCIAL

13 1998

6 3604 ASSEMBLE COMMERCIAL

13 2005

6 3605 ASSEMBLER - CLASS A

13 1995

6 3605 ASSEMBLER - CLASS A

13 1996

6 3605 ASSEMBLER - CLASS A

13 1997

6 3605 ASSEMBLER - CLASS A

13 1998

6 3605 ASSEMBLER - .CLASS A

13 2005

6 3606 ASSEMB-CLASS A SPECI 13 1995

6 3606 ASSEMB-CLASS A SPECI 13 1996

6 3606 ASSEMB-CLASS A SPECI 13 1997

6 3606 ASSEMB-CLASS A SPECI 13 1998

6 3606 ASSEMB-CLASS A SPECI 13 2005

6 3608 ASSEMBLER HELPER

LUFP 1994

6 3608 ASSEMBLER HELPER

LUFP 1995

6 3608 ASSEMBLER HELPER

LUFP 1996

6 3608 ASSEMBLER HELPER

LUFP. 2000

6 3608 ASSEMBLER HELPER

LUFF 2005

6 3609 UTILITY MAINT CL A

13 1994.

6 3609 UTILITY MAINT CL A

13 2005

6 3614 INSPECTOR

13 1994

6 3614 INSPECTOR

13 1995

6 3614 INSPECTOR

13 1996

6 3614 INSPECTOR

13. 1997

6 3614 INSPECTOR

13 2001

6 3614 INSPECTOR

13 2005

6 3621 HEAT TREATER

LUFP 1996

6 3621 HEAT TREATER

LUFP 1997

6 3621 HEAT TREATER

LUFP 2005

6 3640 WELDER-JIG & COMM GE 13 1995

6 3640 WELDER-JIG & COMM GE 13 1996

6 3640 WELDER-JIG & COMM GE 13 2005

6 3642 MACHINIST

12 1994

6 3642 MACHINIST

12 1995

6 3642 MACHINIST

12 1996

6 3642 MACHINIST

12 1997

Appendix 9

1

1

4 4

1 1

3 2

4 3

1 1

1 1

1 1

3 3

1 1

1 1

1 1

1

1

1 1

1 1

3 1

3 1

1 1

1 1
1 o

1 1
1 o

1 1

4 2
1 o 1 o 2 o

2 2

3 3

2 2

2

1

9 8

1

1

4

2

2

1

2 2

9 6

4 3

5 5

5 5

4 4

18 17

1 1

1 1

3 3

1 1

6 6

1 1

1 1

2 2

2 2

2 1

1 1

1 1

8 7
1 a

1 1

2

1

1

1

1 o

2 1

8 8

11 9

1.3 12

19 14

o 0.0 o 0.0 o 0.0 o 0.0 o 0.0 o 0.0 o 0.0 o 0.0 o 0.0 o 0.0 o 0.0 o 0.0 o 0.0 o 0.0 o 0.0 o 0.0 a 0.0 o 0.0 o 0.0 o 0.0 o 0.0 o 0.0 o 0.0
a 0.0
o 0.0 o 0.0 o 0.0 o 0.0 o 0.0 a 0.0
1 50.0
1 11.1
o 0.0
2 50.0
1 50.0
o 0.0
3 33.3
o 0.0 o 0.0 o 0.0 o 0.0 o 0.0 a 0.0 a 0.0 a 0.0 a 0.0 a 0.0 a 0.0 a 0.0 a 0.0 o 0.0
1 50.0
o 0.0 o 0.0
1 12.5
o 0.0 a 0.0 o 0.0 a 0.0
1 100.0
1 50.0
a 0.0 o 0.0 a 0.0
2 10.5

0.0 0.0 0.0 0.0 0.0 17.6 0.0 0.0 5.9 0.0 0.0 0.0 0.0 0.0 0.0 14.3 14.3 0.0 0.0 66.7 16.7 0.0 0.0 20.8 0.0 25.0 12.5 4.4 22.5 0.0 25.0 14.0 0.0 38.1 58.3 0.0 29.9 17.4 0.0 0.0 0.0 3.9 40.0 28.6 23.9 0.0 23.4 0.0 0.0 0.0 0.0 12.6 10.0 0.0 4.4 0.0 0.0 0.0 0.0 25.0 12.5 6.6 6.7 10.3 14.2

0.00 0.00 0.00 0.00 O~OO 0.00 0.00-0. 00· 0.00 0.00 -0.18 -0.46 0.00 0.00 0.00 0.00 -0.18 -0.46 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 -0.43 -0.87 -0.43 -0.87 0.00 0.00 0.00 0.00 -0.67 -1.41 -0.17 -0.45 0.00 0.00 0.00 0.00 -0.83 -1.39 0.00 0.00 -0.25 -0.58 -0.25 -0.58 -0.09 -0.31 -0.68 -1.01 0.00 0.00 0.50 1.00 -0.26 -0.30 0.00 0.00 0.48 0.49 -0.17 -0.24 0.00 0.00 0.31 0.26 -0.69 -1.05 0.00 0.00 0.00 0.00 0.00 0.00 -0.69 -1.05 -0.40 -0.82 -0.29 -0.63 -0.72 -0.97 0.00 0.00 -1.40 -1.41 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.75 1.60 -0.10 -0.33 0.00 0.00 0.65 1.17 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.751.73 0.75 1. 73 -0.53 -0.77 -0.74 -0.92 -1.34 -1.24 -0.71 -0.58

Page 3

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 206 of 295

6 3642 MACHINIST

12 1998

6 3642 MACHINIST

12 1999

6 3642 MACHINIST

12 2000

6 3642 MACHINIST

12 2001

6 3642 MACHINIST

12 2002

6 3642 MACHINIST

12 2005

6 3643 MACHINE OPERATOR-CLA LUFP 1994

6 3643 MACHINE OPERATOR-CLA LUFP 1995

6 3643 MACHINE OPERATOR-CLA LUFP 1996

6 3643 MACHINE OPERATOR-CLA LUFP 1997

6 3643 MACHINE OPERATOR-CLA LUFP 1998

6 3643 MACHINE OPERATOR-CLA LUFP 1999

6 3643 MACHINE OPERATOR-CLA LUFP 2000

6 3643 MACHINE OPERATOR-CLA LUFP 2001

6 3643 MACHINE OPERATOR-CLA LUFP 2002

6 3643 MACHINE OPERATOR-CLA LUFP 2005

6 3644 MACHINE OPERATOR-CLA LUFT 1994

6 3644 MACHINE OPERATOR-CLA LUFT 1995

6 3644 MACHINE OPERATOR-CLA LUFT 1996

6 3644 MACHINE OPERATOR-CLA LUFT 1997

6 3644 MACHINE OPERATOR-CLA LUFT 1998

6 3644 MACHINE OPERATOR-CLA LUFT 2000

6 3644 MACHINE OPERATOR-CLA LUFT 2001

6 3644 MACHINE OPERATOR-CLA LUFT 2002

6 3644 MACHINE OPERATOR-CLA LUFT 2005

6 3655 MAINT MECH CLASS A LUFP 1995

6 3655 MAINT MECH CLASS A LUFP 2001

6 3655 MAINT MECH CLASS A LUFP 2002

6 3655 MAINT MECH CLASS A LUFP 2005

6 3656 MAINT MECH SPECIALIS 13 1994

6 3656 MAINT MECH SPECIALIS 13 1996

6 3656 MAINT MECH SPECIALIS 13 1997

6 3656 MAINT MECH SPECIALIS 13 1998

6 3656 MAINT MECH SPECIALIS 13 2005

6 3661 INSPECTOR SPECIALIST 13 1995

6 3661 INSPECTOR SPECIALIST 13 1997

6 3661 INSPECTOR SPECIALIST 13 2000

6 3661 INSPECTOR SPECIALIST 13 2001

6 3661 INSPECTOR SPECIALIST 13 2005

6 3694 MASTER ASSEMBLER

LUFP 1995

6 3694 MASTER ASSEMBLER

LUFP 1996

6 3694 MASTER ASSEMBLER

LUFP 1997

6 3694 MASTER ASSEMBLER

LUFP 1998

6 3694 MASTER ASSEMBLER

LUFP 1999

6 3694 MASTER ASSEMBLER

LUFP 2005

6 3696 CERTIFIED ASSEMBLER

13 1997

6 3696 CERTIFIED ASSEMBLER

13 1998

6 3696 CERTIFIED ASSEMBLER

13 2005

6 3699 MASTER HEAT TREATER

13 1999

6 3699 MASTER HEAT TREATER

13 2000

6 3699 MASTER HEAT TREATER

13 2001

6 3699 MASTER HEAT TREATER 132005

6 3700 CERTIFIED MACHINIST

13 1996

6 3700 CERTIFIED MACHINIST 13 1997

6 3700 CERTIFIED MACHINIST

13 1998

6 3700 CERTIFIED MACHINIST

13 1999

6 3700 CERTIFIED MACHINIST

13 2005

6 3701 MASTER TOOL MAKER

13 1996

6 3701 MASTER TOOL MAKER

13 1997

6 3701 MASTER TOOL MAKER

13 2002

6 3701 MASTER TOOL MAKER

13 2005

6 3704 DISTRIBUTION SPECIAL 13 1998

6 3704 DISTRIBUTION SPECIAL 13 1999

6 3704 DISTRIBUTION SPECIAL 13 2001

6 3704 DISTRIBUTION SPECIAL 13 2005

Appendix 9

17 14 1 5_9
12 11 o 0_0 14 10 o 0_0

5 3 2 40_0
7 6 o 0_0

106 87 5 4_7

11 10 0 0_0

17 14 1 5_9

25 20 4 16_0

24 17 5 20_8

10 9 1 10_0

5 1 3 60_0

5 3 1 20_0

19 11 3 15_8

1 1 0 0_0

117 86 18 15_4

3 1 1 33_3

3 1 1 33_3

6 4 2 33_3

12 9 3 25:0

6 2 1 16_7

7 5 2 28_6

14 6 5 35_7
1 1 o 0_0

52 29 15 28_8
2 2 o 0_0 2 2 o 0_0 1 1 o 0_0 5 5 o 0_0 1 1 o 0_0 1 1 o 0_0 3 3 o 0_0
1 1 o 0_0 6 6 o 0_0 2 2 o 0_0
1 1 o 0_0
3 3 o 0_0 1 1 o 0_0 7 7 o 0_0 2 2 o 0_0

4 3 1 25_0
1 1 o 0_0 2 2 o 0_0

1 0 1 100_0

10 8 2 20_0
2 2 o 0_0

6 5 1 16_7

8 7 1 12_5

3 2 1 33_3
1 1 o 0_0

2 0 1 50_0

6 3 15 14
4 4 12 11
2 2 33 31
2 2 1 1 1 1 4 4

2 33_3
o 0.0
o 0.0
o 0_0 o 0.0 o 0_0 o 0.0 o 0_0 o 0_0
o 0.0

5 4 1 20.0

2 1 1 50_0

2 1 1 50.0

9 6 3 33_3

13_6 -1_31 -1_29 5_9 -0_71 -0_96
12_2 -1_71 -1_47 15_.3 o>I~24 L64i3_4 -0_94 -1_09 11_1 -6_76 -2_38 15_1 -1_66 -1_59 10_5 -0_79 -LOO 21_9 -1_48 -1_09 16_5 1_05 0_64
8_8 0_12 0_14 32_3 1_38 1_54 20_0 0_00 0_00 26_6 -2_06 -1_24
0_0 0_00 0_00 18_3 -3_44 -1_06 25_0 0_25 0_58
8_3 0_75 1_73 25_4 0_48 0_77 20_9 0_49 0_48 21_8 -0_31 -0_36 28_6 0_00 0_00 27_7 1_12 0_69
0_0 0_00 0_00 23_5 2_78 1_22
0_0 0_00 0_00 0_0 0_00 0_00 0_0 0_00 0_00 0_0 0_00 0_00 16_7 -0_17 -0_45 16_7 -0_17 -0_45 0_0 0_00 0_00 33_3 -0_33 -0_71 11_1 -0_67 -0_94 0_0 0_00 0_00 0_0 0_00 0_00 0_0 0_00 0_00 0_0 0_00 0_00 0_0 0_00 0_00 7_1 -0_14 -0_41 23_7 0_05 0_06 14_3 -0_14 -0_41 8_3 -0_17 -0_45 50_0 0_50 1_00 19_0 0_10 0_09 17.1 -0.34 -0_65 11_1 0.33 0.53 12.6 -0_01 -0_01 24_4 0_27 0_39 0.0 0_00 0_00 75.0 -0_50 -1_00 37_2 -0_23 -0.28 O~O 0.00 0_00 0_0 0_00 0.00 1.7 -0.21 -0.46 1.4 -0_03 -0_17 0_7 -0_23 -0_49 0_0 0_00 0_00 0_0 0_00 0.00 0_0 0_00 0.00 0_0 0.00 0_00 20_0 0_00 0_00 50_0 0_00 0_00 50.0 0_00 0.00 33_3 0_00 0.00

Page 4

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 207 of 295

6 3705 COMM GEAR/HELDER/1GB LUFP 2000

6 3705 COMM GEAR/WELDER/1GB LUFP 2001

6 3705 COMM GEAR/WELDER/1GB LUFP 2005

6 3708 MASTER HEAT SPEC

13 1999

6 3708 MASTER HEAT SPEC

13 2001

6 3708 MASTER HEAT SPEC

13 2005

6 3709 ASSEMBLY MASTER

LUFO 2002

6 3709. ASSEMBLY MASTER

LUFO 2005

6 4668 ASSEMB CL A SPEC

LUFO 1997

6 4668 ASSEMB CL A SPEC

LUFO 2005

6 4702 MAINT MECH SPECIALIS 15 1997

6 4702 MAINT MECH SPECIALIS 15 2005

. 6 4704 MAINT MECH CLASS B LUFO 2001

6 4704 MAINT MECH CLASS B LUFO 2005

6 4707 ASSEMBLER CLASS I

12 2002

6 4707 ASSEMBLER CLASS I

12 2005

6 4711 DISTRIBUTION SPECIAL LUFO 2001

6 4711 DISTRIBUTION SPECIAL LUFO 2005

6. 5700 WELDER-CLASS A

LUFT 1995

6 5700 WELDER-CLASS A

LUFT 1997

6 5700 WELDER-CLASS A

LUFT 2000

6 5700 WELDER-CLASS A

LUFT 2001

6 5700 'WELDER-CLASS A

LUFT 2005

6 5703 SHEET METAL WORKER

15 1995

6 5703 SHEET METAL WORKER

15 2005

6 5704 STRUCTURAL WORKER-CL LUFT 1997

6 5704 STRUCTURAL WORKER-CL LUFT 1998

6 5704 STRUCTURAL WORKER-CL LUFT 2000

6 5704 STRUCTURAL WORKER-CL LUFT 2001

6 5704 STRUCTURAL WORKER-CL LUFT 2005

6 5733 MACH OPER STRUCT IV LUFP 2001

6 5733 MACH OPER STRUCT IV LUFP 2002

6 5733 MACH OPER STRUCT IV LUFP 2005

6 5736 MACH OPER STRUCT III LUFP 1997

6 5736 MACH OPER STRUCT III LUFP 2000

6 5736 MACH OPER STRUCT III LUFP 2001

6 5736 MACH OPER STRUCT III LUFP 2005

6 5747. HOT GEAR WELDER

13 1999

6 5747 HOT GEAR WELDER

13 2005

6 5748 MAINT MECH SPECIALIS LUFO 2002

6 5748 MAINT MECH SPECIALIS LUFO 2005

6 6732 MOLDING MACH OP-CLAS 11 1994

6 6732 MOLDING MACH OP-CLAS 11 1996

6 6732 MOLDING MACH OP-CLAS 11 1997

6 6732 MOLDING MACH OP-CLAS 11 1998

6 6732 MOLDING MACH OP-CLAS 11 2000

6 6732 MOLDING MACH OP-CLAS 11 2002

6 6732 MOLDING MACH OP-CLAS 11 2005

6 6735 MOLDER FINISHER&CORE 11 1994

6 6735 MOLDER FINISHER&CORE 11 1996

6 6735 MOLDER FINISHER&CORE 11 2005

6 6740 CRANE OPERATOR-FDRY

11 1994

6 6740 CRANE OPERATOR-FDRY

11 1995

6 6740 CRANE OPERATOR-FDRY

11 1996

6 6740 CRANE OPERATOR-FDRY

11 1997

6 6740 CRANE OPERATOR-FDRY

11 1998

6 6740 CRANE OPERATOR-FDRY

11 1999

6 6740 CRANE OPERATOR-FDRY

11 2000

6 6740 CRANE OPERATOR-FDRY

11 2001

6 6740 CRANE OPERATOR-FDRY

11 2005

6 6746 CORE MACH OP-CLASS A LUFF 1995

6 6746 CORE MACH OP-CLASS A LUFF 1996

6 6746 CORE MACH OP-CLASS A LUFF 1997

6 6746 CORE MACH OP-CLASS A LUFF 2000

6 6746 CORE MACH OP-CLASS A LUFF 2001

Appendix 9

1 1

1 1

2 2

1. 1
1 o

2 1

1 1

1 1

1 1

1 1

4. 4

4 4
1 o 1 o

2 1

2 1
3 o 3 o

2 1

1 1

4 3

4

1

11 6

1 1

1

1

5 3
1 o

4 3

4

1

14 7

7 5

7 5

14 10

3 2

3 2

4 2

10 6

2 1

2

1

1 1

1 1

4 1
2 o 4 o

3 1
2 o 1 o

16 2

2 1
1 o

3 1

1 1
6 o 2 o

7 2
1 o 4 o 6 o 1 o

28 3
2 o 1 o 2 o 1 o 4 o

o 0_0 0_0 o 0_0 0.0 o 0_0 0_0
o 0_0 0_0

1 100_0 50_0

1 50_0 25.0
o 0.0 0_0 o 0_0 0.0 o 0.0 0.0 o 0.0 0.0 o 0_0 0_0 o 0_0 0_0

1 100_0 100.0

1 100_0 100.0

1 50_0 25.0

1 50_0 25.0

3 100_0 83.3

3 100.0
o 0.0 o 0_0 o 0_0

83_3 0_0 0_0 6_3

1 25_0 25_0

1 9.1 11_4
o 0.0 0_0 o 0.0 0_0

1 20.0 20_0

1 100.0 100.0
o 0_0 0.0

1 25.0 25_0

3 21.4 21.4

1 14_3 26.2

1 14.3 14.3

2 14.3 20_2

1 33_3 33.3

1 33.3 33.3

2 50_0 50.0

4 40_0 40.0

1 50.0 23.6

1 50_0 23_6
o 0.0 50.0 o 0.0 50_0

2 50_0 37.5
o 0.0 25_0

125.0 52_1

1 33_3 40_0
o 0.0 0_0 o 0.0 0.0

4 25_0 33_0
o 0_0 33.3

1 100.0 50.0

1 33_3 38.9
o 0_0 0.0

1 16_7 21.7
o 0_0 0.0

2 28_6 27.4
o 0_0 0_0

1 25.0 25.0
o 0.0 0_0 o 0.0 0.0

4 14.3 15_1
o 0.0 0.0 o 0 _0 0_0.

1 50.0 50_0
o 0_0 0.0

2 50_0 25_0

0_00 0_00 0.00 0.00 0.00 0_00 (L 00 0_00 0_50 LaO 0.50 LOO 0_00 0_00 0_00 0_00 0_00 0.00 0.00 0_00 0_00 0.00 0_00 0.00 0.00 0.00 0_00 0_00 0.50 1_00 0_50 1_00 0_50 0_82 0_50 0_82 0.00 0_00 0.00 0_00 -0_25 -0.58 0.00 0.00 -0~25 -0.58 0_00 0.00 0_00 0.00 0.00 0'.00 0.00 0.00 0_00 0.00 0_00 0.00 0_00 0.00 -0_83 -0.78 0_00 0.00 -0.83 -0_78 0.00 0_00 0_00 0_00 0_00 0.00 0.00 0_00 0.53 0_88 0.53 0.88 -0_50 -1.00 -0_50 -1.00 0_50 1_00 -0_50 -1_00 -1.08 -1_33 -0_20 -0.50 0_00 0.00 0.00 0_00 -1_28 -1_12 -0.67 -1_41 0.50 1.00 -0.17 -0.24 0.00 0_00 -0_30 -0.32 0.00 0.00 0_08 0.10 0_00 0.00 0_00 0.00 0_00 0_00 0_00 0.00 -0_22 -0.18 0_00 0.00 0.00 0.00 0_00 0.00 0.00 0_00 1.00 1.41

Page 5

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 208 of 295

6 6746 CORE MACH OP-CLASS A LUFF 2005

6 6748 CORE FINISHER

11 1995

6 6748 CORE FINISHER

11 2005

6 6766 FDRY MECHANIC A

LUFO 1994

6 6766 FDRY MECHANIC A

LUFO 1995

6 6766 FDRY MECHANIC A

LUFO 1996

6 6766 FDRY MECHANIC A

LUFO 1997

6 6766 FDRY MECHANIC A

LUFO 1998

6 6766 FDRY MECHANIC A

LUFO 1999

6 6766 FDRY MECHANIC A

LUFO 2000

6 6766 FDRY MECHANIC A

LUFO 2005

6 6772 WELDER CLASS A-FDRY LUFF 1996

6 6772 WELDER CLASS A-FDRY LUFF 2005

6 6784 CHIPPER GRINDER FINI LUFT 1994

6 6784 CHIPPER GRINDER FINI LUFT 1995

6 6784 CHIPPER GRINDER FINI LUFT 1996

6 6784 CHIPPER GRINDER FINI LUFT 1997

6 6784 CHIPPER GRINDER FINI LUFT 1998

6 6784 CHIPPER GRINDER FINI LUFT 1999

6 6784 CHIPPER GRINDER FINI LUFT 2000

6 6784 CHIPPER GRINDER FINI LUFT 2001

6 6784 CHIPPER GRINDER FINI LUFT 2005

6 6791 ELECTRICIAN CL B

LUFF 1994

6 6791 ELECTRICIAN CL B

LUFF 2005

6 6798 MELTER A

11 1991

6 6798 MELTER A

11 1998

6 6798. MELTER A

11 1999

6 6798 MELTER A

11 2001

6 6798 MELTER A

11 2002

6 6798 MELTER A

11 2005

6 6801 MASTER FOUNDRYMAN

11 1996

6 6801 MASTER FOUNDRYMAN

11 1997

6 6801 MASTER FOUNDRYMAN

11 1998

6 6801 MASTER FOUNDRYMAN

11 2000

6 6801 MASTER FOUNDRYMAN

11 2005

6 6804 PATTERN TENDER CL A

11 1999

6 6804 PATTERN TENDER CL A

11 2005

6 6806 MASTER MAINTENANCEMA 11 1995

6 6806 MASTER MAINTENANCEMA 11 1991

6 6806 MASTER MAINTENANCEMA 11 2005

6 6808 HVAC SPECIALIST

LUFF 1995

6 6808 HVAC SPECIALIST

LUFF 1998

6 6808 HVAC SPECIALIST

LUFF 2005

6 6809 IMPACT MOLD MACHINE

11 1995

6 6809 IMPACT MOLD MACHINE

11 1996

6 6809 IMPACT MOLD MACHINE

11 2005

6 6813 CORESETTER

11 1996

6 6813 CORESETTER

11 1997

6 6813 CORESETTER

11 2000

6 6813 CORESETTER

11 2001

6 6813 CORESETTER

11 2005

6 6815 CUPOLA OPERATOR

11 1996

6 6815 CUPOLA OPERATOR

11 1997

6 6815 CUPOLA OPERATOR

11 2000

6 6815 CUPOLA OPERATOR

11 2001

6 6815 CUPOLA OPERATOR

11 2005

6 6819. MASTER MECHANIC

11 1997

6 6819 MASTER MECHANIC

11 2005

6 7800 PAT MKR, WOOD CL A

11 1995

6 7800 PAT MKR, WOOD CL A

11 1996

6 7800 PAT MKR, WOOD CL A

11 1997

6 7800 PAT MKR, WOOD CL A

11 1999

6 7800 PAT MKR, WOOD CL A

11 2002

6 7800 PAT MKR, WOOD CL A

11 2005

6 7801 PAT MKR, WOOD CL B LUFF 1991

Appendix 9
10 o 3 30.0 20.0 1.00 1.41 1 1 o 0.0 30.0 -0.30 -0.65 1 1 o 0.0 30.0 -0.30 -0.65
2 1 1 50.0 4~_7- 0.17 0.24
3 3 0 0.0 8.9 -0.27 -0.61
1 1 0 0.0 36.7 -0.37 -0.76
3 2 0 0.0 0.0 0.00 0.00
2 1 00.0 0.0 0.00 0.00
1 1 0 0.0 0.0 0.00 0.00
1 1 0 0.0 0.0 0.00 0.00
13 10 1 7.7 11.3 -0.47 -0.49
2 1 0 0.0 0.0 0.00 0.00
2 1 0 0.0 0.0 0.00 0.00
3 0 0 0.0 10.6 -0.32 -0.60
4 0 1 25.0 34.2 -0.37 -0.66
7 1 0 0.0 13.0 -0.91 -1.05
1 0 1 100.0 33.3 0.67 1.41
3 1 0 0.0 17.3 -0.52 -0.80
2 0 0 0.0 12.5 -0.25 -0.58
2 0 0 0.0 0.0 0.00 0.00
51 11 11 21.6 35.8 -7.24 -2.15
73 13 13 17.8 30.1 -8.94 -2.43
1 o o 0.0 0.0 0.00 0.00 1 o o 0.0 0.0 0.00 0.00
5 1 1 20.0 20.0 0.00 0.00
1 o 1 100.0 50.0 0.50 1. 00 1 o o 0.0 10.5 -0.11 -0.34
5 1 2 40.0 19.0 1.05 1.36
2 1 o 0.0 11.0 -0.22 -0.50
14 3 4 28.6 19.8 1.23 0.96
1 o 1 100.0 100.0 0.00 0.00 1 o 1 100.0 100.0 0.00 0.00 1 1 o 0.0 42.9 -0.43 -0.87 2 o 1 50.0 62.5 -0.25 -0.38
5 1 3 60.0 13.6 -0.68 -0.82
1 1 o 0.0 0.0 0.00 0.00 1 1 o 0.0 0.0 0.00 0.00 1 1 o 0.0 0.0 0.00 0.00 2 2 o 0.0 25.0 -0.50 -1.00 3 3 o 0.0 16.7 -0.50 -1.00 1 1 o 0.0 0.0 0.00 0.00 1 1 o 0.0 0.0 0.00 0.00 2 2 o 0.0 0.0 0.00 0.00 1 o o 0.0 0.0 0.00 0.00
2 1 1 50.0 50.0 0.00 0.00
3 1 1 33.3 33.3 0.00 0.00
7 2 3 42.9 41.3 0.11 0.09
1 o o 0.0 37.5 -0.38 -0.77 1 o o 0.0 37.5 -0.38 -0.77 2 o o 0.0 0.0 0.00 0.00
11 2 3 27.3 33.1 -0.64 -0.47
1 o 1 100.0 57.1 0.43 0.87 1 o 1 100.0 45.5 0.55 1.10 1 o o 0.0 42.9 -0.43 -0.87 1 1 o 0.0 50.0 -0.50 -1.00
4 1 2 50.0 48.9 0.05 0.05
4 3 1 25.0 37.3 -0.49 -0.86
4 3 1 25.0 37.3 -0.49 -0.86
1 1 o 0.0 0.0 0.00 0.00 1 o o 0.0 0.0 0.00 0.00 1 1 o 0.0 0.0 0.00 0.00 1 1 o 0.0 50.0 -0.50 -1.00 1 o 1 100.0 100.0 0.00 0.00
5 3 1 20.0 30.0 -0.50 -1.00
1 o 1 100.0 100.0 0.00 0.00

Page 6

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 209 of 295

6 7801 PAT MKR, WOOD CL BLUFF 2005

6 7804 PAT MKR,METAL CL A

11 1995

6 7804 PAT MKR,METAL CL A

11 2001

6.. 7804 PAT MKR, METAL CL A

11 2005

6 7812 MASTER PATTERNMAKER LUFF 1994

6 7812 MASTER PATTERNMAKER LUFF 2005

6 7814 PATTERN TENDER CL A LUFF 2001

6 7814 PATTERN TENDER CL A LUFF! 2002

6 7814 PATTERN TENDER CL A LUFF 2005

6 9900 TRAILER BUILDER SPEC 90 1994

6 9900 TRAILER BUILDER SPEC 90 1996

6 9900 TRAILER BUILDER SPEC 90 1997

6 9900 TRAILER BUILDER SPEC 90 1998

6 9900 TRAILER BUILDER SPEC 90 1999

6 9900 TRAILER BUILDER SPEC 90 2000

6 9900. TRAILER BUILDER SPEC 90 2002

6 9900 TRAILER BUILDER SPEC 90 2005

6 9903 WELDER-SPECIALIST

90 1994

6 9903 WELDER-SPECIALIST

90 1995

6 9903 WELDER-SPECIALIST

90 1996

6 9903 WELDER-SPECIALIST

90 1997

6 9903 WELDER-SPECIALIST

90 1999

6 9903 WELDER-SPECIALIST

90 2000

6 9903 WELDER-SPECIALIST

90 2001

6 9903 WELDER-SPECIALIST

90 2002

6 9903 WELDER-SPECIALIST

90 2005

6 9907 INSPECTOR

90 1994

6 9907 INSPECTOR

90 1995

6 9907 INSPECTOR

90 1997

6 9907 INSPECTOR

90 1998

6 9907 INSPECTOR

90 1999

6 9907 INSPECTOR

90 2000

6 9907 INSPECTOR

90 2001

6 9907 INSPECTOR

90 2005

6 9909 DECOIL MACHINE OPERA 90 2002

6 9909 DECOIL MACHINE OPERA 90 2005

6 9914 MATERIAL HANDLER SPE 90 1997

6 9914 MATERIAL HANDLER SPE 90 1999

6 9914 MATERIAL HANDLER SPE 90 2002

6 9914 MATERIAL HANDLER SPE 90 2005

6 9917 MAINT, ELECTRICAL-CL 90 1997

6 9917 MAINT, ELECTRlCAL-CL 90 2005

6 9919 MAINT, MECHANIC-CLAS 90 1994

6 9919 MAINT, MECHANIC-CLAS 90 1995

6 9919 MAINT, MECHANIC-CLAS 90 1996

6 9919 MAINT, MECHANIC-CLAS 90 1997

6 9919 MAINT, MECHANIC-CLAS 90 1998

6 9919 MAINT, MECHANIC-CLAS 90 2005

6 9924 MACH OP SPECIALIST LUFT 1996

6 9924 MACH OP SPECIALIST LUFT 1997

6 9924 MACH OP SPECIALIST LUFT 1998

6 9924 MACH OP SPECIALIST LUFT 1999

6 9924 MACH OP SPECIALIST LUFT 2002

6 9924 MACH OP SPECIALIST LUFT 2005

6 9926 CNC MACHINE OPERATOR LUFT 1995

6 9926 CNC MACHINE OPERATOR LUFT 1999

6 9926 CNC MACHINE OPERATOR LUFT 2002

6 9926 CNC MACHINE OPERATOR LUFT 2005

6 9984 CERTIFIED GEAR REPAI 17 1997

6 9984 CERTIFIED GEAR REPAI 17 1998

6 9984 CERTIFIED GEAR REPAI 17 2005

7 2001 TB PARTSMAN

90 1998

7 2001 TB. PARTSMAN

90 1999

7 2001 TB PARTSMAN

90 2005

7 3619 MACHINIST HELPER

13 1995

Appendix 9

1 o

1 1

1

1

2 2

1 1

1 1
1 o
1 o 2 o

2 2

4 2

14 10

2 1

4 3
1 o

3 2

30 20

2 1

3 .3

27 14

3 3

17 15

6 4

2 2

3 3

63 45

2 2

4 4

4 4
1 o

2 2

1 1
2 o

16 13
1 o 1 o 2 o

1 1
1 o

4 1
1 o 1 o

2 2

2 2

2 1

3 3

1 1

10 9

2 1

3 0

1 0

1 1

2 0

9 2

3 1

1 0

1 1

5 2

9 7

3 3

12 10

1

1

2 2

3 3

1 1

1 100.0 100.0
o 0.0 0.0 o 0.0 0.0 o 0.00.0 o 0.0 0.0 o 0.0 0.0 o 0.0 0.0
1 100.0 50.0
1 50.0 25.0
o 0.0 18.2
2 50.0 19.0
3 21.4 18.8
1 50.0 23.3
1 25.0 17.3
o 0.0 20.0 o 0.0 17.2
7 23.3 18.8
1 50.0 23.2
o 0.0 19.9
5 18.5 17.6
o 0.0 8.8
2 11.8 17.4
o 0.0 9.9 o 0.0 25.0 o 0.0 0.0
8 12.7 16.1
o 0.0 25.0 o 0.0 24.2
o 0.0 40.2
1 100.0 36.4
o 0.0 34.5 o 0.0 50.0
2 100.0 50.0
3 18.8 35.2
1 100.0 100.0
1 100.0 100.0
1 50.0 50.0
o 0.0 0.0
1 100.0 100.0
2 50.0 50.0
o 0.0 0.0 o 0.0 0.0 o 0.0 0.0 o 0.0 0.0 o 0.0 35.0 o 0.0 37.6 o 0.0 14.6 o 0.0 19.7
1 50.0 80.0
2 66.7 77.8
o 0.0 25.0 o 0.0 14.3
2 100.0 100.0
5 55.6 70.3
1 33.3 42.2
o 0.0 16.7 o 0.0 0.0
1 20.0 28.7
1 11.1 10.7
o 0.0 7.5
1 8.3 9.9
o 0.0 0.0 o 0.0 36.5 o 0.0 24.4 o 0.0 0.0

0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.50 1.00 0.50 1.00 -0.36 -0.67 1.24 1.58 0.37 0.26 0.53 0.89 0.31 0.43 -0.20 -0.50 -0.52 -0.83 1.37 0.65 0.54 0.90 -0.60 -0.87 0.26 0.14 -0.26 -0.54 -0.96 -0.63 -0.60 -0.90 -0.50 -0.82 0.00 0.00 -2.12 -0.77 -0.50 -1.00 -0.97 -1.25 -1.61 -1.67 0.64 1.32 -0.69 -1.03 -0.50 -1.00 1.00 1.41 -2.63 -1.47 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 -0.70 -1.04 -1.13 -1.37 -0.15 -0.41 -1.97 -1.76 -0.60 -1.22 -0.33 -0.71 -0.25 -0.58 -0.14 -0.41 0.00 '0.00 -1.33 -1.51 -0.27 -0.39 -0.17 -U.45 0.00 0.00 -0.43 -0.56 0.04 0.04 -0.23 -0.49 -0.19 -0.18 0.00 0.00 -0.73 -1.12 -0.73 -1.12 0.00 0.00

Page 7

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 210 of 295

Appendix 9

7 3619 MACHINIST HELPER

13 1996 13 10 2 15.4 17.3 -0.25 -0.19

7 3619 MACHINIST HELPER

13 1997

6 4 2 33.3 38.9 -0.33 -0.71

7 3619 MACHINIST HELPER

13 1998

1 1 0 0.0 0.0 0.00 0.00

7 3619 MACHINIST HELPER

132005 21 16 4 19.0 21.8 -0.58 -0.41

7 3625 SPRAY PAINTER

LUFP 1996

1 1 0 0.0 0.0 0.00 0.00

7 3625 SPRAY PAINTER

LUFP 2005

1 1 0 0.0 0.0 0.00 0.00

7 3645 MACHINE OPERATOR-CLA 13 1994

4 2 2 50.0 50.0 0.00 0.00

7 3645 MACHINE OPERATOR-CLA 13 1995

8 5 3 37.5 51.7 -1.13 -1.38

7 3645 MACHINE OPERATOR-CLA 13 1996

6 4 2 33.3 31.7 0.10 0.13

7 3645 MACHINE OPERATOR-CLA 13 1997

7 4 3 42.9 32.9 0.70 0.74

7 3645 MACHINE OPERATOR-CLA 13 1998

2 2 0 0.0 9.1 -0.18 -0.45

7 3645 MACHINE OPERATOR-CLA 13 2000

2 1 0 0.0 0.0 0.00 0.00

7 3645 MACHINE OPERATOR-CLA 13 2001

8 2 3 37.5 21.2 1.30 1.15

7 3645 MACHINE OPERATOR-CLA 13 2002

1 1 0 0.0 0.0 0.00 0.00

7 3645 MACHINE OPERATOR-CLA 13 2005 38 21 13 34.2 32.2 0.78 0.41

7 3648 MACH OP TRAINEE

13 1994

3 2 0 0.0 40.0 -1.20 -1.41

7 3648 MACH OP TRAINEE

13 1995 28 25 3 10.7 35.0 -6.81 -3.01

7 3648 MACH OP TRAINEE

13 1996 29 22 4 13.8 19.8 -1. 74 -0.83

7 3648 MACH OP TRAINEE

13 1997 31 28 2 6.5 11.2 -1.47 -1.53

7 3648 MACH OP TRAINEE

13 1998

2 0 1 50.0 26.8 0.46 0.74

7 3648 MACH OP TRAINEE

13 2000 15 7 2 13.3 13.3 0.00 0.00

7 3648 MACH OP TRAINEE

13. 2001

4 3 1 25.0 53.6 -1.14 -1.18

7 3648 MACH OP TRAINEE

13 2005 112 87 13 11.6 22.2 -11.89 -3.37

7 3657 MAINT MECH CLASS B LUFP 1995

2 2 0 0.0 0.0 0.00 0.00

7 3657 MAINT MECH CLASS B LUFP 1998

1 1 0 0.0 0.0 0.00 0.00

7 3657 MAINT MECH CLASS B LUFP 2001

2 2 0 0.0 0.0 0.00 0.00

7 3657 MAINT MECH CLASS B LUFP 2005

5 5 0 0.0 0.0 0.00 0.00

7 3658 MAINT MECH CLASS C 7 3658 MAINT MECH CLASS C

13 1994 13 2000

1 1 0 0.0 40.0 -0.40 -0.82
1 o 1 100.0 100.0 0.00 0.00

7 3658 MAINT MECH CLASS C 7 3660 HEAT TREAT HELPER 7 3660 HEAT TREAT HELPER 7 3660 HEAT TREAT HELPER 7 3660 HEAT TREAT. HELPER 7 3695 ASSEMBLER TRAINEE 7 3695 ASSEMBLER TRAINEE 7 3695 ASSEMBLER TRAINEE 7 3695 ASSEMBLER TRAINEE 7 3695 ASSEMBLER TRAINEE

13 2005 13 1994 13 1995 13 1997 13 2005 LUFP 1994 LUFP 1995 LUFP 1996 LUFP 1997 LUFP 2000

2 1 1 50.0 70.0 -0.40 -0.82
1 1 o 0.0 40.0 -0.40 -0.82 1 1 o 0.0 0.0 0.00 0.00
1 1 o 0.0 0.0 0.00 0.00
3 3 o 0.0 13.3 -0.40 -0.82
2 2 o 0.0 18.2 -0.36 -0.76 1 o 1 100.0 60.0 0.40 0.82 6 6 o 0.0 14.5 -0.87 -1.11 2 2 o 0.0 25.0 -0.50 -1.00 1 1 o 0.0 0.0 0.00 0.00

7 3695 ASSEMBLER TRAINEE

LUFP 200512 11

7 3697 FINISH PAINTER

13 1996

3 2

7 3697 FINISH PAINTER

13 1998

1 1

7 3697 FINISH PAINTER

13 2005

4 3

7 3703 DISTRIBUTION HANDLER LUFP 1998 7 3703 DISTRIBUTION HANDLER LUFP 2000

2 2
1 o

1 8.3 19.5
o 0.0 0.0 o 0.0 0.0 o 0.0 0.0 o 0.0 0.0
1 100.0 100.0

-1.34 -1.15 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00

7 3703 DISTRIBUTION HANDLER LUFP 2001 7 3703 DISTRIBUTION HANDLER LUFP 2002

6 2 4 66.7 58.3 0.50 0.52
1 1 o 0.0 0.0 0.00 0.00

7 3703 DISTRIBUTION HANDLER LUFP 2005 10 5 5 50.0 45.0 0.50 0.52

7 3707 ASSEMBLER CLASS II LUFO 2000

1 1 o 0.0 0.0 0.00 0.00

7 3707 ASSEMBLER CLASS II LUFO 2001

2 2 o 0.0 0.0 0.00 0.00

7 3707 ASSEMBLER CLASS II LUFO 2005

3 3 o 0.0 0.0 0.00 0.00

7 4676 SPRAY PAINTER

LUFO 2000

1 1 o 0.0 0.0 0.00 0.00

7 4676 SPRAY PAINTER

LUFO 2005

1 1 o 0.0 0.0 0.00 0.00

7 4700 CARPENTER/CRATING

LUFO 1997

1 1 o 0.0 0.0 0.00 0.00

7 4700 CARPENTER/CRATING

LUFO 2005

1 1 o 0.0 0.0 0.00 0.00

7 4701 FINISH PAINTER

LUFO 2001

1 1 o 0.0 0.0 0.00 0.00

7 4701 FINISH PAINTER

LUFO 2005

1 1 o 0.0 0.0 0.00 0.00

7 4708 ASSEMBLER CLASS II LUFO 2000 15 5 9 60.0 60.0 0.00 0.00

7 4708 ASSEMBLER CLASS II LUFO 2001

5 4 o 0.0 0.0 0.00 0.00

7 4708 ASSEMBLER CLASS II LUFO 2005 20 9 9 45.0 45.0 0.00 0.00

7 4709 ASSEMBLER TRAINEE

LUFO 2000

1 o 1 100.0 100.0 0.00 0.00

7 4709 ASSEMBLER TRAINEE

LUFO 2005

1 o 1 100.0 100.0 0.00 0.00

7 4712 DISTRIBUTION HANDLER LUFO 2000

3 1 2 66.7 66.7 0.00 0.00

7 4712 DISTRIBUTION HANDLER LUFO 2005 7 5705 STRUCTURAL WORKER-CL LUFO 1997

3 1 2 66.7 66.7 0.00 0.00
1 1 o 0.0 0.0 0.00 0.00

Page 8

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 211 of 295

Appendix 9

7 5705 STRUCTURAL WORKER-CL LUFO 2005

7 5711 BC/CG MAKER

02 1994

7 5711 BC/CG MAKER

02 2000

1 1 o 0.0 0.0 1 1 o 0.0 0.0 2 o 1 50.0 50.0

7 5711. BC/CGMAKER

022005· . 3 .1 1 33.3 33.3

7 5732 MACH OPER STRUCTII LUFO 1997 7 5732 MACH OPER STRUCT II LUFO 2000

2 1 1 50.0 50.0
1 1 o 0.0 0.0

7 5732 MACHOPER STRUCT II LUFO 2001

3 o 3 100.0 66.7

7 5732 MACH OPER STRUCT II LUFO 2005

7 5738 SPRAY PAINTER

13 1997

6 2 4 66.7 50.0
1 1 o 0.0 0.0

7 5738 SPRAY PAINTER

13 2005

7 5744 FORK LIFT SPECIALIST LUFO 2001

7 5744 FORK LIFT SPECIALIST LUFO 2005

7 5745 PARTS FINISHER CLASS LUFP 1999

7 5745 PARTS FINISHER CLASS LUFP 2001

1 1 o 0.0 0.0 1 1 o 0.0 0.0 1 1 o 0.0 0.0 1 1 o 0.0 0.0 1 1 o 0.0 0.0

7 5745 PARTS FINISHER CLASS LUFP 2005 7 6730 SAND RECLAIMER OPERA 11 1995

2 2 o 0.0 0.0 4 o o 0.0 20.8

7 6730 SAND RECLAIMER OPERA 11 1998

1 o 1 100.0 100.0

7 6730 SAND RECLAIMER OPERA 7 6733 MoLDING MACH OP-CLAS 7 6733 MOLDING MACH OP-CLAS

11 2005 11 1994 11 1996

5 o 1 20.0 36.7 4 o o 0.0 4.4 2 1 o 0.0 0.0

7 6733 MOLDING MACH OP-CLAS 7 6733 MOLDING MACH OP-CLAS

11 1997 11 1998

5 1 1 20.0 24.8
1 o o 0.0 39.4

7 6733 MOLDING MACH OP-CLAS 11 2001

3 2 1 33.3 37.9

7 6733 MOLDING MACH OP-CLAS 11 2005 15 4 2 13.3 19.7

7 6736 SHAKEOUT OPERATOR

LUFF 1994

2 1 o 0.0 0.0

7 6736 SHAKEOUT OPERATOR

LUFF 2000

7 6736 SHAKEOUT OPERATOR

LUFF 2005

7 6741 CRANE OP LEARNER-FDR LUFT 1994

1 o o 0.0 0.0 3 1 o 0.0 0.0 5 1 o 0.0 0.0

7 6741 CRANE OP LEARNER-FDR LUFT 1995

1 1 o 0.0 0.0

7 6741 CRANE OP LEARNER-FDR LUFT 1996

5 2 2 40.0 27.8

7 6741 CRANE OP LEARNER-FOR LUFT 1997 7 6741 CRANE OP LEARNER-FOR LUFT 1998

5 1 2 40.0 33.1
3 o 2 66.7 28.0

7 6741 CRANE OP LEARNER~FDR LUFT 1999

1 o o 0.0 47.6

7 6741 CRANE OP LEARNER-FOR LUFT 2000

6 o 1 16.7 20.4

7 6741 CRANE OP LEARNER-FDR LUFT 2001

1 1 o 0.0 38.9

7 6741 CRANE OP LEARNER-FDR LUFT 2005 27 6 7 25.9 22.1

7,6742 DRILL PRESS OPERATOR 11 1994

1 1 o 0.0 0.0

7 6742 DRILL PRESS OPERATOR 11 1995

1 1 o 0.0 0.0

7 6742 DRILL PRESS OPERATOR 11 1996

2 2 o 0.0 23.1

7 6742 DRILL PRESS OPERATOR 7 6742 DRILL PRESS OPERATOR

11 2001 11 2005

1 o o 0.0 14.3 5 4 o 0.0 12.1

7 6143 FORK LIFT TOW MOTOR

11 1994

5 2 1 20.0 26.7

7 6743 FORK LIFT TOW MOTOR

11 1995

9 4 1 11.1 29.0

7 6743 FORK LIFT TOW MOTOR

11 1996 10 2 2 20.0 32.8

7 6743 FORK LIFT TOW MOTOR 7 6743 FORK LIFT TOW MOTOR

11 1997 11 1998

9 2 2 22.2 18.1
6 o 3 50.0 37.9

7 6743 FORK LIFT TOW MOTOR

11 2000

6 2 1 16.7 16.7

7 6743 FORK LIFT TOW MOTOR

11 2001

2 o o 0.0 42.7

7 6743 FORK LIFT TOW MOTOR

11 2005 47 12 10 21.3 27.6

7 6747 CORE MACH OP-CLASS B 7 6747 CORE MACH OP-CLASS B

11 1994 11 1995

4 1 1 25.0 5.6
2 o o 0.0 12.5

7 6147 CORE MACH OP-CLASS B 11 1996

1 o o 0.0 0.0

7 6747 CORE MACH OP-CLASS B 11 1997

6 2 1 16.7 12.2

7 6747 CORE MACH OP-CLASS B 7 6747. CORE MACH OP-CLASS B

11 2000 11 2001

1 o o 0.0 0.0 5 o 2 40.0 20.8

7 6747 CORE MACH OP-CLASS B 11 2005 19 3 4 21.1 11.8

7 6752 CLEANING MACH OPER

11 1995

1 o o 0.0 25.0

7 6752 CLEANING MACH OPER

11 1996

1 o o 0.0 5.9

7 6752 CLEANING MACH OPER 7 6752 CLEANING MACH OPER 7 6752 CLEANING MACH OPER

11 1997 11 1998 11 2005

1 o o 0.0 50.0 1 o o 0.0 37.5 4 o o 0.0 29.6

7 6754 CHIPPER GRINDER

LUFT 1994

8 1 o 0.0 4.2

7 6754 CHIPPER GRINDER

LUFT 1995 12 o 1 8.3 30.6

7 6754 CHIPPER GRINDER

LUFT 1996 43 4 13 30.2 28.2

7 6754 CHIPPER GRINDER.

LUFT 1997 23 7 8 34.8 21.3

0.00 0.00 0.00 0.00 0.00 0.00 0"00 0.00 0.00 0.00 0.00 0.00 1.00 1.41 1.00 1.41 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 -0.83 -1.21 0.00 0.00 -0.83 -1.21 -0.18 -0.43 0.00 0.00 -0.24 -0.26 -0.39 -0.81 -0.14 -0.16 -0.95 -0.68 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.61 0.72 0.35 0.50 1.16 1. 52 -0.48 -0.95 -0.22 -0.50 -0.39 -0.80 1.03 0.65 0.00 0.00 0.00 0.00 -0.46 -0.77 -0.14 -0.41 -0.60 -0.87 -0.33 -0.71 -1.61 -1.23 -1.28 -0.93 0.37 0.34 0.73 0.85 0.00 0.00 -0.85 -1.24 -2.98 -1.19 0.771.74 -0.25 -0.58 0.00 0.00 0.27 0.34 0.00 0.00 0.96 1.19 1.75 1.37 -0.25 -0.58 -0.06 -0.25 -0.50 -1.00 -0.38 -0.77 -1.18 -1.39 -0.33 -0.71 -2.67 -1.68 0.85 0.29 3.10 1.65

Page 9

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 212 of 295

7 6754 CHIPPER GRINDER

LUFT 1998

7 6754 CHIPPER GRINDER

LUFT 1999

7 6754 CHIPPER GRINDER

LUFT 2005-

7 6767 FDRY MECHANIC B

_-LUFF 1994

7 6767 FDRY MECHANIC B

LUFF. 1995

7 6767 FDRY MECHANIC B

LUFF 1996

7 6767 FDRY MECHANIC B

LUFF 1997

7 6767 FDRY MECHANIC B

LUFF 1998

7 6767 FDRY MECHANIC B

LUFF 2005

7 6773 WELDER CLASS B-FDRY LUFF 1995

7 6773 WELDER CLASS B-FDRY LUFF 1998

7 6773 WELDER CLASS B-FDRY LUFF 2000

7 6773 WELDER CLASS B-FDRY LUFF 2005

7 6778 MN BAY MOLD CLOSER LUFF 1996

7 6778 MN BAY MOLD CLOSER LUFF 1997

7 6778 MN BAY MOLD CLOSER LUFF 1998

7 6778 MN BAY MOLD CLOSER LUFF 2000

7 6778 MN BAY MOLD CLOSER LUFF 2001

7 6778 MN BAY MOLD CLOSER LUFF 2005

7 6779 CASTING PAINTER

11 1994

7 6779 CASTING PAINTER

11 1995

7 6779 CASTING PAINTER

11 1996

7 6779. CASTING PAINTER

11 2001

7 6779 CASTING PAINTER

11 2005

7 6785 HYDRAULIC MANIPULATO LUFF 1995

7 6785 HYDRAULIC MANIPULATO LUFF 1996

7 6785 HYDRAULIC MANIPULATO LUFF. 2000

7 6785 HYDRAULIC MANIPULATO LUFF 2005

7 6786 HYD MANIP OPER LEARN LUFF 1995

7 6786 HYD MANIP OPER LEARN LUFF 200-5

7 6797 MELTER B

11 1995

7 6797 MELTER B

11 1996

7 6797 MELTER B

11 1997

7 6797 MELTER B

11 1998

7 6797 MELTER B

11 2000

7 6797 MELTER B

11 2001

7 6797 MELTER B

11 2005

7 6800 STOREKEEPER

11 1994

7 6800 STOREKEEPER

11 1995

7 6800 STOREKEEPER

11 1996

7 6800 STOREKEEPER

11 1997

7 6800 STOREKEEPER

11 1998

7 6800 STOREKEEPER

11 2000

7 6800 STOREKEEPER

11 2005

7 6805 PATTERN TENDER CL B 11 1996

7 6805 PATTERN TENDER CL B 11 2005

7 6807 DIF SHAKEOUT OPERATO 11 1994

7 6807 DIF SHAKEOUT OPERATO 11 2005

7 6810 CASTING FINISHER

LUFF 1996

7 6810 CASTING FINISHER

LUFF 2001

7 6810 CASTING FINISHER

LUFF 2005

7 6611 CLEANING ROOM SPECIA 11 1999

7 6611 CLEANING ROOM SPECIA 11 2005

7 6812 CORE/MOLD FINISHER LUFF 1996

7 6812 CORE/MOLD FINISHER LUFF 1997

7 6812 CORE/MOLD FINISHER LUFF 2000

7 6812 CORE/MOLD FINISHER LUFF 2005

7 6814 CORELESS FURNACE OPE 11 1997

7 6814 CORELESS FURNACE OPE 11 2000

7 6814 CORELESS FURNACE OPE 11 2001.

7 6814 CORELESS FURNACE OPE 11 2005

7 6817 SHIPPING/RECEIVING 0 11 1996

7 6817 SHIPPING/RECEIVING 0 11 2000

7 6817 SHIPPING/RECEIVING 0 11 2005

7 6822 FORK LIFT SPECIALIST 11 1999

Appendix 9
33 5 8 24.2 35.6
1 0 0 0.0 47.6
120 17 30 25.0 27.7
1 0 0 0.0 6,2
1 0 0 0.0 25.0
1 1 0 0.0 0.0
2 2 0 0.0 40.0
1 1 o 0.0 0.0
6 4 o 0.0 18.5
3 1 1 33.3 23.9
1 1 o 0.0 20.0 1 o 1 100.0 100.0
5 2 2 40.0 38.4
4 2 1 25.0 36.2
2 1 o 0.0 16.0 1 1 o 0.0 60.0 1 o o 0.0 0.0 2 1 o 0.0 36.1
10 5 1 10.0 30.9
14 2 4 28.6 22.5
3 1 2 66.7 23.2
1 o o 0.0 10.0 1 o o 0.0 0.0
19 3 6 31.6 20.8
1 1 o 0.0 0.0 1 o 1 100.0 100.0 1 o 1 100.0 100.0
3 1 2 66.7 66.7
1 o 1 100.0 26.8 1 o 1 100.0 26.8
2 1 1 50.0 31.0
1 o o 0.0 35.0
9 1 2 22.2 26.1
3 1 1 33.3 15.3
3 1 1 33.3 33.3
1 o 1 100.0 35.5
19 4 6 31.6 27.0
1 1 o 0.0 0.0
2 1 1 50.0 10.0
1 o o 0.0 0.0 1 o 1 100.0 21.4 1. o o 0.0 50.0 1 1 o 0.0 0.0
7 3 2 28.6 13.1
1 1 o 0.0 36.7 1 1 o 0.0. 36.7 1 o o 0.0 0.0 1 o o 0.0 0.0
15 1 1 6.7 004
1 o 1 100.0 35.5
16 1 2 12.5 2.6
1 o o 0.0 7.7 1 o o 0.0 7.7
8 3 4 50.0 40.9
3 1 o 0.0 17.2 2 1 o 0.0 0.0
13 5 4 30.8 29.2
1 1 o 0.0 50.0 1 1 o 0.0 37.5 1 o o 0.0 60.0 3 2 o 0.0 49.2 1 o o 0.0 25.0 1 1 o 0.0 0.0 2 1 o 0.0 12.5 1 o 1 100.0 33.3

-3.76 -1.39 -0.48 -0.95 -3.29 -0.70 -0.06 -0.26 -0.25 -0.58
0.00 0.00 -0.80 -1.18
0.00 0.00 -1.11 -1.32
0.28 0.42 -0.20 -0.50
0.00 0.00 0.08 0.10 -0.45 -0.76 -0.32 -0.62 -0.60 -1.22 0.00 0.00 -0.72 -1.07 -2.09 -1.82 0.85 0.71 1.30 1.91 -0.10 -0.33 0.00 0.00 2.05 1045 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.73 1.65 0.73 1.65 0.38 0.61 -0.35 -0.73 -0.35 -0.29 0.54 0.94 0.00 0.00 0.65 1.35 0.87 0.54 0.00 0.00 0.80 2.00 0.00 0.00 0.79 1.91 -0.50 -1.00 0.00 0.00 1.09 1.43 -0.37 -0.76 -0.37 -0.76 0.00 0.00 0.00 0.00 0.94 4.12 0.65 1.35 1.59 3.00 -0.08 -0.29 -0.08 -0.29 0_.72 0.62 -0.52 -0.79 0.00 0.00 0.21 0.16 -0.50 -1.00 -0.38 -0.77 -0.60 -1.22 -1048 -1.73 -0.25 -0.58 0.00 0.00 -0.25 -0.58 0.67 1.41

Page 10

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 213 of 295

7 6822 FORK LIFT SPECIALIST 11 2005

7 9901 TRAILER BUILDER-CLAS LUFT 1994

7 9901 TRAILER BUILDER-CLAS LUFT 1995

~ 7 99.01TRAII.ER -BUILDER-CLAS LUFT 1996

7 9901 TRAILER BUILDER-CLAS LUFT 1997

7 9901 TRAILER BUILDER-CLAS LUFT 1998

7 9901 TRAILER BUILDER-CLAS LUFT 1999

7 9901 TRAILER BUILDER-CLAS LUFT 2000

7 9901 TRAILER BUILDER-CLAS LUFT 2001

7 9901 TRAILER BUILDER-CLAS LUFT 2002

7 9901 TRAILER BUILDER-CLAS LUFT 2005

7 9902 TRAILER BUILDER-CLAS 90 1994

7 9902 TRAILER BUILDER-CLAS 90 1996

7 9902 TRAILER BUILDER-CLAS 90 1998

7 9902 TRAILER BUILDER-CLAS 90 2002

7 9902 TRAILER BUILDER-CLAS 90 2005

7 9904 WELDER-CLASS A

LUFT 1994

7 9904 WELDER-CLASS A

LUFT 1995

7 9904 WELDER-CLASS A

LUFT 1997

7 9904 WELDER-CLASS A

LUFT 1998

7 9904 WELDER-CLASS A

LUFT 1999

7 9904 WELDER-CLASS A

LUFT 2000

7 9904 WELDER-CLASS A

LUFT 2001

7 9904 WELDER-CLASS A

LUFT 2005

7 9905 WELDER-CLASS B

90 1995

7 9905 WELDER-CLASS B

90 1997

7 9905 WELDER-CLASS B

90 1998

7 9905 WELDER-CLASS B

90 1999

7 9905 WELDER-CLASS B

90 2000

7 9905 WELDER-CLASS B

90 2002

7 9905 WELDER-CLASS B

90 2005

7 9910 MACHINE OPERATOR-CLA LUFT 1994

7 9910 MACHINE OPERATOR-CLA LUFT 1995

7 9910 MACHINE OPERATOR-CLA LUFT 1997

7 9910 MACHINE OPERATOR-CLA LUFT 1998

7 9910 MACHINE OPERATOR-CLA LUFT 1999

7 9910 MACHINE OPERATOR-CLA LUFT 2000

7 9910 MACHINE OPERATOR-CLA LUFT 2001

7 9910 MACHINE OPERATOR-CLA LUFT 2005

7 9911 MACHINE OPERATOR-CLA LUFT 1994

7 9911 MACHINE OPERATOR-CLA LUFT 1995

7 9911 MACHINE OPERATOR-CLA LUFT 1997

7 9911 MACHINE OPERATOR-CLA LUFT 1999

7 9911 MACHINE OPERATOR-CLA LUFT 2005

7 9912 PAINTER-CLASS A

90 1994

7 9912 PAINTER-CLASS A

90 1995

7 9912 PAINTER-CLASS A

90 1997

7 9912 PAINTER-CLASS A

90 1998

7 9912 PAINTER-CLASS A

90 1999

7 9912 PAINTER-CLASS A

90 2000

7 9912 PAINTER-CLASS A

90 2001

7 9912 PAINTER-CLASS A

90 2002

7 9912 PAINTER-CLASS A

90 2005

7 9913 PAINTER-CLASS B

LUFT 1994

7 9913 PAINTER-CLASS B

LUFT 1995

7 9913 PAINTER-CLASS B

LUFT 1996

7 9913 PAINTER-CLASS B

LUFT 1997

7 9913 PAINTER-CLASS B

LUFT 1998

7 9913 PAINTER-CLASS B

LUFT 1999

7 9913 PAINTER-CLASS B

LUFT 2005

7 9915 MATERIAL HANDLER-CLA 90 1994

7 9915 MATERIAL HANDLER-CLA 90 1995

7 9915 MATERIAL HANDLER-CLA 90 1997

7 9915 MATERIAL HANDLER-CLA 90 1998

7 9915 MATERIAL HANDLER-CLA 90 1999

Appendix 9

1 0

37 24

42 25

8 4

80 50

94 65

70 37

21 9

9 5

13 7

374 226

4 3
2 o 2 o

2 1

10 4

3 2

20 13

22 18

11 9

6

3

13 7

1 1

76 53

8 6

7 3

2

1

4

1

3 1
1 o

25 12

2 1

7 4

7 2

7 5

6 2

4 1
1 o
34 15

1 1

6 4

1

1

3 1

11 7

2 1

4 3

9 5

6 4

4 1

3 2

2 1

1 0

31 17

2 1

13 10

3 1

6 2

1 0

2 1

27 15

4 4

1 0

6 4

5 4

5 3

1 100.0 33.3 0.67 1.41

8 21.6 15.5 2.25 1.04

12 28.6 29.3 -0.32 -0.14

3 37.5 39.6 -0.17 -0.20

19 23.8 36.6 -10.30 -3.01

20 21. 3 37.3 -15.05 -3.40

18 25.7 54.4 -20.10 -5.19

8 38.1 38.0 0.02 0.01

3 33.3 26.7 0.60 1.06

2 15.4 15.4 0.00 0.00

93 24.9 36.4 -43.07 -5.51

1 25.0 32.1 -0.29 -0.58

2 100.0 100.0 0.00 0.00

2 10Q.0 100.0 0.00 0.00

1 50.0 50.0 0.00 0.00

6 60.0 62.9 -0.29 -0.58
o 0.0 14.8 -0.44 -0.72

5 25.0 36.6 -2.31 -1.23

3 13.6 35.5 -4.82 -2.62

1 9.1 23.5 -1.59 -1.17

2 33.3 55.3 -1.32 -1.29

5 38.5 36.3 0.29 0.21
o 0.0 20.0 -0.20 -0.50

16 21.1 34.7 -10.40 -2.98

2 25.0 42.5 -1.40 -1.09

4 57.1 39.0 1.27 1.04

1 50.0 14.3 0.71 1.58

1 25.0 33.3 -0.33 -0.39

1 33.3 42.6 -0.28 -0.62

o 0.0 0.0 0.00 0.00

9 36.0 36.1 -0.02 -0.01
o 0.0 14.3 -0.29 -0.58

1 14.3 17.6 -0.23 -0.55

3 42.9 44.4 -0.11 -0.08

2 28.6 34.7 -0.43 -0.36

2 33.3 33.3 0.00 0.00
o 0.0 6.9 -0.28 -0.62

1 100.0 20.0 0.80 2.00

9 26.5 28.0 -0.53 -0.25
o 0.0 15.0 -0.15 -0.42

2 33.3
o 0.0 o 0.0

44.8 45.5 48.1

-0.69 -0.66 -0.45 -0.91 -1.44 -1.67

2 18.2 43.1 -2.74 -1.84
o 0.0 7.1 -0.14 -0.41

1 25.0 25.0 0.00 0.00

1 11.1 13.1 -0.18 -0.46
o 0.0 24.5 -1.47 -1.45

2 50.0 56.1 -0.24 -0.29
o 0.0 9.6 -0.29 -0.64 o 0.0 20.0 -0.40 -0.71

1 100.0 100.0 0.00 0.00

5 16.1 24.9 -2.72 -1.72

o 0.0 11.1 -0.22 -0.53

2 15.4 33.3 -2.33 -1.44

2 66.7 57.8 0.27 0.39

1 16.7 30.3 -0.82 -0.82
o 0.0 28.6 -0.29 -0.63

1 50.0 16.7 0.67 1.41

6 22.2 32.3 -2.72 -1.26

o 0.0 4~1 -0.16 -0.44

o 0.0 26.9 -0.27 -0.61

1 16.7 37.4 -1.24 -1.41

1 20.0 30.5 -0.52 -0.51

2 40.0 37.3 0.14 0.14

Page 11

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 214 of 295

7 9915 MATERIAL HANDLER-CLA 90 2000

7 9915 MATERIAL HANDLER-CLA 90 2005

7 9918. MAINT, ELECTRICAL-CL 90 1994

7 9918 MAINT, ELECTRICAL-CL 90 1995

7 9918 MAINT, ELECTRICAL-CL 90 2005

7 9920 MAINT, MECHANIC-CLAS 90 1994

7 9920. MAINT, MECHANIC-CLAS 90 2005

7 9930 FORK LIFT OPERATOR LUFT 1997

7 9930 FORK LIFT OPERATOR LUFT 1998

7 9930 FORK LIFT OPERATOR LUFT 1999

7 9930 FORK LIFT OPERATOR LUFT 2000

7 9930 FORK LIFT OPERATOR LUFT 2002

7 9930 FORK LIFT OPERATOR LUFT 2005

7 9933 SHOT BLAST OPERATOR LUFT 20QO

7 9933 SHOT BLAST OPERATOR LUFT 2001

7 9933 SHOT BLAST OPERATOR LUFT 2005

7. 9983 GEAR REPAIR SPECIALI LUFT 1996

7 9983 GEAR REPAIR SPECIALI LUFT 1997

7 9983 GEAR REPAIR SPECIALI LUFT 1998

7 9983 GEAR REPAIR SPECIALI LUFT 1999

7 9983 GEAR REPAIR SPECIALI LUFT 2005

8 0552 MECH HELPER-TRLR BR

90 1997

8 0552 MECH HELPER-TRLR BR

90 2005

8 6768 FDRY MAINT HELPER LUFF 1997

8 6768 FDRY MAINT HELPER LUFF 2000

8 6768 FDRY MAINT HELPER LUFF 2005

8 6796 GENERAL FOUNDRYMAN

11 1994

8 6796 GENERAL FOUNDRYMAN

11 1995

8 6796 GENERAL FOUNDRYMAN

11 1996

8 6796 GENERAL FOUNDRYMAN

11 1998

8 6796 GENERAL FOUNDRYMAN

11 2000

8 6796 GENERAL FOUNDRYMAN

11 2005

8 9922 CLEANER GRINDER

LUFT 1994

8 9922 CLEANER GRINDER

LUFT 1995

8 9922 CLEANER GRINDER

LUFT 1996

8 9922 CLEANER GRINDER

LUFT 1998

8 9922 CLEANER GRINDER

LUFT 1999

8 9922 CLEANER GRINDER

LUFT 2000

8 9922 CLEANER GRINDER

LUFT 2001

8 9922 CLEANER GRINDER

LUFT 2002

8 9922 CLEANER GRINDER

LUFT 2005

Appendix 9

3 0 3 100.0

24 15 1 0

7 29.2
o 0.0

1 0 1 100.0

2 0 1 50.0
1 1 o 0.0 1 1 o 0.0

3 2 1 33.3
2 2 o 0.0 2 o 1 o 1 100.0 1 1 o 0.0

9 5 4 44.4
1 o o 0.0 1 o 1 100.0 2 o 1 50.0 1 1 o 0.0
2 2 o 0.0 4 4 o 0.0 1 1 o 0.0 8 8 o 0.0
1 o 1 100.0 1 o 1 100.0
1 1 o 0.0 1 1 o 0.0 2 2 o 0.0

3 1 2 66.7
4 2 o 0.0 3 1 o 0.0

4 0 2 50.0
1 0 o 0.0

15 4 4 26.7

9 5 3 33.3

14 9 5 35.7

3 2 1 33.3

9 4 4 44.4

9 1 3 33.3

4 1 1 25.0
2 1 o 0.0 2 1 o 0.0

52 24 17 32.7

30.3 29.1 15.8 19:3 17.5
0.0 0.0 30.3 42.9
31.6 0.0
33.7 0.0
25.0 12.5 22.2
0.0 11.3 47.6 14.4 50.0 50.0 17.6 16.7 17.2 22.2
5.0 12.7 26.7
0.0 15.4 13.6 34.9 43.3 33.8 51.3 23.7 10.0
0.0 31.2

2.09 2.63 0.03 0.01 -0.16 -0.43 0.81-. 2.04 0.65 1.21 0.00 0.00 0.00 0.00 0.09 0.13 -0.86 -1.28 1.05 1.49 0.68 1.47 0.00 0.00 0.97 0.75 0.00 0.00 0.75 1.73 0.75 1.73 -0.22 -0.53 0.00 0.00 -0.45 -0.73 -0.48 -0.95 -1.15 -1.28 0.50 1.00 0.50 1. 00 -0.18 -0.46 -0.17 -0.45 -0.34 -0.64 1.33 1.85 -0.20 -0.50 -0.38 -0.69 0.93 1.05 0.00 0.00 1.68 1.27 1.78 1.75 0.11 0.07 -0.30 -0.35 0.96 0.68 -1.62 -1.24 0.05 0.07 -0.20 -0.50 0.00 0.00 0.78 0.26

Page 12

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 215 of 295

Appendix lOa

Summary of Promotion Analysis

=============================

Restricted to Promotions from EEO 6, 7, and 8, after March 6, 1994

Controlling for Year, Job, Dept, Earliest Hire Date

Comparing Blacks to Non-Black

Ave

Promotions

% Blk

Job

in

EEO Code Dept Year

Tot Wht Blk % Blk Pool Diff

Var Z-Val

Tot Total. Tot Tot Total Tot Tot Total Tot Tot Total Tot Tot Total Tot Tot Total Tot Tot Total Tot Tot Total Tot Tot Total Tot Tot Total Tot

1994 1995 1996 1997 1998 1999 2000 2001 2002 Tot

191 303 ]38 455 318 197 207 219
8] 2]11

111 19] 180 285 194 109
96 90 54 1312

29 15.2 19.0 -7.30 22.11 -1.55

54 17.8 27.6 -29.58 41.66 -4.58

66 19.5 22.8 -11.22 44.68 -1.68

92 20.2 27.5 -32.94 64.70 -4.10

63 19.8 28.4 -27.30 49.77 -3.87

46 23.4 31.6 -16.20 31.37 -2.89

48 23.2 25.9 -5.62 12.52 -1.59

62 28.3 32.1 -8.31 32.76 -1.45

12 14.5 21.9 -6.18 5.62 -2.60

472

-144.65 ]05.19 -8.28

Tot Total LUFF 1994 Tot Total LUFF 1995 Tot Total LUFF 1996 Tot Total LUFF 1997 Tot Total LUFF 1998 Tot Total LUFF 1999 Tot Total LUFF 2000 Tot Total LUFF 2001 Tot Total LUFF 2002 Tot Total LUFF Tot

67

18

13 19.4 17.1 1. 55 6.73 0.60

72

21

12 16.7 24.1 -5.32 10.10 -1.67

134

31

31 23.1 26.9 -4.99 20.83 -1.09

112

42

27 24.1 28.0 -4.37 16.76 -1.07

70

14

19 27.1 32.7 -3.91 12.25 -1.12

15

3

4 26.7 29.4 -0.40 0.87 -0.43

52

11

7 13.5 19.6 -3.21 2.10 -2.21

87

21

21 24.1 35.9 -10.20 16.49 -2.51

9

4

2 22.2 34.8 -1.14 0.77 -1.29

618 165 136

-31.99 86.91 -3.43

Tot Total LUFT 1994 Tot. Total LUFT 1995 Tot Total LUFT 1996 Tot Total LUFT 1997 Tot. Total LUFT 1998 Tot Total LUFT 1999 Tot Total LUFT 2000 Tot Total LUFT 2001 Tot Total LUFT 2002 Tot. Total LUFT Tot

78

53

13 16.7 20.2 -2.78 10.90 -0.84

123

82

33 26.8 38.6 -14.44 22.11 -3.07

51

26

16 31. 4 34.9 -1.81 8.43 -0.62

189 118

42 22.2 36.5 -27.06 36.86 -4.46

157 104

36 22.9 36.2 -20.87 30.63 -3.77

144

78

34 23.6 36.2 -18.15 27.71 -3.45

52

28

14 26.9 34.2 -3.76 8.24 -1.31

24

13

7 29.2 17.6 2.77 2.87 1.63

33

18

8 24.2 27.8 -1.17 0.79 -1.31

851 520 203

-87.27 148.53 -7.16

Tot Total LUFC 1995. Tot Total LUFC 2002 Tot Total LUFC Tot

1

1

o 0.0 0.0 0.00 0.00 0.00

1

1

o 0.0 0.0 0.00 0.00 0.00

2

2

o

0.00 0.00 0.00

Tot Total LUFG 1995 Tot Total LUFG 1996 Tot Total LUFG 1997 Tot Total LUFG 1998 Tot Total LUFG 1999 Tot Total LUFG 2000 Tot Total LUFG Tot
Tot Total LUFO 1994 Tot Total LUFO 1995 Tot Total LUFO 1996 Tot Total LUFO 1997 Tot Total LUFO 1998 Tot Total LUFO 1999 Tot Total LUFO 2000 Tot Total LUFO 2001 Tot Total LUFO 2002 Tot Total LUFO Tot

5

3

1

1

14

12

5

4

4

3

1

1

30

24

4

4

8

4

7

4

49

37

30

25

8

6

83

42

82

41

29

22

300 185

o 0.0 2.1 -0.10

o 0.0 13.3 -0.13

1 7.1 8.4 -0.18

1 20.0 8.3 0.59

1 25.0 10.7 0.57
o 0.0 5.6 -0.06

3

0.69

0.09 0.12 1.02 0.37 0.35 0.05 1.99

-0.34 -0.39 -0.18
0.96 0.97 -0.24 0.49

o 0.0 0.0 0.00 0.00 0.00

4 50.0 50.0 0.00 0.00 0.00

1 14.3 14.3 0.00 0.00 0.00

9 18.4 21.6 -1.59 1.67 -1.23

1 3.3 12.5 -2.74 2.50 -1. 73

1 12.5 8.7 0.31 0.52 0.43

24 28.9 29.9 -0.80 1.43 -0.67

25 30.5 30.2 0.27 10.08 0.09

2 6.9 18.7' -3.43 3.67 -1. 79

67

-7.98 19.88 -1.79

Page 1

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 216 of 295

Tot Total LUFP 1994 Tot Total LUFP 1995 Tot Total LUFP 1996 Tot Total LUFP 1997 Tot Total LUFP 1998 Tot Total LUFP 1999 Tot Total LUFP 2000 Tot Total LUFP 2001 Tot Total LUFP 2002 Tot Total LUFP Tot

8 Total Tot 8 Total Tot 8 Total Tot 8 Total Tot 8 Total Tot 8 Total Tot 8 Total Tot 8 Total Tot 8 Total Tot 8 Total Tot

1994 1995 1996 1997 1998 1999 2000 2001 2002 Tot

8 Total LUFF 1994 8 Total LUFF 1995 8 Total LUFF 1996 8 Total LUFF 1997 8 Total LUFF 1998 8 Total LUFF 1999 8 Total LUFF 2000 8 Total LUFF 2001 8 Total LUFF Tot

8 Total LUFT 1994 8 Total LUFT 1995 8 Total LUFT 1996 8 Total LUFT 1997 8 Total LUFT 1998 8 Total LUFT 1999 8 Total LUFT 2000 8 Total LUFT 2001 8 Total LUFT 2002 8 Total LUFT Tot

8 Total LUFC 1995 8 Total LUFC Tot

8 Total LUFG 1995 8 Total LUFG Tot

8 Total LUFO 1995 8 Total LUFO 2000 8 Total LUFO 2001 8 Total LUFO Tot

8 Total LUFP 1994 8 Total LUFP 1995 8 Total LUFP 1996 8 Total LUFP Tot

7 Total Tot 7 Total Tot 7 Total Tot 7 Total Tot 7 Total Tot

1994 1995 1996 1997 1998

Appendix lOa

42

36

94

82

145 118

91

76

56

47

26

19

19

14

26

15

11

9

510 416

3 7.1 21.6 -6.07 4.48 -2.87

5 5.3 15.7-9.72 9.36 -3.18

18 12.4 15.4 -4.28 15.31 -1.09

13 14.3 14.0 0.26 8.40 0.09

6 10.7 11.4 -0.37 4.02 -0.19

6 23.1 17.4 1.48 1. 92 1.07

3 15.8 4.2 2.21 0.69 2.66

9 34.6 39.0 -1.15
o 0.0 4.1 -0.45

3.33 -0.63 0.38 -0.72

63

-18.09 47.88 -2.61

87

42

17 19.5 18.7 0.69 11.65 0.20

131

75

32 24.4 35.3 -14.19 24.01 -2.90

105

37

27 25.7 29.2 -3.68 17.55 -0.88

156

84

40 25.6 36.5 -16.96 33.86 -2.91

166

91

38 22.9 38.1 -25.25 35.41 -4.24

104

44

30 28.8 41.4 -13.06 22.05 -2.78

74

29

24 32.4 33.6 -0.89 6.25 -0.36

82

23

21 25.6 31.2 -4.56 15.16 -1.17

24

11

7 29.2 29.2 0.00 0.00 0.00

929 436 236

-77.90 165.92 -6.05

31

8

5 16.1 11.6 1.41 2.90 0.83

38

12

9 23.7 31.9 -3.11 7.14 -1.16

63

10

17 27.0 32.2 -3.26 13.61 -0.88

41

11

13 31.7 30.1 0.66 7.48 0.24

41

8

9 22.0 32.9-4.49 8.86 -1.51

4

o

2 50.0 50.0 0.00 0.00 0.00

24

6

6 25.0 25.0 0.00 0.00 0.00

62

14

16 25.8 37.7 -7.36 13.45 -2.01

304

69

77

-16.16 53.45 -2.21

54

32

12 22.2 23.6 -0.72 8.75 -0.24

80

53

22 27.5 40.7 -10.58 16.62 -2.59

15

6

7 46.7 44.8 0.28 1.64 0.22

115

73

27 23.5 38.8 -17.62 26.38 -3.43

125

83 '29 23.2 39.8 -20.75 26.54 -4.03

100

44

28 28.0 41.1 -13.06 22.05 -2.78

39

18

13 33.3 35.6 -0.89 6.25 -0.36

16

8

5 31.2 13.8 2.80 1. 71 2.14

24

11

7 29.2 29.2 0.00 0.00 0.00

568 328 150

-60.54 109.93 -5.77

1

1

o 0.0 0.0 0.00 0.00 0.00

1

1

o

0.00 0.00 0.00

3

2

o 0.0 0.0 0.00 0.00 0.00

3

2

o

0.00 0.00 0.00

1

o

11

5

4

1

16

6

2

2

8

7

27

21

37

30

1 100.0 100.0
5 45.5 45.5
o 0.0 0.0
6

0.00 0.00 0.00 0.00

o 0.0 0.0 0.00 o 0.0 6.2 -0.50

3 11.1 13.7 -0.70

3

-1.20

0.00 0.00 0.00 0.00

0.00 0.00 0.00 0.00

0.00 0.25 2.30 2.55

0.00 -1.00 -0.46 -0.75

72

41

132

85

148

80

202 120

82

45

10 13.9 21.1 -5.22 8.06 -1.84 19 14.4 24.3 -13.04 14.05 -3.48 24 16.2 19.1 -4.30 18.20 -1.01 42 20.8 26.4 -11.32 22.18 -2.40 20 24.4 19.4 4.05 8.15 1.42

Page 2

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 217 of 295

7. Tot.al Tot 1999 7 Tot.al Tot 2000 7 Total Tot 2001 7 Total Tot '2002 7 Total Tot Tot

7 Total LUFF 1994 7 Total LUfF 1995 7 Total LUFF 1996 7 Total LUFF 1997 7 Total LUFF 1998 7 Total LUFF 1999 7 Total LUFF 2000 7 Total LUFF 2001 7 Total LUFF 2002 7 Total LUFF Tot

7 Total LUFT 1994 7 Total LUFT 1995 7 Total LUFT 1996 7 Total LUFT 1997 7 Total LUFT 1998 7 Total LUFT 1999 7 Total LUFT 2000 7 Total LUFT 2001 7 Total LUFT 2002 7 Total LUFT Tot

7 Total LUFC 2002 7 Total LUFC Tot

7 Total LUFG 1995 7 Total LUFG 1996 7 Tot.al LUFG 1997 7 Total LUFG 1998 7 Total LUFG 1999 7 Total LUFG 2000 7 Total LUFG Tot

7 Total LUFO 1994 7 Total LUFO 1995 7 Total LUFO 1996 7. Total LUFO 1997 7 Total LUFO 1998 7 Total LUFO 1999 7 Total LUFO 2000 7 Total LUFO 2001 7 Total LUFO 2002 7 Total LUFO Tot

7 Total LUFP 1994 7 Total LUFP 1995 7 Total LUFP 1996 7 Total LUFP 1997 7 Total LUFP 1998 7 Total LUFP 1999 7. Total LUFP 2000 7 Total LUFP 2001 7 Total LUFP 2002 7 Total LUFP Tot

6 Total Tot 6 Total Tot 6 Total Tot 6 Total Tot

1994 1995 1996 1997

50 88 108 19 901
29 28 49 49 25
8 17 19
3 227
18 33 32 60 22 35
9 6
7 222
1 1
1 1
12
4 2 1
21
2 5 4 29 18 2 58 63 4 185
23 65 62 52 13
3 3
20 4
245
32 40 85 97

32 38 47 13 501
7 6 12 13 4 2 2 4 1 51
15 21 17 34 15 26
6 3 5 142
1 1
1 1 10 3 2 1 18
2 2 1 21 14 2 26 29 3 100
17 55 49 42
9
o
3 11
3 189
28 33 63 81

Appendix lOa

11 22.0 24.7 -1.35

19 21.6 24.3 -2.37

35 32.4 35.3 -3.13

3 15.8 18.0 -0.42

183

-37.10

5.24 1. 77 14.67 0.96 93.26

-0.59 -1. 79 -0.82 -0.43 -3.84

6 20.7 19.7 0.28 3.20 0.16

2 7.1 16.8 -2.71 2.60 -1.68

5 10.2 13.1 -1.42 3.86 -0.72

11 22.4 30.4 -3.87 7.45 -1.42

10 40.0 28.9 2.76 2.95 1.61

2 25.0 21.7 0.27
o 0.0 3.3 -0.56

0.46 0.39 0.38 -0.90

4 21.1 27.8 -1. 28 2.21 -0.86

1 33.3 33.3 0.00 0.00 0.00

41

-6.51 23.11 -1.36

1 5.6 9.7 -0.75 1.44 -0.63

9 27.3 36.2 -2.94 3.85 -1.50

9 28.1 31.6 -1.11 6.16 -0.45

14 23.3 34.4 -6.65 8.26 -2.31

4 18.2 21.9 -0.82 3.14 -0.46

6 17.1 23.5 -2.24 4.14 -1.10

1 11.1 30.7 -1. 76 1.33 -1. 53

2 33.3 26.4 0.42 0.91 0.44

1 14.3 24.6 -0.72 0.55 -0.98

47

-16.58 29.77 -3.04

o 0.0 0.0 0.00 0.00 0.00

o

0.00 0.00 0.00

o 0.0 10.3 -0.10 o 0.0 13 .3 -0.13

1 8.3 9.8 -0.18

1 25.0 10.4 0.59
o 0.0 8.8 -0.18 o 0.0 5.6 -0.06

2

-0.06

0.09 0.12 1.02 0.37 0.16 0.05 1.81

-0.34 -0.39 -0.18
0.96 -0.44 -0.24 -0.05

o 0.0 0.0 0.00

3 60.0 60.0 0.00

1 25.0 25.0 0.00

8 27.6 27.6 0.00

1 5.6 5.3 0.04
o 0.0 0.0 0.00

18 31.0 31.0 0.00

22 34.9 36.0 -0.69

1 25.0 12.5 0.50

54

-0.14

0.00 0.00 0,00 0.00 0.78 0.00 0.00 8.52 0.25 9.55

0.00 0.00 0.00 0.00 0.05 0.00 0.00 -0.23 1.00 -0.05

3 13 .0
5 7.7 9 14.5 8 15.4
4 30.8 3 100.0
o 0.0
7 35.0
o 0.0
39

33.7 -4.75 18.9 -7.29 17.2 -1.64 16.6 -0.62 19.4 1.48 73.3 0.80
0.0 0.00 42.9 -1.58
5.0 -0.20 -13.81

3.43 7.50 8.07 5.45 0.91 0.48 0.00 3.02 0.16 29.02

-2.57 -2.66 -0.58 -0.27
1. 55 1.15 0.00 -0.91 -0.50 -2.56

2 6.2 14.9 -2.77 3 7.5 13.4 -2.36 15 17.6 21.5 -3.23 10 10.3 15.1 -4.66

2.40 3.61 8.93 B.66

-1. 79 -1.24 -1.0B -1.58

Page 3

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 218 of 295

6 Total Tot 6 Total Tot 6 Total Tot 6 Total. Tot 6 Total Tot 6 Total Tot

1998 1999 2000 2001 2002 Tot

6 Total LUFF 1994 6 Total LUFF 1995 6 Total LUFF 1996 6 Total LUFF 1997 6 Total LUFF 1998 6 Total LUFF 1999 6 Total LUFF 2000 6 Total LUFF 2001 6 Total LUFF 2002 6 Total LUFF Tot

6 Total LUFT 1994 6 Total LUFT 1995 6 Total LUFT 1996 6 Total LUFT 1997 6 Total LUFT 1998 6 Total LUFT 1999 6 Total LUFT 2000 6 Total LUFT 2001 6 Total LUFT 2002 6 Total LUFT Tot

6 Total LUFG 1995 6 Total LUFG 1997 6 Total LUFG 1998 6 Total LUFG 1999 6 Total LUFG Tot

6 Total LUFO 1994 6 Total LUFO 1995 6 Total LUFO 1996 6 Total LUFO 1997 6 Total LUFO 1998 6 Total LUFO 1999 6 Total LUFO 2000 6 Total LUFO 2001 6 Total LUFO 2002 6 Total LUFO Tot

6 Total LUFF 1994 6 Total LUFP 1995 6 Total LUFP 1996 6 Total LUFP 1997 6 Total LUFP 1998 6 Total LUFP 1999 6 Total LUFP. 2000 6 Total LUFP 2001 6 Total LUFF 2002 6 Total LUFF Tot

70 43 45 29 40 481
7 6 22 22 4 3 11 6 6 87
6 10
4 14 10
9 4 2 2 61
1 2 1 2 6
2 2 3 20 12 6 14 15 25 99
17 21 56 39 43 23 16
6 7 228

58 33 29 20 30 375
3 3 9 18 2 1
3. 3 3
45
6 8 3 11 6 8 4 2 2 50
o
2 1 1 4
2 2 3 16 11 4 11 11 19 79
17 20 48 34 38 19 11
4 6 197

Appendix lOa

_ 5 7.1 15.9 -6.11

5 11.6 15.8 -1.78

5 11.1 16.4 -2.36

6 20.7 22.8 -0.62

2 5.0 19.4 -5.75

53

-29.64

6.22 4.09 4.51 2.94 4.67 46.01

-2.45 -0.88 -1.11 -0.36 -2.66 -4.37

2 28.6 30.6 -0.14 0.63 -.-0.18

1 16.7 8.3 0.50 0.36 0.83

9 40.9 42.3 -0.31 3.37 -0.17

3 13 .6 18.9 -1.16
o 0.0 54.4 -2.18 o 0.0 22.4 -0.67

1.82 0.44 0.41

-0.86 -3.29 -1. 05

1 9.1 33.2 -2.66 1. 72 -2.02

1 16.7 42.8 -1"57 0.83 -1. 72

1 16.7 35.6 -1.14 0.77 -1.29

18

-9.32 10.35 -2.90

o 0.0 21. 9 -1.31.

2 20.0 29.2 -0.92
o 0.0 24.5 -0.98

1 7.1 27.1 -2.79

3 30.0 22.9 0.71
o 0.0 31.6 -2.85 o 0.0 27.8 -1.11

o 0.0 22.5 -0.45 o 0.0 22.2 -0.44

6

-10.16

0.71 1.64 0.62 2.22 0.95 1.53 0.66 0.25. 0.25 8.83

-1.55 -0.72 -1.24 -1. 88
0.72 -2.30 -1.37 -0.90 -0.89 -3.42

o 0.0 0.0 o 0.0 0.0
o 0.0 0.0
1 50.0 12.5
1

0.00 0.00 0.00 0.75 0.75

0.00 0.00 0.00 0.19 0.19

0.00 0.00 0.00 1. 73 1. 73

o 0.0 0.0 0.00 0.00 0.00

o 0.0 0.0 0.00 0.00 0.00 o 0.0 0.0 0.00 0.00 0.00

1 5.0 12.9 -1.59 1.67 -1.23
o 0.0 23.2 -2.79 1. 72 -2.12

1 16.7 11.5 0.31 0.52 0.43

1 7.1 12.9 -0.80 1.43 -0.67

3 20.0 13.6 0.96 1.55 0.77

1 4.0 19.7 -3.93 3.42 -2.12

7

-7.83 10.33 .-2.44

o 0.0 7.8 -1. 32 1.05 -1. 29

o 0.0 9.2 -1.94 1.60. -1. 53

6 10.7 14.2 -1.94 4.94 -0.87

5 12.8 10.6 0.88 2.94 0.51

2 4.7 9.0 -1. 85 3.11 -1.05

3 13.0 10.i 0.68 1.44 0.57

3 18.8 4.9 2.21 0.69 2.66

2 33.3 26.0 0.44 0.31 0.79

o 0.0 3.5 -0.25 0.22 -0.53

21

-3.08 16.32 -0.76

Page 4

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 219 of 295

Summary of Promotion Analysis

Appendix lOb

Restricted to Promotions from EEO 6, 7, and 8,. after March 6, 1994

Controlling for Year, Job, Dept, Sen'ty

Comparing Blacks to Non-Black

Ave

Promotions

% Blk

Job

in

EEO Code Dept Year

Tot Wht Blk %. Blk Pool Diff

Var Z-Val

Tot Total Tot Tot Total Tot Tot Total Tot Tot Total Tot Tot Total Tot Tot Total Tot Tot Total Tot Tot Total Tot Tot Total Tot Tot Total Tot

1994 1995 1996 1997 1998 1999 2000 2001 2002 Tot

191 303 338 455 318 197 207 219
83 2311

111 193 180 285 194 109
96 90 54. 1312

29 15.2 18.1 -5.66 21.65 -1.22

54 17.8 26.5 -26.34 41.69 -4.08

66 19.5 23.1 -11.94 45.23 -1.78

92 20.2 27.0 -30.71 65.42 -3.80

63 19.8 26.8 -22.26 49.40 -3.17

46 23.4 37.1 -27.14 32.27 -4.78

48 23.2 24.0 -1.60 13.71 -0.43

62 28.3 28.9 -1.39 30.96 -0.25

12 14.5 20.7 -5.21 5.66 -2.19

472

-132.25 305.98 -7.56

Tot Total LUFF 1994 Tot Total LUFF 1995 Tot Total LUFF 1996 Tot Total LUFF 1997 Tot Total LUFF 1998 Tot Total LUFF 1999 Tot Total LUFF 2000 Tot Total LUFF 2001 Tot Total LUFF 2002 Tot Total LUFF Tot

67

18

13 19.4 16.2 2.12 6.46 0.84

72

21

12 16.7 22.4 -4.13 9.62 -1.33

134

31

31 23.1 27.2 -5.47 20.66 -1.20

112

42

27 24.1 25.2 -1.20 16.90 -0.29

70

14

19 27.1 29.9 -1.95 12.09 -0.56

15

3

4 26.7 31.4 -0.72 1.17 -0.66

52

11

7 13.5 19.3 -3.06 2.16 -2.08

87

21

21 24.1 31.4 -6.29 16.58 -1.54

9

4

2 22.2 27.8 -0.50 0.94 -0.52

618 165 136

-21.19 86.59 -2.28

Tot Total LUFT 1994 Tot Total LUFT 1995 Tot Total LUFT 1996 Tot Total LUFT 1997 Tot Total LUFT 1998 Tot Total LUFT 1999 Tot Total LUFT 2000 Tot Total. LUFT 2001 Tot Total LUFT 2002 Tot Total LUFT Tot
Tot Total LUFC 1995 Tot Total LUFC 2002 Tot Total LUFC Tot
Tot Total LUFG 1995 Tot Total LUFG 1996 Tot Total LUFG 1997 Tot Total LUFG 1998 Tot Total LUFG 1999 Tot Total LUFG 2000 Tot Total LUFG Tot

78

53

13 16.7 19.2 -1.98 10.79 -0.60

123

82

33 26.8 36.7 -12.20 22.47 -2.57

51

26

16 31.4 34.5 -1.59 8.38 -0.55

189 118

42 22.2 36.3 -26.60 37.13 -4.37

157 104

36 22.9 34.4 -17.97 30.58 -3.25

144

78

34 23.6 43.6 -28.85 28.20 -5.43

52

28

14 26.9 26.5 0.20 9.32 0.07

24

13

T 29.2 23.5 1.35 2.43 0.87

33

18

8 24.2 28.0 -1.23 0.82 -1.36

851 520 203

-88.87 150.11 -7.25

1

1

o 0.0 0.0 0.00 0.00 0.00

1

1

o 0.0 0.0 0.00 0.00 0.00

2

2

o

0.00 0.00 0.00

5

3

1

1

14

12

5

4

4

3

1

1

30

24

o 0.0 o 0.0
1 7.1 1 20.0
1 25.0
o 0.0
3

1.8 -0.09 0.0 0.00 6.8 0.04 7.4 0.63 7.8 0.69 7.0 -0.07
1.20

0.08 0.00 0.85 0.34 0.27 0.07 1.61

-0.32 0.00 0.04 1.09 1. 31
-0.27 0.94

Tot Total LUFO 1994 Tot Total LUFO 1995 Tot Total LUFO 1996 Tot Total LUFO 1997 Tot Total LUFO 1998 Tot Total LUFO 1999 Tot Total LUFO 2000 Tot Total LUFO 2001 Tot Total LUFO 2002 Tot Total LUFO Tot

4

4

8

4

7

4

49

37

30

25

8

6

83

42

82

41

29

22

300 185

o 0.0 0.0 0.00 0.00 0.00

4 50.0 50.0 0.00 0.00 0.00

1 14.3 14.3 0.00 0.00 0.00

9 18.4 21.4 -1.47 1.57 -1.17

1 3.3 13.2 -2.96 2.72 -1.79

1 12.5 9.0 0.28 0.54 0.39

24 28.9 30.0 -0.90 1.49 -0.74

25 30.5 26.2 3.48 8.87 1.17

2 6.9 17.2 -3.00 3.51 -1.60

67

-4.57 18.70 -1.06

Page 1

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 220 of 295

Tot Total LUFP 1994 Tot Total LUFP 1995 Tot Total LUFP 1996 Tot Total LUFP 1997 Tot Total LUFP 1998 Tot Total LUFP 1999 Tot Total LUFP 2000 Tot Total LUFP 2001 Tot Total LUFP 2002 Tot Total LUFP Tot

8 Total Tot 8 Total Tot 8 Total Tot 8 Total Tot 8 Total Tot 8 Total Tot 8 Total Tot 8 Total Tot 8 Total Tot 8 Total Tot

1994 1995 1996 1997 1998 1999 2000 2001 2002 Tot

8 Total LUFF 1994 8 Total LUFF 1995 8 Total LUFF 1996 8 Total LUFF 1997 8 Total LUFF 1998 8 Total LUFF 1999 8 Total LUFF 2000 8 Total LUFF 2001 8 Total LUFF Tot

8 Total LUFT 1994 8 Total LUFT 1995 8 Total LUFT 1996 B Total LUFT 1997 8 Total LUFT 1998 8 Total LUFT 1999 8 Total LUFT 2000 8 Total LUFT 2001 8 Total LUFT 2002 8 Total LUFT Tot

8 Total LUFC 1995 8 Total LUFC Tot

8 Total LUFG 1995 8 Total LUFG Tot

8 Total LUFO 1995 8 Total LUFO 2000 8 Total LUFO 2001 8 Total LUFO Tot

8 Total LUFP 1994 8 Total LUFP 1995 8 Total LUFP 1996 8 Total LUFP Tot

7 Total Tot 7 Total Tot 7 Total Tot 7 Total Tot 7 Total Tot

1994 1995 1996 1997 1998

Appendix lOb

42 94 145 91 56 26 19 26. 11 510
87 131 105 156 166 104
74 82 24 929
31 38 63 41 41
4 24 62 304
54 80 15 115 125 100 39 16 24 568
1 1
3 3
1 11
4 16
2 8 27 37
72 132 148 202
82

36 82 118 76 47 19 14 15
9 416
42 75 37 84 91 44 29 23 11 436
8 12 10 11
8
o
6 14 69
32 53
6 73 83 44 18
8 11 328
1 1
2 2
o
5 1 6
2 7 21 30
41 85 80 120 45

3 7.1 21.0 -5.81 4.40 -2.77

5 5.3 15.9 -9.92 9.51 -3.22

18 12.4 15.8 -4.88 16.19 -1.21

13 14.3 15.9 -1.47 8.97 -0.49

6 10.7 10.7 -0.01 3.67 -0.01

6 23.1 17.5 1.45 2.08 1.01

3 15.8 4.1 2.23 0.68 2.71

9 34.6 34.4 0.07
o 0.0 4.3 -OA7

3.08 0.04 0.39 -0.76

63

-18.82 48.97 -2.69

17 19.5 16.6 2.52 11.16 0.75

32 24.4 33.1 -11.37 23.77 -2.33

27 25.7 30.8 -5.32 18.94 -1.22

40 25.6 34.7 -14.07 33.88 -2.42

38 22.9 35.8 -21.40 34.87 -3.62

30 28.8 52.7 -24.85 22.91 -5.19

24 32.4 30.1 1. 76 7.52 0.64

21 25.6 30.4 -3.97 15.22 -1.02

7 29.2 29.2 0.00 0.00 0.00

236

-76.70 168.26 -5.91

5 16.1 10.0 1. 89 2.68 1.15

9 23.7 27.7 -1.53 6.35 -0.61

17 27.0 32.7 -3.61 13 .36 -0.99

13 31. 7 25.2 2.68 7.50 0.98

9 22.0 31.4 -3.85 8.57 -1. 32

2 50.0 56.2 -0.25 0.19 -0.58

6 25.0 25.0 0.00 0.00 0.00

16 25.8 34.4 -5.32 13.91 -1. 43

77

-9.99 52.57 -1. 38

12 22.2 21.1 0.63 8.48 0.22

22 27.5 39.2 -9.34 17.16 -2.25

7 46.7 52.4 -0.86 2.30 -0.57

27 23.5 38.0 -16.75 26.38 -3.26

29 23.2 37.2 -17.55 26.30 -3.42

28 28.0 52.6 -24.60 22.72 -5.16

13 33.3 28.8 1. 76 7.52 0.64

~ 31.2 22.8 1. 35 1. 31 1.18

7 29.2 29.2 0.00 0.00 0.00

150

-65.36 112.17 -6.17

o 0.0 0.0 0.00 0.00 0.00

o

0.00 0.00 0.00

o 0.0 0.0 0.00 0.00 0.00

o

0.00 0.00 0.00

1 100.0 100.0
5 45.5 45.5
o 0.0 0.0
6

0.00 0.00 0.00 0.00

o 0.0 0.0 0.00 o 0.0 6.2 -0.50

3 11.1 14.2 -0.85

3

-1. 35

0.00 0.00 0.00 0.00

0.00 0.00 0.00 0.00

0.00 0.25 3.28 3.53

0.00 -1.00 -OA7 -0.72

10 13.9 22.2 -5.96 8.34 -2.06 19 14.4 24.2 -12.96 14.49 -3.40 24 16.2 19.0 -4.09 17.54 -0.98 42 20.8 26.4 -11.33 23.02 -2.36 20 24.4 18.6 4.73 8.48 1.63

Page 2

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 221 of 295

7 Total Tot 7 Total Tot 7 Total Tot 7 Total Tot 7 Total Tot

1999 2000 2001 '2002 Tot

7 Total LUFF 1994 7 Total LUFF 1995 7 Total LUFF 1996 7 Total LUFF 1997 7 Total LUFF. 1998 7 Total LUFF 1999 7 Total LUFF 2000 7 Total LUFF 2001 7 Total LUFF 2002 7 Total LUFF Tot

7 Total LUFT 1994 7. Total LUFT 1995 7 Total LUFT 1996 7 Total LUFT 1997 7 Total LUFT 1998 7 Total LUFT 1999 7 Total LUFT 2000 7 Total LUFT 2001 7 Total LUFT 2002 7 Total LUFT Tot

7. Total LUFC 2002 7 Total LUFC Tot

7 Total LUFG 1995 7 Total LUFG 199'6 7 Total LUFG 1997 7 Total. LUFG 1998 7 Total LUFG 1999 7 Total LUFG 2000 7 Total LUFG Tot

7. Total LUFO 1994 7 Total LUFO 1995 7 Total LUFO 1996 7 Total LUFO 1997 7 Total LUFO 1998 7 Total LUFO 1999 7 Total LUFO 2000 7 Total LUFO 2001 7 Total LUFO 2002 7 Total LUFO Tot

7 Total LUFP 1994 7 Total LUFP 1995 7 Total LUFP 1996 7 Total LUFP 1997 7 Total LUFP 1998 7 Total LUFP 1999 7 Total LUFP 2000 7 Total LUFP 2001 7 Total LUFP 2002 7 Total LUFP Tot

6 Total Tot 6 Total Tot 6 Total Tot 6 Total Tot

1994 1995 1996 1997

Appendix lOb

50

32

11 22.0 23.4 -0.71

88

38

19

22.9 -1.17 1.61 -0.92

108

47

35

30.1 2.44 12.63 0.69

19

13

3

15.4 0.08 1.25 0.07

901 501 183

-28.96 92.73 -3.01

29

7

6 20.7 19.0 0.48 3.12 0.27

28

6

2 7.1 18.1 -3.07 2.90 -1.81

49

12

5 10.2 13.1 -1.44 3.89 -0.73

49

13. 11 22.4 27.7 -2.55 7.40 -0.94

25

4

10 40.0 24.4 3.89 2.93 2.27

8

2

2 25.0 22.3 0.22 0.57 0.29

17

2

o 0.0 3.2 -0.54 0.37 -0.89

19

4

4 21.1 17.8 0.61 1.83 0.45

3

1

1 33.3 16.7 0.50 0.25 1.00

227

51

41

18

15

33

21

32

17

60

34

22

15

35

26

9

6

6

3

7

5

222 142

1 5.6 15.7 -1. 82 9 27.3 33.5 -2.06 9 28.1 27.5 0.20 14 23.3 34.8 -6.90 4 18.2 22.8 -1.02 6 17.1 21. 7 -1. 58 1 11.1 17.3 -0.56 2 33.3 25.0 0.50 1 14.3 25.2 -0.77 47

1.85 3.70 5.46 8.49 3.29 4.17 1.17 0.88 0.57

-1.34 -1.07
0.09 . -2.37 -0.56 -0.77 -0.51
0.53 -1.01

1

1

1

1

1

1

1

1

12

10

4

3

2

2

1

1

21

18

2

2

5

2

4

1

29

21

18

14

2

2

58

26

63

29

4

3

185 ioo

o 0.0 o 0.0
1 8.3
1 25.0
o 0.0 o 0.0
2

9.1 -0.09 0.0 0.00 8.0 0.04 9.3 0.63 7.3 -0.15 7.0 -0.07
0.36

o 0.0 0.0 0.00

3 60.0 60.0 0.00

1 25.0 25.0 0.00

8 27.6 27.6 0.00

1 5.6 6.9 -0.24
o 0.0 0.0 0.00

18 31.0 31.0 0.00

22 34.9 30.9 2.56

1 25.0 10.0 0.60

54

2.93

0.00 0.00

0.00 0.00

0.08 0.00 0.85 0.34 0.14 0.07 1.47

-0.32 0.00 0.04 1.09
-0.40 -0.27
0.30

0.00 0.00 0.00 0.00 1.02 0.00 0.00 7.26 0.24 8.52

0.00 0.00 0.00 0.00 -0.24 0.00 0.00 0.95 1.22 1.00

23

17

65

55

62

49

52

42.

13

9

3

o

3

3

20

11

4

3

245 189

5 7.7
9 14.5
8 15.4 4 30.8 3 100.0
o 0.0
7 35.0
o 0.0
39

19.6 -7.73 19.1 -2.85 19.1 -1.92 19.4 1.48 73.3 0.80
0.0 0.00 41.2 -1.23
6.2 -0.25 -16.34

3.38 7.81 8.19 6.28 0.91 0.48 0.00 2.67 0.19 29.90

-2.52 -2.77 -1.00 -0.77
1.55 1.15 0.00 -0.75 -0.58 -2.99

32

28

2 6.2 13.2 -2.21 2.14 -1.51

40

33

3 7.5 12.5 -2.02 3.43 -1.09

85

63

15 17.6 20.6 -2.53 8.75 -0.86

97

81

10 10.3 15.8 -5.31 8.,52 -1.82

Page 3

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 222 of 295

6 Total Tot 6 Total Tot 6 Total Tot 6 Total Tot 6 Total Tot 6 Total Tot

1998 1999 2000 2001 2002 Tot

6 Total LUFF 1994 6 Total LUFF 1995 6 Total LUFF 1996 6 Total LUFF 1997 6 Total LUFF 1998 6 Total LUFF 1999 6. Total LUFF 2000 6 Total LUFF 2001 6 Total LUFF 2002 6 Total LUFF Tot

6 Total LUFT 1994 6 Total LUFT 1995 6 Total LUFT 1996 6 Total LUFT 1997 6 Total LUFT 1998 6 Total LUFT 1999 6 Total LUFT 2000 6 Total LUFT 2001 6 Total LUFT 2002 6 Total. LUFT Tot

6 Total LUFG 1995 6 Total LUFG 1997 6 Total LUFG 1998 6 Total LUFG 1999 6 Total LUFG Tot

6 Total LUFO 1994 6 Total LUFO 1995 6 Total LUFO 1996 6 Total LUFO 1997 6 Total LUFO 1998 6 Total LUFO 1999 6 Total LUFO 2000 6 Total. LUFO 2001 6. Total LUFO 2002 6 Total LUFO Tot

6 Total LUFP 1994 6 Total LUFP 1995 6 Total LUFP 1996 6 Total. LUFP 1997 6 Total LUFP 1998 6 Total LUFP 1999 6 Total LUFP 2000 6 Total LUFP 2001 6 Total LUFP 2002 6 Total LUFP Tot

70 43 45 29 40 481
7 6 22 22 4 3 11 6 6 87
6 10
4 14 10
9 4 2 2 61
1 2 1 2 6
2 2 3 20 12 6 14 15 25 99
17 21 56 39 43 23 16
6 7 228

58 33 29 20 30 375
3 3 9 18 2 1 3 3 3 45
6 8 3 11 6 8 4 2 2 50
o
2 1 1 4
2 2 3 16 11 4 11 11 19 79
17 20 48 34 38 19 11
4 6 197

Appendix lOb

5 7.1 15.1 -5.59 6.05 -2.27

5 11.6 lS.3 -1.57 4~00 -0.79

5 11.1 16.0 -2.20 4.58 -1.03

6. 20.7 20.2 0.14 j 3.11 0.08

2 5.0 18.2 -5.29 4.41 .-2.52

53

-26.59 44.99 -3.96

2 28.6 32.1 -0.24 0.65 -0.30

1 16.7 8.7 0.48 0.37 0.78

9 40.9 42.8 -0.42 3.41 -0.23

3 13.6 19.7 -1.33
o 0.0 49.6 -1.98 o 0.0 22.7 -0.68

1.99 0.59 0.42

-0.94 -2.58 -1.06

1 9.1 32.0 -2.52 1. 79 -1. 88

1 16.7 42.9 -1.58 0.83 -1.73

1 16.7 33.4 -1.00 0.69 -1.21

18

-9.28 10.75 -2.83

o 0.0
2 20.0
o 0.0
1 7.1
3 30.0
o 0.0 o 0.0 o 0.0 o 0.0
6

13.1 28.1 23.3 28.3 24.0 29.6 25.0 25.0 23.3

-0.79 -0.81 -0.93 -2.96
0.60 -2.66 -1.00 -0.50 -0.47 -9.51

0.47 1.60 0.62 2.26 0.99 1.31 0.63 0.25 0.25 8.38

-1.15 -0.64 -1.18 -1.97
0.61 -2.33 -1.27 -1.00 -0.94 -3.29

o

0.0 0.00 0.00 0.00

o

0.0 0.00 0.00 0.00

o

0.0 0.00 0.00 0.00

1

8.3 0.83 0.14 2.24

1

0.83 0.14 2.24

o 0.0 0.0 0.00 0.00 0.00

o 0.0 0.0 0.00 0.00 0.00

o 0.0 0.0 0.00 0.00 0.00

1 5.0 12.3 -1.47 1.57 -1.17

o ·0.0 22.7 -2.72 1. 70 -2.09

1 16.7 11.9 0.28 0.54 0.39

.1 7.1 13 .6 -0.90 1.49 -0.74

3 20.0 13.9 0.91 1.62 . 0.72

1 4.0 18.4 -3.60 3.27 -1.99

7

-7.50 10.18 -2.35

o 0.0 7.0 -1.18 1.02 -1.17 o 0.0 8.0 -1.69 1. 45 -1. 40

6 10.7 12.8 -1.18 4.72 -0.54

5 12.8 11.7 0.45 2.70 0.27

2 4.7 8.1 -1. 49 2.76 -0.90

3 13.0 10.2 0.65 1.60 0.52

3 18.8 4.8 2.23 0.68 2.71

2 33.3 11.7 1.30
o 0.0 3.2 -0.22

0.41 2.03 0.20 -0.50

21

-1.13 15.54 -0.29

Page 4

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 223 of 295

Summary of Promotion Analysis

Appendix 10c

Restricted to Promotions from EEO 6, 7, and 8, after March 6, 1994

Controlling for Year, Job, Dept

Comparing Blacks to Non-Black

Ave

Promotions

% Blk

Job

in

EEO Code Dept Year

Tot Wht Blk % Blk Pool Diff Var Z-Val

Tot Total Tot Tot Total Tot Tot Total Tot Tot Total Tot Tot Total Tot Tot Total Tot Tot Total Tot Tot Total Tot Tot Total Tot Tot Total Tot

1994 1995 1996 1997 1998 1999 2000 2001 2002 Tot

191 303 338 455 318 197 207 219
83 2311

III 193 180 285 194 109
96 90 54 1312

29 15.2 17.7 -4.87 22.42 -1.03

54 17 .8 26.0 -24.72 45.78 -3.65

66 19.5 19.7 -0.52 46.81 -0.08

92 20.2 26.3 -27.74 69.96 -3.32

63 19.8 22.8 -9.43 49.49 -1.34

·46 23.4 32.6 -18.19 35.75 -3.04

48 23.2 24.6 -2.99 15.08 -0.77

62 28.3 30.4 -4.58 37.68 -0.75

12 14.5 22.5 -6.68 6.76 -2.57

472

-99.70 329.75 -5.49

Tot Total LUFF 1994 Tot Total LUFF 1995 Tot Total LUFF 1996 Tot Total LUFF 1997 Tot Total LUFF 1998 Tot Total LUFF 1999 Tot Total LUFF 2000 Tot Total LUFF 2001 Tot Total LUFF 2002 Tot Total LUFF Tot

67

18

13 19.4 13.6 3.90 6.12 1.58

72

21

12 16.7 22.2 -3.98 10.11 -1.25

134

31

31 23.1 25.5 -3.19 22.51 -0.67

112

42

27 24.1 27.7 -3.99 19.45 -0.90

70

14

19 27.1 29.7 -1.78 13 .04 -0.49

15

3

4 26.7 27.8 -0.18 1. 58 -0.14

52

11

7 13.5 20.1 -3.47 2.28 -2.30

87

21

21 24.1 32.8 -7.54 17 .47 -1.80

9

4

2 22.2 28.5 -0.56 0.98 -0.57

618 165 136

-20.79 93.54 -2.15

Tot Total LUFT 1994 Tot Total LUFT 1995 Tot Total LUFT 1996 Tot Total LUFT 1997 Tot Total. LUFT 1998 Tot Total LUFT 1999 Tot Total. LUFT 2000 Tot Total LUFT 2001 Tot Total LUFT 2002 Tot Total LUFT Tot

78

53

13 16.7 20.7 -3.17 11.65 -0.93

123

82

33 26.8 34.4 -9.29 24.62 -1.87

51

26

16 31.4 22.8 4.39 8.44 1.51

189 118

42 22.2 34.0 -22.24 38.69 -3.58

157 104

36 22.9 26.0 -4.85 29.23 -0.90

144

78

34 23.6 37.3 -19.74 30.31 -3.59

52

28

14 26.9 27.6 -0.33 10.15 -0.10

24

13

7 29.2 21.4 1.85 3.91 0.94

33

18

8 24.2 27.4 -1.03 0.76 -L18

851 520 203

-54.42 157.77 -4.33

Tot Total LUFC 1995 Tot Total LUFC 2002 Tot Total LUFC Tot
Tot Total LUFG 1995 Tot Total LUFG 1996 Tot Total LUFG 1997 Tot Total LUFG 1998 Tot Total LUFG 1999 Tot Total LUFG 2000 Tot Total LUFG Tot

1

1

1

1

2

2

5

3

1

1

14

12

5

4

4

3

1

1

30

24

o 0.0 o 0.0 o
o 0.0
o 0.0
1 7.1
1 20.0 1 25.0
o 0.0
3

0.0 0.00 0.0 0.00
0.00
1.7 -0.08 7.0 -0.07 5.8 0.18 7.7 0.61 8.3 0.67 6.6 -0.07
1.24

0.00 0.00 0.00

0.00 0.00 0.00

0.08 0.06 0.75 0.35 0.30 0.06 1.61

-0.30 -0.27
0.21 L04 1.21 -0.26 0.98

Tot Total LUFO 1994 Tot Total LUFO 1995 Tot Total LUFO 1996 Tot Total LUFO 1997 Tot Total LUFO 1998 Tot Total LUFO 1999 Tot Total LUFO 2000 Tot Total LUFO 2001 Tot Total LUFO 2002 Tot Total LUFO Tot

4

4

8

4

7

4

49

37

30

25

8

6

83

42

82 41

29

22

300 185

o 0.0 o~o 0.00 0.00 0.00

4 50.0 50.0 0.00 0.00 0.00

1 14.3 14.3 0.00 0.00 0.00

9 18.4 22.4 -1. 97 1. 96 -1.41

1 3.3 11.9 -2.57 2.58 -1.60

1 12.5 9.1 0.27 0.58 0.36

24 28.9 29.6 -0.61 1.32 -0.53

25 30.5 31.8 -1.06 12.12 -0.31

2 6.9 23.0 -4.67 4.66 -2.16

67

-10.61 23.22 -2.20

Page 1

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 224 of 295

Tot Total LUFP 1994 Tot. Total LUFP 1995 Tot Total LUFP 1996 Tot Total LUFP 1997 Tot Total LUFP 1998 Tot Total LUFP 1999 Tot Total LUFP 2000 Tot Total LUFP 2001 Tot Total LUFP 2002 Tot Total LUFP Tot

8 Total Tot 8 Total Tot 8 Total Tot 8 Total Tot 8 Total Tot 8 Total Tot 8 Total Tot 8 Total Tot 8 Total Tot 8 Total Tot

1994 1995 1996 1997 1998 1999 2000 2001 2002 Tot

8 Total LUFF 1994 8 Total LUFF 1995 8 Total LUFF 1996 8 Total LUFF 1997 8 Total LUFF 1998 8 Total LUFF 1999 8 Total LUFF 2000 8 Total LUFF 2001 8 Total LUFF Tot

8 Total LUFT 1994 8 Total LUFT 1995 8 Total LUFT 1996 8 Total LUFT 1997 8 Total LUFT 1998 8 Total LUFT 1999 8 Total LUFT 2000 8 Total LUFT 2001 8 Total LUFT 2002 8 Total LUFT Tot

8 Total LUFC 1995 8 Total LUFC Tot

8 Total LUFG 1995 8 Total LUFG Tot

8 Total LUFO 1995 8 Total LUFO 2000 8 Total LUFO 2001 8 Total LUFO Tot

8 Total LUFP 1994 8 Total LUFP 1995 8 Total LUFP 1996 8 Total LUFP Tot

7 Total Tot 7 Total Tot 7 Total Tot 7 Total Tot 7 Total Tot

1994 1995 1996 1997 1998

Appendix 10c

42 94 145 91 56 26 19 26 11 510
87 131 105 156 166 104
74 82 24 929
31 38 63 41 41
4
24 62 304
54 80 15 115 125 100 39 16 24 568
1 1
3 3
1 11
4 16
2 8 27 37
72 132 148 202
82

36 82 118 76 47 19 14 15
9 416
42 75 37 84 91 44 29 23 11 436
8 12 10 11
8
o
6 14 69
32 53
6 73 83 44 18
8 11 328
1 1
2 2
o
5 1 6
2 7 21 30
41 85 80 120 45

3 7.1 20.5 -5.60 4.66 -2.60

5 5.3 17.4 -11.36 10.97 -3.43

18 12.4 13.5 -1~64 15.80 -0.41

13 14.3 14.0 0.28 9.12 0.09

6 10.7 12.2 -0.B4 4.29 -0.41

6 23.1 20.0 0.80 2.98 0.46

3 15.8 7.9 1.49 1.27 1.33

9 34.6 26.2 2.18
o 0.0 3.8 -0.42

4.18 1.07 0.36 -0.70

63

-15.12 53.62 -2.06

17 32 27 40 3B 30 24 21
7. 236

19.5 24.4 25.7 25.6 22.9 28.B 32.4 25.6 29.2

16.4 2.73 11.01 31. 9 -9.80 25.57 25.7 -0.04 19.42 34.1 -13.14 34.34 28.0 -8.45 33.0B 44.2 -15.99 24.78 30. B 1. 23 8.21 29.8 -3.46 16.53 29.2 0.00 0.00
-46.92 172.92

0.82 -1.94 -0.01 -2.24 -1.47 -3.21
0.43 -0.85
0.00 -3.57

5 16.1 7.2 2.77 2.06 1.93

9 23.7 28.3 -1.74 6.78 -0.67

17 27.0 29.0 -1.26 12.97 -0.35

13 31. 7 27.9 1.57 8.16 0.55

9 22.0 31.0 -3.73 8.67 -1.27

2 50.0 56.2 -0.25 0.19 -0.58

6 25.0 25.0 0.0'0 0.00 0.00

16 25.8 34.3 -5.26 13.97 -1.41

77

-7.90 52.80 -1.09

12 22.2 22.3 -0.04 8.95 -0.01

22 27.5 36.3 -7.06 18.29 -1.65

7 46.7 32.8 2.08 3.14 1.17

27 23.5 36.3 -14.71 26.17 -2.88

29 23.2 27.0 -4.72 24.40 -0.96

28 28.0 43.7 -15.74 24.59 -3.17

13 33.3 30.2 1.23 8.21 0.43

5 31.2 20.0 1.80 2.56 1.12

7 29.2 29.2 0.00 0.00 0.00

150

-37.16 116.32 -3.45

o 0.0 0.0 0.00 0.00 0.00

o

0.00 0.00 0.00

o 0.0 0.0 0.00 0.00 0.00

(}

0.00 0.00 0.00

1 100.0 100.0
5 45.5 45.5
o 0.0 0.0
6

0.00 0.00 0.00 0.00

o 0.0 0.0 0.00 o 0.0 12.5 -1.00

3 11.1 14.3 -0.86

3

-1.86

0.00 0.00 0.00 0.00

0.00 0.00 0.00 0.00

0.00 0.50 3.31 3.81

0.00 -1.41 -0.47 -0.95

10 13.9 20.8 -4.98 8.49 -1. 71 19 14.4 24.5 -13.27 16.70 -3.25 24 16.2 16.8 -0.83 18.31 -0.19 42 20.8 26.1 -10.79 26.35 -2.10 20 24.4 20.1 3.56 9.69 1.14

Page 2

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 225 of 295

7 Total Tot 7 Total Tot 7 Total Tot 7 Total Tot 7 Total Tot

1999 2000 2001 2002 Tot

7 Total LUFF 1994 7 Total LUFF 1995 7. Total LUFF 1996 7 Total LUFF 1997 7 Total LUFF 1998 7 Total LUFF 1999 7 Total LUFF 2000 7 Total LUFF 2001 7 Total LUFF 2002 7 Total LUFF Tot

7 Total LUFT 1994 7 Total LUFT 1995 7 Total LUFT 1996 7 Total LUFT 1997 7 Total LUFT 1998 7 Total LUFT 1999 7 Total LUFT 2000 7 Total LUFT 2001 7 Total LUFT 2002 7 Total LUFT Tot

7 Total LUFC 2002 7 Total LUFC Tot

7 Total LUFG 1995 7 Total LUFG 1996 7 Total LUFG 1997 7 Total LUFG 1998 7 Total LUFG 1999 7 Total LUFG 2000 7 Total LUFG Tot

7 Total LUFO 1994 7 Total LUFO 1995 7 Total LUFO 1996 7 Total LUFO 1997 7 Total LUFO 1998 7 Total LUFO 1999 7 Total LUFO 2000 .7 Total LUFO 2001 7 Total LUFO 2002 7 Total LUFO Tot

7 Total LUFP 1994 7 Total LUFP 1995 7 Total LUFP 1996 7 Total LUFP 1997 7 Total LUFP 1998 7 Total LUFP 1999 7 Total LUFP 2000 7 Total LUFP 2001 7 Total LUFP 2002 7 Total LUFP Tot

6 Total Tot 6 Total Tot 6 Total Tot 6 Total Tot

1994 1995 1996 1997

Appendix IOc

50

32

11 22.021-4 0.31 5.71 0.13

88

38

19 21-6 23.1 -1-31 1.77 -0.99

108

47

35 32-4 33.1 -0.77 17.30 -0.19

19

13

3 15.8 17-4 -0.31 1.44 -.0.25

901 501 183

-28.39 105.77 -2.76

29

7

6 20.7 17.7 0.87. 3.26 0-48

28

6

2 7.1 17.0 -2.75 2.98 -1-59

49

12

5 10.2 16.1 -2.89 5.48 -1-23

49

13

11 22-4 3L9 -4.64 9.11 -1.54

25

4· 10 40.0 26.0 3.50 3.63 1.84

8

2

2 25.0 15.7 0.74 0.99 0.74

17

2

o 0.0 2.9 -0.50 0.36 -0.83

19

4

4 21-1 26.0 -0.95 2.67 -0.58

3

1

1 33.3 16.7 0.50 0.25 1.00

227

51

41

-6.11 28.73 -1.14

18 33 32 60 22 35
9 6 7 222
1 1
1 1
12 4 2 1
21

15 21 17 34 15 26
6 3 5 142
1 1
1 1
10 3 2 1
18

1 5.6 15-4 -1. 76 1.81 -1-31

9 27.3 33.9 -2.20 4.91 -0.99

9 28.1 18.5 3.07 4.76 1.41

14 23.3 32.5 -5.48 10.44 -1.70

4 18.2 24.7 -1-43 3.58 -0.76

6 17.1 2L2 -1-41 4.10 -0.70

1 11.1 19-4 -0.75 1.35 -0.64

2 33.3 24-4 0.54 0.98 0.54

1 14.3 25.0 -0.75 0.56 -1.00

47

-10.17 32.50 -1.78

o 0.0 0.0 0.00 0.00 0.00

o

0.00 0.00 0.00

o 0.0 o 0.0
1 8.3
1 25.0
o 0.0 o 0.0
2

8.3 -0.08 7.0 -0.07 6.8 0.18 9.7 0.61 6.7 -0.13 6.6 -0.07
0-44

0.08 0.06 0.75 0.35 0.12 0.06 1.43

-0.30 -0.27
0.21 1.04 -0.38 -0.26 0.37

2 5 4 29 18 2 58 63 4 185

2 2 1 21 14 2 26 29 3 100

o 0.0
3 60.0 1 25.0 8 27.6
1 5.6
o 0.0
18 31.0
22 34.9
1 25.0
54

0.0 60.0 25.0 27.6
6.2 0.0 31-0 37.0 21-4

0.00 0.00 0.00 0.00 -0.12 0.00 0.00 -1.30 0.14 -1.27

0.00 0.00 0.00 0.00 0.97 0.00 0.00 9.94 0-47 11.38

0.00 0.00 0.00 0.00 -0.12 0.00 0.00 -0.41 0.21 -0.38

23

17

65

55

62

49

52

42

13

9

3

o

3

3

20

11

4

3

245 189

3 13.0 5 7.7
9 14.5 8 15.4
4 30.8
3 100.0
o 0.0
7 35.0
o 0.0
39

30.8 -4.08 20.4 -8.24 16.0 -0.95 17.0 -0.85 23.2 0.99 63.0 1.11
0.0 0.00 30.3 0.93
5.0 -0.20 -11. 28

3.42 8.72 8.00 6.04 1.17 0.49 0.00 3.72 0.16 31.73

-2.21 '-2.79 -0.33 -0.34
0.92 1. 58 0.00 0.48 -0.50 -2.00

32

28

2 6.2 14.4 -2.62 2.93 -1.53

40

33

3 7.5 11.6 -1.64 3.52 -0.87

85

63

15 17.6 17.2 0.35 9.08 0.12

97

81

10 10.3 14.2 -3.80 9.28 -1.25

Page 3

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 226 of 295

6 Total Tot 6 Total Tot 6 Total Tot 6 Total Tot 6 Total Tot 6 Total Tot

1998 1999 2000 2001 2002 Tot

6 Total LUFF 1994 6 Total LUFF 1995 6 Total LUFF 1996 6 Total LUFF 1997 6 Total LUFF 1998 6 Total LUFF 1999 6 Total LUFF 2000 6 Total LUFF 2001 6 Total LUFF 2002 6 Total LUFF Tot

6 Total LUFT 1994 6 Total LUFT 1995 6 Total LUFT 1996 6 Total LUFT 1997 6 Total LUFT 1998 6 Total LUFT 1999 6 Total LUFT 2000 6 Total LUFT 2001 6 Total LUFT 2002 6 Total LUFT Tot

6 Total LUFG 1995 6 Total LUFG 1997 6 Total LUFG 1998 6 Total LUFG 1999 6 Total LUFG Tot

6 Total LUFO 1994 6 Total LUFO 1995 6 Total LUFO 1996 6 Total LU.FO 1997 6 Total LUFO 1998 6'Total LUFO 1999 6 Total LUFO 2000 6 Total LUFO 2001 6 Total LUFO 2002 6 Total LUFO Tot

6 Total LUFP 1994 6 Total LUFP 1995 6 Total LUFP 1996 6 Total LUFP 1997 6 Total LUFP 1998 6 Total LUFP 1999 6 Total LUFP 2000 6 Total LUFP 2001 6 Total LUFP 2002 6 Total LUFP Tot

70

58

in

33

45

29

_29

20

40

30

481 375

7

3

6

3

22

9

22

18

4

2

3

1

11

3

6

3

6

3

87

45

6

6

10

8

4

3

14

11

10

6

9

8

4

4

2

2

2

2

61

50

1

o

2

2

1

1

2

1

6

4

2

2

2

2

3

3

20

16

12

11

6

4

14

11

15

11

25

19

99

79

17

17

21

20

56

48

39

34

43

38

23

19

16

11

6

4

7

6

228 197

Appendix IOc

5 7.1 13.6 -4.54

5 11.6 17.4 -2.50

5. ILl 17.6 -2.91

6 20.7 21. 9-0.35

2 5.0 20.9 -6.38

53

-24.38

6.72 5.26 5.09 3.85 5.32 51.06

-1.75 -1.09 -1.29 -0.18 -2.77 -) .41

2 28.6 24.8 0.26 0.80 0.29

1 16.7 8.2 0.51 0.35 0.86

9 40.9 36.6 0.96 4.05 0.47

3 13.6 17.8 -0.92
o 0.0 38.8 -1.55

2.17 -0.62 0.74 -1.81

o 0.0 22.2 -0.67 0.40 -1.05

1 9.1 36.1 -2.97 L92 -2.15

1 16.7 39.0 -1.34 0.84 -1.46

1 16.7 34.4 -1.06 0.73 -1.25

18

-6.79 12.01 -1.96

o 0.0 22.8 -1.37

2 20.0 20.3 -0.03
o 0.0 19.2 -0.77

1 7.1 21.8 -2.05

3 30.0 16.9 1.31
o 0.0 28.8 -2.59

o 0.0 20.5 -0.82
o 0.0 24.3 -0.49 o 0.0 14.1 -0.28

6

-7.08

0.89 1.42 0.53 2.07 1.26 1.61 0.59 0.37 0.20 8.95

-1.45 -0.03 -LOS
~1.42
1.17 -2.04 -1.07 -0.80 -0.63 -2.37

o 0.0 0.0
o 0.0 0.0
o 0.0 0.0
1 50.0 10.0
1

0.00 0.00 0.00 0.80 0.80

0.00 0.00 0.00 0.18 0.18

0.00 0.00 0.00 1.89 1.89

o 0.0 0.0 0.00 0.00 0.00 o 0.0 0.0 0.00 0.00 0.00

o 0.0 0.0 0.00 0.00 0.00

1 5.0 14.8 -1.97 1.96 -1.41

o 0.0 20.5 -2.46 1.61 -1.93

1 16.7 12.1 0.27 0.58 0.36

1 7.1 11.5 -0.61 1.32 -0.53

3 20.0 18.4 0.23 2.19 0.16

1 4.0 23.3 -4.81 4.19 -2.35

7

-9.34 11.84 -2.71

o 0.0
o 0.0
6 10.7
5 12.8
2 4.7
3 13.0
3 18.8
2 33.3
o 0.0
21

8.9 10.1 10.4
9.9 8.9 14.4 9.4 12.6 3.1

-1. 52 -2.12
0.16 1.13 -1.83 -0.32 1.49 1.24 -0.22 -1.97

1.23 1. 75 4.49 3.07 3.12 2.49 1.27 0.46 0.20 18.08

-1. 37 -1.60
0.08 0.64 -1.04 -0.20 1.33 1.83 -0.49 -0.46

Page 4

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 227 of 295

Appendix Iia

ANALYSIS OF PLACEMENT OF ENTRY LEVEL NEW HIRES INTO FOUNDRY DEPT CONTROLLING FOR DAY OF HIRE
BLACKS V. NON-BLACK
================================================
restricted to eeo 8 into LUF depts

N

total hires this date

N1 total success (not hired into LUFF)

n

number of nonblacks hired

k

number of successes nonblacks hired

If loss> 0 then blacks overly assigned to LUFF jobs.

Page 1

Mantel-Haenszel Statistics (normal approximation method)

Population

Sample

N

N1

n

k

Expect Loss

6

1 16.7

5

1

0.83

0.17

1

o 0.0

1

o

0.00

0.00

1

1 100.0

1

1

1.00

0.00

1

o 0.0

1

o

0.00

0.00

1

o 0.0

1

o 0.00

0.00

6

o 0.0

4

o

0.00

0.00

3

3 100.0

3

3

3.00

0.00

1

o 0.0

o o

0.00

0.00

9

5 55.6

6

3

3.33 -0.33

5

5 100.0

3

3

3.00

0.00

1

1 0.0

o o 0.00

0.00

2

1 50.0

1

o

0.50 -0.50

5

1 20.0

5

1

1.00

0.00

2

1 50.0

1

1

0.50

0.50

1

1 100.0

1

1

1.00

0.00

7

1 14.3

3

1

0.43

0.57

1

1 100.0

1

1

1.00

0.00

3

3 100.0

3

3

3.00

0.00

3

133.3

1

o

0.33 -0.33

3

o 0.0

1

o

0.00

0.00

3

o 0.0

1

o

0.00

0.00

1

o 0.0

1

o 0.00

0.00

6

2 33.3

4

2

1.33

0.67

4

4 100.0

4

4

4.00

0.00

2

2 100.0

1

1

1.00

0.00

3

2 66.7

2

2

1.33

0.67

3

2 66.7

2

1

1.33 -0.33.

3

2 66.7

2

1

1.33 -0.33

4

4 .100.0

3

3

3.00

0.00

1

1 0.0

o

o

0.00

0.00

3

1 33.3

2

1

0.67

0.33

3

3 100.0

1

1

1.00

0.00

~

1 100.0

1

1

1.00

0.00

3

1 33.3

2

o

0.67 -0.67

1

o 0.0

1

o

0.00

0.00

2

1 50.0

2

1

1.00

0.00

1

1 100.0

1

1

1.00

0.00

3

1 33.3

3

1

1.00

0.00

2

o 0.0

2

o

0.00

0.00

2

1 50.0

2

1

1.00

0.00

1

1 100.0

1

1

1.00

0.00

4

4. 100.0

2

2

2.00

0.00

Var
0.14 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.56 0.00 0.00 0.25 0.00 0.25 0.00 0.24 0.00 0.00 0.22 0.00 0.00 0.00 0.36 0.00 0.00 0.22 0.22 0.22 0.00 0.00 0.22 0.00 0.00 0.22 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00

z
0.45 0.00 0.00 0.00 0.00 0.00 0.00 0.00 -0.45 0.00 0.00 -1. 00 0.00 1.00 0.00 1.15 0.00 0.00 -0.71 0.00 0.00 0.00 1.12 0.00 0.00 1. 41 -0.71 -0.71 0.00 0.00 0.71 0.00 0.00 -1.41 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00

19940307 non LUFF 19940310 non LUFF 19940314 non LUFF 19940317 non LUFF 19940321 non LUFF 19940324 non LUFF 19940330 non LUFF 19940331 non LUFF 19940404 non LUFF 19940405 non LUFF 19940406 non LUFF 19940407 non LUFF 19940411 non LUFF 19940413 non LUFF 19940414 non LUFF 19940421 non LUFF 19940425 non LUFF 19940427 non LUFF 19940428 non LUFF 19940502 non LUFF 19940509 non LUFF 19940510 non LUFF 19940512 non LUFF 19940518 non LUFF 19940519 non LUFF 19940523 non LUFF 19940525 non LUFF 19940526 non LUFF 19940531 non LUFF 19940601 non LUFF 19940602 non LUFF 19940606 non LUFF 19940608 non LUFF 19940609 non LUFF 19940610 non LUFF 19940613 non LUFF 19940615 non LUFF 19940616 non LUFF 19940622 non LUFF 19940623 non LUFF 19940627 non LUFF 19940629 non LUFF

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 228 of 295

Appendix Ila

1

1 100.0

1

1

1.00

0.00

0.00

0.00 19940630 non LUFF

3

2 66.7

2

1

1.33 -0.33

0.22 -0.71 19940705 non LUFF

5

4 80.0

4

3

3.20 -0.20

0.16 -0.50 19940706 non LUFF

12

6 50.0

4

4

2.00

2.00

0.73

2.35 19940707 non LUFF 0-

1

1 100.0

1

1

1.00

0.00

0.00

0.00 19940711 non LUFF

8

8 100.0

8

8

8.00

0.00

0.00

0.00 19940713 non LUFF

4

3 75.0

4

3

3.00

0.00

0.00

0.00 19940714 non LUFF

6

3 50.0

5

3

2.50

0.50

0.25

1.00 19940718 non LUFF

2

o 0.0

2

o

0.00

0.00

0.00

0.00 19940720 non LUFF

2

2 100.0

1

1

1.00

0.00

0.00

0.00 19940721 non LUFF

1

o 0.0

1

o

0.00

0.00

0.00

0.00 19940722 non LUFF

4

1 25.0

4

1

1.00

0.00

0.00

0.00 19940727 non LUFF

2

o 0.0

2

o 0.00

0.00

0.00

0.00 19940728 non LUFF

5

5 100.0

4

4

4.00

0.00

0.00

0.00 19940803 non LUFF

1

1 0.0

o o 0.00

0.00

0.00

0.00 19940810 non LUFF

3

o 0.0

2

o 0.00

0.00

0.00

0.00 19940811 non LUFF

1

1 100.0

1

1

1.00

0.00

0.00

0.00 19940815 non LUFF

1

o 0.0

1

o 0.00

0.00

0.00

0.00 19940824 non LUFF

3

1 33.3

2

1

0.67

0.33

0.22

0.71 19940825 non LUFF

4

1 25.0

3

1

0.75

0.25

0.19

0.58 19940831 non LUFF

2

o 0.0

2

o

0.00

0.00

0.00

0.00 19940901 non LUFF

2

1 50.0

1

1

0.50

0.50

0.25

1.00 19940906 non LUFF

1

1 100.0

1

1

1.00

0.00

0.00

0.00 19940907 non LUFF

3

2 66.7

3

2

2.00

0.00

0.00

0.00 19940908 non LUFF

1

o 0.0

o

o

0.00

0.00

0.00

0.00 19940912 non LUFF

1

o 0.0

1

o 0.00

0.00

0.00

0.00 19940914 non LUFF

1

o 0.0

o o

0.00

0.00

0.00

0.00 19940915 non LUFF

4

o 0.0

4

o

0.00

0.00

0.00

0.00 19940921 non LUFF

·2

2 100.0

2

2

2.00

0.00

0.00

0.00 19940928 non LUFF

1

1 100.0

1

1

1.00

0.00

0.00

0.00 19940929 non LUFF

7

1 14.3

3

o

0.43 -0.43

0.24 -0.87 19941006 non LUFF

1

o 0.0

1

o 0.00

0.00

0.00

0.00 19941007 non LUFF

1

o 0.0

1

o

0.00

0.00

0.00

0.00 19941010 non LUFF

8

1 12.5

6

1

0.75

0.25

0.19

0.58 19941013 non LUFF

3

2 66.7

3

2

2.00

0.00

0.00

0.00 19941017 non LUFF

1

1 0.0

o

o

0.00

0.00

0.00

0.00 19941020 non LUFF

1

1 0.0

o o 0.00

0.00

0.00

0.00 19941021 non LUFF

1

1 100.0

1

1

1.00

0.00

0.00

0.00 19941024 non LUFF

1

1 0.0

o

o

0.00

0.00

0.00

0.00 19941027 non LUFF

1

1 0.0

o o 0.00

0.00

0.00

0.00 19941107 non LUFF

1

1 100.0

1

1

1.00

0.00

0.00

0.00 19941109 non LUFF

1

o 0.0

1

o

0.00

0.00

0.00

0.00 19941110 non LUFF

1

o 0.0

1

o

0.00

0.00

0.00

0.00 19941114 non LUFF

3

o 0.0

1

o 0.00

0.00

0.00

0.00 19941117 non LUFF

3

2 66.7

3

2

2.00

0.00

0.00

0.00 19941128 non LUFF

11

5 45.5

8

5

3.64

1.36

0.60

1. 77 19941129 non LUFF

2

1 50.0

1

o

0.50 -0.50

0.25 -1.00 19941130 non LUFF

1

1 0.0

o

o

0.00

0.00

0.00

0.00 19941212 non LUFF

2

2 0.0

o

o

0.00

0.00

0.00

0.00 19941214 non LUFF

3

3 100.0

1

1

1.00

0.00

0.00

0.00 19941215 non LUFF

3

3 100.0

1

1

1.00

0.00

0.00

0.00 19941219 non LUFF

1

1 0.0

o

o

0.00

0.00

0.00

0.00 19941227 non LUFF

1

o 0.0

o

o

0.00

0.00

0.00

0.00 19941229 non LUFF

1

1 100.0

1

1

1.00

0.00

0.00

0.00 19950103 non LUFF

1

o 0.0

1

o

0.00

0.00

0.00

0.00 19950105 non LUFF

1

o 0.0

1

o

0.00

0.00

0.00

0.00 19950106 non LUFF

6

o 0.0

5

o

0.00

0.00

0.00

0.00 19950109 non LUFF

1

1 100.0

1

1

1.00

0.00

0.00

0.00 19950111 non LUFF

1

1 100.0

1

1

1.00

0.00

0.00

0.00 19950112 non LUFF

1

o 0.0

1

o

0.00

0.00

0.00

0.00 19950113 non LUFF

3

2 66.7

2

1

1.33 -0.33

0.22 -0.71 19950116 non LUFF

3

3 100.0

3

3

3.00

0.00

0.00

0.00 19950118 non LUFF

1

1 0.0

o

o

0.00

0.00

0.00

0.00 19950119 non LUFF

2

1 50.0

2

1

1.00

0.00

0.00

0.00 19950123 non LUFF

2

1 50.0

2

1

1.00

0.00

0.00

0.00 19950125 non LUFF

Page 2

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 229 of 295

Appendix 11a

1

o 0.0

1

o

0.00

0.00

1

1 0.0

o

o

0.00

0.00

2

2 0.0

o

o

0.00

0.00

1

o 0.0

1

o

0.00

0.00

1

1 100.0

1

1

1.00

0.00

1

o 0.0

1

o

0.00

0.00

3

3 100.0

3

3

3.00

0.00

3

3 100.0

3

3

3.00

0.00

2

1 50.0

1

1

0.50

0.50

2

2 100.0

1

1

1.00

0.00

5

5 100.0

4

4

4.00

0.00

3

o 0.0

2

o

0.00

0.00

3

2 66.7

2

1

1.33 -0.33

1

1 100.0

1

1

1.00

0.00

1

1 100.0

1

1

1.00

0.00

1

1 0.0

o

o

0.00

0.00

1

1 100.0

1

1

1.00

0.00

1

o 0.0

o o

0.00

0.00

1

1 100.0

1

1

1.00

0.00

2

2 100.0

1

1

1.00

0.00

2

2 100.0

2

2

2.00

0.00

2

2 100.0

2

2

2.00

0.00

1

1 100.0

1

1

1.00

0.00

3

3 100.0

3

3

3.00

0.00

1

1. 0.0

o a

0.00

0.00

1

1 0.0

o a

0.00

0.00

1

1 100.0

1

1

1.00

0.00

3

3 100.0

2

2

2.00

0.00

2

2 100.0

2

2

2.00

0.00

1

1 100.0

1

1

1.00

0.00

2

2 100.0

2

2

2.00

0.00

1

1 100.0

1

1

1.00

0.00

1

o 0.0

1

o

0.00

0.00

1

1 0.0

o a

0.00

0.00

5

5 100.0

3

3

3.00

0.00

2

1 0.0

o o 0.00

0.00

1

o 0.0

1

o

0.00

0.00

1

o 0.0

o a

0.00

0.00

1

1 100.0

1

1

1.00

0.00

1

1 0.0

o o

0.00

0.00

4

3 75.0

3

2

2.25 -0.25

4

1 25.0

3

1

0.75

0.25

1

1 100.0

1

1

1.00

0.00

3

1 33.3

2

1

0.67

0.33

2

o 0.0

2

o

0.00

0.00

1

1 100.0

1

1

1. 00

0.00

1

1 100.0

1

1

1.00

0.00

1

1 100.0

1

1

1.00

0.00

1

o 0.0

o

o

0.00

0.00

2

2 100.0

2

2

2.00

0.00

3

1 33.3

3

1

1.00

0.00

3

3 100.0

3

3

3.00

0.00

1

1 0.0

o

o

0.00

0.00

1

1 100.0

1

1

1.00

0.00

2

1 50.0

2

1

1.00

0.00

1

o 0.0

1

o

0.00

0.00

2

o 0.0

1

o

0.00

0.00

1

o 0.0

1

o

0.00

0.00

2

o 0.0

1

o

0.00

0.00

1

o 0.0

1

o

0.00

0.00

1

o 0.0

o

o

0.00

0.00

1

o 0.0

1

a

0.00

0.00

19 19 100.0 17 17 17.00

1

1 0.0

o o 0.00

0.00 0.00

2

2 100.0

2

2

2.00

0.00

0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.25 0.00 0.00 0.00 0.22 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 ·0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.19 0.19 0.00 0.22 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00

0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 1.00 0.00 0.00 0.00 -0.71 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 -0.58 0.58 0.00 0.71 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00

19950130 non LUFF 19950201 non LUFF 19950215 non LUFF 19950216 non LUFF 19950301 non LUFF 19950302 non LUFF 19950306 non LUFF 19950308 non LUFF 19950309 non LUFF 19950313 non LUFF 19950315 non LUFF 19950316 non LUFF 19950320 non LUFF 19950327 non LUFF 19950329 non LUFF 19950404 non LUFF 19950406 non LUFF 19950410 non LUFF 19950411 non LUFF 19950412 non LUFF 19950413 non LUFF 19950417 non LUFF 19950503 non LUFF 19950504 non LUFF 19950508 non LUFF 19950515 non LUFF 19950522 non LUFF 19950524 non LUFF 19950530 non LUFF 19950531 non LUFF 19950601 non LUFF 19950605 non LUFF 19950615 non LUFF 19950629 non LUFF 19950706 non LUFF 19950710 non LUFF 19950717 non LUFF 19950720 non LUFF 19950731 non LUFF 19950807 non LUFF 19950809 non LUFF 19950810 non LUFF 19950814 non LUFF 19950816 non LUFF 19950817 non LUFF 19950821 non LUFF 19950824 non LUFF 19950901 non LUFF 19950905 non LUFF 19950906 non LUFF 19950907 non LUFF 19950911 non LUFF 19950912 non LUFF 19950913 non LUFF 19950928 non LUFF 19951004 non LUFF 19951012 non LUFF 19951013 non LUFF 19951016 non LUFF 19951018 non LUFF 19951019 non LUFF 19951020 non LUFF 19951023 non LUFF 19951024 rion LUFF 19951025 non LUFF

Page 3

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 230 of 295

Appendix 1Ia

1

1 0.0

a

o

0.00

0.00

0.00

0.00 19951030 non LUFF

2

o 0.0

2

o

0.00

0.00

0.00

0.00 19951101 non LUFF

2

1 50.0

1

1

0.50

0.50

0.25

1.00 19951106 non LUFF

7

4 57.1

6

3

3.43 -0.43

0.24 -0.87 19951108 non LUFF

5

o 0.0

3

o

0.00

0.00

0.00

0.00 19951109 non LUFF

1

1 0.0

a

o

0.00

0.00

0.00

0.00 19951113 non LUFF

2

o 0.0

2

a

0.00

0.00

0.00

0.00 19951116 non LUFF

1

1 0.0

a

o

0.00

0.00

0.00

0.00 19951120 non LUFF

1

o 0.0

1

o

0.00

0.00

0.00

0.00 19951201 non LUFF

2

o 0.0

2

o

0.00

0.00

0.00

0.00 19951204 non LUFF

1

o 0.0

1

o

0.00

0.00

0.00

0.00 19951211 non LUFF

1

o 0.0

a o 0.00

0.00

0.00

0.00 19951221 non LUFF

2

o 0.0

1

o

0.00

0.00

0.00

0.00 19951222 non LUFF

1

1 100.0

1

1

1.00

0.00

0.00

0.00 19960102 non LUFF

2

o 0.0

2

o

0.00

0.00

0.00

0.00 19960i04 non LUFF

1

o 0.0

1

o

0.00

0.00

0.00

0.00 19960115 non LUFF

1

1 100.0

1

1

1.00

0.00

0.00

0.00 19960116 non LUFF

1

1 100.0

1

1

1.00

0.00

0.00

0.00 19960216 non LUFF

7

7 100.0

7

7

7.00

0.00

0.00

0.00 19960304 non LUFF

1

o 0.0

1

o

0.00

0.00

0.00

0.00 19960306 non LUFF

1

o 0.0

1

o

0.00

0.00

0.00

0.00 199603Q7 non LUFF

1

o 0.0

1

o

0.00

0.00

0.00

0.00 19960308 non LUFF

3

o 0.0

3

a

0.00

0.00

0.00

0.00 19960314 non LUFF

1

o 0.0

a o 0.00

0.00

0.00

0.00 19960319 non LUFF

1

a 0.0

1

o

0.00

0.00

0.00

0.00 19960320 non LUFF

1

o 0.0

a

a

0.00

0.00

0.00

0.00 19960321 non LUFF

1

o 0.0

a a

0.00

0.00

0.00

0.00 19960328 non LUFF

2

o 0.0

1

a

0.00

0.00

0.00

0.00 19960404 non LUFF

1

o 0.0

o o 0.00

0.00

0.00

0.00 19960408 non LUFF

1

1 100.0

1

1

1.00

0.00

0.00

0.00 19960410 non LUFF

1

o 0.0

1

o

0.00

0.00

0.00

0.00 19960411 non LUFF

1

o 0.0

1

o

0.00

0.00

0.00

0.00 19960417 non LUFF

2

o 0.0

2

a

0.00

0.00

0.00

0.00 19960418 non LUFF

1

a 0.0

a

a

0.00

0.00

0.00

0.00 19960422 non LUFF

1

a 0.0

a

a

0.00

0.00

0.00

0.00 19960424 non LUFF

2

o 0.0

2

o

0.00

0.00

0.00

0.00 19960425 non LUFF

1

o 0.0

a

a

0.00

0.00

0.00

0.00 19960429 non LUFF

2

a 0.0

1

a

0.00

0.00

0.00

0.00 19960506 non LUFF

1

o 0.0

a

a

0.00

0.00

0.00

0.00 19960508 non LUFF

1

o 0.0

1

a

0.00

0.00

0.00

0.00 19960509 non LUFF

1

o 0.0

a a

0.00

0.00

0.00

0.00 19960515 non LUFF

1

o 0.0

1

o

0.00

0.00

0.00

0.00 19960516 non LUFF

1

o 0.0

1

o

0.00

0.00

0.00

0.00 19960520 non LUFF

2

o 0.0

1

o

0.00

0.00

0.00

0.00 19960528 non LUFF

1

o 0.0

1

o

0.00

0.00

0.00

0.00 19960529 non LUFF

1

o 0.0

a

o

0.00

0.00

0.00

0.00 19960531 non LUFF

3

o 0.0

a

o

0.00

0.00

0.00

0.00 19960611 non LUFF

2

o 0.0

2

o

0.00

0.00

0.00

0.00 19960620 non LUFF

1

o 0.0

a

o

0.00

0.00

0.00

0.00 19960625 non LUFF

1

o 0.0

a o 0.00

0.00

0.00

0.00 19960626 non LUFF

4

o 0.0

4

a

0.00

0.00

0.00

0.00 19960708 non LUFF

2

o 0.0

1

a

0.00

0.00

0.00

0.00 19960711 non LUFF

2

o 0.0

2

a

0.00

0.00

0.00

0.00 19960725 non LUFF

1

o 0.0

a

o

0.00

0.00

0.00

0.00 19960726 non LUFF

1

o 0.0

1

a

0.00

0.00

0.00

0.00 19960805 non LUFF

1

o 0.0

a

a

0.00

0.00

0.00

0.00 19960808 non LUFF

1

1 100.0

1

1

1.00

0.00

0.00

0.00 19960822 non LUFF

1

1 100.0

1

1

1.00

0.00

0.00

0.00 19960909 non LUFF

1

o 0.0

1

a

0.00

0.00

0.00

0.00 19961030 non LUFF

1

o 0.0

1

o

0.00

0.00

0.00

0.00 19961114 non LUFF

2

a 0.0

o

a

0.00

0.00

0.00

0.00 19961121 non LUFF

1

a 0.0

1

o

0.00

0.00

0.00

0.00 19961205 non LUFF

1

o 0.0

1

a

0.00

0.00

0.00

0.00 19961211 non LUFF

3

o 0.0

1

o

0.00

0.00

0.00

0.00 19961226 non LUFF

7

5 71.4

5

5

3.57

1.43

0.34

2.45 19961230 non LUFF

Page 4

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 231 of 295

Appendix lla

1

1 0.0

o o

0.00

0.00

11

9 81.8

7

6

5.73

0.27

1

o 0.0

o

o

0.00

0.00

18 14 77.8 14 10 10.89 -0.89'

1

1 100.0

1

1

1.00

0.00

1

1 100.0

1

1

1.00

0.00

17 14 82.4 13 11 10.71

0.29

5

5 100.0

4

4

4.00

0.00

1

o 0.0

1

o

0.00

0.00

5

3 60.0

3

2

1.80

0.20

1

o 0.0

1

o

0.00

0.00

5

5 100.0

5

5

5.00

0.00

4

3 75.0

3

3

2.25

0.75

3

2 66.7

2

2

1.33

0.67

13 13 100.0

7

7

7.00

0.00

1

1 100.0

1

1

1.00

0.00

6

5 83.3

4

3

3.33 -0.33

2

1 0.0

o o

0.00

0.00

14

8 57.1 10

6

5.71

0.29

6

4 66.7

2

2

1.33

0.67

11

8 72.7

9

7

6.55

0.45

3

1 33.3

2

o

0.67 -0.67

5

5 100.0

4

4

4.00

0.00

1

o 0.0

o o

0.00

0.00

10

7 70.0

6

5

4.20

0.80

1

1 100.0

1

1

1.00

0.00

12 10 83.3

7

6

5.83

0.17

10

8 80.0

8

6

6.40 -0.40

1

1 100.0

1

1

1. 00

0.00

11

5 45.5

7

4

3.18

0.82

1

o 0.0

1

o

0.00

0.00

6

4 66.7

5

3

3.33 -0.33

4

4 100.0

2

2

2.00

0.00

5

3 60.0

2

2

1.20

0.'80

1

1 100.0

1

1

1.00

0.00

4

3 75.0

3

2

2.25 -0.25

3

1 33.3

3

1

1.00

0.00

4

1 25.0

4

1

1.00

0.00

2

2 100.0

1

1

1.00

0.00

7

3 42.9

4

3

1. 71

1. 29

12 11 91.7 11 10 10.08 -0.08

5

5 100.0

3

3

3.00

0.00

6

5 83.3

6

5

5.00

0.00

9

5 55.6

7

4

3.89

0.11

8

6 75.0

8

6

6.00

0.00

20 14 70.0 17 14 11.90

1

o 0.0

o o

0.00

2.10 0.00

13

7 53.8

8

4

4.31 ·0.31

16 11 68.8 12

9

8.25

0.75

1

1 0.0

o

o

0.00

0.00

9

3 33.3

7

2

2.33 -0.33

13 11 84.6

9

7

7.62 -0.62

8

o 0.0

7

o

0.00

0.00

9

5 55.6

8

5

4.44

0.56

6

o 0.0

4

o

0.00

0.00

1

o 0.0

o o 0.00

0.00

28 24 85.7 25 22 21.43

0.57

2

1 50.0

2

1

1.00

0.00

4

o 0.0

3

o

0.00

0.00

1

o 0.0

1

o

0.00

0.00

3

1 33.3

2

1

0.67

0.33

12

7 58.3

9

6

5.25

0.75

1

o 0.0

o

o

0.00

0.00

3

2 66.7

2

2

1.33

0.67

1

1 100.0

1

1

1.00

0.00

0.00 0.42 0.00 0.57 0.00 0.00 0.47 0.00 0.00 0.36 0.00 0.00 0.19 0.22 0.00 0.00 0.22 0.00 0.75 0.36 0.36 0.22 0.00 0.00 0.56 0.00 0.44 0.28 0.00 0.69 0.00 0.22 0.00 0.36 0.00 0.19 0.00 0.00 0.00 0.49 0.08 0.00 0.00 0.43 0.00 0.56 0.00 0.83 0.69 0.00 0.39 0.39 0.00 0.25. 0.00 0.00 0.34 0.00 0.00 0.00 0.22 0.60 0.00 0.22 0.00

0.00 0.42 0.00 -1.18 0.00 0.00 0.43 0.00 0.00 0.33 0.00 0.00 1.73 1.41 0.00 0.00 -0.71 0.00 0.33 1.12 0.76 -1.41 0.00 0.00 1.07 0.00 0.25 -0.75 0.00 0.98 0.00 -0.71 0:00 1.33 0.00 -0.58 0.00 0.00 0.00 1.84 -0.30 0.00 0.00 0.17 0.00 2.80 0.00 -0.34 0.90 0.00 -0.53 -0.98 0.00 1.12 0.00 0.00 0.98 0.00 0.00 0.00 0.71 0.97 0.00 1.41 0.00

19961231 non LUFF 19970106 non LUFF 19970110 non LUFF 19970113 non LUFF 19970114 non LUFF 19970115 non LUFF 19970120 non LUFF 19970127. non LUFF 19970128 non LUFF 19970203 non LUFF 19970210 non LUFF 19970217 non LUFF 19970224 non LUFF 19970317 non LUFF 19970324 non LUFF 19970331 non LUFF 19970407 non LUFF 19970414 non LUFF 19970421 non LUFF 19970428 non LUFF 19970505 non LUFF 19970519 non LUFF 19970527. non LUFF 19970602 non LUFF 19970609 non LUFF 19970610 non LUFF 19970616 non LUFF 19970623 non LUFF 19970625 non LUFF 19970630. non LUFF 19970702 non LUFF 19970707 non LUFF 19970714 non LUFF 19970721 non LUFF 19970725 non LUFF 19970728 non LUFF 19970804 non LUFF 19970811 non LUFF 19970818 non LUFF 19970825 non LUFF 19970902 non LUFF 19970908 non LUFF 19970915 non LUFF 19970922 non LUFF 19970929 non LUFF 19971006 non LUFF 19971008 non LUFF 19971013 non LUFF 19971020 non LUFF 19971021 non LUFF 19971027 non LUFF 19971103 non LUFF 19971110 non LUFF 19971117 non LUFF 19971124 non LUFF 19971201 non LUFF 19971208 non LUFF 19971215 non LUFF 19971229 non LUFF 19971230. non LUFF 19980112 non LUFF 19980119 non LUFF 19980123 non LUFF 19980126 non LUFF 19980202 non LUFF

Page 5

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 232 of 295

Appendi.x Iia

6

6 100.0

4

4

4.00

0.00

0.00

0.00 19980209 non LUFF

6

6 100.0

4

4

4.00

0.00

0.00

0.00 19980216 non LUFF

4

1 25.0

4

1

1.00

0.00

0.00

0.00 19980223 non LUFF

4

4 clOO. 0

2

2

2.00

0.00

0.00

0.00 19980302 non LUFF

1

o 0.0

1

.0

0.00

0.00

0.00

0.00 19980305 non LUFF

12

6 50.0 10

5

5.00

0.00

0.45

0.00 19980309 non LUFF

1

o 0.0

1,

o

0.00

0.00

0.00

0.00 19980316 non LUFF

2

2 100.0

2

2

2.00

0.00

0.00

0.00 19980427 non LUFF

7

7 100.0

5

5

5.00

0.00

0.00

0.00 19980504 non LUFF

3

3 100.0

2

2

2.00

0.00

0.00

0.00 19980511 non LUFF

8

8 100.0

6

6

6.00

0.00

0.00

0.00 19980518 non LUFF

5

5 100.0

5

5

5.00

0.00

0.00

0.00 19980526 non LUFF

9

9 100.0

5

5

5.00

0.00

0.00

0.00 19980601 non LUFF

3

3 100.0

2

2

2.00

0.00

0.00

0.00 19980608 non LUFF

1

1 100.0

1

1

1.00

0.00

0.00

0.00 19980610 non LUFF

1

1 100.0

1

1

1.00

0.00

0.00

0.00 19980629 non LUFF

3

3 100.0

3

3

3.00

0.00

0.00

0.00 19980706 non LUFF

1

1 0.0

o o 0.00

0.00

0.00

0.00 19980713 non LUFF

4

4 100.0

3

3

3.00

0.00

0.00

0.00 19980803 non LUFF

1

1 0.0

o

o

0.00

0.00

0.00

0.00 19980810 non LUFF

1

1 100.0

1

1

1.00

0.00

0.00

0.00 19981026 non LUFF

2

2 100.0

2

2

2.00

0.00

0.00

0.00 19981116 non LUFF

4

4 100.0

4

4

4.00

0.00

0.00

0.00 19990712 non LUFF

6

6 100.0

4

4

4.00

0.00

0.00

0.00 19990802 non LUFF

1

1 100.0

1

1

1.00

0.00

0.00

0.00 19990830 non LUFF

5

5 100.0

5

5

5.00

0.00

0.00

0.00 19990907 non LUFF

2

2 100.0

1

1

1.00

0.00

0.00

0.00 19990913 non LUFF

2

2 100.0

1

1

1.00

0.00

0.00

0.00 20000410 non LUFF

5

5 100.0

2

2

2.00

0.00

0.00

0.00 20000501 non LUFF

3

3 100.0

2

2

2.00

0.00

0.00

0.00 20000508 non LUFF

5

5 100.0

2

2

2.00

0.00

0.00

0.00 20000515 non LUFF

1

1 0.0

o

o

0.00

0.00

0.00

0.00 20000516 non LUFF

1

1 100.0

1

1

1.00

0.00

0.00

0.00 20000530 non LUFF

1

1 100.0

1

1

1.00

0.00

0.00

0.00 20000605 non LUFF

2

o 0.0

1

o

0.00

0.00

0.00

0.00 20000905 non LUFF

3

o 0.0

1

o

0.00

0.00

0.00

0.00 20000925 non LUFF

4

o 0.0

4

o

0.00

0.00

0.00

0.00 20001009 non LUFF

9

o 0.0

6

o

0.00

0.00

0.00

0.00 20001016 non LUFF

5

o 0.0

3

o

0.00

0.00

0.00

0.00 20001023 non LUFF

3

o 0.0

2

o

0.00

0.00

0.00

0.00 20001030 non LUFF

1

o 0.0

1

o

0.00

0.00

0.00

0.00 20001106 non LUFF

1

o 0.0

1

o 0.00

0.00

0.00

0.00 20001113 non LUFF

1

o 0.0

o o 0.00

0.00

0.00

0.00 20001120 non LUFF

4

o 0.0

2

o

0.00

0.00

0.00

0.00 20001211 non LUFF

2

o 0.0

2

o

0.00

0.00

0.00

0.00 20001218 non LUFF

2

o 0.0

1

o

0.00

0.00

0.00

0.00 20001226 non LUFF

1

o 0.0

o o 0.00

0.00

0.00

0.00 20010102 non LUFF

2

o 0.0

2

o

0.00

0.00

0.00

0.00 20010108 non LUFF

5

o 0.0

3

o

0.00

0.00

0.00

0.00 20010115 non LUFF

2

o 0.0

2

o 0.00

0.00

0.00

0.00 20010129 non LUFF

6

o 0.0

5

o

0.00

0.00

0.00

0.00 20010205 non LUFF

13

o 0.0

5

o 0.00

0.00

0.00

0.00 20010212 non LUFF

5

o 0.0

4

o

0.00

0.00

0.00

0.00 20010219 non LUFF

12

o 0.0

7

o

0.00

0.00

0.00

0.00 20010226 non LUFF

5

o 0.0

2

o

0.00

0.00

0.00

0.00 20010305 non LUFF

8

o 0.0

5

o

0.00

0.00

0.00

0.00 20010312 non LUFF

9

1 11.1

4

1

0.44

0.56

0.25

1.12 20010319 non LUFF

7

o 0.0

3

o

0.00

0.00

0.00

0.00 20010326 non LUFF

8

o 0.0

8

o

0.00

0.00

0.00

0.00 20010409 non LUFF

3

o 0.0

2

o

0.00

0.00

0.00

0.00 20010416 non LUFF

1

o 0.0

o o 0.00

0.00

0.00

0.00 20010423 non LUFF

5

o 0.0

1

o

0.00

0.00

0.00

0.00 20010430 non LUFF

4

o 0.0

2

o

0.00

0.00

0.00

0.00 20010507 non LUFF

2

o 0.0

1

o

0.00

0.00

0.00

0.00 20010514 non LUFF

3

2 66.7

2

2

1.33

0.67

0.22

1.41 20010723 non LUFF

Page 6

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 233 of 295

1 12
4. Total

0 0.0 12 100.0
0 0.0

1

0

8

8

4

0

508

0.00 8.00 0.00

Appendix I1a

0.00 0.00 0.00 16.12

0.00 0.00 0.00 21.85

0.00 0.00 0.00 3.45

20010730 non LUFF 20021008 non LUFF 20030217 non LUFF

Exact. Mantel-Haenszel Probabilities (convolution method)

pes <= SOB} pes 508) pes >= SOB}

0.9997984619 0.0002400262 0.0004415643

Page 7

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 234 of 295

Appendix lIb

ANALYSIS OF PLACEMENT OF ENTRY LEVEL NEW HIRES INTO FOUNDRY DEPT CONTROLLING FOR DAY OF HIRE .BLACKS. V. WHITE

restricted to eeo 8 into LOF depts

N

total hires this date

Nl total success (not hired into LUFF)

n

number of whites hired

k

number of successes whites hired

If loss> 0 then blacks overly assigned to LUFF jobs.

Page 1

Mantel-Haenszel Statistics (normal approximation method)

Population Sample

N

Nl

n

k

Expect Loss

6

1 16.7

5

1

0.83

0.17

1

1 100.0

1

1

1.00

0.00

1

o 0.0

1

o

0.00

0.00

2

o 0.0

o

o

0.00

0.00

3

3 100.0

3

3

3.00

0.00

1

o 0.0

o

o 0.00

0.00

7

4 57.1

4

2

2.29 -0.29

5

5 100.0

3

3

3.00

0.00

1

1 0.0

a

o 0.00

0.00

1

1 0.0

o

o 0.00

0.00

2

1 50.0

2

1

1.00

0.00

1

o 0.0

o

o

0.00

0.00

1

1 100.0

1

1

1.00

0.00

6

1 16.7

2

1

0.33

0.67

1

1 100.0

1

1

1.00

0.00

3

3 100.0

3

3

3.00

0.00

2

1 0.0

o

o

0.00

0.00

2

o 0.0

o

o 0.00

0.00

3

o 0.0

1

o 0.00

0.00

5

2 40.0

3

2

1.20

0.80

2

2 100.0

2

2

2.00

0.00

2

2 100.0

1

1

1.00

0.00

3

2 66.7

2

2

1.33

0.67

3

2 66.7

2

1

1. 33 -0.33

2

2 100.0

1

1

1.00

0.00

4

4 100.0

3

3

3.00

0.00

1

1 0.0

a

o

0.00

0.00

2

1 50.0

1

1

0.50

0.50

2

2 0.0

o

o

0.00

0.00

1

1 100.0

1

1

.1.00

0.00

2

1 50.0

1

o

0.50 -0.50

2

1 50.0

2

1

1. 00

0.00

1

1 100.0

1

1

1.00

0.00

1

o 0.0

1

o

0.00

0.00

1.

o 0.0

1

o

0.00

0.00

1

1 100.0

1

1

1.00

0.00

3

3 100.0

1

1

1.00

0.00

1

1 100.0

1

1

1.00

0.00

2

2 100.0

1

1

1.00

0.00

4

4 100.0

3

3

3.00

0.00

12

6 50.0

4

4

2.00

2.00

1

1 100.0

1

1

1.00

0.00

Var
0.14 0.00 0.00 0.00 0.00 0.00 0.49 0.00 0.00 0.00 0.00 0.00 0.00 0.22 0.00 0.00 0.00 0.00 0.00 0.36 0.00 0.00 0.22 0.22 0.00 0.00 0.00 0.25 0.00 0.00 0.25 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.73 0.00

z
0.45 0.00 0.00 0.00 0.00 0.00 -0.41 0.00 0.00 0.00 0.00 0.00 0.00 1.41 0.00 0.00 0.00 0.00 0.00 1.33 0.00 0.00 1.41 -0.71 0.00 0.00 0.00 1.00 0.00 0.00 -1.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 2.35 0.00

19940307 wht LUFF 19940314 wht LUFF 19940321 wht LUFF 19940324 wht LUFF 19940330 wht LUFF 19940331 wht LUFF 19940404 wht LUFF 19940405 wht LUFF 19940406 wht LUFF 19940407 wht LUFF 19940411 wht LUFF 19940413 wht LUFF 19940414 wht LUFF 19940421 wht LUFF 19940425 wht LUFF 19940427 wht LUFF 19940428 wht LUFF 19940502 wht LUFF 19940509 wht LUFF 19940512 wht LUFF 19940518 wht LUFF 19940519 wht LUFF 19940523 wht LUFF 19940525 wht LUFF 19940526 wht LUFF 19940531 wht LUFF 19940601 wht LUFF 19940602 wht LUFF 19940606 wht LUFF 19940608 wht LUFF 19940609 wht LUFF 19940613 wht LUFF 19940615 wht LUFF 19940616 wht LUFF 19940623 wht LUFF 19940627 wht LUFF 19940629 wht LUFF 19940630 wht LUFF 19940705 wht LUFF 19940706 wht LUFF 19940707 wht LUFF 19940711 wht LUFF

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 235 of 295

Appendix lIb

6

6 100.0

6

6

6.00

0.00

0.00

0.00 19940713 wht LUFF

3

3 100.0

3

3

3.00

0.00

0.00

0.00 19940714 wht LUFF

6

3. 50.0

5

3

2.50

0.50

0.25

1.00 19940718 wht LUFF

2

2 100.0

1

1

1.00

0.00

0.00

0.00 19940721 wht LUFF

1

o 0.0

1

o

0.00

0.00

0.00

0.00 19940722 wht LUFF

1

1. 100.0

1

1

1.00

0.00

0.00

0.00 19940727 wht LUFF

1

o 0.0

1

o

0.00

0.00

0.00

0.00 19940728 wht LUFF

4

4 100.0

3

3

3.00

0.00

0.00

0.00 19940803 wht LUFF

1

1 0.0

o o 0.00

0.00

0.00

0.00 19940810 wht LUFF

3

o 0.0

2

o

0.00

0.00

0.00

0.00 19940811 wht LUFF

1

1 100.0

1

1

1.00

0.00

0.00

0.00 19940815 wht LUFF

1

a 0.0

1

o

0.00

0.00

0.00

0.00 19940824 wht LUFF

2

o 0.0

1

o

0.00

0.00

0.00

0.00 19940825 wht LUFF

2

1 50.0

1

1

0.50

0.50

0.25

1.00 19940831 wht LUFF

2

o 0.0

2

o

0.00

0.00

0.00

0.00 19940901 wht LUFF

2

1 50.0

1

1

0.50

0.50

0.25

1.00 19940906 wht LUFF

1

1 100.0

1

1

1.00

0.00

0.00

0.00 19940907 wht LUFF

2

2 100.0

2

2

2.00

0.00

0.00

0.00 19940908 wht LUFF

1

o 0.0

o o 0.00

0.00

0.00

0.00 19940912 wht LUFF

1

o 0.0

o o

0.00

0.00

0.00

0.00 19940915 wht LUFF

1

1 100.0

1

1

1.00

0.00

0.00

0.00 19940928 wht LUFF

1

1 100.0

1

1

1.00

0.00

0.00

0.00 19940929 wht LUFF

6

1 16.7

2

o

0.33 -0.33

0.22 -0.71 19941006 wht LUFF

1

o 0.0

1

o

0.00

0.00

0.00

0.00 19941007 wht LUFF

3

1 33.3

1

1

0.33

0.67

0.22

1.41 19941013 wht LUFF

2

2 100.0

2

2

2.00

0.00

0.00

0.00 19941017 wht LUFF

1

1 0.0

o o 0.00

0.00

0.00

0.00 19941020 wht LUFF

1

1 0.0

o o 0.00

0.00

0.00

0.00 19941021 wht LUFF

1

1 100.0

1

1

1.00

0.00

0.00

0.00 19941024 wht LUFF

1

1 0.0

o o

0.00

0.00

0.00

0.00 19941027 wht LUFF

1

1 0.0

o o

0.00

0.00

0.00

0.00 19941107 wht LUFF

1

o 0.0

1

o

0.00

0.00

0.00

0.00 19941114 wht LUFF

2

o 0.0

o o 0.00

0.00

0.00

0.00 19941117 wht LUFF

2

2 100.0

2

2

2.00

0.00

0.00

0.00 19941128 wht LUFF

8

5 62.5

5

5

3.12

1.88

0.50

2.65 19941129 wht LUFF

1

1 0.0

o

o

0.00

0.00

0.00

0.00 19941130 wht LUFF

1

1 0.0

o o

0.00

0.00

0.00

0.00 19941212 wht LUFF

2

2 0.0

o o

0.00

0.00

0.00

0.00 19941214 wht LUFF

3

3 100.0

1

1

1.00

0.00

0.00

0.00 19941215 wht LUFF

2

2 0.0

o o 0.00

0.00

0.00

0.00 19941219 wht LUFF

1

1 0.0

o o 0.00

0.00

0.00

0.00 19941227 wht LUFF

1

o 0.0

o o

0.00

0.00

0.00

0.00 19941229 wht LUFF

1

1 100.0

1

1

1.00

0.00

0.00

0.00 19950103 wht LUFF

1

o 0.0

1

o

0.00

0.00

0.00

0.00 19950105 wht LUFF

1

o 0.0

1

o

0.00

0.00

0.00

0.00 19950106 wht LUFF

2

o 0.0

1

o

0.00

0.00

0.00

0.00 19950109 wht LUFF

1

1 100.0

1

1

1.00

0.00

0.00

0.00 19950111 wht LUFF

1

1 100.0

1

1

1.00

0.00

0.00

0.00 19950112 wht LUFF

1

o 0.0

1

o

0.00

0.00

0.00

0.00 19950113 wht LUFF

3

2 66.7

2

1

1.33 -0.33

0.22 -0.71 19950116 wht LUFF

3

3 100.0

3

3

3.00

0.00

0.00

0.00 19950118 wht LUFF

1

1 0.0

o o 0.00

0.00

0.00

0.00 19950119 wht LUFF

2

1 50.0

2

1

1.00

0.00

0.00

0.00 19950123 wht LUFF

1

a 0.0

1

o

0.00

0.00

0.00

0.00 19950125 wht LUFF

1

1 0.0

o o

0.00

0.00

0.00

0.00 19950201 wht LUFF

2

2 0.0

o o

0.00

0.00

0.00

0.00 19950215 wht LUFF

1

o 0.0

1

o

0.00

0.00

0.00

0.00 19950216 wht LUFF

1

1 100.0

1

1

1.00

0.00/ 0.00

0.00 19950301 wht LUFF

3

3 100.0

3

3

3.00

0.00

0.00

0.00 19950306 wht LUFF

2

2 100.0

2

2

2.00

0.00

0.00

0.00 19950308 wht LUFF

2

1 50.0

1

1

0.50

0.50

0.25

1.00 19950309 wht LUFF

2

2 100.0

1

1

1.00

0.00

0.00

0.00 19950313 wht LUFF

4

4 100.0

3

3

3.00

0.00

0.00

0.00 19950315 wht LUFF

2

o 0.0

1

o

0.00

0.00

0.00

0.00 19950316 wht LUFF

3

2 66.7

2

1

1.33 -0.33

0.22 -0.71 19950320 wht LUFF

Page 2

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 236 of 295

1

1 100.0

1

1

1.00

1

1 0.0

o o 0.00

1

1 100.0

1

1

1.00

1

o

O.Oc~

o

o

0.00

1

1 100.0

1

1

1.00

2

2 100.0

1

1

1.00

/1

1 100.0

1

1

1.00

1

1 100.0

1

1

1.00

1

1 100.0

1

1

1. 00

3

3 100.0

3

3

3.00

1

1 0.0

o

o

0.00

1

1 0.0

o o

0.00

1

1 100.0

1

1

1.00

3

3 100.0

2

2

2.00

2

2 100.0

2

2

2.00

1

1 100.0

1

1

1.00

2

2 100.0

2

2

2.00

1

1 100.0

1

1

1.00

1

1 0.0

o o

0.00

5

5 100.0

3

3

3.00

2

1 0.0

o

o

0.00

1

o 0.0

1

o

0.00

1

o 0.0

o

o

0.00

1

1 100.0

1

1

1.00

1

1 0.0

o o

0.00

3

3 100.0

2

2

2.00

3

1 33.3

2

1

0.67

1

1 100.0

1

1

1.00

2

1 50.0

1

1

0.50

2

o 0.0

2

o

0.00

1

1 100.0

1

1

1.00

1

1 100.0

1

1

1. 00

1

1 100.0

1

1

1.00

1

o 0.0

o o 0.00

2

2 100.0

2

2

2.00

2

1 50.0

2

1

1.00

2

2 100.0

2

2

2.00

1

1 0.0

o o 0.00

1

1 100.0

1

1

1.00

1

1 100.0

1

1

1.00

2

o 0.0

1

o

0.00

1

o 0.0

1

o

0.00

2

o 0.0

1

o

0.00

1

o 0.0

o

o

0.00

1

o 0.0

1

o

0.00

17 17 100.0 15 15 15.00

1

1 0.0

o

o

0.00

2

2 100.0

2

2

2.00

1

1 0.0

o o 0.00

1

o 0.0

o

o

0.00

3

3 100.0

2

2

2.00

3

o 0.0

1

o

0.00

1

1 0.0

o o 0.00

1

o 0.0

1

o

0.00

1

1 0.0

o o 0.00

1

o 0.0

1

o

0.00

2

o 0.0

2

o

0.00

1

o 0.0

1

o

0.00

1

o 0.0

o o

0.00

2

o 0.0

1

o

0.00

1

1 100.0

1

1

LOO

2

o 0.0

2

o

0.00

1

o 0.0

1

o

0.00

1

1 100.0

1

1

1.00

1

1 100.0

1

1

1.00

Appendix lIb

0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.33 0.00 0.50 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00

0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.22 0.00 0.25 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00

0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.71 0.00 1.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00

19950329 wht LUFF 19950404 wht LUFF 19950406 wht LUFF 19950410 wht LUFF 19950411 wht LUFF 19950412 wht LUFF 19950413 wht LUFF 19950417 wht LUFF 19950503 wht LUFF 19950504 wht LUFF 19950508 wht LUFF 19950515 wht LUFF 19950522 wht LUFF 19950524 wht LUFF 19950530 wht LUFF 19950531 wht LUFF 19950601 wht LUFF 19950605 wht LUFF 19950629 wht LUFF 19950706 wht LUFF 19950710 wht LUFF 19950717 wht LUFF 19950720 wht LUFF 19950731 wht LUFF 19950807 wht LUFF 19950809 wht LUFF 19950810 wht LUFF 19950814 wht LUFF 19950816 wht LUFF 19950817 wht LUFF 19950821 wht LUFF 19950824 wht LUFF 19950901 wht LUFF 19950905 wht LUFF 19950906 wht LUFF 19950907 wht LUFF 19950911 wht LUFF 19950912 wht LUFF 19950913 wht LUFF 19950928 wht LUFF 19951012 wht LUFF 19951013 wht LUFF 19951016 wht LUFF 19951019 wht LUFF 19951020 wht LUFF 19951023 wht LUFF 19951024 wht LUFF 19951025 wht LUFF 19951030 wht LUFF 19951106 wht LUFF 19951108 wht LUFF 19951109 wht LUFF 19951113 wht LUFF 19951116 wht LUFF 19951120 wht LUFF 19951201 wht LUFF 19951204 wht LUFF 19951211 wht LUFF 19951221 wht LUFF 19951222 wht LUFF 19960102 wht LUFF 19960104 wht LUFF 19960115 wht LUFF 19960116 wht LUFF 19960216 wht LUFF

Page 3

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 237 of 295

7

7

7

1

o 0.0

1

o

1

o 0.0

1

o

2

o 0.0

2

o

1

o 0.0

o o

1

o 0.0

o o

1

o 0.0

o

o

2

o 0.0

1

o

'1

o 0.0

o o

1

o 0.0

1

o

1

o 0.0

1

o

1

o 0.0

o o

1

o 0.0

o

o

1

o 0.0

o

o

2

o 0.0

1

o

1

o 0.0

o o

1

o 0.0

o

o

1

o 0.0

1

o

1

o 0.0

1

o

2

o 0.0

1

o

1

o 0.0

1

o

1

o 0.0

o

o

3

o 0.0

o o

1

o 0.0

1

o

1

o 0.0

o

o

1

o 0.0

o o

1

o 0.0

1

o

1

o 0.0

o

o

1

o 0.0

o

o

1

o 0.0

1

o

1

o 0.0

o

o

1

1 100.0

1

1

1

1 100.0

1

1

1

o 0.0

1

o

2

o 0.0

o o

2

o 0.0

o o

4

2 50.0

2

2

1

1 0.0

o o

10

8 80.0

6

5

1

o 0.0

o o

16 13 81. 2 12

9

1

1 100.0

1

1

1

1 100.0

1

1

15 13 86.7 11 10

5

5 100.0

4

4

1

o 0.0

1

o

4

2 50.0

2

1

1

o 0.0

1

o

5

5 100.0

5

5

4

3 75.0

3

3

3

2 66.7

2

2

13 13 100.0

7

7

1

1 100.0

1

1

5

5 100.0

3

3

2

1 0.0

o o

12

6 50.0

8

4

6

4 66.7

2

2

9

6 66.7

7

5

3

1 33.3

2

o

2

2 100.0

1

1

1 o 0.0 o o

8

5 62.5

4

3

1

1 100.0

1

1

11

9 81.8

6

5

8

7 87.5

6

5

7.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 1.00 1. 00 0.00 0.00 0.00 1.00 0.00 4.80 0.00 9.75 1.00 1.00 9.53 4.00 0.00 1.00 0.00 5.00 2.25 1. 33 7.00 1.00 3.00 0.00 4.00 1. 33 4.67 0.67 1.00 0.00 2.50 1.00 4.91 5.25

Appendix llb

0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 1.00 0.00 0.20 0.00 -0.75 0.00 0.00 0.47 0.00 0.00 0.00 0.00 0.00 0.75 0.67 0.00 0.00 0.00 0.00 0.00 0.67 0.33 -0.67 0.00 0.00 0.50 0.00 0.09 -0.25

0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0,00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.33 0.00 0.43 0.00 0.49 0.00 0.00 0.36 0.00 0.00 0.33 0.00 0.00 0.19 0.22 0.00 0.00 0.00 0.00 0.73 0.36 0.39 0.22 0.00 0.00 0.54 0.00 0.45 0.19

0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 1. 73 0.00 0.31 0.00 -1.07 0.00 0.00 0.77 0.00 0.00 0.00 0.00 0.00 1. 73 1.41 0.00 0.00 0.00 0.00 0.00 1.12 0.53 -1.41 0.00 0.00 0.68 0.00 0.14 -0.58

19960304 wht LUFF -19960307 wht LUFF 19960308 wht LUFF 19960314 wht LUFF 19960319 wht LUFF 19960321 wht LUFF 19960328 wht LUFF 19960404 wht LUFF 19960408 wht LUFF 19960411 wht LUFF 19960417. wht LUFF 19960422 wht LUFF 19960424 wht LUFF 19960429 wht LUFF 19960506 wht LUFF 19960508 wht LUFF 19960515 wht LUFF 19960516 wht LUFF 19960520 wht LUFF 19960528 wht LUFF 19960529 wht LUFF 19960531 wht LUFF 19960611 wht LUFF 19960620 wht LUFF 19960625 wht LUFF 19960626 wht LUFF 19960708 wht LUFF 19960711 wht LUFF 19960726 wht LUFF 19960805 wht LUFF 19960808 wht LUFF 19960822 wht LUFF 19960909 wht LUFF 19961030 wht LUFF 19961121 wht LUFF 19961226 wht LUFF 19961230 wht LUFF 19961231 wht LUFF 19910106 wht LUFF 19970110 wht LUFF 19970113 wht LUFF 19970114. wht LUFF 19910115. wht LUFF 19910120 wht LUFF 19970127 wht LUFF 19970128 wht LUFF 19970203 wht LUFF 19970210 wht LUFF 19970217 wht LUFF 19970224 wht LUFF 19970317 wht LUFF 19910324 wht LUFF 19970331 wht LUFF 19970407 wht LUFF 19970414 wht LUFF 19910421 wht LUFF 19970428 wht LUFF 19970505 wht LUFF 19970519 wht LUFF 19970527 wht LUFF 19970602 wht LUFF 19970609 wht LUFF 19970610 wht LUFF 19970616 wht LUFF 19970623 wht LUFF

Page 4

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 238 of 295

Appendix lIb

1

1 100.0

1

1

LOO

0.00

11

5 45.5

7

4

3.18

0.82

1

o 0.0

1

o

0.00

0.00

4

4 100.0

3

3

3.00

0.00

4

4 100.0

2

2

2.00

0.00

5

3 60.0

2

2

1.20

0.80

1

1 100.0

1

1

LOO

0.00

3

3 100.0

2

2

2.00

0.00

2

1 50.0

2

1

1. 00

0.00

2

1 50.0

2

1

1.00

0.00

1

1 0.0

o

o

0.00

0.00

6

3 50.0

3

3

1.50

L50

11 10 90.9 10

9

9.09 -0.09

5

5 100.0

3

3

3.00

0.00

4

4 100.0

4

4

4.00

0.00

9

5 55.6

7

4

3.89

0.11

7

6 85.7

7

6

6.00

0.00

18 13 72.2 15 13 10.83

1

o 0.0

o

o

0.00

2.17 0.00

11

7 63.6

6

4

3.82

0.18

15 11 73.3 11

9

8.07

0.93

1

1 0.0

o

o

0.00

0.00

6

3 50.0

4

2

2.00

0.00

9

8 88.9

5

4

4.44 -0.44

5

o 0.0

4

o

0.00

0.00

6

4 66.7

5

4

3.33

0.67

3

o 0.0

1

o

0.00

0.00

1

o 0.0

o

o

0.00

0.00

22 20 90.9 19 18 17.27

0.73

1

1 100.0

1

1

LOO

0.00

3

o 0.0

2

o

0.00

0.00

2

1 50.0

1

1

0.50

0.50

9

7 77.8

6

6

4.67

L33

1

o 0.0

o

o

0.00

0.00

3

2 66.7

2

2

L33

0.67

1

1 100.0

1

1

LOO

0.00

6

6 100.0

4

4

4.00

0.00

4

4 100.0

2

2

2.00

0.00

1

1 100.0

1

1

LOO

0.00

4

4 100.0

2

2

2.00

0.00

1

o 0.0

1

o

0.00

0.00

6

4 66.7

4

3

2.67

0.33

1

o 0.0

1

o

0.00

0.00

1

1 100.0

1

1

1.00

0.00

6

6 100.0

4

4

4.00

0.00

3

3 100.0

2

2

2.00

0.00

6

6 100.0

4

4

4.00

0.00

4

4 100.0

4

4

4.00

0.00

7

7 100.0

3

3

3.00

0.00

2

2 100.0

1

1

LOO

0.00

1

1 100.0

1

1

LOO

0.00

1

1 100.0

1

1

LOO

0.00

3

3 100.0

3

3

3.00

0.00

1

1 0.0

o o 0.00

0.00

4

4 100.0

3

3

3.00

0.00

1

1 0.0

o

o

0.00

0.00

1

1 100.0

1

1

LOO

0.00

1

1 100.0

1

1

LOO

0.00

3

3 100.0

3

3

3.00

0.00

4

4 100.0

2

2

2.00

0.00

1

1 100.0

1

1

1.00

0.00

4

4 100.0

4

4

4.00

0.00

2

2 100.0

1

1

LOO

0.00

2

2 100.0

1

1

1. 00

0.00

5

5 100.0

2

2

2.00

0.00

0.00 0.69 0.00
O~OO
0.00 0.36 0.00 0.00 0.00 0.00 0.00 0.45 0.08 0.00 0.00 0.43 0.00 0.53 0.00 0.69 0.61 0.00 0.40 0.25 0.00 0.22 0.00 0.00 0.22 0.00 0.00 0.25 0.39 0.00 0.22 0.00 0.00 0.00 0.00 0.00 0.00 0.36 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00

0.00 0.98 0.00 0.00 0.00 L33 0.00 0.00 0.00 0.00 0.00 2.24 -0.32 0.00 0.00 0.17 0.00 2.97 0.00 0.22 L19 0.00 0.00 -0.89 0.00 1.41 0.00 0.00 L54 0.00 0.00 LOO 2.14 0.00 1.41 0.00 0.00 0.00 0.00 0.00 0.00 0.56 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00

19970625. wht LUFF 19970630 wht. LUFF 19970702 wht LUFF 19970707 wht LUFF 19970714 wht LUFF 19970721 wht LUFF 19970725 wht LUFF 19970728 wht LUFF 19970804 wht LUFF 19970811 wht LUFF 19970818 wht LUFF 19970825 wht. LUFF 19970902 wht. LUFF 19970908 wht LUFF 19970915 wht LUFF 19970922 wht LUFF 19970929 wht LUFF 19971006 wht LUFF 19971008 wht LUFF 19971013 wht LUFF 19971020 wht LUFF 19971021. wht LUFF 19971027 wht LUFF 19971103 wht LUFF 19971110 wht LUFF 19971117 wht LUFF 19971124 wht LUFF 19971201 wht LUFF 19971208 wht LUFF 19971215 wht LUFF 19971229 wht LUFF 19980112 wht LUFF 19980119 wht LUFF 19980123 wht LUFF 19980126 wht LUFF 19980202 wht LUFF 19980209 wht LUFF 19980216 wht LUFF 19980223 wht LUFF 19980302 wht LUFF 19980305 wht LUFF 19980309 wht LUFF 19980316 wht. LUFF 19980427 wht LUFF 19980504 wht LUFF 19980511 wht LUFF 19980518 wht LUFF 19980526 wht LUFF 19980601 wht LUFF 19980608 wht LUFF 19980610 wht LUFF 19980629 wht LUFF 19980706 wht LUFF 19980713 wht LUFF 19980803 wht LUFF 19980810 wht LUFF 19981026 wht LUFF 19981116 wht LUFF 19990712 wht LUFF 19990802 wht LUFF 19990830 wht LUFF 19990907 wht LUFF 19990913 wht. LUFF 20000410 wht LUFF 20000501 wht LUFF

Page 5

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 239 of 295

2 5 1 1 1 1 2 1 7 4 3 1 1 1 2 2 1 2 3 1 2 10 2 10 3 6 8 5 1 2 1 5 2 1 2 10 2
Total

2 100.0
5 100.0
1 0.0
1 100.0
1 100.0
o 0.0 o 0.0
o 0.0
o 0.0 o 0.0 o 0.0 o 0.0 o 0.0 o 0.0 o 0.0 o 0.0 o 0.0 o 0.0 o 0.0 o 0.0 o 0.0 o 0.0
o 0.0 o 0.0 o 0.0 o 0.0
1 12.5
o 0.0 o 0.0 o 0.0 o 0.0 o 0.0 o 0.0 o 0.0
1 50.0
10 100.0
o 0.0

1

1

2

2

o o

1

1

1

1

o o

o o

1

o

4

o

2 o

2 o

1 o

1

o

o o

o o

1

o

o o

2

o

1 o

1

o

1 o

2 o

1 o

5

o

o o

3

o

3

1

1 o

1

o

1

o

o o

1

o

o o

o o

1

1

6

6

2

o

430

1.00 2.00 0.00 1.00 1.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.38 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.50 6.00 0.00

Appendix lIb

0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.62 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.50 0.00 0.00 22.39

0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.0-0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.23 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.25 0.00 0.00 17.62

0.00 20000508 wht LUFF 0.00 20000515 wht LUFF 0.00 20000516 wht LUFF 0.00 ·20000530wht LUFF 0.00 20000605 wht LUFF 0.00 20000905 wht LUFF 0.00 20000925 wht LUFF 0.00 20001009 wht LUFF 0.00 20001016 wht LUFF 0.00 20001023 wht LUFF 0.00 20001030 wht LUFF 0.00 20001106 wht LUFF 0.00 20001113 wht LUFF 0.00 20001120 wht LUFF 0.00 20001211 wht LUFF 0.00 20001226 wht LUFF 0.00 20010102 wht LUFF 0.00 20010108 wht LUFF 0.00 20010115 wht LUFF 0.00 20010129 wht LUFF 0.00 20010205 wht LUFF 0.00 20010212 wht LUFF 0.00 20010219 wht LUFF 0.00 20010226 wht LUFF 0.00 20010305 wht LUFF 0.00 20010312 wht LUFF 1. 29 20010319 wht LUFF 0.00 20010326 wht LUFF 0.00 20010409 wht LUFF 0.00 20010416 wht LUFF 0.00 20010423 wht LUFF 0.00 20010430 wht LUFF 0.00 20010507 wht LUFF 0.00 20010514 wht LUFF 1.00 20010723 wht LUFF 0.00 20021008 wht LUFF 0.00 20030217 wht LUFF
5.33

Exact Mantel-Haenszel Probabilities (convolution method)

PIS <= 430)

PIS

430)

P(S >= 430)

0.9999999720 0.0000000766 0.0000001046

Page 6

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 240 of 295

Appendix 12

Summary of EEO 6-8 Hires. int.o Lufkin Product.ion Department.s
===========================================================
Restrict.ed to Hires 1994-2003 in EEO 6-8
Restrict.ed to Product.ion Depart.ment.s LUFF, LUFP, LUFO, LUFT; Hires taken from merged Mainframe + Cyborg dat.a

LUFG

Page 1

Hires

EEO Job

Tot. Wht. Blk Hisp %Wht %Blk %Hisp

8 Total 8 106796 GENERAL FOUNDRYMAN 8 109906 HELPER 8 100552 MECH HELPER-TRLR BR 8 103629 LABORER 8 Ot.her

1235 608 356 259 49.2 28.8 21.0

534 160 188 183 30.0 35.2 34.3

639 406 157 69 63.5 24.6 10.8

24 12

6

5 50.0 25.0 20.8

26 21

4

o 80.8 15.4 0.0

12

9

1

2 75.0 8.3 16.7

7 Tot.al 7 103619 MACHINIST HELPER 7 109904 WELDER-CLASS A 7 103648 MACH OP TRAINEE 7 100495 PARTS HELPER 7 100554 MECHANIC CLASS B 7 100261 OPERATIVE-pIT 7 Ot.her

561 416 93 39 74.2 16.6 7.0

102 79 18

3 77.5 17.6 2.9

137 115 14

4 83.9 10.2 2.9

61 35 IS

7 57.4 24.6 11.5

29 25

2

2 86.2 6.9 6.9

83 52 19

9. 62.7 22.9 10.8

39 30

4

5 76.9 10.3 12.8

110 80 21

9 72.7 19.1 8.2

6 Tot.al 6 100556 MECHANIC CLASS A 6 109983 GEAR REPAIR SPECIALIST 6 105700 WELDER-CLASS A 6 106766 FDRY MECHANIC A 6 Ot.her

229 181 24 15 79.0 10.5 6.6

89 61 13

7 68.5 14.6 7.9

61 52

7

2 85.2 11. 5 3.3

13 10

o

2 76.9 0.0 15.4

29 25

2

2 86.2 6.9 6.9

37 33

2

2 89.2 5.4 5.4

15 Tot.al 15 106796 GENERAL FOUNDRYMAN 15 109906 HELPER 15 103619 MACHINIST HELPER 15 100556 MECHANIC CLASS A 15 109904 WELDER-CLASS A 15 109983 GEAR REPAIR SPECIALIST 15 105700 WELDER-CLASS A 15 106766 FDRY MECHANIC A 15 103648 MACH OP TRAINEE 15 100495 PARTS HELPER 15 100554 MECHANIC CLASS B 15 100552 MECH HELPER-TRLR BR 15 103629 LABORER 15 100261 OPERATIVE-pIT 15 Other

2185 1345 481 320 61.6 22.0 14.6

534 160 188 183 30.0 35.2 34.3

639 406 157 69 63.5 24.6 10.8

102 79 18

3 77.5 17.6 2.9

89 61 13

7 68.5 14.6 7.9

137 115 14

4 83.9 10.2 2.9

61 52

7

2 85.2 11.5 3.3

13 10

0

2 76.9 0.0 15.4

29 25

2

2 86.2 6.9 6.9

61 35 15

7 57.4 24.6 11.5

29 25

2

2 86.2 6.9 6.9

83 52 19

9 62.7 22.9 10.8

24 12

6

5 50.0 25.0 20.8

26 21

4

o 80.8 15.4 0.0

39 30

4

5 76.9 10.3 12.8

319 262 32 20 82.1 10.0 6.3

544 = number of EEO 8 hires, during1994-1003, int.o LUFF

263263-13-0384 w 19970929

M B 6798

263263-13-0384 W 19970929

M C 6798 LUFF

263263-13-0384 W 19970929 o M o 6798 LUFF

263263-13-0384 w 19970929 001 C ZC 6798 LUFF

263263-13-0384 w 19970929 A02 C %0 6798 LUFF

263263-13-0384 w 19970929 A02 C ZF 6798 LUFF

263263-13-0384 w 19970929 C03 C ZR 6798 LUFF 6

263263-13-0384 w 19971006 4 M o 6798 LUFF 6
263263-13-0384 w 19971006 I70 C ZF 6798 LUFF

263263-13-0384 W 19971103 2 M 1 0930 LUf'F

263263-13-0384 w 19971103 263263-13-0384 w 19971103

M B 0930 LUFF 2 M o 0930 LUFF

263263-13-0384 W 19971107 135 C ZO 0930 LUFF

263263-13-0384 w 19971107 I35 C ZF 0930 LUFF 263263-13-0384 w 19991109 115 C ZF 0930 LUFF

263263-13-0384 w 19981116

C ZG 0930 LUFf'

263263-13-0384 w 20000103 115 C ZF 0930 LUFF

263263-13-0384 W 20000211 101 C ZC 0930 LUFf'

263263-13-0384 w 20030309

C E 0930 LUFF

263263-13-0384 w 20030309

C E 0930 LUFF

432432-98-2745 w 19810809 001 C ZC

432432-98-2745 w 19840923

M B 3644

6

432432-98-2745 W 19840923

M C 3644 LUFO 6

432432-98-2745 w 19840923 o M o 3644 LUFO 6

432432-98-2745 w 19840923 021 C'ZC 3644 LUFf 6

432432-98-2745 w 19840923 C03 C ZR 3644 LUFP 6

432432-98-2745 w 19640930

M o 3644 LUFP 6

432432-98-2745 w 19850930 432432-98-2745 w 19861006

M P 3644 LUFP 6 M B 3643 LUFP 6

432432-98-2745 w 19670323

M [) 3643 LUFP 6

432432-98-2745 W 19891002 4 M o 3643 LUFP 6

432432-98-2745 W 19891002
432432-98-2745 w 19900312

4 M P 3643 LUFP • 2 M o 3643 LUFP

432432-98-2745 W 19910610

M B 3642 LUf'P

432432-98-2745 w 19910610

M o 3642 LUFP

432432-98-2745 W 19910930 4 M P 3642 LUFP

432432-98-274$ w 19920113 AOl C ZO 3642 LUFf 6
432432-98-2745 w 19920113 AOl C ZF 3642 LUFP 6

432432-98-2745 w 19920928 4 M o 3642 LUFP 6

432432-98-2745 w 19920928 I56 C ZF 3642 LUFP 6

432432-98-2745 w 19931004 4 M o 3642 LUFP 6

432432-98-2745 W 19931004 170 C ZF 3642 LUFP 6

432432-98-2745 w 19940620

M B 0524 LUFP

432432-98-2745 W 19940620 2 M o 0524 LUFP

432432-98-2745 w 19940623 135 C ZO 0524 LUFP

432432-98-2745 W 19940623 135 C ZF 0524 LUFP

432432-98-2745 w 19950109 1 M o 0524 LUFP

432432-98-2745 W 19950119 115 C ZF 0524 LUFf

432432-98-2745 w 19950626 1 M o 0524 LUFf

432432-98-2745 W 19950629 I15 C ZF 0524 LUFP

432432-98-2745 w 1996~722 1 M o 0524 LUI'P

432432-98-2745 W 19960722 115 C ZF 0524 LUFP

432432-98-2745 w 19970217

M B 0891 LtJFP

432432-98-2745 w 19970217

M o 0891 LUFP

432432-98-2745 w 19970227 130 C ZO 0891 LUFP

432432-98-2745 w 19970221 130 C ZF 0991 LUFf

432432-98-274$ W 19970303 4 M o 089l LUFP 1

432432-98-2745 w'19970303 170 C ZF 0891 LUFP 1

432432-98-2745 w 19980413

M 1 0891 LUFO 1

432432-98-2745 W 19980413

M o 0$91 LUFO 1

432432-98-2745 w 19980422

C ZG 0891 LUFf

432432-98-2745 w 19950423 115 C ZF 0891 LUFP

432432-98-2745 W 19991108 115 C ZF 0891 LUFP

432432-98-2745 w 20000502

C ZO 0891 LUFP

432432-98-2745 w 20001106 115 C ZF 0891 LUFP

432432-99-2745 w 20010702 TOl C ZF 0891 LUFP

432432-98-2745 w 20011119 I1S C ZF '0891 LUFf

432432-98-2745 w 20020620

C ZG 0891 LUFP

Appendix 13

432432-98-2745 w 20020923 e16 C ZR 0991 LUFf 432432-98-2745 w 20021118 IlS C zr 0891 LUFP

432432-98-2745 W 20030309

C E 0891 LUFf

438438-86-1480 b 19730521 003 C ZC

438438-86-1480 b 19730521 C03 C ZR

LUFF

438438-86-1480 b 19730521 C23 C ZR

LUFF

438438-86-1480 b 19740501 C23 C ZR

LUFF

438438-86-1480 b 19830224

M B 6784 LUFF 6

438438-86-1480 b 19830224

M C 6784 LUFF 6

438438-86-1480 b 19830224

M o 6784 LUFF 6

438438-86-1480 b 19830930

M o 6784 LUFf'

438438-96-1480 b 19840930

M o 6784 LUFF

438438-86-1480 b 19950930 4 M P 6784 LUFF 6

438438-86-1480 b 19881002 4 M P 6784 LUFF 6

438438-86-1480 b 19890124

M B 6767 LUFF 7

438438-6.-1480 b 19690724 2 M o 6767 LUFF 7

436438-86-1480 b 19891002 4 M o 6767 LUFF 7

438438-66-1460 b 19900326

M B 6603 LUFF 6

438438-86-1480 b 19900326 2 M o 6803 LUFF

436438-86-1480 b 19910316 1 M o 6803 LUFF

438438-86-1480 b 19910708

M B 6803 LUFF 6

438438-86-1480 b 19910930

M o 6803 LUFF 6

438438-86-1480 b 19920113 A01 C 20 6803 LUFF 6

436436-86-1460 b 19920113 A01 C ZF 6803 LUFF 6

438438-86-1480 b 19920928 4 M o 6803 LUFF 6

438438-86-1480 b 19920928 I56 C ZF 6803 LUFF 6

438438-86-1480 b 19931004 4 M o 6803 LUFF 6

438438-86-1480 b 19931004 170 C ZF 6803 LUFF 6

438438-66-1480 b 19940926 1 M o 6803 LUFF 6

438438-86-1480 b 19940928 115 C ZF 6803 LUFF

436438-86-1480 b 19941003 4 M o 6803 LUFF

438438-66-1480 b 19941003 I70 C ZF 6803 LUFF

438438-86-1480 b 19951002 4 M o 6803 LUFF 6

438438-86-1480 b 19951002 I70 C ZF 6803 LUf'F 6

438438-86-1480 b 19951222 115 C ZF 6803 LUFF 6

438438-96-1480 b 19951225 1 M P 6803 LUFF 6

438438-86-1480 b 19960819 1 M o 6803 LUFF

438438-86-1480 b 19960826 115 C ZF 6803 LUFf'

438438-86-1490 b 19961007 4 M o 6803 LUFF

438438-86-1480 b 19961007 170 C ZF 6803 LUFf'

438438-86-1460 b 19971006 4 M 1 6803 LUFF

438438-86-1480 b 19971006 4 M P 6803 LUFF

438439-66-1480 b 19971006 I70 C ZF 6803 LUFF

438438-96-1480 b 19981005 170 C ZF 6903 LUFF

438438-86-1480 b 19981005 TOl C ZF 6603 LUFF

439438-86-1480 b 19991004 170 C ZF 6803 LUFF

438438-86-1480 b 19991004 TOl C ZF 6803 LUFF

438438-86-1480 b 19991004 TOl C ZF 6803 LUFF

438438-86-1480 b 20001002 170 C ZF 6803 LUFF

438438-86-1480 b 20001002 TOl C ZF 6803 LUFF

438438-86-1480 b 20010326 991 C ZC 6803 LUFF

438438-86-1490 b 20010326 130 C ZO 0930 LUFF 1

438438-86-1480 b 20010326 135 C ZF 0930 LUFF 1

438438-86-1480 b 20010326 W04 C ZF 0930 LUFF 1

438438-86-1480 b 20010326 C15 C ZR 0930 LUFF 1

438438-86-1480 b 20010702 TOl C ZF 0930 LUFF 1
438438-86-1480 b 20020325 I15 C ZF 0930 LUFF 1

438438-86-1480 b 20020425

C ZG 0930 LUFF 1

438438-86-1480 b 20020506 993 C ZC 0930 LUFf' 1

438438-86-1480 b 20020506 060 C ZO 6803 LUFF 6

438436-86-1490 b 20020506 060 C ZF 6803 LUFF 6

438438-86-1480 b 20020506 C15 C ZR 6803 LUFF 6

438438-86-1480 b 20020923 C16 C ZR 6803 LUFF 6

438438-86-1480 b 20021007 803 C ZC 6803 LUFF 6

438439-86-1460 b 20021021 804 C ZC 6803 LUFF 6

438438-86-1480 b 20021021 I70 C ZF 6803 LUFF 6

438438-86-1480 b 20021021 TOl C ZF 6803 LUFF 6

438438-86-1480 b 20030113 991 C ZC 6803 LUFF

Page 1

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 241 of 295

438438-S6-14S0 b 20030113 no c zo 0930 LUFI' 1

438438-S6-14S0 b 20030113 I30 C 21' 0930 LUFF 1

43843S-S6-1480 b 20030113 ClS C ZR 0930 LUFI' 1

438438-86-1480 b 20030309

C E 0930 LUFI' 1

438438-86-1480 b 20010309

C E 0930 LUFP 1

449449-72-2723 W 19620323 003 C ZC

449449-72-2723 w 19620323 C03 C 2R

LUI'I'

449449-'2-2723 W 19620323 C25 C ZR

l.UFp

449449-72-2723 w 19830224

M B 0531 LUPp 5

449449-72-2723 w 19830224 449449-72-2723 W 19830224

M C 0531 L1.11'p 5
M o 0531 L01'I' 5

449449-72-2723 W 19831031

M 0 0531 LUFI' 5

449449-72-2723 w 19S40611

M 0 0531 LUFI' 5

449449-72-2723 W 19S50610
449449-72-2723 w 19S80620

M 0 OS31 LUFI' 5 M 0 0531 LUFI' 5

449449-72-2723 w 19910211

M 0 OSH L1.1FI' 5

449449-72-2723 w 19910811

M !l 0285 LOI'P 1

449449-72-2'23 w 19910812

M 0 0285 LOFi' 1

449449-72-2723 w 19920113 ADl C ZO 0285 LUl'p

449449-72-2723 w 19920113 ACl C ZF 0285 LOFI'

449449-72-2723 w 19931115 1 M 0 0285 LUFI'

449449-72-2723 W 19931115 Xl5 C ZF 0285 LUI'I'

449449-72-2723 W 19941128 1 M 0 0285 LOPI'

449449-72-2723 w 19941205 Il5 C ZF0285 LOFP
449449-72-2723 W 19960122 1 M 0 02 as LUFI'

449449-72-2'23 w 19960131 Il5 C ZF 0285 Lurp

449449-72-2723 W 19970203

M !l 3604 LUI'I'

441449-72-2723 w 19970203

M 0 3604 LUI'I'

4494~9-72-2723 w 19970207 OEO C ZO 3604 LUFI'

449449-'2-2723 w 19970207 060 C ZF 3604 LUFI'

449449-72-2723 w 19971006 4 M 1 3604 LUPI'

449449-'2-2723 w 19971006 4 M 0 3604 LUI'I'

449441~72-2723 w 19971006 I70 C 2F 3604 LUI'I'

449449-72-2723 W 19981005 I70 C ZI' 3604 LOFP

449449-72-2723 W 19981005 TOl C ZF 3604 LUFP

449449-72-2723 W 19910719 991 C ZC 3604 LUFP 449449-72-2723 w 19990719 I35 C ZO 0891 LUFI'

449449-72-2723 w 19990719 I30 C ZF 0891 L1.1I'P

449449-72-2723 w 19990719 W04 C 21' 0891 LUI'P 1

449449-72-2723 w 20000504

C za 0891 LUFI' 1

449449-72-2723 w 20000814 I15 C ZF 0891 LUPP 1

449449-72-2723 w 20010702 TOl C ZF 0891 l.UFI' 1

449449-72-2723 w 20010813 I15 C 21' 0891 LUFP

449449-72-2723 W 20020331 300 C ZC 0891 LUFP

449449-72-2723 W 20030309

C E OB91 LU1'P

449449-72-2723 W 20030309

C E 0891 LU1'P

450450-06-6045 W 19730605 003 C ZC

450450-06-6045 W 19730605 C03 C ZR

LUFG

450450-06-6045 w 19830224

M B 3643 LUFG

450450-06-6045 W 19830224

M C 3643 LUl'e 6

450450-06-6045 W 19830224

M 0 3643 LUl'e 6

450450-06-6045 W 19830930 4 M 0 3643 LUFe 6

450450-06-6045 W 19840930 4 M 0 3643 LUFe 6

450450-06-6045 W 19850930 4 M 0 3643 l.UI'O

450450-06-6045 W 19981002

M 0 3643 Lupe

450450-06-6045 W 19991002

M 0 3643 LUl'e 6

450450-06-6045 W 19901001

M B 3604 Lure 6

450450-06-6045 W 19901001

M 0 3604 LUl'e 6

450450-06·6045 W 19901119

M 0 3604 LUl'e 6

450450-06-6045 W 19910325

M 0 3604 LUI'O 6

450450-06-6045 W 19910930 4 M 0 3604 LU1'e

450450-06-6045 W 19920102

M C 3604 L1.1Fa 6

450450-06-6045 W 19920102 C24 C ZR 3604 LUFG 6

450450-06-6045 W 19920113 AOl C ZO 3604 LUFG 6

450450-06-6045 w 19920113 AOl C ZF 3604 LUFG 6

450450-06-6045 W 19920210

M!l 9981 LUl'a 7

450450-06-6045 W 19920210 soa C 20 99al LUFa 7

450450-06-6045 W 1'920210 S08 C ZP 99S1 LUFa 7

Appendix 13

450450-06-6045 W 19920928 4 M 0 9991 LUFG 7

450450-06-6045 w 19920928 IS6 C ZF 9981 LUI'G 7

450450-06-6045 w 19930510

M!l 99S0 LUl'a 6

450450-06-6045 w 19930510 1 M 0 9980 LUFG 6

450450-06-6045 w 19930510 115 C 2F 9980 LUFa 6

450450-06-6045 w 19931004

M!l 9983 LUFa 7

450450-06-6045 w 19931004 4 M 0 9983 LUFG 7

450450-06-6045 w 19931004 ROl C ZO 9983 LUFG 7

450450-06-6045 w 19931004 I70 C 2F 9983 LUFG 7

450450-06-6045 w 19931004 R01 C ZF 9983 LUFG 7

450450-06-6045 w 19941003 4 M 0 9983 ~ul'a 7

450450-06-6045 W 19941003 I70 C ZF 9983 LUI'G 7

450450-06-6045 W 19951002 4 M 0 9983 LUFG 7

450450-06-6045 w 19951002 I70 C ZF 9983 LUFG 7

450450-06-6045 W 19961007 4 M 0 9983 LUl'a 7

450450-06-6045 W 19961007 I70 C ZF 9983 LUl'a 7

450450·06-6045 w 19970428

M!l 9984 LUI'G 6

450450-06-6045 W 19970428 2 M 0 9984 LUFG 6

450450-06-6045 w 19970501 I30 C ZO 9984 LUI'G 6

450450-06-6045 w 19970501 130 C ZI' 9984 LUFG 6

450450-06-6045 w 19971006

M 1 9984 LUFa

450450-06-6045 W 19971006

M 0 9984 LUFa

450450-06-6045 W 19971006 I70 C ZF 9994 LUPG

450450-06-6045 W 19981005 I70 C ZI' 9984 LUFa

450450-06-6045 W 19991005 TOl C ZF 9984 Lupa

450450-06-6045 W 19990913 991 C ZC 9984 LUFa

450450-06-6045 w 19990913 I30 C ZO 0931 LUFa'

450450-06-6045 W 19990913 I35 C ZF 0931 Lura

450450-06-6045 W 19990913 W04 C ZF 0931 LUI'G

450450-06-6045 W 20000407

C za 0931 LUFa

450450-06-6045 w 20001009 I15 C ZP 0931 LUl'a

450450-06-6045 W 20010702 TOl C ZF 0931 LUrG

450450-06-6045 W 20011008 SOS C ZO 0899 LUFG

450450-06-6045 w 20011008 W04 C ZI' 0898 LUFG

450450-06-6045 w 20020208

c za 0998 LUl'a 4

450450-06-6045 w 20020923 I15 C ZF 0898 LUFa 4

450450-0.-6045 W 20020923 Cl. C ZR 0898 LUl'a

450450-06-6045 W 20030309

C E 0898 LUI'G 4

450450-58-3549 w 19551028 001 C ZC

450450-5S-3549 w 19551029 C03 C ZR

LUFI'

450450-58-3549 W 19S30224

M B 0046 LUFP 1

450450-58-3549 w 19830224

M C 0046 L1.1FP 1

450450-5S-3549 W 19830224

M 0 0046 LOFP

450450-58-3549 W 19930511

M B 0028 LOFP

450450-58-3549 W 19831031

M 0 0028 Lun

450450-58-3549 w 19840611

M 0 0028 LUI'P

450450-58-3549 w 19850610

M 0 002S ~UFI' 1

450450-58-3549 W 19S80926

M 0 0028 LUI'P 1

450450-58-3549 W 19900312

M B 0712 LUFP 1

450450-58-3549 W 19900312

M 0 0712 LUFI' 1

450450-59-3549 W 19910311 450450-58-3549 W 19920112

M 0 0712 LUFP 1
M B 0028 LUFI' 1

450450-58-3549 W 19920112 1 M 0 002a LUPP 1

450450-58-3549 W 19920112 030 C ZO 0028 LUFP

450450-58-3549 W 19920113 AOl C ZO 0712 LUI'P 1

450450-5S-3549 W 19920113 AOl C ZI' 0712 LUFI' 1

450450-5S-3549 w 19920113 030 C ZI' 0712 LUFP 1

450450-58-3549 W 19920615

M B 3600 LUFP 6

450450-58-3549 W 19920615

M C 3600 LUI'I' 6

450450-58-3549 W 19920615

M 0 3600 LUI'P 6

450450-59-3549 W 19920615 S08 C ZO 3600 L1.1FP 6

450450-59-3549 w 19920615 S08 C ZF 3600 LUFP 6

450450-58-3549 W 19920929 4 M 0 3600 LUFP

,450450-58-3549 w 19920928 I56 C ZF 3600 L1.11'1'

450450-59-3549 W 19921116 4 M 0 3600 ~UFP

450450-58-3549 W 19921116 170 C 21' 3600 LUFI'

450450-58-3549 W 19931004 4 M 0 3600 LUFP

450450-59-3549 w 19931004 170 C ZI' 3600 LUI'P

Page 2

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 242 of 295

450450-58·3549 w 19941003 4 M o 3600 LUFP 6

4$0450-58-3549 W 19941003 170 C ZF 3600 LUFP 6

450450-58·3549 W 19941010

M S 0028 LUFP 1

450450-58"3549 W 19941010 2 M o 0028 LUFp 1

450450-58-3549 W 19941013 I35 C ZO 0028 LUFP

450450-58-3549 w 19941013 135 C ZF 0028 LUFP

450450-58·3549 w 19950417 1 M o 0028 LUFP 1

450450-S8-3549 w 19950420 115 C ZF 0028 LUI'P 1

450450-58-3549 w 19960513 1 M o 0028 LUFP

450450-58·3549 w 19960521 115 C ZF 0028 LUFP

450450-58-3549 W 19970217

M B 0890LUFP 1

450450-58-3549 w 19970217 2 M o 0890 LU!'F 1

450450-58-3549 w 19970227 130 C ZO 0890 LU!'P 1

450450-58-3549 w 19970227 130 C ZF 0890 LUFF 1

450450-58·3549 w 19970303 4 M o 0890 LUFP 1

450450-58-3549 w 19970303 170 C ZF 0890 LUFF

450450-58-3549 w 19980413 1 M 0890 LUFP

450450-58-3549 w 19980413 1 M o 0890 LU!'P

450450-58-3549 w 19980423 115 C ZF 0890 LU!'P 1

450450-58-3549 w 19981130 300 C ZC 0890 LUFF 1

450450-58-3549 w 20030309

C e: 0990 LUFP 1

451451-29-5604 w 19880404

M B 6796

8

451451-29-5604 W 19880404

M C 6796 LUFF 8

451451-29-5604 w 19880404 o M o 6796 LUFF 8

451451-29-5604 W 19880404 001 C ZC 6796 LU!'F B

451451·29·5604 w 19880404 C03 C ZR 6796 LOFI' 8

451451-29-5604 w 19880801

M o 6796 LUFP 8

451451-29-5604 w 19880912

M B 6800 LU!'P 7

451451-29-5604 w 19880912

M o 6800 LUFP 7

451451-29-5604 w 19881002

M D 6800 LU!'P

451451·29-5604 w 19890S08

M B 3629 LU!'P

451451-29-5604 W 19890S08

M C 3629 LUFP

451451-29-S604 w 19890S08

M D 3629 LUFF 8

4514S1'29~5604 w 19890703

M B 3619 LU!'F 7

451451-29-5604 w 19890703

M o 3619 Lurp 7

451451·29·5604 w 19890918

M B 3648 LUFP 7

451451"29-5604 w 19890918

M o 3648 LUFF 7

451451-29"5604 w 19891002 4 M D 3648 LUFF 7

451451-29-5604 W 19891211 1 M o 3648 LUFP 7

451451-29-5604 w 19900326

M B 3643 LUFP 6

451451-29-5604 W 19900326 2 M D 3643 LUFF 6

451451-29-5604 w 19901022 1 M o 3643 LUFP 6

451451-29-5604 w 19910121

M o 3643 LU!'P 6

451451·29-5604 w 19910429

M o 3643 LUFF 6

451451-29-5604 w 19910729

M o 3643 LUFF 6

451451-29-5604 w 19910930 4 M o 3643 LUI'P 6

451451-29-5604 w 19920113 A01 C ZO 3643 LUFp 6

451451-29"5604 w 19920113 A01 C ZF 3643 LU!'P 6

451451-29-5604 w 19920928 4 M o 2643 LUFF

451451-29·5604 w 19921116 4 M o 3643 LUFP

451451-29-5604 w 19921116 170 C ZF 3643 LUFP

451451-29-5604 w 19921207

M C 3643 Lun

451451-29-5604 W 19931004 4 M o 3643 LUFp 6

451451-29-5604 w 19931004 170 C ZF 3643 LUFP 6

451451·29"5604 w 19941003 4 M o 3643 LUFP 6

451451-29-5604 w 19941003 170 C ZF 3643 LU!'F 6

451451-29-5604 w 19950102

M C 3643 LU!'P 6

451451-29-5604 W 19951002 4 M o 3643 LUFP 6

451451-29-5604 w 19951002 170 C ZF 3643 LUFP 6

451451-29-5604 w 19960415

M B 3695 LUFF 7

451451·29-5604 w 19960415

M C 36 95 LUFF 7

451451-29-5604 w 19960415 2 M D 3695 LUFP 7

451451-29-5604 W 19960418 030 C ZO 3695 LUFP 7

451451-29-5604 w 19960418 030 C ZF 3695 LUFP 7

451451-29-5604 w 19960527

M S 3604 LUFP 6

451451-29-5604 w 19960527 2 M o 3604 LUFP 6

451451-29-5604 w 19960530 I30 C ZO 3604 LU!'F 6

451451-29-5604 w 19960530 130 C ZF 3604 LUFF 6

Appendix 13

451451-29-5604 W 19960826 1 M o 3604 LUFP

451451-29-5604 W 19960830 115 C ZF 3604 LUFP

451451-29-5604 W 19961007 4 M D 3604 LUFP

451451-29-5604 W 19961007 170 C ZF 3604 LUFP

451451-29·5604 w 19970224 1 M o 3604 LUI'P

451451-29-5604 W 19970303 IIS C ZF 3604 LUFP

451451-29-5604 w 19971006 4 M o 3604 LUFP

451451,29"5604 w 19971006 170 C ZF 3604 LUFP

451451·29-5604 w 19971013

M 1 0891 LUFP

451451-29-5604 W 19971013

M B 0891 LUFF

451451-29-5604 w 19971013 2 M D 0891 LUFP 1

451451-29-5604 w 19971017 X3! C ZO 0891 LUFP 1

451451-29-5604 w 19971017 135 C Z!' 0891 LUFP 1

451451-29-5604 W 19981120

C ZG 0891 LUFI' 1

451451-29-5604 w 19981123 I15 C ZF 0891 LU!'P 1

451451-29-5604 w 20000103 115 C ZF 0891 LUFF 1

451451-29·5604 w 20000503

C ZG 0891 LUFP 1

451451-29-5604 w 20010101 115 C ZF 0891 LU!'P 1

451451-29·5604 w 20010702 TOl C ZF 0891 LU!'!' 1

451451-29-5604 w 20020114 115 C ZF 0891 LUI'I' 1

451451-29-5604 w 20020620

C ZG 0891 LU!'P 1

451451·29-5604 w 20020923 C16 C ZR 0891 LUFP 1

451451"29-5604 w 20030113 115 C ZF 0891 LUFP 1

451451-29-5604 W 20030309

C E OSH LUFP 1

451451-47-4736 b 19831110

M B 6754

7

451451-47-4736 b 19831110

M C 6754 LUFF 7

451451-47-4736 b 19831110

M o 6754 LUI'!' 7

451451-47-4736 b 19831110 001 C ZC 6754 LUFF 7

451451-47-4736 b 19831114

M II 67S0 LUFF 8

4S1451-47-4736 b 19840130 451451-47-4736 ~ 19840312

M D 6780 LUFF M B 6749 LUFF

451451-47·4736 b 19840402

M B 6780 LU!'F

451451-47-4736 b 19840930 4 M o 6780 LUFF S

4S1451-47-4736 b 19850805 1 M o 6780 LUFF 8

451451-47-4736 b 19850930 4 M o 6780 LUFF 8

451451-47'4736 b 19851223

M B 6747 LUFF 7

451451-47-4736 b 19851223

M D 6747 LUFF 7

451451-47-4736 b 19860731

M I' 6747 LUFF

451451-47-4736 b 19871030

M e 6796 LUFF

451451-47-4736 b 19871030
451451-47-4736 b 19871030

M C 6796 LUFF M o 6796 LUFF

451451-47-4736 b 19871102

M B 6796 LUFF

451451-47"4736 b 19871102

M C 6796 LUFF

451451-47-4736 b 19871102 021 C ZC 6796 LUFF

451451-47·4736 b 19871102 C03 C ZR 6796 LUFF

451451'47-4736 b 19880118 1 M o 6796 LUFF

451451-47-4736 b 19880229

M B 6748 LUFF

451451-47-4736 b 19880229

M o 6748 LUFF

451451-47-4736 b 19880822

M o 6748 LUFF

451451-47-4736 b 19681002 4 M o 6748 LUFF

451451-47-4736 b 19890130 1 M o 6748 LUFF

451451-47-4736 b 19891002 4 M o 6748 LUFF

451451-47-4736 b 19900702

M D 6748 LUFF

451451-47-4736 b 19901210

M D 6748 LUF!'

451451-47-4736 b 19901226

M B 6732 LUFF

451451-47-4736 b 19901226 2 M o 6732 LUFF

451451-47-4736 b 19910318

M B 6748 LUFF 6

451451-47-4736 b 19910527

M II 6732 LUFF 6

451451-47-4736 b 19910916

M o 6732 LUFF 6

451451-47-4736 b 19910930 4 M o 6732 LUFF 6

451451-47-4736 b 19920113 A01 C ZO 6732 LU!'F 6

451451-47-4736 b 19920113 AOl C ZF 6732 LUFF 6

451451-47-4736 b 19920309

M C 6732 LUFF 6

451451-47-4736 b 19920928 4 M o 6732 LUI'I' 6

451451-47-4736 b 19920928 156 C ZF 6732 LUFF 6

451451-47-4736 b 19930111

M 1\ 6748 LUFF

451451-47-4736 b 19930111 2 M o 6748 LUFF

451451-47-4736 b 19930111 SOB C ZO 6748 LUFF 6

Page 3

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 243 of 295

451451-47-4736 b 19930111 S08 C ZF 6748 LUFF

451451-47-4736 b 19931004 4 M o 6748 LUFF

451451-47-4736 b 19931004 170 C ZF 6748 LUFF

451451-47-4736 b 19940627

M II 0070 LUFF

451451-47-4736 b 19940627 2 M o 0070 LUFF

451451-47-4736 b 19940630 135 C to 0070 LUFF 1

451451-47-4736 b 19940630 X35 C ZF 0070 LUFF 1

451451-47-4736 b 19950821 1 M o 0070 LUFF 1

451451-47-4736 b 19950825 115 C ZF 0070 LUFF 1

451451-47-4736 b 19960805 1 M o 0070 LUFF 1

451451-47-4736 b 19960812 115 e ZF 0070 LUFF 1

451451-47-4736 b 19970217

M B 0930 LtlFF

451451-47-4736 b 19970217

M o 0930 L.UFF

451451-47-4736 b 19970221 I3~ e ZO 0930 LUFF

451451-47-4736 b 19970221 130 e ZF 0930 L.UFF

451451-47-4736 b 19970303 4 M o 0930 LUFF

451451-47-4736 b 19970303 170 C ZF 0930 L.UFF

451451-47-4736 b 19980316

M 1 0930 LUFF

451451-47-4736 b 19980316 1 M tl 0930 LUFF

451451-47-4736 b 19980319 115 e ZF 0930 LUFF

451451-47-4736 b 19990129

C ZO 0930 LUFF

451451-47-4736 b 19991011 115 C ZF 0930 LUFF

451451-47-4736 b 20001106 115 e ZF 0930 LUFF

451451-47-4736 b 20010702 TOl C ZF 0930 LUFF 1

451451-47-4736 b 20011105 115 e ZF 0930 LUFF 1

451451-47-4736 b 20020425

e Zel 0930 LUFF 1

451451-47-4736 b 20020923 e16 C ZR 0930 LUFF 1

451451-47-4736 b 20021104 115 C ZF 0930 LUFF 1

451451-47-4736 b 20030309

e &: 0930 LUFF 1

452452-39-6658 b 19810601 001 e ZC

452452-39-6658 b 19840131

M B 6769

7

452452-39-6658 b 19840131

M C 6769 LUFF 7

452452-39-6658 b 19840131 o M o 6769 LUFF 7

452452-39-6658 b 19840131 021 C ZC 6769 LUFF 7

452452-39-6658 b 19840131 C03 e ZR 6769 LUFF 7

452452-39-6658 b 19840409 1 M o 6769 LUFF 7

452452-39-6658 b 19840702 1 M o 6769 LUFF 7

452452-39-6658 b 19840930 4 M tl 6769 LUFF 7

452452-39-6659 b 19841203

M I! 7811 LUFF 7

452452-39-6658 b 19841203

M e 7811 LUFF 7

452452-39-6658 b 19841210

M o 7811 LUFF 7

452452-39-6658 b 19850114

M B 7810 LUFF 6

452452-39-6658 b 19850114 2 M o 7810 LUFF 6

452452-39-6658 b 19850527 1 M I) 7810 LUFF 6

452452-39-6658 b 19850930 4 M o 7810 LUF!"

452452-39-6658 b 19960217 1 M o 7810 L.UI'F

452452-39-6658 b 19870803 1 M o 7alO LUFF 6

452452-39-6658 b 19880613 1 M o 7810 LUFF 6

452452-39-6658 b 19881002 4 M o 7810 L.UFF

452452-39-6658 b 19891002 4 M I) 7810 LUFF

452452-39-6658 b 19891212

M e 7810 LUFF

452452-39-6658 b 19901015

M 8 6732 LUFF

452452-39-6658 b 19901015

M tl 6732 LUFF 6

452452-39-6658 b 19910408

M o 6732 LUFF 6

452452-39-6658 b 19910930 4 M o 6732 LUFF

452452-39-6658 b 19911202 1 M o 6732 LUFF

452452-39-6658 b 19920113 AOl e ZO 6732 LUFF 6

452452-39-6658 b 19920113 AOl C ZF 6732 LUFF 6

452452-39-6658 b 19920928 4 M o 6732 LUFF 6

452452-39-6658 b 19920928 156 C ZF 6732 LUFF 6

45~4S2-39-6659 b 19931004 4 M tl 6732 LUFF 6

452452-39-6658 b 19931004 170 C ZF 6732 LUFF 6

452452-39-6658 b 19931220 1 M o 6732 LUFF

452452-39-6658 b 19931220 115 C ZF 6732 LUFF

452452-39-6658 b 19940620

M B 0070 LUFF 1

452452-39-6658 b 19940620

M o 0070 LUFF 1

452452-39-6658 b 19940623 135 e ZO 0070 LUFF

452452-39-6658 b 19940623 135 e ZF 0070 LUFF

Appendix 13

452452-39-6658 b 19950612 1 M o 0070 LtlFF 1

452452-39-6658 b 19950615 115 C ZF 0070 LUFF 1

452452-39-6658 b 19960415 1 M o 0070 LUFF 1

452452-39-6658 b 19960418 115 C ZF 0070 LUFF 1

452452-39-6658 b 19970217

)II II 0930 LuFF 1

452452-39-6658 b 19970217 2 )II o 0930 LUFF

452452-39-6658 b 19970221 130 C ZO 0930 LUFF

452452-39-6658 b 19970221 130 C ZF 0930 LUFF 1

452452-39-6658 b 19970303 4 )II o 0930 LUI'I' 1

452452-39-6658 b 19970303 170 C ZF 0930 LUFF 1

452452-39-6658 b 19980316 1 M 1 0930 LUFF 1

452452-39-6658 b 19980316 1 M o 0930 LUFF 1

452452-39-6658 b 19980319 115 C ZF 0930 LUFF 1

452452-39-6658 b 19990128

C ZO 0930 LUFF

452452-39-6658 b 19991011 115 e ZF 0930 LUFF

452452-39-6658 b 20001023 115 e ZF 0930 LUFF

452452-39-6658 b 20010702 TOl C ZF 0930 LUFF

452452-39-6658 b 20011022 115 e ZF 0930 LUFF

452452-39-6658 b 20020418

C ZO 0930 L.UFF

452452-39-6658 b 20020612 130 e ZO 0929 LUFF

452452-39-6658 b 20020812 130 C ZF 0929 LUFF

452452-39-6658 b 20020923 e16.C ZR 0929 LUFF

452452-39-6658 b 20030309

C ! 0929 LUFF

452452-74-0592 w 19801028 001 C ZC

452452-74-0592 W 19801028 C03 e ZR

LUFT

452452-74-0592 w 19801028 C27 e ZR

LUFT

452452-74-0592 W 19830224

M B 9910 LUFT 7

452452-74-0592 w 19830224

M C 9910 LUFT 7

452452-74-0592 W 19830224 2 M o 9910 LUFT 7
452452-74-0592 w 19830930 4 M I) 9910 LUFT 7

452452-74-0592 W 19831017 1 M o 9910 LUFT 7

452452-74-0592 W 19840312 1 M o 9910 LUFT 7

452452-74-0592 w 19840730 1 M o 9910 LUFT 7

452452-74-0592 w 19840930

M o 9910 LUFT 7

452452-74-0592 w 19841105

M '0 9910 LUFT 7

452452-74-0592 w 19850204

M tl 9910 LUFT 7

452452-74-0S92 w 19850325

M B 9924 LUFT 6

452452-74-0592 w 19850325

M o 9924 LUFT 6

452452-74-0592 w 19850701

M o 9924 LUFT 6

452452-74-0592 w 19850715

M o 9924 LUFT 6

452452-74-0592 W 19850930

M o 9924 LUFT 6

452452-74-0592 W 19851007

M o 9924 LUFT 6

452452-74-0592 w 19881002 4 M o 9924 LUFT 6

452452-74-0592 W 19891002 4 M o 9924 LUFT 6

452452-74-0592 w 19910930 4 )II o 9924 LUFT 6

452452-74-0592 w 19920113 AOl C %0 9924 L.UFT 6

452452-74-0592 w 19920113 AOl C ZF 9924 LUFT 6

452452-74-0592 w 19920928 4 )II o 9924 LUFT 6

452452-74-0592 w 19921116 4 M o 9924 LUFT

452452-74-0592 w 19921116 170 e ZF 9924 LUFT

452452-74-0592 w 19931004 4 M o 9924 LUFT

452452-74-0592 W 19931004 170 C ZF 9924 L.UFT

452452-74-0592 W 19940418

M B 9907 LUFT

452452-74-0592 w 19940418

M C 9907 LUFT 6

452452-74-0592 w 19940418 2 M o 9907 LUFT 6

452452-74-0592 w 19940418 130 C ZO 9907 LUFT 6

452452-74-0592 w 19940418 130 e ZF 9907 LUFT 6

452452-74-0592 w 19941003 4 M D 9907 LUFT 6

452452-74-0S92 w 19941003 170 C ZF 9907 LUFT 6

452452-74-0592 w 19941114 1 M o 9907 LUFT 6

452452-74-0592 W 19941114 115 e ZF 9907 LUFT 6

452452-74-0592 w 19950327 1 M o 9907 LUFT 6

452452-74-0592 w 19950330 I1S C ZF 9907 LUFT 6

452452-74-0592 W 19951002 4 M o 9907 LUFT 6

452452-74-0592 w 19951002 170 e ZF 9907 LUFT 6

452452-74-0592 w 19960701

M B 9924 LUFT

452452-74-0592 W 19960701

M C 9924 LUFT

452452-74-0592 w 19960701

M o 9924 LUFT

Page 4

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 244 of 295

45245~-74-0592 w 19960703 030 C ZO 9924 LUFT

452452-74-0592 w 19960703 030 C ZF 9924 LUFT 452452-74-0592 w 19961007 4 M o 9924 t.t.lFT

452452-74-0592 w 19961007 I70 C ZF 9924 LUFT

452452-74-0592 w 19970106

M B 9907 t.t.lFT 6

452452-74-0592 w 19970106 452452-74-0592 w 19970106

M C 9907 LUFT 6 2 M o 9907 LUFT 6

452452-74-0592 w 19970107 I30 C ZO 9907 LUFT 6

452452-74-0592 w 19970l07 130 C ZF 9907 LUFT

452452-74-0592 w 19970203

M C 9907 LUFT

452452-74-0592 w 19970922

M 1 0919 LUFT 1

452452-74-0592 w 19970922 452452-74-0592 w 19970922

M B 0919 LUFT 1 2 M o 0919 LUFT 1

452452-74-0592 w 19970926 I35 C ZO 0919 LUFT

452452-74-0592 w 19970926 I35 C ZF 0919 LUFT

452452-74-0592 w 19980928 I15 C ZF 0919 LUFT

452452-74-0592 w 19990104

C ZQ 0919 LUFT

452452-74-0592 w 19991206 115 C ZF 0919 LUFT

452452-74-0592 w 20000329

C ZG 0919 LUFT

452452-74-0592 w 20000731 993 C ZC 0919 LUFT 1

452452-74-0592 w 20000731 060 C ZC 9924 LUFT 6

452452-74-0592 w 20000731 060 C ZP 9924 LUFT 6

452452-74-0592 w 20001002 I70 C ZF 9924 LUFT 6

452452-'4-0592 w 20001002 TOl C ZF 9924 LUFT 6

452452-74-0592 w 20011001 170 C ZF 9924 LUFT 6

452452-'4-0592 w 20011001 TOl C ZF 9924 LUFT 6

452452-74-0592 w 20020923 C16 C ZR 9924 !..UFT 6

452452-74-0592 W 20021007 803 C ZC 9924 LUFT 6

452452-74-0592 W 20021021 804 C ZC 9924 LUFT 6

452452-74-0592 w 20021021 170 C ZF 9924 LUFT 452452-74-0592 w 20021021 TOl C ZF 9924 LUFT

452452-74-0592 w 20030)09

C E 9924 LUFT

452452-74-0692 W 20030309

C E 9924 LUFT

452452-98-2963 b 19910522

M B 3629

8

452452-98-2963 b 19910522

M C 3629 LUFP 8

452452-98-2963 b 19910522 o M o 3629 LUFP 8

452462-98-2963 b 19910522 003 C ZC 3629 LUFP 8

452452-98-2963 b 19910722

M B 3648 LUFP 7

452452-98-2963 b 19910722 2 M C 3648 LtlFP 7

452452-ge-2963 b 19910930 4 M o 3648 LUFP 7

452452-99-2963 b 19920113 AOl C ZO 3649 LUFP

452452-99-2963 b 19920113 ~01 C ZF 3648 LUFP 7

452452-98-2963 b 19920126

M B 3644 LUFP 6

452452-99-2963 b 19920126 I30 C ZO 3644 LUFP 6

452452-98-2963 b 19920126 I30 C ZF 3644 LUFP 6

452452-99-2963 b 19920127 1 M o 3644 LUFP 6

452452-98-2963 b 19920928 4 M o 3644 LUFP 6

452452-98-2963 b 19921116 4 M o 3644 LUFP 6

452452-98-2963 b 19921116 I70 C ZF 3644 LUFP 6

452452-98-2963 b 19930621 1 M o H44 LUFP 6

452452-98-2963 b 19930621 I15 C ZF 3644 LUFP

452452-98-2963 b 19930913

M F 3644 LUFP

452452-98-2963 b 19970414

M C 3644 LUFO 6

452452-99-2963 b 19970414 o M o 3644 LUFO 6

452452-98-2963 b 19970414 023 C ZC 3644 LUFO 6

452452-98-2963 b 19970414 ~04 C ZO 3644 LUFO 6

452452-98-2963 b 19970414 ~04 C ZF 3644 LUFO 6

452452-98-296) b 19970414 C03 C ZR 3644 LUFP

452452-98-2963 b 19970414 C25 C ZR 3644 LUFP

452452-98-2963 b 19970922

M B H43 LUFP

452452-96-2963 b 19970924 I30 C ZC 3643 LUFP

452452-99-2963 b 19970924 I30 C Z1" 3643 LUFP

452482-98-296) b 19971006 4 M o 3643 LUFP

452452-98-2963 b 19971006 170 C ZF 3643 LUFP

452452-98-2963 b 19980119 o M 1 l643 LUFO

452452-98-2963 b 19980119 o M o 3643 LUFO

452452-98-2963 b 19980120 I15 C ZF )643 LUFP

452452-98-296) b 19980605

M I' J643 LUFO

Appendix 13

452452-99-2963 b 19980608

M C 3543 t.UFP 6

452452-98-2963 b 19961002 600 C ZC 3643 LUFP 6

452452-96-2963 b 19981005 TOl C ZF 3643 LUFP 6

452452-98-2963 b 19991004 TOl C ZF 3643 LUFP 6

452452-99-2963 b 20000508 023 C ZC 3643 LUFP 6

452452-98-2963 b 20000508 A04 C ZO 3643 LUFP 6

452452-99-2963 b 20000506 A04 C ZF 3643 LUFP

452452-98-2963 b 20000509 C04 C ZR 3643 LUFO

452452-98-2963 b 20000509 C25 C ZR 3643 LUFO

452452-98-2963 b 20000731 991 C ZC 3643 LUrO 6

452452-98-2963 b 20000731 n5 C ZO 0070 LUFO 1

452452-98-2963 b 20000731 I35 C ZF 0070 LUFO 1

452452-99-2963 b 20010702 TOl C ZF 0070 LUFO 1

452452-98-2963 b 20010716 I15 C ZF 0070 LUFO 1

452452-98-2963 b 20020125 600 C ZC 0070 LUFO 1

452452-99-2963 b 20030309

C E 0070 LUFO 1

452452-98-2963 b 20030309 452452-98-2963 b 20030309

C E 0070 LUFO 1
C s: 0070 LUPO

45)453-04-6636 w 19741216

M C

!..UFO

453453-04-6636 w 19741218 003 C ZC

453453-04-6636 w 19741219 C03 C ZR

LUFF

453453-04-6636 w 19830224

M B 5725 LUFF

453453-04-6636 w 19830224

M C 5725

453453-04-66)6 w 19830224

M o 5725

453453-04-6636 w 19630930 4 M o 5725

453453-04-6636 w 19840930

M o 5725

6

453453-04-6636 W 19850930

M o 5725

6

453453-04-6636 W 19860804

M C 5725 LUFT 6

453453-04-6636 W 19881002 4 M o 5725 LUFT 6

453453-04-6636 W 19891002 4 M o 5725 LUFT 6

453453-04-6636 w 19991030

M B'5705 LUFT 7

45)453-04-6636 W 19891030

M o 5705 LUFT 7

453453-04-6636 W 19900129

M o 5705 LUFT

453453-04-6636 w 19900723

M B 5725 LUFT 6

453453-04-6636 W 19910930 4 M o 5725 LUFT 6

453453-04-6636 W 19920113 A01 C ZO 5725 LUFT 6

453453-04-6636 w 19920113 ~01 C ZF 5725 LUFT 6

453453-04-6636 W 19920928 4 M o 5725 LUFT 6
45)453-04-6636 w 19920928 I56 C ZF 5725 LUFT 6

453453-04-6636 w 19930111

M B 5705 LUFT 7

45)453-04-6636 W 19930111

M C 5705 LUFO 7

453453-04-6636 W 19930111 2 M o 5705 LUFO 7

453453-04-6636 w 19930111 030 C ZO 5705

453453-04-6636 W 19930111 030 C ZF 5705

453453-04-6636 W 19930329

M B 5704 LUFO

453453-04-6636 W 19930329 2 M o 5704 LUFO

453453-04-6636 W 19930329 130 C ZO 5704

453453-04-6636 W 19930329 I30 C ZF 5704

453453-04-6636 W 19930531

M B 5725 t.UFO

453453-04-6636 w 19930531

M C 5725 LUFO

453453-04-6636 W 19930531 2 M o 5725 LUrO

453453-04-66)6 W 19930531 130 C ZO 5725

453453-04-6636 w 19930531 I30 C ZF 5725

453453-04-6636 W 19931004 4 M o 5725 LUFO

453453-04-6636 W 19931004 I70 C ZP 5725

6

453453-04-6636 W 19931115

M B 5704 LUFO 6

453453-04-6636 W 19931115

M C 5704 LUFO 6

453453-04-6636 W 19931115 2 M o 5704 LUFO 6

453453-04-6636 W 19931115 030 C ZO 5704

6

45)453-04-6636 W 19931115 0)0 C ZF 5704

6

453453-04-6636 w 19940207

M C 5704 LUFO 6

453453-04-6636 w 19940815

M C 5704 LUFF 6

453453-04-6636 W 19941003 4 M o 5704 LUFF 6

453453-04-6636 w 1994100) I70 C Z1" 5704 LUFF 6

453453-04-6636 W 19950130

M B 6766 LUFF 6

453453-04-6636 W 19950130 2 M C 6766 LUFF 6

453453-04-6636 w 19950130 C23 C ZR 6766 LUFF 6

453453-04-6636 W 19950131 I30 C ZO 6766 LUFF

Page 5

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 245 of 295

453453-04-6636 w 19950131 130 e ZF 6766 LUFF 6

453453-04-6636 w 19951002 4 M o 6766 LUFF 6

453453-04-6636 w 19951002 170 e ZF 6766 LUFF 6

453453-04-6636 w 19961007 4 M o 6766 LUFF 6

453453-04-6636 w 19961007 170 C ZF 6766 LUFF 6

453453-04-6636 w 19971006

M 1 6766 LUFF 6

453453-04-6636 w 19971006 4 M o 6766 LUFF 6

453453-04-6636 w 19971006 170 C ZF 6766 LUFF 6 453453-04-6636 w 19981005 170 e ~F 6766 LUFF 6

453453-04-6636 w 19981005 TOl C ZF 6766 LUFF 6

453453-04-6636 w 19991004 115 C ZF 6766 LUFF 6

453453-04-6636 w 19991004 170 C ZF 6766 LUFF 6

453453-04-6636 w 19991004 TOl C ZF 6766 LUFF 6

453453-04-6636 w 19991004 TOl C ZF 6766 LUFF 6

453453-04-6636 w 19991011 115 C ZF 676G LUFF 6

453453-04-6636 w 20001002 170 C zr 6766 LUFF 6

453453-04-6636 w 20001002 TOl C ZF 6766 LUFF 6

453453-04-6636 w 20011001 170 C ZF 6166 LUFF 6

453453-04-6636 w 20011001 TOl C ZF 6766 LUFF

453453-04-6636 w 20020304 991 C ZC 6766 LUFF

453453-04-6636 w 20020304 I35 C ZO 0928 LOFF

453453-04-6636 w 20020304 135 C ZF 0928 LUFF 1

4534Sj-04-663G w 20020506 993 C ZC 0928 LUFF 1

453453-04-6636 w 20020506 060 C ZO 6766 LOFF 6

453453-04-6636 w 20020506 060 C ZF 6766 LUFF 6

453453-04-6636 w 20020923 C16 e ZR 6766 LUFF 6

4S3453-04-g636 w 20021007 803 C ZC 6766 LUFF 6

453453-04-6636 w 20021021 804 C ZC 6766 LUFF

453453-04-6636 w 20021021 I70 C ZF 6766 LUFF

453453-04-6636 w 20021021 TOl C ZF 6766 LUFF

453453-04-6636 w 20030309 453453-43-2195 w 19841105

C Ii: 6766 LUFF M Il 9904

453453-43-2195 w 19841105

M C 9904 LOFT 7

453453-43-2195 w 19841105

M o 9904 LUFT 7

453453-43-2195 w 19841105 001 C ZC 9904 LUFT 7

453453-43-2195 w 19841105 C03 C ZR 9904 LUFT 7

453453-43-2195 w 19850204 1 M o 9904 LUFT 7

453453-43-2195 w 19850506 1 M o 9904 LUFT 7

453453-43-2195 w 19850513

M a 9905 LUFT 7

453453-43-2l95 w 19850513

M o 9905 LUFT 7

453453-43-2195 w 19950624

M a 9904 LUFT 7

453453-43-2195 w 19950624

M o 9904 LUFT 7

453453-43-2195 w 19850909 1 M o 9904 LUFT 7

453453-43-2195 w 19950930 4 M o 9904 LUFT

453453-43-2195 w 19851209 1 M o 9904 LUFT 7

453453-43-2195 w 19880618 C27 C ZR 9904 LUFT 7

453453-43-2195 w 19881002 4 M o 9904 LUFT 7

453453-4d-2195 w 19891002 4 M o 9904 LUFT 7

453453-43-2195 w 19910204

M B 9903 LUF'I' 6

453453-43-2195 w 19910204 2 M o 9903 LUFT 6

453453-43-2l95 w 19910819 1 M o 9903 LUFT 6

453453-43-2195 w 19910930

M o 9903 LUFT 6

453453-43-2195 w 19920113 AOl e zo 9903 LUFT 6

453453-43-2195 w 19920113 AOl C ZF 9903 LUFT 6

453453-43-2195 w 19920928 4 M o 9903 LUFT

453453-43-2195 w 19920928 156 C ZF 9903 LUFT

453453-43-2l95 W 19921116

M C 9903 LUFT 6

453453-43-2195 w 19930329 1 M o 9903 LOFT 6

453453-43-2195 W 19930329 115 C ZF 9903 LUFT 6

453453-43-2195 W 19930809

M o 9903 LUFT 6

453453-43-2195 W 19930809 I15 C ZF 9903 LOFT 6

453453-43-2195 W 19931004 4 M o 9903 LUFT 6

453453-43-2195 W 19931004 170 C ZF 9903 LOFT 6

453453-43-2195 W 19941003 4 M o 9903 LUFT 6

453453-43-2195 w 19941003 170 C ZF 9903 LUFT

453453-43-2195 W 19950220

M B 0070 LUFT

453453-43-2195 W 19950220 2 M o 0070 LUFT

453453-43-2195 w 19950220 130 C ZO 0070 LUFT

Appendix 13

453453-43-2195 w 19950220 135 e ZF 0070 LUFT 1

453453-43-2195 w 19960108

M a 9903 LUFT 6

453453-43-2195 w 19960108 2 M o 9903 L1JFT 6

453453-43-2195 w 19960112 030 e ZO 9903 LUFT 6

453453-43-2195 w 19960112 060 C ZF 9903 LUFT 6

453453-43-2195 w 19961007 4 M o 9903 LUFT 6

453453-43-2195 w 19961007 170 e ZF 9903 LUFT 6

453453-43-2195 w 19961230

M o 9903 LUFT 6

453453-43-2195 w 19970106

M a 0919 LUFT 1

453453-43-2195 w 19970106 2 M o 0919 LUFT 1

453453-43-2195 w 19970107 130 e ZO 0919 LUFT 1

453453-43-2195 w 19970107 135 C ZF 0919 LUFT 1

453453-43-2195 w 19970303 4 M o 0919 LUFT 1

453453-43-2195 w 19970303 170 C ZF 0919 LUFT 1

453453-43-2195 w 19980413 1 M 1 0919 LUFT 1

453453-43-2195 w 19980413 1 M o 0919 LUFT 1

453453-43-2195 w 19980420 115 e ZF 0919 LUFT 1

453453-43-2195 w 19981130

e ZQ 0919 LUFT 1

453453-43-2195 w 19991108 Ils C ZF 0919 LUFT

453453-43-2195 w 20000327

C ZCl 0919 LUFT

453453-43-2195 w 20000821 993 C ze 0919 LUFT 1

453453-43-2195 w 20000821 060 C ZO 9903 LUFT 6

453453-43-2195 w 20000821 060 C ZF 9903 LUFT 6

453453-43-2195 w 20001002 I70 C ZF 9903 LUFT 6

453453-43-2195 w 20001002 TOl C ZF 9903 LUFT 6

453453-43-2195 w 20011001 I70 C ZF 9903 LUFT 6

453453-43-2195 w 20011001 TOl C ZF 9903 LUFT 6

453453-43-2195 w 20011109 600 C ZC 9903 LUFT 6

453453-43-2195 w 20020116 043 C ZC 9903 LUFT 6

453453-43-2195 w 20020116 A06 C %0 9903 LUFT 6

453453-43-2195 w 20020116 A06 C ZF 9903 LUFT 6

453453-43-2195 w 20020923 C16 e ZR 9903 LUFT 6

453453-43-2195 w 20021007 603 C ZC 9903 LUFT 6

453453-43-2195 w 20021021 804 C ZC 9903 LUFT 6

453453-43-2195 w 20021021 !10 C ZF 9903 LUFT

453453-43-2195 w 20021021 TOl C ZF 9903 LUFT

453453-43-2195 w 20030309

C Ii: 9903 LUFT

453453-43-2195 w 20030309

C Ii: 9903 LUFT

453453-66-3755 w 19850723

M Il 6766

453453-66-3755 w 19850723

M C 6166 LUFF 6

453453-66-3755 w 19950723 o M o 6766 LUFF 6

453453-66-3155 w 19950723 003 C ZC 6766 LUFF 6

453453-66-3755 w 19850930 4 M o 6766 LUFF 6

453453-66-3755 w 19871109

M Il 0070 LUFF

453453-66-3155 w 19871109

M o 0070 LUFF

453453-66-3755 w 19890504

M F 0070 LUFF

453453-66-3155 w 19910715

M a 6766 LUFF

453453-66-3755 w 19910715

M C 6766 LUFF

453453-66-3755 w 19910715 o M o 6766 LUFF

453453-66-3755 w 19910715 023 C ZC 6766 LOFF

453453-66-3755 w 19910715 C03 C ZR 6766 LUFe

453453-66-3755 w 19910930 4 M o 6766 LUFe

453453-66-3755 w 19920113 A01 C %0 6766 LUFe

453453-66-3755 W 19920113 A01 C ZF 67p6 LUFe

453453-66-3755 w 19920928 4 M o 6166 LUFe

453453-66-3755 W 19920928 I56 CZF 676G LUFe

453453-66-3755 W 19930329 e2l C ZR 6766 LUFF

453453-66-3755 w 19931004 4 M o 6766 LUFF

453453-66-3755 W 19931004 110 C ZF 6766 LUFF 6

453453-66-3755 W 19941003 4 M o 6766 LUFF 6

453453-66-3755 W 19941003 170 C ZF 6766 LUFF 6

453453-66-3755 W 19951002 4 M o 6766 LUFF 6

453453-66-3155 W 19951002 I70 C ZF 6766 LUFF 6

453453-66-3755 W 19961007 4 M o 6766 LUFF 6

453453-66-3755 W 19961007 I70 C ZF 6766 LUFF

453453-66-3755 W 19970224

M B 6819 LUFF

453453-66-3755 W 19970224

M o 6819 LUP'F

453453-66-3755 W 19970227 130 C %0 6819 LUFF

Page 6

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 246 of 295

453453-66-3755 w 19970227 130 C ZF 6819 LUFF 6

453453-66-3755 w 19~7042e

M B 4702 LUFF 6

453453-66-3755 w 19970428

M C 4702 LUFO 6

453453-66-3755 w 19970428 C22 C ZR 4702 LUFO 6

453453-66-3755 w 19970508 130 C ZO 4702 LUFO 6

453453-66-3755 w 19970508 130 C ZF 4702 LUFO 6

453453-66-3755 w 19970818 1 M o 4702 LUFO

453453-66-3755 w 19970819 115 C ZF 4702 LUFO

453453-66-3755 w 19971006 4 M o 4702 LUFO 6

453453-66-3755 w 19971006 170 C ZF 4702 LuFO 6

453453-66-3755 w 19980119 1 M 1 4702 LUFO 6

453453-66-3755 w 19980119 1 M o 4702 LUFO 6

453453-66-3755 w 19980119 115 C ZF 4702

6

453453-66-3755 w 19980803 115 C ZF 4702

6

453453-66-3755 w 19981005 170 C ZF 4702

6

453453-66-3755 w 19981005 TOl C Z~ 4702

6

453453-66-3755 w 19990111 S08 C ZO 6819

453453-66-3755 w 19990111 030 C ZF 6819

453453-66-3755 w 19990111 W04 C ZF 6819

6

453453-66-3755 w 19990111 C04 C ZR 6819 LUFF 6

453453-66-3755 w 19991004 170 C ZF 6819 LUFF

453453-66-3755 w 19991004 TOl C ZF 6819 LUFF

453453-66-3755 w 19991004 TOl C ZF 6819 LUFF

453453-66-3755 w 20000911 991 C ZC 6819 LUFF

453453-66-3755 w 20000911 135 C ZO 0928 LOFF

453453-66-3755 w 20000911 130 C ZF 0928 LUFF

453453-66-3755 w 20010424

C ZG 0928 LUFF

453453-66-3755 w 20010702 T01 C ZF 0928 LUF~

453453-66-3755 w 20010813 S08 C ZO 0930 LUI'F

453453-66-3755 w 20010813 W04 C ZF 0930 LUFF

453453-66-3755 w 20010813 C15 C ZR 0930 LOFF

453453-66-3755 w 20010924 115 C Z~ 0930 LUFF

453453-66-3755 w 20020228 300 C ZC 0930 LUFF

453453-66-3755 w 20030309

C Ii: 0930 LUFF

453453-66-3755 w 20030309

C E 0930 LUFF

453453-66-375$ w 20030309

C E 0930 LOFF

454454-96-5105 b 19120502 001 C ZC

454454-96-5105 b 19720502 COl C ZR

LUFT

454454-96-5105 b 19180610 C27 C ZR

LUFT

454454-96-5105 b 19830224

M e 9903 LUI'T

454454-96-5105 b 19830224

M C 9903 LUFT

4544$4-96-5105 b 19830224

M o 9903 LUFT 6

454454-96-5105 b 19830930

M o 9903 LUFT 6

454454-96-5105 b 19840930

M o 9903 IoUFT 6

454454-96-5105 b 19850930

M o 9903 LUFT 6

454454-96-$105 b 198Bl002

M o 9903 LOFT

454454-96-5105 b 19891002 4 M o 9903 LUFT 6

454454-96-5105 b 19910930 4 M o 9903 LUFT 6

454454-96-5105 b 19920113 A01 C ZO 9903 LUFT 6

454454-96-5105 b 19920113 A01 C ZF 9903 LUFT 6

454454-96-5105 b 19920928 4 M o 9903 LUFT 6

454454-96-$105 b 1992111. 4 M o 9903 LUFT 6

454454-96-5105 b 19921116 170 C ZI' 9903 LUFT 6

454454-96-5105 b 19931004 4 M o 9903 LUFT

454454-96-5105 b 19931004 170 C ZF 9903 LUFT

454454-96-5105 b 19941003 4 M o 9903 LUFT

454454-96-5105 b 19941003 170 C ZF 9903 LUFT

454454-96-5105 b 19950220

M B 0070 LUFT

454454-96-5105 b 19950220 2 M o 0070 LUFT

454454-96-5105 b 19950220 130 C ZO 0070 LUFT

454454-96-5105 b 19950220 X35 C ZF 0070 LUI'T 1

454454-96-5105 b 19960318 1 M o 0070 LUFT 1

454454-96-5105 b 19960320 115 C ZF 0070 LUFT 1

454454-96-5105 b 19960617

M B 9903 LUFT 6

454454-96-5105 b 19960617 o M o 9903 LOFT 6

454454-96-5105 b 19960617 060 C ZO 9903 LUFT 6

454454-96-5105 b 19960617 060 C ZI' 9903 LUFT 6

454454-96-5105 b 19960624 1 M o 9903 LUFT 6

Appendix 13

454454-96-$105 b 19960627 I1S C ZF 9903 LUFT 6

454454-~6-5105 b 19961007 4 M o 9~03 LUFT 6

454454-96-5105 b 19961007 i70 C ZF 9903 LUFT 6

454454-96-5105 b 19961230 1 M o 9903 LUFT 6

454454-96-5105 b 19970106

M B 0919 t.UFT 1

454454-96-5105 b 19970106 2 M o 0919 LUFT 1

454454-96-5105 b 19970107 130 C ZO 0919 LUFT 1

454454-96-5105 b 19970107 135 C ZF 0919 LUFT 1

454454-96-5105 b 19970303 4 M o 0919 LUFT 1

454454-96-5105 b 19970303 170 C ZF 0919 LUFT 1

454454-96-5105 b 19980427 1 M 1 0919 LUFT 1 454454-96-5105 ~ 19980427 1 M o 0919 LUI'T 1

454454-96-5105 b 199B0504 %15 C ZF 0919 LUFT 1

454454-96-5105 b 19981130

C ZG 0919 LUFT 1

454454-96-5105 b 19991108 115 C ZF 0919 LUFT 1

454454-96-5105 b 20000327

C ZG 0919 LUI'T 1

454454-96-5105 b 20001106 115 C ZF 0919 LUFT 1

454454-96-5105 b 20010207

C ZG 0919 LUFT 1

454454-96-5105 b 20010328 993 C ZC 0919 LUFT 1

454454-96-5105 b 20010328 060 C ZO 9903 LUFT 6

454454-96-5105 b 20010328 060 C ZF 9903 LUFT 6

454454-96-5105 b 20011001 170 C ZF 9903 LUFT 6

454454-96-5105 b 20011001 TOl C ZF 9903 LOFT

454454-96-5105 b 20020923 C16 C ZR 9903 LUFT

454454-96-5105 b 20021007 803 C ZC 9903 LUFT 6

454454-96-5105 b 20021021 804 C ZC 9903 LUFT 6

454454-96-5105 b 20021021 170 C ZF 9903 LUI'T 6

454454-96-5105 b 20021021 T01 C ZF 9903 LUFT 6

454454-96-5105 b 20030309

C Ii: 9903 LUFT

454454-96-5105 b 20030309

C Ii: 9903 LUFT 6

455455-27-9517 c 19871014

M B 6796

8

455455-27-9517 0 19871014

M C 6796 LUI'I' e

455455-27-9517 0 19871014 o M o 6796 LUFF 8

455455-27-9511 0 19871014 003 C ZC 6796 LUFI' 8

455455-21-9517 c 19871014 C03 C ZR 6796 LUFF

455455-27-9517 0 19671014 C23 C ZR 6796 LUFF

455455-27-9517 0 19880104 1 M o 6796 LOFF

455455-27-9517 0 198B0822 1 M o 6796 LUFF

455455-27-9517 0 19881002 4 M o 6796 LUFF

455455-27-9517 0 19881002 4 M o 6796 LUI'F

~5$455-27-9517 c 19881003

M B 6747 LUFF

455455-27-9517 0 19881003

M o 6747 LUFF 7

455455-27-9517 c 19881121

M B 6796 LOFF e

455455-27-9517 c 19881121

M o 6796 LUFF 8

455455-27-9517 0 19881218

M B 6747 LUI'I' 7

455455-27-9517 0 19881219 2 M o 6747 LUFF 7

455455-27-9517 0 19890306 1 M o 6747 LOFF 7

455455-27-9517 0 19890616 C23 C ZR 6747 LUFF 7

455455-27-9517 0 19891002 4 M o 6747 LUFF 7

455455-27-9517 0 19900702 1 M o 6747 LUFF 7

455455-27-9517 0 19901210 1 M o 6747 LUFF 7

455455-27-9517 c 19901226

M B 6746 LUFF 6

455455-27-9517 0 19901226

M o 6746 LUFF 6

455455-27-9517 0 19910318

M B 6747 LUFF 7

455455-27-9517 0 19910318

M o 6747 LUFF 7

455455-27-9517 0 19910408

M B 6746 LUFF 6

455455-27-9517 0 19910408

M o 6746 LUI'F 6

455455-27-9517 0 19910930 4 M o 6746 LUFF

455455-27-9517 0 19911007 1 M o 6746 LUFF

455455-27-9517 0 19920113 AOl C ZO 6746 LUFF 6

455455-27-9517 c 19920113 A01 C ZF 6746 LUFF 6

455455-27-9517 0 19920928 4 M o 6746 LUFF 6

455455-27-9517 0 19920928 156 C ZF 6746 LUFF 6

455455-27-9517 0 19930927 1 M o 6746 LUFF 6

455455-27-9517 0 19930927 115 C ZF 6746 LUI'F 6

455455-27-9517 c 19931004 4 M o 6746 LUFF 6

455455-27-9517 0 19931004 170 C ZF 6746 LUFF 6

455455-27-9517 0 19940425

M o 6746 LUFF 6

Page 7

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 247 of 295

455455-27-9517 0 19940425 115 C ZF 6746 LUFF

455455-27-9517 0 19941003 4 M o 67H LUFF

455455-27-9517 0 19941003 170 C ZF 6746 LUFF 6

455455-27-9517 0 19941024 1 M o 6746 LUFF 6

455455-27-9517 0 19941024 115 C ZF 6746 LUFF 6

455455-27-9517 0 19951002 4 M o 6746 LTJl'r 6

455455-27-9517 0 19951002 170 C zr 6746 LUFF 6

455455-27-9517 0 19961007 4 M o 6746 LUFF 6

455455-27-9517 0 19961007 170 C ZF 6746 LUFF 6

455455-27-9517 0 19971006 4 M 1 6746 Lurr 6

455455-27-9517 0 19971006 4 M o 6746 LurF 6

455455-27-9517 0 19971006 170 e ZF 6746 LUFF 6

455455-27-9517 0 19981005 170 C ZF 6746 LUFF 6

455455-27-9517 0 19981005 TOl e zr 6746 LUFF 6

455455-27-9517 0 19991004 170 e ZF 6746 LUFF 6

455455-27-9517 0 19991004 TOl e ZF 6746 LUFF 6

455455-27-9517 0 19991004 TOl e ZF 6746 LUFF 6

455455-27-9517 0 20000703 991 C ze 6746 LUFF 6

455455-27-9517 0 20000703 135 e ZO 0930 LUFr 1

455455-27-9517 0 20000703 135 C ZF 0930 LurF 1

455455-27-9517 0 20010702 115 C ZF 0930 LurF

455455-27-9517 0 20010702 TOl C ZF 0930 LUFF 1

455455-27-9517 0 20010702 Tal e ZF 0930 LUFF 1

455455-27-9517 0 20020425

C ZG 0930 LUFF

455455-27-9517 0 20020506 993 C ZC 0930 LUFF

455455-27-9517 0 20020506 060 e ZO 6746 LUFr

455455-27-9517 0 20020506 060 e ZF 6746 LUFF 6

455455-27-9517 0 20020805 991 e ZC 6746 LUFr 6

455455-27-9517 0 20020805 135 C ZO 0930 LUrF

455455-27-9517 0 20020805 135 e ZF 0930 LUFF

455455-27-9517 0 20020923 e16 C ZR 0930 LUFF

4554S5-27-9~17 0 20030309

C s: 0930 LUFF

455455-27-9517 0 20030309

e E 0930 LUFF

456456-33-8823 w 19910104 456456-33-8823 w 19910104

M II 3629 M e 3629 Luro

456456-33-6823 w 19910104

M o 3629 Luro

456456-33-8823 w 19910104 001 C ZC 3629 LUFO 8

456456-33-8823 w 19910104 C03 C ZR 3629 Luro a

456456-33-6823 w 19910104 C25 C ZR 3629 LUFP

456456-33-8823 w 19910527 1 M o 3629 LUFP

456456-33-8823 w 19910617

M !l 3619 LUFP

456456-33-6823 w 19910617

M o 3619 LUP'P

456456-33-8823 w 19910722

M B 3648 LUFP 7

456456-33-8823 w 19910722 2 M o 3646 LUFP 7

456456-33-6623 w 19910930

M o 3648 LUFP

456456-33-6823 w 19911021

M o 3648 LUFP

456456-33-8823 w 19920113 AOl e ZO 36~8 LUFP

456456·33-8823 w 19920113 A01 C ZF 3648 LUI'I'

456456-33-8823 w 19920127 1 M o 3646 LUFP 7

456456-33-8823 w 19920127 156 e ZF 3648 LUFP 7

456456-33-8823 w 19920224 456456-33-8823 w 19920224

M B 3643 LUI'P 6 2 M o 3643 LUI'I' 6

456456-33-8823 w 19920224 I30 e ZO 3643 LUFP 6

456456-33-6823 w 19920224 I30 C ZF 3643 Lurp 6

456456-33-8623 w 19920926 4 M 0 3643 LUFP 6

456456-33-8623 w 19920926 I56 C ZF 3643 LUFP '6

456456-33-8823 w 19930118

M C 3643 LUFP 6

456456-33-8823 w 19930621 1 M o 3643 LUFP

456456-33-6823 w 19930621 115 e ZF 3643 LUFP

456456-33-8823 w 19930816

M e 3643 LUFO 6

456456-33-8623 w 19931004 4 M o 3643 LUFO 6 456456-33-8823 w 19931004 170 C ZF 3643 LUFP 6

456456-33-8823 w 19940117 1 M o 3643 LUFO 6 4S6~56-33-ee23 w 19940117 I1S e zr 3643 Lurp 6

456456-33-6823 w 19940912 1 M o 3643 LUFO 6

4564$6-33-8823 w 19940912 I15 e ZP' 3643 Lurp

456456-33-8823 w 19941003 4 M o 3643 LUFO 456456-33-8623 w 19941003 170 C ZF 3643 LUFP

Appendix 13

456456-33-8823 w 19951002 4 M o 3643 LUFO 6 456456-33-6623 w 19951002 170 C ZF 3643 LUFP 6

456456-33-8623 w 19960108

M 'C 3643 LUFO 6

456456-33-6823 w 19961007 4 M o 3643 LUFO ,

456456-33-8623 w 19961007 170 e ZF 3643 Luro 6

456456-33-8823 w 19970616 1 M o 3643 LUFO 6

456456-33-8823 w 19970616 115 C ZF 3643 Luro 6

456456-33-8823 w 19971006 4 M o 3643 LUFO 6

456456-33-6823 w 19971006 170 e ZF 3643 Luro 6

456456-33-8823 w 19980302 2 M 1 0070 LUFO 1

456456-33-8623 w 19980302

M B 0070 LUFO

456456-33-8823 w 19980302

M o 0070 LUFO

456456-33-8823 w 19980306 135 C ZO 0070 LUFO 1

456456-33-6823 w 19980306 135 e ZF 0070 LUFO 1

456456-33-6823 w 19981005 993 C ZC 0070 LUFO 1

456456-33-8623 w 19981005 060 C ZO 3643 LUFO 6

456456-33-8823 w 19981005 060 C ZF 3643 LUFO 6

456456-33-6823 w 19981005 170 C ZF 3643 LUFO

456456-33-8823 w 19981005 TOl C ZF 3643 LUFO

456456-33-8823 w 19981005 W04 C Z~ 3643 LUFO

456456-33-8823 w 19981005 C04 C ZR 3643 LUFP 6

456456-33-8823 w 19990514 340 e ZC 3643 LUFP 6

456456-33-8823 w 19990514 600 C ZC 3643 LUFP 6

456456-33-8823 w 19990913 041 C ze 3643 LUFP 6

456456-33-6823 w 19990913 A06 C ZO 0070 LUFP 1

456456-33-8823 w 19990913 A06 C ZF 0070 LUFP 1

456456-33-8823 w 19990913 W04 C ZF 0070 LUFP

456456-33-8623 w 19990913 C04 e ZR 0070 LUFO

456456-33-8623 w 20001023 115 C ZF 0070 LUFO 1

456456-33-6623 w 20010702 TOl C ZF 0070 LUFO 1

456456-33-8823 w 20011022 115 e zr 0070 LUFO

456456-33-8823 w 20011212 122 e ZC 0070 LurO

456456-33"6823 w 20030309

C s: 0070 LUFO

456456-33-8823 w 20030309

C E 0070 LUFO

~56456-85-1214 b 19910612

M B 5701

7

456456-85-1214 b 19910612

M C 5701

7

456456-65-1214 b 19910612 2 M o 5701

7

456456-85-1214 b 19910612 003 C ZC 5701

7

456456-85-1214 b 19910612 C03 C ZR 5701 LUFT 7

456456-85-1214 b 19910930

M B 3629 LUFT

456456-65-1214 b 19910930

M C 3629 LUFP

456456-85-1214 b 19910930

M o 3629 LUI'I'

456456-65-1214 b 19920113 AOl C ZO 3629 LUPP

456456-85-1214 b 19920113 AOl C ZF 3629 LUI'I'

456456-65'1214 b 19920224 1 M 1:) 3629 LUI'P

456456-85-1214 b 19920224 115 e ZF 3629 LUFp

456456-65-1214 b 19920928 o M o 3629 LUFP

456456-65-1214 b 19920928 156 C ZF 3629 LUFP

456456-85-1214 b 19930108

M r 3629 Lun

456456-85-1214 b 19930423

M B 9906 Ll,JFP 8

456456-85·1214 b 19930423

M C 9906 LUFT 8

456456-9$-1214 b 19930423

M o 9906 LUrT 8

456456-85-1214 b 19930423 043 e ze 9906 LUFT 6

456456-65-1214 b 19930423 A06 C ZO 9906 LUFT 8

456456-95-1214 b 19930423 C27 C ZR 9906 LUFT 8

456456-85-1214 b 19930626

M B 9904 LUrT 7

456456-85-1214 b 19930628 o M o 9904 LUFT 7

456456-85-1214 b 19930628 130 e ZO 9904 LurT 7

456456-85-1214 b 19930628 130 e zr 9904 LUFT 7

456456-85-1214 b 19930712

M C 9904 LUFT 7

456456-85-1214 b 19930802

M o 9904 LUFT 7

456456-85-1214 b 19930802 115 C ZF 9904 LUFT 7

456456-85-1214 b 19931004 4 M o 9904 LurT 7

456456-85-1214 b 19931004 170 C ZF 9904 LUFT 7

456456-65-1214 b 19931122 1 M o 9904 LUrT 7

456456-85-1214 b 19931122 115 C ZF 9904 LUFT 7

456456-85-1214 b 19941003 4 M 1:) 9904 LurT 7

456456-65-1214 b 19941003 I70 C ZF 9904 LUFT 7

Page e

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 248 of 295

456456-85-1214 b 19951002 4 M o 9904 LUI'T

456456-85-1214 b 19951002 I70 C ZF 9904 LUFT 7

456456-85-1214 b 19960617

M 9 9903 LUI'T 6

456456-85-1214 b 19960617 2 M o 9903 LUFT 6

456456-85-1214 b 19960624 I30 C ZO 9903 LUFT 6

456456-95-1214 b 19960624 I30 C ZF 9903 LUFT 6

456456-85-1214 b 19960722 1 M '0 9903 LUFT

456456-85-1214 b 19960730 I15 e %1' 9903 LUFT

456456-85-1214 b 19961007 4 M o 9903 LUI'T

456456-85-1214 b 19961007 I70 e ZF 9903 LUFT

456456-85-1214 b 19961209 1 M D 9903 LUI'T

456456-85-1214 b 19961209 I1S e ZF 9903 LUFT

456456-85-1214 b 19970707 1 M o 9903 LUFT

456456-85-1214 b 19970709 115 C ZF 9903 LUFT

456456-85-1214 b 19971006 4 M 1 9903 LUFT

456456-85-1214 b 19971006 4 M o 9903 LUI'T

456456-85-1214 b 19971006 I70 C ZF 9903 LUFT

456456-85-1214 b 19981005 170 C ZF 9903 LUI'T

456456-85-1214 b 19981005 TOl C ZF 9903 LUI'T 6

456456-85-1214 b 19991004 I70 C ZI' 9903 LUFT 6

456456-85-1214 b 19991004 TOl C ZF 9903 LUI'T 6

456456-85-1214 b 19991004 TOl C ZF 9903 LUFT

456456-85-1214 b 20001002 170 C ZF 9903 LUFT

456456-85-1214 b 20001002 TOl e ZF 9903 LUFT

456456-85-1214 b 20001217 e21 C ZR 9903 LUFO 6

456456-85-1214 b 20010131

e ZQ 9903 LUFO 6

456456-85-1214 b 20010402 S08 C ZO 5713 LUFO 7

456456-85-1214 b 20010402 S08 C ZF 5713 LUFO 7

456456-85-1214 b 20010402 C04 C ZR 5713 LUFO 7

456456-85-1214 b 20010430 115 C ZF 5713 LUl'e 7

456456-65-1214 b 20010625 I30 C ZO 5704 LUFO

456456-85-1214 b 20010625 I30 C ZF 5704 LUl'e

456456-85-1214 b 20010730 991 C ze 5704 LUFO 6

456456-85-1214 b 20010730 135 e ZO 0070 LUI'O 1

456456-85-1214 b 20010730. I35 e ZF 0010 LUFO

456456-85-1214 b 20020131

C ZC; 0070 LUFe

456456-85-1214 b 20020115 I15 C ZF 0070 LUFe

456456-85-1214 b 20020923 C16 e ZR 0070 LUFe 1

456456-85-1214 b 20030309

e It 0070 Lure 1

456456-85-1214 b 20030309
457457-19-5799 w 19890323

C Ii: 0070 LUl'e 1

M I! 3655

6

457457-19-5799 w 19890323

M e 3655 LUI'P 6

4574$7-19-5799 w 19890323 o M o JEj 55 LUFf 6

457457-19-5799 w 19890323 003 C ze 365S LUFP 6

457457-19-5799 w 19890323 C03 C ZR 3655 LUFF 6

457457-19-5799 w 19890323 C25 e ZR 3655 LUFF 6

457457-19-5799 w 19890821 1 M o 3655 LUI'F 6

457457-19-5799 w 19891002 4 M o 3655 LUI'I' 6

457457-19-5799 w 19891211

M o 3655 LUFF 6

457457-19-5799 w 19900416

M o 3055 LUI'I' 6

457457-19-5799 w 19910930

M o 3655 LUFF 6

457457-19-5799 w 19911223

M I! 3656 LUFF 6

457457-19-5799 w 19911223

M o 3656 LUFF 6

457457-19-5799 W 19920113 AOl C ZO 3656 LUI'F 6

457457-19-5799 W 19920113 AOl e ZF 3656 LUI'I' 6

457457-19-5799 w 19920928 4 M o 3656 LUI'F 6

457457-19-5799 W 19920928 156 C ZF 3656 LUFF 6

457457-19-5799 W 19930i21 1 M o 3656 LUFF 6
457457-19-5799 w 19930621 I1S e ZF 3656 LUI'I' 6

457457-19-$799 W 19931004

M B 6766 LUI'I' 6

457457-19-5799 w 19931004

M C 6766 LUI'I' 6

457457-19-5799 W 19931004

M o 6766 LUI'F 6

457457-19-5799 W 19931004 170 C ZF 6766 LUFF 6
457457-19-5799 w 19931221 S08 C ZD 6766 LUFF 6

457457-19-$799 w 19931221 S08 C ZF 6766 LUFF 6

457457-19-5799 W 19941003 4 M D 6766 LUFF 6

457457-19-5799 W 19941003 170 e ZF 6766 LUFF 6

457457-19-5799 w 19951002 4 M o 6766 LUFF 6

Appendix l3

457457-19-5799 w 19951002 I70 e ZF 6766 LUFF

457457-19-5799 w 19961007 4 M o 6766 LUFF

457457-19-5799 w 19961007 I70 C ZF 6766 LUFF

457457-19-5799 w 19970224

M 9 6819 LOFI'

457457-19-5799 w 19970224 2 M o 6819 LUFF 6

457457-19-5799 w 19970227 I30 C ZO 6819 LUFF 6

457457-19-5799 w 19970227 I30 C ZF 6819 LUFF 6

457457-19-5799 w 19970825 1 M o 6819 LUFF 6

457457-19-5799 w 19970825 I15 e ZF 6819 LUFF 6

457457-19-5799 w 19971006 4 M o 6819 LUFF 6

457457-19-5799 w 19971006 I70 C ZF 6819 LUFF 6

457457-19-5799 w 19980316 1 M 1 6819 LUFI' 6

457457-19-5799 w 19980316 1 M o 6819 LUFF 6

457457-19-5799 w 19980323 I15 e ZF 6819 LUI'F 6

457457-19-5799 w 19981005 170 C ZI' 6819 LUFF

457457-19-5799 w 1998100$ TOl C ZF 6819 LUFF

457457-19-5799 w 19991004 I70 C ZF 6819 LUI'I'.

457457-19-5799 w 19991004 TOl C ZF 6819 LUI'I'

457457-19-5799 w 19991004 TOl C .ZF 6819 LUI'I'

457457-19-5799 w 20001002 I70 e ZF 6819 LUFI'

457457-19-5799 w 20001002 TOl C ZF 6819 LUI'I'

457457-19-5799 w 20010402 991 C ZC 6819 LUFF

457457-19-5799 w 20010402 130 C ZO 0928 LUrl'

457457-19-5799 w 20010402 I35 C ZO 0928 LUFI'

457457-19-5799 w 20010402 I35 C ZF 0928 LUFF

457457-19-5799 w 20010702 TOl C ZF 0928 LUFF

457457-19-5799 w 20020308

e ZQ 0928 LUI'F 1

457457-19-5799 w 20020408 115 C ZI' 0928 LUFF 1

457457-19-5799 w 20020524 122 e ZC 0928 LUFF 1

457457-19-5799 w 20030309

C E 0928 LUFF 1

457457-19-5799 w 20030309

e E 0926 LUFI' 1

457457-39-2084 w 19850613

M II 9906

457457-39-2084 w 19850613

M e 9906 LUFT

457457-39-2084 w 19850613 o M D 9906 LUFT

457457-39-2084 w 19850613 001 C ZC 9906 LUFT

457457-39-2084 w 19850613 C03 C ZR 9906 LUFT 8

457457-39-2084 w 19850909 1 M o ~~06 LUFT 8

457451-39-2084 w 19950~30 4 M o 9906 LUI'T S

457457-39-2084 w 19851104

M II 9916 LUI'T 7

457457-39-2084 w 19851104 2 M D 9916 LUFT 7

457457-39-2084 w 19851209

M II 9904 LUI'T 7

457457-39-2084 w 19851209

M o 9904 LUFT 7

457457-39-2084 w 19860310

M o 9904 LUFT 7

457457-39-2084 w 19860609

M o 9904 LUFT 7

457457-39-2084 w 19860915

M o 9904 LUFT 7

457457-39-2084 w 19861215

M o 9904 LUI'T 7

457457-39-2084 w 19870216

M 9 9920 LUI'T 7

457457-39-2084 w 19870216 2 M o 9920 LUFT 7

457457-39-2084 w ~9870518 1 M o 9920 LUFT 7

457457-39-2084 w 19870907 1 M o 9920 LUFT

457457-39-2084 W 19880201 1 M o 9920 LUFT 7

457457-39-2084 w 19880314

M 9 9919 LtJI'T 6

457457-39-2084 W 19880314

M o 9919 LtJI'T 6

457457-39-2084 W 19880815

M o 9919 LtJFT 6

457457-39-2084 w 19881002 4 M o 9919 LOI'T 6

457457-39-2084 w 19890313 1 M o 9919 LUFT 6

457457-39-2084 W 19890529

M B 9932 LUI'T 6

457457-39-2084 W 19890529

M o 9932 LUFT 6

457457-39-2084 W 19891002 4 M o 9932 LUI'T

457457-39-2084 W 19891015

M 9 9919 LUFT

457457-39-2084 w 19900115

M 9 9932 LUFT 6

457457-39-2084 W 19910930 4 M o 9932 LUFT 6

457457-39-2084 W 19911014

M 9 9903 LUI'T 6

457457-39-2084 W 19920113 AOl C ZD 9903 LUI'T 6

457457-39-2084 W 19920113 A01 C ZF 9903 LUFT 6

457457-39-2084 W 19920518 1 M o 9903 LUI'T 6

457457-39-2084 W 19920518 I15 e ZF 9903 LUI'T 6

457457-39-2084 W 19920531 C27 C ZR 9903 LUFT

Page 9

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 249 of 295

457457-39-2084 w 19920929 4 M o 9903 LUFT

4574$7-39-2084 w 19920929 156 C ZF 9903 LUFT

457457-39-2084 W 19921102 1 M o 9903 LurT

457457-39-2094 W 19921116 4 M o 9903 LUFT 6

457457-39-2084 W 19921116 170 C ZF 9903 LUFT 6

457457-39-2064 w 19931004 4 M o 9903 LUFT 6

457457-39-2084 W 19931004 170 C ZF 9903 LUFT 6

457457-39-2084 W 19940905

M B 0070 LOFT 1

457457-39-2084 W 19940905 2 M o 0070 LUFT

457457-39-2084 w 19940909 I30 C ZO 0070 LUFT

457457-39-2084 W 19940909 130 C ZF 0070 LUFT

457457·39-2084 w 19950206 1 M o 0070 LUI'T

457457-39-2084 w 19950215 115 C ZF 0070 LUFT

457457-39-2094 w 19960304 1 M o 0070 LUFT

457457-39-2084 W 19960308 I1S C ZF 0070 LUI'T

457457-39-2084 W 19970106

M B 0919 LUFT 1

457457-39-2094 W 19970106 2 M o 0919 LUFT 1

457457-39-2084 W 19970107 S08 C 20 0919 LOFT 1

457457-39-2084 W 19970107 S08 C ZF 0919 LU~T 1

457457-39-2084 W 19970303 4 M o 0919 LUFT 1

457457-39-2094 W 19970303 170 C ZF 0919 LUFT 1

457457-39-2084 W 19980427 1 M 1 0919 LUFT 1

457457-39-2064 W 19980427 1 M o 0919 LUFT

457457-39-2084 W 19980504 I1S C z~ 0919 LUFT

457457-39-2064 W 19991130

C ZG 0919 LUFT

457457-39-2084 W 19991106 I15 C ZF 0919 LUFT

457457-39-2064 W 20000324

C ZG 0919 LUI'T

457457-39-2084 W 20001120 115 C ZF 0919 LUFT

457457-39-2094 W 20010131

C ZG 0919 LUFT 1

457457-39-2084 W 20010702 TOl C ZF 0919 LUFT 1

457457-39-2064 W 20010627 993 C ZC 0919 LUFT 1

457457-39-2084 W 20010827 060 C ZO 9903 LUFT 6

457457-39-2084 W 20010827 060 C ZF 9903 LUI'T 6

457457-39-2084 W 20011001 170 C ZI' 9903 LUFT 6

457457-39-2094 w 20011001 TOl C ZF 9903 LUFT 6

457457-39-2084 W 20011109 600 C ZC 9903 LUFT 6

457457-39-2064 W 20011226 033 C ZC 9903 LUFT 6

457457-3$-2094 W 20020429 T15 C ZR 9903 LUI'T 6

457457-39-2064 W 20020923 C16 C ZR 9903 LUFT 6

457457-39-2064 w 20021007 603 C ZC 9903 LUFT 6

457457-39-2084 W 20021021 804 C ZC 9903 LUFT 6

457457-39-2094 W 20021021 170 C ZI' 9903 LUFT 6

457457-39-2084 W 20021021 TOl C ZF 9903 LUFT 6

457457-39-2084 W 20030309

C I! 9903 LUI'T 6

457457-39-2084 W 20030309

C E 9903 LUFT

457457-86-4392 W 19771107 001 C ZC

457457-86-4392 W 19771107 C03 C ZR

LUFT

457457-86-4392 W 19771107 C27 C ZR

LUI'T

457457-86-4392 W 19930224

M B 9903 LUFT 6

457457-86-4392 W 19830224

M C 9903 LUI'T 6

457457-86-4392 w 19830224

M o 9903 LUFT 6

457457-86-4392 W 19830930

M o 9903 LUFT 6

457457-86-4392 W 19840930

M o 9903 LOFT 6

457457-86-4392 W 19850930

M o 9903 LUFT

4$74~7·86-4392 W 19961002

M o 9903 LUFT

457457-66-4392 w 19891002

M o 9903 LUFT

457457-66·4392 W 19910930 4 M o 9903 LUFT

457457-86-4392 w 19920113 A01 C ZO 9903 LUFT

457457-86-4392 W 19920113 A01 C ZF 9903 LUI'T

457457-86-4392 W 19920928 4 M o 9903 LUFT

457457-86-4392 W 19921116 4 M o 9903 LOFT

457457-86-4392 W 19921116 170 C ZF 9903 LUFT

457457-96-4392 w 19931004 4 M o 9903 LUFT

457457-86-4392 W 19931004 170 C ZF 9903 LUFT

457457-86·4392 W 19940829

M B 9907 LOFT

457457·96-4392 W 19940929

M C 9907 LOFT

457457-86-4392 W 19940929

M o 9907 LUI'T

457457-96-4392 W 19940829 130 C ZO 9907 LUFT

Appendix l3

457457-86-4392 w 19940829 130 C ZF 9907 LUFT 6

457457-86-4392 W 19941003 4 M o 9907 LOFT 6

457457-86-4392 W 19941003 170 C ZF 9907 LUFT

457457-86-4392 W 19950306

M a 0070 LUFT

457457-96-4392 W 19950306 2 M o 0070 LOFT

457457-66-4392 W 19950310 130 C ZO 0070 LUFT

457457-86-4392 W 19950310 I35 C zr 0070 LUFT

457457-86-4392 W 19960415 1 M o 0070 LUFT

457457-86-4392 W 19960418 I15 C ZF 0070 LUFT

457457-86-4392 w 19960628 060 C ZO 9903 LUFT

457457-86-4392 w 19960628 060 C ZF 9903 LUI'T 6

457457-86-4392 w 19960701

M B 9903 LUFT 6

457457-86-4392 w 19960701

M o 9903 LUFT

457457-66-4392 W 19961007 4 M o 9903 LUFT

457457-86-4392 w 19961007 170 C z~ 9903 LOFT

457457-86-4392 W 19961230 1 M o 9903 LU~T

457457-66-4392 w 19970106

M a 0919 LUFT

457457-66-4392 W 19970106 2 M o 0919 LOFT

457457-86-4392 w 19970107 130 C ZO 0919 LUFT 1

457457-86-4392 W 19970107 135 C ZI' 0919 LUFT 1

457457-86-4392 W 19970303 4 M o 0919 LUFT 1

457457-86-4392 W 1997Q303 170 C ZF 0919 LUFT 1

457457-66-4392 W 19980413

M 1 0919 LUFT 1

457457-66-4392 W 19980413

M o 0919 LU~T 1

457457-96-4392 W 19980420 115 C ZF 0919 LUFT 1

ZC 457457-66-4392 W 19990113

C za 0919 LUFT 1

457457-86-4392 W 19990503 993 C 0919 LUFT 1

457457-66-4392 W 19990503 060 C ZO 9903 LUI'T 6

457457-96-4392 W 19990503 060 C ZF 9903 LUFT 6

457457-66-4392 W 19990503 W04 C Z~ 9903 LUFT 6

457457-66-4392 W 19991004 170 C ZF 9903 LUFT 6

457457-86-4392 W 19991004 TOl C ZI' 9903 LUI'T 6

457457-86-4392 W 19991004 TOl C ZF 9903 LUI'T 6

457457-66-4392 W 20001002 170 C ZF 9903 LUFT 6

457457-86-4392 W 20001002 TOl C ZF 9903 LUFT 6

457457-86-4392 W 20011001 170 C ZI' 9903 LUI'T 6

457457-86-4392 W 20011001 tOl C ZF 9903 LUFt 6

457457-66-4392 W 20020923 C16 C ZR 9903 LUI'T 6

457457-86-4392 w 20021021 170 C ZF 9903 LUFT 6

457457-96-4392 W 2002102l TOl C ZF 9903 LUFT 6

457457-96-4392 W 20030309

C I! 9903 LUFt 6

458458-13-4899 W 19781023

M C

LUFO

456458-13-4698 W 19761023 001 C ZC

LUI'O

456456-13-4896 W 19781023 C03 C ZR

LUFa

458458-13-4898 W 19830224

M a 3643 LUFG 6

458458-13-4698 W 19830224

M C 3643 LUI'O 6

456458-13-4898 W 19830224 2 M o 3643 LUFO 6

456458-13-4996 W 19830930 4 M o 3643 LUro 6

458458-13-4898 W 19840930 4 M o 3643 LUFO 6

458459-13-4898 W 19850930 4 M o 3643 LUFO 6

456458-13-4896 W 19861002 4 M o 3643 I..UFO 6

458458-13-4898 W 19890626

M B 3642 LUFO 6

456456-13-4698 W 19890626 2 M o 3642 LUFO 6

458458-13-4898 W 19891002 4 M o 3642 LUI'O 6

456459-13-4896 w 19910930 4 M o 3642 LUFO 6

458456-13-4898 W 19920113 AOl C ZO 3642 LUFP 6

458458-13-4898 W 19920113 AOl C ZF 3642 LUI'P 6

459459-13-4898 W 19920928 4 M o 3642 LUI'O 6
458458-1J-4898 w 19920928 156 C ZI' 3642 LUI'P 6

459456-13-4898 w 19931004 4 M o 3642 LUFO 6

458458-13-4898 W 19931004 170 C ZF 3642 LUI'P 6

459458-13-4899 W 19941003 4 M D 3642 LUI'O 6

459458-13-4898 W 19941003 170 C ZI' 3642 LUFP 6

459458-13-4898 W 19951002 4 M o 3642 LUFO 6

456458-13-4898 W 19951002 170 C ZF 3642 LUFP

458458-13-4898 W 19960108

M C 3642 LUFO

458458-13-4898 W 19961007 4 M o 3642 LUFO

458458-13-4896 W 19961007 170 C ZI' 3642 LUI'O

Page lO

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 250 of 295

458456-13-4698 w 19970602

M B 0070 LOFO 1

458458-13-4898 w 19970602 2 M o 0070 LUFO 1

458458-13-4898 w 19910606 135 C %0 0070 LOFO 1 458458-13-4898 w 19970606 135 C ZF 0070 LOFO 1

458458-13-4898 w 19980302

M B 3642 LOFO 6

458458-13-4898 w 19980302 2 M o 3642 LUFO 6

458458-13-4898 w 19980302 060 C ZO 3642 LOFO 6

458458-13-4898 w 19980302 060 C ZF 3642 LOFO

458458-13-4898 W 19980525 2 M 1 0744 LOFO

458458-13-4898 w 19980525

M B 0744 LOFO

45845e-13-4898 W 19980525

M C 0744 LOFCl

458458-13-4898 w 19980525 2 M o 0744 LOFCl

458458-13-4898 W 19980601 130 C ZD 0744 LOFCl

458458-13-4898 w 19980601 S08 C ZF 0744 LOFCl

458458-13-4898 W 19981210 101 C ZC 0744 LOFCl

458458-13-4898 W 20030309

C E 0744 LOFCl

458458-)3-2655 w 19780605 001 C ZC

458458-33-2655 w 1978060S C03 C ZR

LOFT

458458-33-2655 W 19780605 C27 C ZR

LOFT

458458-33-265S W 19830224

M B 9903 LOFT

458458-33-2655 W 19830224

M C 9903 LUFT 6

458458-33-2655 W 19830224

M o 9903 LUFT 6

4S8458-33-2655 W 19830930

M o 9903 LOFT 6'

458459-33-2655 W 19840930

M o 9903 LUFT 6

458458-33-2655 w 19850930

M o 9903 LUFT 6

458458-33-2655 W 19861110

M B 0070 LOFT

458458-)3-2655 W 19961110 1 M o 0070 LOFT

458458-33-2655 W 19881024 1 M o 0070 LOFT

458459-33-2655 W 19910114 1 M o 0070 LUFT

458458-33-2655 W 19920113 AOl C ZO 0070 LOFT 1

458458-33-2655 W 19920113 AOl C ZF 0070 LUFT 1

458459-33-2655 W 19930222 1 M o 0070 LOFT 1

458458-33-2655 W 19930222 I15 C ZF 0070 LUFT 1

458458-33-2655 W 19940207 1 M o 0070 tuFT 1

458458-33-2655 W 19940211 I15 C ZF 0070 LOFT 1

458458-33-2655 W 19950417 1 M D 0070 LOFT 1

458458-33-2655 W 19950420 I15 C ZF 0070 LOFT 1

458458-33-2655 w 19960513 1 M D 0070 LOFT 1

456459-33-2655 W 19960516 115 C ZF 0070 LOFT 1

458458-33-2655 W 19970106

M B 0919 LUFT 1

458458-33-2655 W 19970106

M o 0919 LUFT 1

458459-33-2655 W 19970107 B08 C ZO 0919 LOFT

45S458-33-2655 W 19970107 S08 C ZF 0919 LOFT 1

458458-33-2655 w 19970303 4 M D 0919 LOFT 1

458458-33-2155 W 19970303 170 C ZF 0919 LOFT 1

45S458-33-2655 W 19950302 2 M 1 0973 LOFT 3

45845S-33-2655 W 19980302

M B 0973 LOFT

458458-33-2655 W 19980302 2 M o 0973 LOFT

456458-33-2655 W 19980312 I30 C ZD 0973 LOFT

458458-33-2655 W 19960312 130 C ZF 0973 LOFT

458458-33-2655 W 19990119

C ZCl 0973 LUFT

45645S-33-2655 W 19991011 115 C ZF 0973 LOFT

45845S-33-2655 W 20000322

C ZCl 0973 LOFT

458458-33-2655 W 20000821 S08 C ZO 0919 LOFT

458459-)3-2655 W 20000821 C15 C ZR 0919 LUFT

4564SB-l3-2655 W 20001009 115 C ZF 0919 LUFT

458458-33-2655 W 20010215

C ZCl 0919 LOFT

458458-33-2655 W 20010328 993 C ZC 0919 LOFT

458458-33-2655 W 20010328 060 C ZO 9903 LOFT

458458-33-2655 w 20010328 060 C ZF 9903 LUFT

458458-33-2655 W 20010430 991 C ZC 9903 LOFT

458458-33-2655 W 20010430 Xl5 C ZO 0919 LOFT

4584SS-33-26SS W 20010430 135 C ZF 0919 LUFT

45845S-33-2655 w 20010702 TOl C ZF 0919 LOFT

458458-33-2655 W 20010820 993 C ZC 0919 LOFT 1

458458-33-2655 W 20010820 060 C ZO 9903 LUFT 6

456458-33-2655 W 20010820 060 C ZF 9903 LUFT 6

458458-33-2655 w 20011001 170 C ZF 9903 LOFT 6

Appendix 13

458458-33-2655 w 20011001 TOl C ZF 9903 LOFT 6

458458-33-2655 w 20020923 C16 C ZR 9903 LOFT 6

458458-33-2655 w 20021007 803 C ZC 9903 LOFT 6 458458-33-2655 w 2P021021 804 C ZC 9903 LOFT 6

458458-33-2655 w 20021021 170 C ZF 9903 LOFT 6

458458-33-2655 w 20021021 TOl C ZF 9903 LOFT 6

458458-33-2655 w 20021118 991 C ZC 9903 LOFT 6

458458-33-2655 w 20021118 135 C ZO 1128 LOFT

458458-33-2655 w 20021118 135 C ZF 1128 LOFT

458458-33-2655 w 20021118 C1S C ZR 1128 LOFT

458458-33-2655 w 20030117

C ZCl 1128 LUFT

458458-33-2655 w 20030309 460460-35-9762 w 19840709

C Ii: 1128 LOFT

M B 3619

7

460460-35-9762 w 19840709

M C 3619 LOFO 7

460460-35-9762 w 19840709

M o 3619 LOFO 7

460460-35-9762 W 19840930 4 M o 3619 LOFO 7

460460-35-9762 w 19841105 1 M o 3619 LOFO 7

460460-35-9762 W 19841119

M B 0365 LUFO 5

460460-35-9762 W 19841119

M o 0365 LUFO 5

460460-35-9762 W 19850610

M o 0365 'LOFO 5

460460-35-9762 W 19860404

M F 0365 LUFO 5

460460-35-9762 W i9870408

M B 3648 LUFO 7

460460-3$-9762 W 19870408

M C 3648 LOFP 7

460460-35-9762 W 19870408

M o 3648 LOFP 7

460460-35-9762 W 19870413

M B 3648 LUFP 7

460460-35-9762 W 19870413

M C 3648 LOFP 7

460460-35-9762 W 19870413

M D 3648 LUFP 7

460460-35-9762 W 19870622

M o 3648 LUI"P 7

460460-3S-9762 W 19870720

M o 3648 LOFP 7

460460-35-9762 W 19870817

M B 3643 LUFP 6

460460-35-9762 W 19870817 2 M o 3643 LUFP 6

460460-35-9762 W 19871130 1 M o 3643 LOFP 6

460460-35-9762 W 19880229 1 M o 3643 LOFP 6

460460-35-9762 W 19880613 1 M o 3643 LOFP 6

460460-35-9762 W 19881002

M o 3643 LUI"P 6

460460-35-9762 W 19890918

M B 3642 LUFP 6

460460-35-9762 W 19890918

M o 3642 LOFP 6

460460-35-9762 W 19891002 4 M o 3642 LOFP 6

460460-35-9762 W 19910930 4 M o 3642 LOFP 6

460460-3S-976~ W 19920928 4 M o 3642 LOFP 6

460460-35-9762 w 19931004 1 M o 3642 LOFP 6

460460-35-9762 W 19940718

M B 0524 LOFI> 1

460460-35-9762 W 19940718 1 M o 0524 LUFP 1

460460-35-9762 W 19950109 1 M D 0524 LOFP 1

460460-35-9762 W 19950724 1 M D 0524 LUFI> 1

460460-35-9762 W 19960624

M S 0410 LOFP

460460-35-9762 W 19960624 ' 2 M o 0410 LOFI>

460460-35-9762 W 19961223

M o 0410 LOFP

460460-35-9762 W 19970303

M 1 0410 LOFP

460460-35-9762 w 19970303

M o 0410 LUFP

460460-35-9762 W 19970912

M F 0410 LOFP

460460-39-1935 W 19810601 003 C ZC

460460-39-1935 w 19840116

M B 6769

7

460460-39-1935 w 19840116

M C 6769 LOFF 7

460460-39-1935 W 19840116

M o 6769 LOFP' 7

460460-39-1935 w 19840116 023 C ZC 6769 LOFF 7

460460-39-1935 W 19840116 C03 C ZR 6769 LOFT 7

460460-39-1935 W 19840312

M e 6734 LOFT

460460-39-1935 W 19840326

M o 6734 LOFT

460460-39-1935 W 19840528 1 M D 6734 LOFT 8

460460-39-1935 W 19840930 4 M o 6734 LOFT 8

460460-39-1935 W 19841112

M B 6747 LOFT 7

460460-39-1935 W 19841112 460460-39-1935 W 19850114

M !) 6747 LOFT 7 M B 6735 LOFT 6

460460-39-1935 W 19850114

M o 6735 LUFT 6

460460-39-l935 W 19850624

M o 6735 LOFT 6

460460-39-1935 W 19850930 4~0460-39-1935 w 19851014

M o 6735 LUFT 6 M o 6.735 LUFT 6

Page 11

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 251 of 295

460460-39-1935 w 19960203

M o 6735 LUI'T

460460-39-1935 W 19860604
460460-39-1935 w 19960804

M B 9906 LUFT M C 9906 LOFT

460460-39-1935 W 19960804 2 M D 9906 LUFT

460460-39-1935 W 19660804 C27 C ZR 9906 LUFT

460460-39-1935 w 19961117

M o 9906 LOFT

460460-39-1935 w 19670126

M B 99ll LUFT

.460460-39-1935 W 19670126
460460-39-1935 w 19670519

2 M o 9911 LUFT 7 1 M o 9911 LUFT 7

460460-39-1935 w 19870810

M B 9927 LUFT 7

460460-39-1935 W 19870810
460460-39-1935 w 19871116

M o 9927 LUFT M o 9927 LUFT

460460-39-1935 W 19680222
460460-39-1935 w 19880704

M o 9927 LOFT M o 9927 LUFT

460460-39-1935 W 19881002 4 M 0.9927 LOFT 7

460460-39-1935 W i9890306 1 M o 9927 LUFT 7

460460-39-1935 W 19890925

M B 9926 LUFT 6

460460-39-1935 W 19891002 4 M o 9926 LUFT 6

460460-39-1935 W 19910930 4 M o 9926 LUFT 6

460460-39·1935 W 19920113 AOl C ZO 9926 LUFT 6

460460-39-1935. W 19920113 AOl C ZF 9926 LU~T 6

460460-39-1935 W 19920928 4 M o 9926 LUFT 6

460460-39-1935 W 19920928 156 C ZF 9926 LUFT 6

460460-39-1935 W 19931004 4 M o 9926 LUFT 6

460460-39-1935 w 19931004 I70 C ZF 9926 LUFT 6

460460-39-1935 W 19941003 4 M o 9926 LUFT 6

460460-39-1935 w 19941003 170 C ZF 9926 LUFT 6

460460-39-1935 W 19951002 4 M o 9926 LUFT 6

460460-39-1935 w 19951002 I70 C ZF 9926 LUFT

460460·39-1935 w 19961007 4 M o 9926 LUFT

460460-39-1935 w 19961007 170 C ZF 9926 LUFT

460460-39-1935 W 19971006

M 1 9926 LUFT

460460-39-1935 W 19971006 4 M o 9926 LOFT

460460-39-1935 W 19971006 170 C ZF 9926 LUFT

460460-39-1935 W 19980111

C ZG 9926 LUFT

460460-39-1935 W 19980928 991 C ze 9926 LUFT 6

460460-39-1935 W 19980928 135 C ZO 0919 LUFT 1

460460-39-1935 W 19990929 135 C ZF 0919 LUFT 1

460460-39-1935 w 19980928 W04 C ZF 0919 LUFT 1

460460-39-1935 W 19990201 993 C ZC 0919 LUFT 1

460460-39-1935 W 19990201 060 C ZO 9926 LUFT 6

460460-39-1935 W 19990201 060 C ZF 9926 LUFT

460460-39-1935 w 19990201 W04 e ZF 9926 LUFT

460460-39-1935 W 19990426 991 C ZC 9926 LUFT

460460-39-1935 w 19990426 135 C ZO 0919 LUFT

460460-39-1935 W 19990426 135 C ZF 0919 LUFT

460460-39-1935 W 19990426 W04 C ZF 0919 LUFT

460460-39-1935 W 20000329

C ZG 0919 LUFT

460460-39-1935 W 20000522 115 C ZF 0919 LUFT

460460-39-1935 W 20000731 993 C ze 0919 LUFT

460460-39-1935 W 20000731 060 C ZO 9926 LUFT

460460-39-1935 W 20000731 060 C ZF 9926 LUFT

460460-39'1935 W 20001002 I70 C ZF 9926 LUFT

460460-39-l935 W 20001002 TOl C ZF 9926 LUFT

460460-39-1935 W 20011001 I70 C ZF 9926 LUFT

460460-39-1935 W 20011001 TOl C ZF 9926 LUFT

460460-39-1935 W 20020729 991 C ZC 9926 LUFT

460460-39-1935 W 20020729 l35 C ZO 0070 LUFT

460460-39-1935 W 20020729 135 C ZF 0070 LUFT 1

460460-39-1935 w 20020729 W04 C ZF 0070 LUFT 1

460460-39-1935 W 20020729 C04 C ZR 0070 LUFO 1

460460-39-1935 W 20020923 e16 C ZR 0070 LUFO 1

460460-39-1935 w 20~30225

e ZG 0070 LUFO 1

460460-39-1935 W 20030309

C Ii: 0070 LUFO 1

460460-39-1935 W 20030309

e Ii: 0070 LUFO 1

460460-39-1935 w 20030309

C II 0070 LUFO

460460-61-2343 W 19900901

M B J629

460460·61-2343 W 19900801

M C 3629 LUFP

Appendix 13

460460-61-2343 w 19900801 o M o 3629 LUl'P 460460-61-2343 w 19900801 003 C ZC 3629 LUFP 6

460460-61-2343 W 19900601 C03 C ZR 3629 LUFP 8

460460-61-2343 w 19900801 C25 C ZR 3629 LUFO 9 460460-61-2343 w 19900801 C25 C ZR 3629 LUFP 6

460460-61-2343 W 19900924
460460-61-2343 w 19900924

M B 3646 LOFP 7 2 M o 3648 LUFF 7

460460-61-2343 W 19901224
460460-61-2343 w 19910325

2 M o 3649 LUFF 7 M o 3648 LUFP 7

460460-61-2343 w 19910527

M B 3643 LUFF 6

460460-61-2343 w 19910527 460460-61-2343 w 19910826

M o 3643 LUFP 1 M o 3643 LUFF

460460-61-2343 w 19910930 4 M o 3643 LUn

466460-61-2343 W 19920113 A01 C ZO 3643.LUFP

460460-61-2343 W 19920113 AOl C ZF 3643 LUFF

460460-61-2343 W 19920224 1 M o 3643 LUFP

460460-61-2343 W 19920224 115 C ZF 3643 LU~P

460460-61-2343 W 19920928 4 M o 3643 LU'P

460460-61-2343 W 19920928 156 C ZF 3643 LUFF

460460-61-2343 W 19930118

M C 3643 LU~F

460460-61-2343 W 19930913 1 M o 3643 LUFi' 6
460460-61-2343 w 19930913 115 C ZF 3643 LUFP 6

460460-61-2343 W 19931004 4 M o 3643 LUFP 6

460460-61-2343 W 19931004 170 C ZF 3643 LUFP 6

460460-61-2343 W 19940314 1 M 0 3643 LUFF 6

460460-61-2343 W 19940318 I15 C ZF 3643 LUFP 6

460460·61-2343 W 19940919 1 M l:I 3643 LUFf 6

460460-61-2343 W 19940923 115 C ZF 3643 LUFP

460460-61-2343 W 19941003 4 M o 3643 LUFP

460460-61-2343 w 19941003 170 C ZF 3643 LUFP

460460-61-2343 W 19950403 1 M o 3643 LUFP 6

460460-61-2343 W 19950406 115 C ZF 3643 LUFF 6

460460-61-2343 W 19951002 4 M o 3643 LUn 6

460460-61-2343 W 19951002 170 C ZF 3643 LUFF 6

460460-61-2343 W 19961007 4 M o 3643 LUFf 6

460460-61-2343 W 19961007 170 e ZF 3643 LUFP

460460-61-2343 W 19961230

M B 3642 LUFP

460460-61-2343 W 19961230 2 M o 3642 LOFF

460460-61-2343 W 19961230 130 C ZO 3642 LUFP

460460-61-2343 W 19961230 130 C ZF 3642 LUFF

460460-61-2343 W 19971006 4 M 1 3642 LUFP

460460-61-2343 W 19971006 4 M o 3642 LUFF

460460-61-2343 w 19971006 170 C ZF 3642 LUFP

460460-61-2343 w 1998100$ 170 e ZF 3642 LUFP

460460-61-2343 W 19981005 TOl C ZF 3642 LUFP

460460-61-2343 W 19990113 340 C ZC 3642 LUFP

460460-61-2343 W 19990113 600 C ze 3642 LUFP 6

460460-61-2343 W 19991109 043 e ZC 3642 LUFP 6

460460-61-2343 W 19991109 A06 C ZO 3643 LUFP 6

460460-61-2343 W 19991109 A06 C ZF 3643 LUFP 6

460460-61-2343 W 19991109 C04 C ZR 3643 LUFO

460460-61-2343 W 19991227 115 C ZF 3643 LUFO

460460-61-2343 W 20001002.170 C ZI' 3643 LUFO 6

460460-61-2343 W 20001002 TOl C ZF 3643 LUFO 6

460460-61-2343 W 20001023 I30 C ZO 3642 LUFO 6

460460-61-2343 W 20001023 130 C ZF 3642 LUFO 6

460460-61-2343 W 20010319 115 C ZF 3642 LUFO

460460-61-2343 w 20010507 991 C ZC 3642 LUFO

460460-61-2343 W 20010507 135 C ZO 0070 LUFO

460460-61-2343 W 20010507 I35 C ZF 0070 LUFO

460460-61-2343 W 20010702 TOl C ZF 0070 LUFO

460460-61-2343 W 20011112 993 C ze 0070 LUFO 1

460460-61-2343 W 20011112 060 e ZD 3642 LUFO 6

460460-61-2343 W 20011112 S08 C ZF 3642 LUFO 6
460460-61-2343 w 20020527 115 C ZF 3642 LUFO

460460-61-2343 w 20020923 C16 C ZR 3642 LUrO

460460-61-2343 W 20021007 803 C ZC 3642 LUFO

460460-61-2343 W 20021021 804 C ZC 3642 LUFO

Page 12

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 252 of 295

460460-61-2343 w 20021021 170 C ZF 3642 LUFe 6

460460-61-2343 w 20021021 TOl C ZF 3642 LUFe 6

460460-61-2343 w 20030309

C 5: 3642 LUFO 6

460460-61-2343 w 20030309 460460-61-2343 w 20030309

C Ii! 3642 LUFe 6 C Ii! 3642 Luro 6

461461-.7-1250 b 19780905

M C

LUFP

461461-27-1250 b 19780905

M 0

LUFP

461461-27-1250 b 19780906 003 C ZC

LUI"P

461461-27-1250 b 19780905 C03 C ZR

LUra

461461-27-1250 b 19830224

M B 3647 LUFa

461461-27-1250 b 19830224

M C 3647 LUFP 7

461461-27-1250 b 19830224

M o 3647 LUFP 7

461461-27-1250 b 19830525

M F 3647 LUFP 7

461461-27-1250 b 19840123

M B 3647 LtlFP 7

461461-27-1250 b 19840123 043 C ZC 3647 LUFP 7

461461-27-1250 b 19840930

M o 3647 LUFP 7

461461-27-1250 b 19850930

M o 3647 LUFP 7

461461-27-1250 b 19860616

M B 9906 LUFI>

461461-27-1250 b 19860616

M C 9906 LUFT

461461-27-1250 b 19860616 2 M o 9906 LUFT

461461-27-1250 b 19860915

M o 9906 LUFT

461461-27-1250 b 19870119

M B 9902 LUFT

461461-27-1250 b 19870119 2 M o 9902 LOFT

461461-27-1250 b 19870518 1 M o 9902 LUFT

461461-27-1250 b 19870907

M o 9902 LtlFT 7

461461-27-1250 b 19871012

M B 3645 LUFT 7

461461-27-1250 b 19871012

M o 364$ LUFT

461461-27-1250 b 19871102

M B 3644 LUFT

461461-27-1250 b 19871102

M o 3644 LUFT

461461-27-1250 b 19871228

M o 3644 LUFT

461461-27-1250 b 19880229

M o 3644 LUFT

461461-27-1250 b 19880613

M o 3644 LUFT

461461-27-1250 b 19881002 4 M o 3644 LuFT

461461-27-1250 b 19881024 1 M o 3644 LUFT

461461-27-1250 b 19890213 1 M o 3644 LUFT

461461-27-1250 b 19891002 4 M o 3644 LUFT

461461-27-1250 b 19891023

M B 3605 LU!'T

461461-27-1250 b 19891023

M o 3605 LUFT

461461-27-1250 b 19891211 1 M o 3605 LUFT

461461.27-1250 b 19900326

M B 3643 LUFT

461461-27-1250 b 19901231

M D >643 LUFT

461461-27-1250 b 19910513

M o 3643 LUFT 6

461461-27-1250 b 19910930 4 M o 3643 LUFT 6

461461-27-1250 b 19920113 A01 C ZO 3643 LUFT 6

461461-27-1250 b 19920i13 AOl C ZF 3643 LUFT 6

461461-27-1250 b 19920928 4 M o 3643 LUFT 6

461461-27-1250 b 19921116 4 M o 3643 LUFT 6

461461-27-1250 b 19921116 170 C ZF 3643 LUFT 6

461461-27-1250 b 19921207

M a 9981 LUFT 7

461461-27-1250 b 19921207

M C 9981 LUFa 7

461461-27-1250 b 19921207 S08 C ZD 9981 LUFa 7

461461-27-1250 b 19921207 S08 C ZF 9981 LUFa 7

461461-27-1250 b 19921207 C24 C ZR 9981 LUFa 7

461461-27-1250 b 19930621 1 M o 9981 LUFa 7

461461-27-1250 b 19930621 115 C ZF 9981 LUFa 7

461461-27-1250 b 19931004

M B 9983 LUFa 7

461461-27-1250 b 19931004 4 M o 9983 LUFa

461461-27-1250 b 19931004 ROl C ZO 9983 LUFa

461461-27-1250 b 19931004 170 C ZF 9983 LUFa

461461-27-1250 b 19931004 ROl C ZF 9983 LUFa

461461-27-1250 b 19931213 1 M o 9993 LUFa 7

461461-27-1250 b 19931213 I1S C ZF 9983 LUFa 7

461461-27-1250 b 19941003 4 M o 9983 LUFa 7

461461-27-1250 b 19941003 170 C ZF 9983 LUFa 7

461461-27-1260 b 19951002 4 M o 9983 LUFa 7

461461-27-1250 b 19951002 170 C ZF 9983 LUFa 7

461461-27-1250 b 19961007 4 M o 9983 LUFa

461461-27-1250 b 19961007 170 C ZF 9983 LUFa

Appendix 13

461461-27-1250 b 19970217

M Il 9984 LUFG 6

461461-27-1250 b 19970217 2 M o 9984 LUFa 6

461461-27-1250 b 19970217 I30 C ZO 9984 LUFa 6

461461-27-1250 b 19970217 I30 C ZF 9984 LUFa 6

461461-27-1250 b 19971006 4 M 1 9984 LUFa 6

461461-27-1250 b 19971006 4 M o 9984 LUFa 6

461461-27-1250 b 19971006 170 C ZF 9984 LUFa 6

461461-27-1250 b 19981005 170 C ZI" 9984 LUFa 6

461461-27-1250 b 19981005 TOl C ZF 9984 LUFa 6

461461-27-1250 b 19990913 991 C ZC 9984 LUFa 6

461461-27-1250 b 19990913 130 C ZO 0931 LUFa 1

461461-27-1250 b 19990913 I35 C ZF 0931 LUFa 1

461461-27-1250 b 19990913 W04 C ZF 0931 LUFa 1

461461-27-1250 b 20000414

C za 0931 LUFa 1

461461-27-1250 b 20001009 115 C ZF 0931 LUFa 1

461461-27-1250 b 20010702 TOl C ZF 0931 LUFa 1

461461-27-1250 b 20011008 115 C ZF 0931 LUFa

461461-27-1250 b 20020617

C za 0931 LUFa

461461-27-1250 b 20020923 C16 C ZR 0931 LUFa 1

461461-27-1250 b 20021021 115 C ZF 0931 LUFa 1

461461-27-1250 b 20030309

C E 0931 LUFa 1

462462-29-1659 w 19840416

M Il 9906

8

462462-29-1659 w 19840416

M C 9906 LUFT

462462-29-1659 w 19840416

M o 9906 LUFT

462462-29-1659 w 19840416 003 C ZC 9906 LUFT 8

462462-29-1659 w 19840416 C03 C ZR 9906 LUFT 8 462462-29-1659 w 19840903 1 M o 9906 LUFT 8

462462-29-1659 W 19840917

M B 9913 LUFT

462462-29-1659 W 19840917

M o 9913 LUFT 7

462462-29-1659 W 19840930

M o 9913 LUf'T 7

462462-29-1659 W 19850107

M o 9913 LUFT 7

462462-29-1659 W 19850401

M o 9913 LUFT 7

462462-29-1659 w 19850701

M o 9913 LUFT 7

462462-29-1659 W 19850930 4 M o 9913 LUFT 7

462462-29-1659 w 19851007 1 M o 9913 LUFT 7

462462-29-1659 W 19851028

M B 9912 LUFT 7

462462-29-1659 W 19851026

M o 9912 LUFT 7

462462-29-1659 W 19860113 1 M o 9912 LUFT 7

462462-29-1659 w 19660407 1 M o 9912 LOFT 7

462462-29-1659 W 19860707 1 M o 9912 LUFT 7

462462-29-1659 W 19861013 1 M o 9912 LUFT 7

462462-29-1659 W 19870126

M o 9912 LUFT 7

462462-29-1659 W 19870316 1 M o 9912 LUFT

462462-29-1659 W 19881002 4 M o 9912 LOFT 7

462462-29-1659 W 19891002 4 M o 9912 LUFT 7

462462-29-1659 w 19910930 4 M o 9912 LUFT 7

462462-29-1659 W 19920113 AOl C ZO 9912 LUFT

462462-29-1659' W 19920113 AOl C ZF 9912 LUFT 7

462462-29-1659 W 19920323

M C 9912 LUFT 7

462462-29-1659 W 19920928 4 M o 9912 LUFT 7

462462-29-1659 W 19920928 I56 C ZF 9912 LUFT 7

462462-29-1659 W 19930208

M B H02 LUFT 7

462462-29-1659 w 19930208

M o 9902 LUFT

462462-29-1659 W 19930208 030 C ZO 9902 LUFT 7

462462-29-1659 W 19930208,030 C ZF 9902 LUFT 7

462462-29-1659 W 19930315

M B 9901 LUFT 7

462462-29-1659 W 19930315

M o 9901 tUFT 7

462462-29-1659 W 19930315 I30 C %0 9901 LUFT 7

462462-29-1659 W 19930315 130 C ZF 9901 LUFT 7

462462-29-1659 W 19931004 4 M o 9901 LUFT 7

462462-29-1659 W 19931004 170 C ZF 9901 LUFT 7

462462-29-1659 W 19931122 1 M o 9901 LUFT 7

462462-29-1659 W 19931122 I15 C ZF 9901 LUFT 7

462462-29-1659 W 19940328 1 M o 9901 LUFT 7

462462-29-1659 W 19940404 I15 C ZF 9901 LUFT 7

462462-29-1659 W 19940725

M B 9920 LUFT 7

462462-29-1659 W 19940725

M C 9920 LUFT 7

462462-29-1659 W 19940725

M o 9920 LUFT 7

Page 13

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 253 of 295

462462-29-1659 w 19940727 I30 C ZO 9920 LUFT 7

462462-29-1659 w 19940727 I30 C ZF 9920 LUFT 7

.'2462-29-1659 w 19941003 4 M o 9920 LUFt 7

462462-29-1659 w 19941003 I70 C ZF 9920 LUFT 7

462462-29-1659 w 19941205 1 M o 9920 LUIi'T 7

462462-29-1659 w 19941207 115 C ZF 9920 LUFT 7

462462-29-1659 w 19950220

M B 9919 LOFT 6

462462-29-1659 w 19950220 2 M o 9919 LOFT 6

462462-29-1659 w 19950220 130 C ZO 9919 LUFt

462462-29-1659 w 19950220 130 C ZF 9919 LUFT

462462-29-1659 w 19950703 1 M o 9919 LUFT

462462-29-1659 w 19950706 115 C ZF 9919 LUFt 6

462462-29-1659 W 19950621

M B 0070 LOFT 1

462462-~9-1659 W 19950821 2 M o 0070 LUFT 1

462462-29-1659 W 19950911 130 C ZD 0070 LUFT 1

46246~-29-16S9 W 19950911 135 C ZF 0070 LUFt 1

462462-29-1659 W 19960304

M B 9901 LOFt 7

462462-29-1659 W 19960304

M C 9901 LUFT 7

462462-29-1659 w 19960304

M o 9901 LUFT 7

462462-2g-1659 W 19960306 060 C ZO 9901 LUFT 7

462462-29-1659 W 19960306 060 C ZF 9901 LUFT 7

462462-29-1659 W 19961007 4 M o 9901 LUFT 7

462462-29-1659 W 19961007 I70 C ZF 9901 LUFT 7

462462-29-1659 W 19971006 4 M o 9901 LUFT 7

462462-29-1669 W 19971006 I70 C ZF 990l LUFT 7

462462-29-1659 W 19971020 2 M 1 9900 LUFT 6

462462-29-1659 w 19971020

M B 9900 LUFT 6

462462-29-1659 W 19971020

M o 9900 LUFT 6

462462-29-1659 w 19971023 I30 C ZO 9900 LUFt

462462-29-1659 W 19971023 130 C ZF 9900 LUFT

462462-29-1659 w 19980217

M F HOO LUFT

462462-29-1659 W 19960217 102 C ZC 9900 LUFT

462462-29-1659 W 20030309

C E 9900 LUFT

462462-87-2486 W 19931227

M B 9904

462462-87-2486 W 19931227

M C 9904 LUFT

462462-97-2488 W 19931227

M o 9904 LUFT

462462-87-2468 w 19931227 001 C ZC 9904 LUFT 7

462462-87-2488 W 19931227 A02 C ZO 9904 LUFT 7

462462-87-2468 W 19931227 A02 C ZF 9904 LUFT 7

462462-67-2488 W 19931227 C03 C ZR 9904 LUFT 7

462462-67-2489 w 19931227 C27 C ZR 9904 LUFT 7

462462-87-2488 W 19940516 1 M o 9904 LUFt

462462-87-2486 W 19940516 I15 C ZF 9904 LUFt 7

462462-87-2488 W 19941003 4 M o 9904 LUFT 7

462462-87-2468 W 19941003 170 C ZF 9904 LUFT 7

462462-67-2466 W 19941010 1 M o 9904 LUFT 7

462462-67-2488 w 19941010 115 C ZF 9904 LUFT 7

462462-87-2488 W 19950116

M C 9904 LUFT 7

462462-87-2468 W 19950306 1 M o 9904 LUFt 7

462462-67-2486 W 19950309 I15 C ZF 9904 LUFT 7

462462-87-2486 w 19950717 1 M o 9904 LUFT

462462-67-2488 W 19950724 115 C ZF 9904 LUFT

462462-87-2468 W 19951002 4 M o 9904 LUFT

462462-87-2468 w 19951002 170 C ZF 9904 LUFT

462462-87-2488 W 19960520

M B 9903 LUFT

462462-67-2498 W 19960520 2 M o 9903 LUFT

462462-87-2468 W 19960520 I30 C ZO 9g03 LUFt

462462-67-2488 W 19960520 I30 C ZF 9903 LUFT

462462-67-2488 w 19961007 4 M o 9903 LUFT

462462-67-2488 w 19961007 I70 C ZF 9903 LUFT

462462-87-2466 W 19961125 1 M o 9903 LUFT

462462-67-2486 W 19961125 I1S C ZF 9903 LUFT

462462-87-2466 W 19970512 1 M o 9903 LUFT

462462-67-2468 W 19970515 I1S C ZF 9903 LUFT

462462-87-2488 w 19971006 4 M o 9903 LUFT 6

462462-87-2486 W 19971006 170 C ZF 9903 LUFT 6

462462-87-2468 W 19971110 1 M o 9903 LUFT 6

462462-87-2498 W 19971110 115 C ZF 9903 LUFT

Appendix 13

462462-87-2488 w 19980202 1 M o 9903 LOFT

462462-67-2466 w 19960202 I1S C ZF 9903 LUFT 462462-87-2499 w 19980316 1 M tl 9903 LOFT 6

462462-67-2466 w 19960316 I56 C ZF 9903 LUFT 6 462462-87-2498 w 19980413 2 M 1 0919 LUFT

462462-87-2488 w 19960413

M B 0919 LOFT

462462-87-2468 w 19980413 2 M o 0919 LUFT

462462-87-2486 w 19990420 135 C ZO 0919 LUFT 462462-97-2488 w 19980420 135 C ZF 0919 LUFT 1

462462-67-2468 w 19981026 993 C ZC 0919 LUFt 1

462462-87-2466 w 19961026 060 C ZO 9903 LUFt 6

462462-87-2486 W 19961026 060 C ZF 9903 LUFt 6

462462-97-2466 W 19981026 W04 C ZF 9903 LUFT 6

462462-87-2488 W 19991004 170 C ZF 990l LUFt 6

462462-67-2486 W 19991004 TOl C ZF 9903 LUFT 6

462462-87-2488 W 19991004 TOl C ZF 9903 LUFt 6

462462-87-2488 W 20000818 600 C ZC 9903 LUFT 6

462462-87-2488 W 20001002 TOl C ZF 9903 LUFT

462462-87-2496 W 20030309

C E 9903 LUFT 6

462462-67-2488 W 20030309

C E 9903 LUFT 6

463463-02-0731 b 19840213

M B 5721

6

463463-02-0731 b 19840213

M C 5721 LUFe 8

463463-02-0731 b 19640213

M o 5721 LUFe 8

463463-02-0731 b 19640213 003 C ZC 5721

6

463463-02-0731 b 19840616

M B 5710 LOFe 7

463463-02-0731 b 19840618 2 M o 5710 LUFe 7

463463-02-0731 b 19640930 4 M o 5710 LUFO 7

463463-02-0731 b 19841119 1 M o 5710 LUFO 7

463463-02-0731 b 19850225 1 M o 5710 LUFO 7

463463-02-0731 b 19850603 1 M o 5710 LUFO 7

463463-02-0731 b 19850902 1 M o 5710 LUFO

463463-02-0731 b 19650930 4 M o 5710 LUFe 7

463463-02-0731 b 19851216 1 M o 5710 LUFO 7

463463-02-0731 b 19860402

M F 5710 LUFa 7

463463-02-0731 b 19960403

M F 5710 LUFO 7

463463-02-0731 b 19870903

M B 9906 LUFe 9

463463-02-0731 b 19670903

M C 9906 LOFT 8

463463-02-0731 b 19870903 o M o 9906 LUFT 8

463463-02-0731 b 19670903 C03 C ZR 9906 LUFT

463463-02-0731 b 19670903 C27 C ZR 9906 LOFT

463463-02-0731 b 19860128

M C 9906 LUFt

463463-02-0731 b 19880201

M o 9906 LUFt

463463-02-0731 b 19980613

M o 9906 LUFT

463463-02-0731 b 19881002

M o 9906 LOFT 9

463463-02-0731 b 19881031 1 M o 9906 LUFT 8

463463-02-0731 b 19890227

M B 9913 LUFT 7

463463-02-0731 b 19890227 2 M o 9913 LUFT 7

463463-02-0731 b 19890529

M C 9913 LOFT 7

463463-02-0731 b 19690529 C27 C ZR 9913 LUFT 7

463463-02-0731 b 19890724

M o 9913 LUFT 7

463463-02-0731 b 19891002 4 M o 9913 LUFt 7

463463-02-0731 b 19900115 1 M o 9913 LUFT 7

463463-02-0731 b 19900119

M B 3629 LUFT

463463-02-0731 b 19900119

M C 3629 LUFP

463463-02-0731 b 19900119

M o 3629 LUFI'

463463-02-0731 b 19900123

M C 3629 LOFP

463463-02-0731 b 19900521

M B 3648 LUFP 7

463463-02-0731 b 19900521

M o 3648 LUIi'P 7

463463-02-0731 b 19900618

M B 9913 LUFP 7

463463-02-0731 b 19900618

M C 9913 LUFT 7

463463-02-0731 b 19900618 2 M o 9913 LUFT 7

463463-02-0731 b 19901022

M o 9913 LUFT

463463-02-0731 b 19910311

M o 9913 LUFT 7

463463-02-0731 b 19910819

M o 9U3 LUFT 7

463463-02-0731 b 19910930 4 M o 9913 LUI'T 7

463463-02-0731 b 19911021

M B 3623 LOFT 7

463463-02-0731 b 19911021 2 M o 3623 LOFT 7

463463-02-0731 b 19920113 AOl C ZO 3624 LUFt 6

Page 14

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 254 of 295

463463-02-073l b 19920113 AOl C ZF 3624 LUFT 9

463463-02-0731 b 19920511 1 M o 3624 LUFT 8

463463-02-0731 b 19920511 115 C ZF 3624 LUFT 8

463463-02-0731 b 19920928 4 M o 3624 LUFT 8

463463-02-0731 b 19920928 IS6 C ZF 3624 LUFT ,8

463463-02-0731 b 19930108

M F 3624 LUFT 8

463463-02-0731 b 19930222

M a 9906 LUFT 8

463463-02-0731 b 19930222

M C 9906 LUFT 8

463463-02-0731 b 19930222

M o 9906 LUFT

463463-02-0731 b 19930222 043 e ze 9906 LUFT

463463-02-0731 b 19930222 A06 C ZO 9906 LUFT 8

463463-02-0731 b 19930426

M B 9913 LUFT 7

463463-02"0731 b 19930426

M C 9913 LOFT 7

463463-02-0731 b 19930426 2 M o 9913 LU!'T 7

463463-02-0731 b 19930426 130 C ZO 9913 LUFT 7

463463-02-0731 b 19930426 130 e ZF 9913 LUFT 7

463463-02-0731 b 19931004 4 M o 9913 LUFT 7

463463-02-0731 b 19931004 170 C ZF 9913 LUFT ~

463463-02-0731 b 19941003 4 M o 9913 LUFT 7

463463-02-0~31 b 19941003 I70 C ZF 9913 LUFT 7

463463-02-0731 b 19950320

M B 9901 LUFT ~

463463-02-0731 b 19950320 2 M o 9901 LtlFt 7

463463-02-0731 b 19950324 S08 C ZO 9901 LUFT 7

463463-02-0731 b 19950324 S08 C ZF 9901 LU!'T 7

463463-02-0731 b 19950403 1 M o 9901 LUFT 7

463463-02-0~31 b 19950404 115 C ZF 9901 LUFT 7

463463-02-0731 b 19950717 1 M o 9901 LUFT 7

463463-02-0731 b 19950724 I1S C ZF 9901 LUFT 7

463463-02-0731 b 19951002 4 M o 9901 LUFT 7

463463-02-0731 b 19951002 170 C ZF 9901 LVFT 7

463463-02-0731 b 19951113 1 M o 9901 LUFT 7

463463-02-0731 b 19951114 I1S C ZF 9901 LUFT

463463-02-0731 b 19960108

M B 9906 LUFT

463463-02-0731 b 19960108 2 M o 9906 LUFt

463463-02-0731 b 19960111 030 C ZO 9906 LUFT

463463-02-0731 b 19960111 030 C ZF 9906 LUFT 8

463463-02-0731 b 19960122

M B 9913 LUFT 7

463463-02-0731 b 19960122

M o 9H3 LOFT 7

463463-02-0731 b 19960124 130 e ZO 9913 LUFT 7

463463-02-0731 b 19960124 130 C zr 9113 LUFT 7

463463-02-0731 b 19960527

M a 9901 LUFT 7

463463-02-0731 b 19960527 2 M o 9901 LUFT ~

463463-02-0731 b 19960604 130 C ZO 9901 LUFT 7

463463-02-0731 b 19960604 130 C ZF 9901 LUFT 7

463463-02-0731 b 19960715 1 M o 9901 LUF'!' 7

463463-02-0731 b 19960718 115 C ZF 9901 LUFT 7

463463-02-0731 b 19961007 4 M o 9901 LUFT 7

463463-02-0731 b 19961007 170 C ZF 9901 LOFT 7

463463-02-0731 b'19970113 1 M o 9901 LUFT 7

463463-02-0731 b 19971006 4 M o 9901 LUFT 7

463463-02-0731 b 19971006 170 C ZF 9901 LUFT 7

463463-02-0731 b 19971020

M e 9900 LUFT

463463-02-0731 b 19971020 2 M o 9900 LOFT

463463-02-0731 b 19971023 130 C ZO 9900 LUFT

463463-02-0731 b 19971023 130 e ZF 9900 LUFT

463463-02-0731 b 19980420 1 M 1 9900 LU!'T

463463-02-0731 b 19980420 1 M o 9900 LUFT

463463'02-0731 b 19980420 I1S C ZF 9900 LUFT

463463-02-0731 b 19980720 991 C ze 9900 LVFT

463463-02-0731 b 19980720 130 C ZD 0919 LUFT

463463-02-0731 b 19980720 130 C ZF 0919 LUFT

463463-02-0731 b 19980720 W04 C ZF 0919 LUFT 1

463463-02-0731 b 19990113

C ZG 0919 LUFT 1

463463-02-0731 b 19991108 I1S C ZF 0919 LUFT 1

463463-02-0731 b 20000329

C za 0919 LV'T 1

46;463-02-0731 b 20000731 993 C ZC 0919 LUFT 1

463463-02-0731 b 200007;1 060 C ZO 9900 LUFT 6

463463-02-0731 b 20000731 060 e ZF 9900 LVFT

Appendix 13

463463-02-073l b 20000921 030 C ZO 9906 LUFT

463463-02-0731 b 20000821 030 C ZF 9906 LOFT

463463-02-0731 b 20001002 170 C ZF 9906 LUFT 8

463463-02-073l b 20001002 TOl C ZF 9906 LUFT 8

463463-02-0731 b 20010402 130 C ZO 9933 LUFT

463463-02-0731 b 20010402 130 C ZF 9933 LUFT 7

463463-02-0731 b 20011001 170 C ZF 9933 LUFT 7

463463-02-0731 b 20011001 TOl C ZF 9933 LOFT 7

463463-02-0731 b 20020826 S08 C ZO 9901 LUFT 7

463463-02-0731 b 20020923 e16 C ZR 9901 LUFT 7

463463-02-0731 b 20021021 170 C ZF 9901 LUFT 7

463463-02-0731 b 20021021 TOl C ZF 9901 LUFT 7

463463-02-0731 b 20030309

C E 9901 LUFT 7

463463-02-0731 b 20030309

e E 9901 Lun 7

463463-02-1029 w 19791023 001 C ze

463463-02-1029 w 19791023 C03 C ZR

LV!'T

463463-02-1029 ~ 19830224
463463-02-1029 w 19830224
463463-02-1029 w 19830224 463463-02-1029 w 19830404 463463-02-1029 w 19830930 463463-02-1029 w 19831017

M B 9903 LUF'!' 6 M C 9903 LUFT 6 M o 9903 LUFT 6 M o 9903 LVFT 6 M o 9903 LOFT 6 M o 9903 LUFT 6

463463-02-1029 W 19840312

M o 9903 LOFT 6

463463-02-1029 W 19840930 4 M o 9903 LUFT 6

463463-02-1029 W 19850930 4 M o .9903 LOFT 6

4&3463-02-1029 w 19881002

M o 9903 LOFT 6

463463-02-1029 W 19891002
463463-02-1029 w 19910930

4 M o 9903 LUFT 6 4 M o 9903 LUFt 6

463463-02-1029 W 19920113 AOl C ZO 9903 LUFT 6

463463-02-1029 W 19920113 AOl C ZF 9903 LUFT

463463-02-1029 W 19920928 4 M o 9903 LUI''!'

463463-02-1029 W 19921116 4 M o 9903 LUFT 6

463463-02-1029 w 19921116 170 C Z!' 9903 LUFT 6

463463-02-1029 W 19931004 4 M o 9903 LUFT 6

463463-02-1029 W 19931004 170 C ZF 9903 LUFT 6

463463-02-1029 W 19941003 4 M o 9903 LUFT
463463-02-1029 w 19941003 I70 C ZF 9903 LUFT

463463-02-1029 W 19951002 4 M o 9903 LOFt 6

463463-02-1029 W 19951002 170 C ZF 9903 LUFT 6

46346;-02-1029 W 19960304

M B 0136 LU!'T 1

46346;-02-1029 W 19960304 2 M o 0136 LUFT 1
463463-02-1029 w 19960311 135 C ZO 0136 LUFT 1 463463-02-1029 w 19960311 135 C ZF 0136 LUFT 1

463463-02-1029 W 19970106 2 M D 0136 LUFT 1
463463-02-1029 w 19970107 IlS C ZF 0136 LUFT 1

463463-02-1029 W 19970303 4 M D 0136 LUFT 1

463463-02-1029 W 19970303 170 C ZF 0136 LUFT

463463-02-1029 W 19980413 1 M 1 0136 LUFT

463463-02-1029 W 19980413 1 M o 0136 LUFT

463463-02-1029 W 19980420 liS C ZF 0136 LUFT

463463-02-l029 W 19990125

C ZG 0136 LUFT

463463-02-1029 W 19991108 115 C ZF 0136 LUFT

46346;-02-1029 w 20000330

e ZG 0136 LUFT

463463-02-1029 W 20001106 I1S C ZF 0136 LUFT

463463-02-1029 W 20010122

C ZG 0136 LUFT 1

463463-02-1029 W 20010702 TOl C ZF 0136 LUFT
463463-02-1029 w 20011119 115 e ZF 0136 LUFT

463463-02-1029 W 20020111

C ZG 0136 LUFT

463463-02-1029 W 20020923 e16 C ZR 0136 LUFT 1

463463-02-1029 w 20021118 I1S C ZF 0136 LUFT 1

463463-02-l029 w 20030117

C ZG 0136 LUFT 1

463463-02-1029 W 20030309

C E 0136 LOFT

463463-02-1324 W 19780604·001 C ZC

463463-02-1324 W 19800303 021 C ZC
463463-02-1324 w 19800303 C03 C ZR

WFT

463463-02.1324 W 19830224

M B 9904 LUFT 7

463463-02-1324 W 19830224

M C 9904 LUFT 7

463463-02-1324 W 19830224

M o 9904 LUFT 7

Page lS

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 255 of 295

463463-02-1324 w 19830930 4 M o 9904 LUFT 7-

463463-02-1324 w 19840930

M o 9904 LUFT 7

463463-02-1324 w 19650930 4 M o 9904 LUFT 7

463463-02-1324 w 19660428

M B 9903 LUFT 6

463463-02-1324 w 19860428 2 M o 9903 LUFT 6

463463-02-1324 w 19860915 1 M o 9903 LUFT 6

463463-02-1324 w 19861215 1 M o 9903 LUFT 6

463463-02-1324 w 19670413 463463;02-1324 w 19881002

M o 9903 LUFT 6 4_ M o 9903 LUFT 6

463463-02-1324 w 19691002 4 M o 9903 LUFT 6

463463-02-1324 w 19910930 4 M o 9903 LUFT 6

463463-02-1324 w 19920113 AOl C ZO 9903 LUFT 6

463463-02-1324 w 19920113 A01 C ZF 9903 LUFT 6

463463-02-1324 w 19920928 4 M o 9903 LUFT 6

463463-02-1324 w 19921116 4 M o 9903 LUFT 463463-02-1324 w 19921116 170 C ZF 9903 LUFT

463463-02-1324 w 19931004 4 M o 9903 LUFT 463463-02-1324 w 19931004 170 C ZF 9903 LUFT

463463-02-1324 w 19941003 4 M o 9903 LUFT 6

463463-02-1324 w 19941003 170 C zr 9903 LUFT 6

463463-02-1324 w 19950821

M a 0070 LUFT 1

463463-02-1324 w 19950821

M o 0070 LUFT

463463-02-1324 w 19950825 130 0 ZO 0070 LUFT

463463-02-1324 w 19950825 135 C ZF 0070 LUFT

463463-02-1324 w 19960913 I1S C zr 0070 LUFT

463463-02-1324 w 19960916 1 M o 0070 LUF'I'

463463-02-1324 w 19970106

M B 0919 LUFT

463463-02-1324 w 19970106 2 M o 0919 LUFT

463463-02-1324 w 19970107 soe C ZO 0919 LUFT

463463-02-1324 w 19970107 S08 C zr 0919 LUFT
463463-02-1324 w 19970303 4 M o 0919 LUFT 463463-02-1324 w 19970303 170 C ZF 0919 LUFT

463463-02-1324 w 19971110 1 M 1 09U LUFT

463463-02-1324 w 19971110 1 M o 0919 LUFT

463463-02-1324 w 19971120 I1S C ZF 0919 LUFT

463463-02-1324 w 19981130

C ZG 0919 LUFT

463463-02-1324 w 19981207 115 C ZF 0919 LUFT

463463-02-1324 W 20000117 115 C ZF 0919 LUFT

463463-02-1324 w 20000324

C ZG 0919 LUFT

463463-02-1324 w 20010115 I1S C ZF 0919 LUFT

463463-02-1324 W 20010126 I1S C 2F 0919 LuFT 1

463463-02-1324 w 20010131

C ZG 0919 LUFT-l

463463-02-1324 w 20010702 TOl C ZF 0919 LUFT 1

463463-02-1324 w 20020122

C ZG 0919 LUFT 1

463463-02-1324 W 20020128 115 C ZF 0919 LUFT

463463-02-1324 W 20020923 016 0 ZR 0919 LUFT

463463-02-1324 w 20030117

C ZG 0919 LUFT

463463-02-1324 W 20030127 115 C ZF a919 LUFT

463463-02-1324 W 20030309

C I! 0919 LUFT

463463-17-3781 w 19790621 001 C ZC

463463-17-3781 W 19790621 C03 C ZR

LUFT

463463-17-3781 w 19790621 C27 C ZR

LUFT

463463-17-3781 w 19830224

M B 9906 LUFT

463463-17-3781 w 19830224

M C 9906 LUFT

463463-17-3781 W 19830224
463~63-17-3781 w 19830531 463463-17-3781 w 19630531

M o 9906 LUFT M B 9915 LUFT M o 9915 LUFT

463463-17-3781 w 19830829 463463-17-3781 w 19830829

M B 9913 LUFT 7 M o 9913 LUFT 7

463463-17-3781 W 19830930
463463-17-3781 w 19831010 463463-17-3781 w 19831010

4 M o 9913 LUFT 7
M B 9901 LUFT 7
2 M o 9901 LUFT 7

463463-17-3781 W 19840312 1 M o 9901 LUFT 7

463463-17-3781 w 19840730 1 M o 9901 LUFT 7

463463-17-3781 W 19840930

M o 9901 LUFT

463463-17-3781 w 19841105

M o 9901 LUFT

463463-17-3781 w 19850204 463463-17-3781 w 19850506

M o 9901 LUFT M o 9901 LUFT

Appendix 13

463463-17-3781 w 19850930

M o 9901 LUFT 7

463463-17-3781 w 19881002 4 M o 9901 LUFT 7

463463-17-3781 w 19891002 4 M o 9901 LUFT 7

463463-17-3781 w 19910930 4 M o 9901 LUFT 7

463463-17-3781 w 19920113 AOl C ZO 9901 LUFT 7

463463-17-3781 w 19920113 AOl C ZP 9901 LUFT 7

463463-17-3761 w 19920926 4 M o 9901 LUFT ?

463463-17-3781 w 19920928 156 C ZF 9901 LUFT 7

463463-17-3781 w 19930626

M C 9901 LUFT ?

463463-17-3781 w 19931004 4 M o 9901 LUFT 7

463463-17-3781 w 19931004 170 C ZF 9901 LUFT 7

463463-17-3781 w 19941003 4 M o 9901 LUFT 7

463463-17-3781 w 19941003 170 C ZF 9901 LUFT 7 463463-17-3781 w 19951002 4 M o 9901 LUFT 7

463463-17-3781 w 19951002 170 C ZF 9901 LUFT 7

463463-17-3781 w 19961007 4 M o 9901 LUFT 7 463463-17-3781 w 19961007 170 C ZF 9901 LuFT 7

463463-17-3761 w 19961028

M B 9900 LUFT 6

463463-17-3781 w 19961028

M o 9900 LUFT 6

463463-17-3781 w 19961028 130 C ZO 9900 LUFT

463463-17-3781 w 19961028 130 C ZF 9900 LuFT

463463-17-3781 w 19961230

M o 9900 LUFT

463463-17-3761 w 19970106

M 9 0919 LUFT

463463-17-3781 w 19970106 1 M o 0919 LUFT

463463-17-3781 w 19970107 130 C ZO 0919 LUFT

463463-17-3781 w 19970107 135 C ZF 0919 LUFT 1

463463-17-3781 w 19970303 4 M o 0919 LUFT 1 463463-i7-3781 w 19970303 170 0 ZF 0919 LUFT 1

463463-17-3781 w 19980413 1 M 1 0919 LUFT 1

463463-17-3781 w 19980413 1 M o 0919 LUFT 1 463463-17-3781 w 19980420 115 C ZF 0919 LUFT 1

463463-17-3781 w 19980803 993 C ZC 0919 LUFT 1 463463-17-3781 w 19980803 060 0 ZO 9900 LUFT 6

463463-17-3781 w 19980803 060 0 ZF 9900 LUFT 6

463463-17-3781 w 19980803 W04 C ZF 9900 LUFT 6

463463-17-3781 w 19980928 991 C ZC 9900 LUFT 6

463463-17-3781 w 19980926 135 C ZO 0919 LUFT

463463-17-3781 w 19980928 135 C ZF 0919 LUFT

463463-17-3781 w 19980928 W04 C ZF 0919 LUFT

463463-17-3761 w 19981130

C ZG 0919 LUFT

463463-17-3781 w 19991206 115 C ZF 0919 LUFT

463463-17-3781 w 20000324

C ZG 0919 LUFT 1

463463-17-3781 w 20000731 993 C ZC 0919 LUFT 1 463463-17-3781 w 20000731 060 C ZO 9900 LUFT 6

463463-17-3781 W 20000731 060 C ZF 9900 LUFT 6
463463-17-3761 w 20001002 170 C zr 9900 LUFT 6

463463-17-3761 w 20001002 TOl C ZF 9900 LUFT 6

463463-17-3781 W 20011001 170 C ZF 9900 LUFT 6

463463-17-3781 w 20011001 TOl C ZF 9900 LUFT 6

463463-17-3761 W 20020923 C16 C ZR 9900 LUFT 6
463463-17-3781 w 20021007 803 C ZC 9900 LUFT 6

463463-17-3781 W 20021021 804 C ZC 9900 LUFT 6 463463-17-37Bl w 20021021 170 C ZF 9900 LUFT 6 463463-17-3781 w 20021021 TOl C ZF 9900 LUFT 6

463463-17-3781 w 20030309 463463-17-3781 w 20030309

C Ii: 9900 LUFT 6 C Ii: 9900 LUFT 6

463463-45-0236 W 19950807
463463-45-0236 w 19950807

M a 6790

6

M C 6790 LUFF 6

463463-45-0236 w 19950807 o M o 6790 LUFF 6

463463-45-0236 W 19950807 001 C ZC 6790 LUFF 6

463463-45-0236 W 19950807 A02 C ZD 6790 LUFF 6

463463-45-0236 w 19950807 A02 C zr 6790 LUFF 6

463463-45-0236 w 19950807 C03 C ZR 6790 LUFF 6

463463-45-0236 W 19951002 4 M o 6790 LUFF 6

463463-45-0236 W 19951002 170 C ZF 6790 LUFF

463463-45-0236 w 19960422 1 M o 6790 LUFF

463463-45-0236 W 19960422 115 C ZF 6790 LUFF

463463-45-0236 w 19961007

M o 6790 LUFF

Page 16

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 256 of 295

463463-45-0236 w 19961007 170 C ZF 6790 LUFF

463463-45-0236 w 19971006 4 M o 6790 LUFF II

463463-4S-0236 w 19971006 170 C ZF 6790 LUFF 6

463463-45-0236 w 19971103 2 M 1 0928 LUFF. 1

463463-45-0236 w 19971103

M S 0928 LUFF 1

463463-45-0236 w 19971103 2 M o 0928 LUI'I' 1

463463-45-0236 w 19971117 135 C ZO 0928 LUFI'

463463-45-0236 w 19971117 135 C ZF 0928 LUFF

463463-45-0236 w 19980129

C ZG 0928 LUFF

463463-45-0236 w 1998l123 115 C ZF 0928 LUFF

463463-45-0236 w 20000103 115 C ZF 0928 LUFF 1

463463-45-0236 w 20000504

C za 0928 LUFF 1

463463-45-0236 w 20010101 115 C ZF 0928 LUFF 1

463463-45-0236 w 20010403

C za 0928 LUFF 1

463463-45-0236 w 20010702 TOl C ZF 0928 LUFF 1

463463-45-0236 w 20011211 llO C zo 0637 LUFF 1

463463-45-0236 w 20011231 130 C ZF 0637 LUFF 1

463463-45-0236 w 20011231 W04 C ZF 0637 LUFF 1

463463-45-0236 w 20020213

C ZG 0637 LUI'F

463463-45-0236 w 20020923 Cl6 C ZR 0637 LUFF

463463-45-0236 w 20021230 115 C ZF 0637 LUFF

463463-45-0236 w 20030309

C !! 0637 LUFF

463463-45-0236 w 20030309

C E 0637 LUFF

463463-66-9814 w 19670718 003 C ZC

463463-66-9814 w 19670718 C03 C ZR

LUFP

463463-66-9814 w 19670718 C25 C ZR

LUFP

463463-66-9814 w 19830224

M S 0524 LUFF

463463-66-98l4 w 19830224

M C 0524 LUFP 1

463463-66-9814 W 19830224

M o 0524 LUFF 1

463463-66-9814 w 19830511

M S 0070 LUI'P 1

46346l-66-9814 w 1993l03l

M o 0070 LUFP

463463-66-9814 w 19940611

M o 0070 LUFP

463463-66~9814 w 19850610

M o 0070 I..UFP

463463-66-9814 w 19981024 1 M o 0070 LUFP

463463-66-9814 w 19910211 1 M o 0070 LUFP

463463-66-9814 w 19920113 A01 C ZO 0070 LUFP

463463-66-9814 w 19920113 A01 C ZF 0070 LUFP 1

463463-66-9814 w 19930816

M B 3642 LUFP 6

463463'66-9814 W 19930816

M C 3642 LUFP 6

46J463-66-9814 w 19930816 2 M o 3642 LUFP 6

463463-66-9814 w 19930816 060 C ZO 3642 LUI'P 6

463463-66-9814 w 19930816 060 C ZF 3642 LUFP 6

463463-66-9814 w 19931004 4 M o 3642 LUFP 6

463463-66-9814 w 19931004 170 C ZF 3642 I..UFP 6

463463-66-9814 w 19940124

M o 3642 LUFP 6

463463-66-9814 w 19941003 4 M o 3642 LUFP 6

463463-66-9814 w 19941003 170 C ZF 3642 LUFP

463463-66-9814 w 19951002 4 M o 3642 LUFP

463463-66-9814 w 19951002 170 C ZF 3642 LUFP 6

463463-66-9814 w 19961007 4 M o 3642 LuFP 6

463463-66-9814 w 19961007 170 C ZF 3642 LUFP

463463-66-9814 w 19971006 4 M 1 3642 LUFP

463463-66-98l4 w 19971006 4 M o 3642 LUFP

463463-66-9814 w 19971006 170 C ZF 3642 LUFP

463463-66-9814 w 19981005 170 C ZF 3642 LUFP 6

463463-66-9814 w 19981005 TOl C ZF 3642 LUFf 6

463463-66-98l4 w 19991004 I1S C ZF 3642 LUFP 6

463463-66-9814 w 19991004 170 C zF 3642 LUFP 6

463463-66-9814 w 19991004 TOl C ZF 3642 LUFP 6

463463-66-9814 w 19991004 TOl C ZF 3642 LUFP 6

463463-66-9814 w 20000403 115 C ZF 3642 LUFP 6

463463-66-9814 w 20000918 S08 C %0 3614 LUFP 6

463463-66-9814 w 20000918 040 C ZF 3614 LuFP 6

463463-66-98l4 w 20000918 C04 C Z~ 3614 LUI'O 6

463463-66-9814 w 20001002 170 C ZF 3614 LUFO 6

463463-66-9814 w 20001002 TOl C ZF 3614 LUFO 6

463463-66-9814 w 20001030 I30 C ZO 3661 LUFO

463463-66-9814 w 20001030 130 C ZF 3661 LUFO

Appendix 13

463463-66-9814 w 20010416 991 C ZC 3661 LUFO

463463-66-98l4 w 200l04l6 135 C ZO 0070 LUFO

463463-66-9814 w 20010419 135 C ZF 0070 LUFO

463463-66-98l4 w 20010702 TOl C ZF 0070 LUFO

463463-66-9814 w 20020409

C za 0070 LUI'O

463463-66-9814 w 20020422 115 C ZI' 0070 LUFO

463463-66-9814 w 20020923 C16 C ZR 0070 LUI'O

463463-66-9814 w 20030309

C E 0070 LUFO

463463-66-98l4 w 20030309

C E 0070 LUFO

463463-66-9814 w 20030309

C !! 0070 LUFO

464464-27-7974 w 19770228 003 C ZC

464464-27-7974 w 19830224

M S 5729

6

464464-27-7974 w 19830224

M C 5729

6

464464-27-7974 w 19830224 4 M o 5729

6

464464-27-7974 w 19830930 4 M o 5729

6

464464-27-7974 w 198409l0 4 M o 5729

6

464464-27-7974 w 19850930. 4 M o 5729

6

464464-27-7974 w 19861006

M S 5733

6

464464-27-7974 w 19881002

M o 5733

6

464464-27-7974 w 19891002

M o 5733

6

464464-27-7974 w 19910930 4 M o 573)

6

464464-27-7974 w 19920113 AOl C %0 5733

6

464464-27-7974 w 19920113 AOl C ZF 5733

6

464464-27-7974 w 19920715

M I' 5733

6

464464-27-7974 w 19971006

M C 5733 LUFO 6

464464-27-7974 w 19971006 o M o 5733 LUFO 6

464464-27-7974 w 19971006 023 C ZC 5733

464464-27-7974 w 19971006 A04 C %0 5733

464464-27-7974 w 19971006 A04 C ZF 5733

6

464464-27-7974 w 19971006 CO) C ZR 5733 LUFO 6

464464-27-7974 w 19971006 C21 C ZR 5733 LUFO 6

464464-27-7974 w 19990105

M C 5733 LUFO 6

464464-27-7974 w 19980216 1 M o 5733 LUFO 6

464464-27-7974 w 19980217 115 C ZF 5733

6

464464-27-7974 w 19980518 1 M 1 5733 !..UFO 6

464464-27-7974 w 19980518 1 M o 5733 LUFO 6

464464-27-7974 w 19980518 I15 C ZF 5733

464464-27-7974 w 19981002 600 C ZC 5733

464464-27-7974 w 19981005 TOl C ZF 5733

6

464464-27-7974 w 19991004 TOl C ZF 5733

6

464464-27-7974 w 20000410 023 C ZC 5733

6

464464-27-7974 w 20000410 A04 C ZO 5733

6

464464-27-7974 w 20000410 A04 C ZF 5733

6

464464-27-7974 w 20000410 C21 C ZR 5733 LUFO 6

464464-27-7974 w 20000410 IOl C ZR 5733 LUFO 6

464464-27-7974 w 20000717 991 C ZC 5733 LUFO 6

464464-27·7974 w 20000717 Il5 C ZO 0070 LUFO 1

464464-27-7974 w 20000717 I35 C ZF 0070 LUFO 1

464464-27-7974 w 20010702 TOl C ZF 0070 LUFO 1

464464-27-7974 w 20010730 I1S C ZF 0070 LUFO 1

464464-27-7974 w 20010831

C zo 0070 LUFO 1

464464-27-7974 w 20020206

C Z(l 0070 LUFO

464464-27-7974 w 2002071S 11S C ZF 0070 LUFO 1

464464-27-7974 w 20020923 C16 C ZR 0070 I..UFO 1

464464-27-7974 w 20030219

C za 0070 I..UFO 1

464464-27-7974 w 20030309 464464-27-7974 w 20030309

C I! 0070 LUFO 1 C E 0070 LUFO 1

464464-27-7974 w 20030309

C !! 0070 LUFO 1

464464-78-9520 w 19680415 001 C ZC

464464-78-9520 w 19680415 C03 C ZR

LUFT

464464-78-9520 w 19680415 C27 C ZR

LUFT

464464-78-9520 w 19830224

M B 0367 LUFT

464464-78-9520 w 19830224

M C 0367 LUFT

464464-78-9520 w 19830224

M o 0367 LUFT

464464-78-9520 w 19831031

M o 0367 1.UFT

464464-78-9520 w 19840611

M o 0367 LUFT

464464-78-9520 w 19850128

M S 0070 LUFT

464464-78-9520 w 19850610

M o 0070 I..UFT

Page 17

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 257 of 295

464464-78-9520 W 19850920

M B 0028 LurT

464464-76-9520 W 19950930

M o 0029 LUFT

464464-78-9520 w 19870511

M o 0028 LOFT 1

464464-78-9520 W 19881024

M D 0029 LOFT 1

464464-78-9520 w 19910114 1 M o 0028 LurT 1

464464-79-9520 W 19920113 A01 C ZO 0026 LUFT 1

464464-78-9520 W 19920113 AOl C ZF 0028 LurT 1

464464-78-9520 W 19930322

M II 0078 LUFT 1

464464-76-9520 W 19930322 2 M o 0078 LOFT 1

464464-79-9520 W 19930322 130 C ZO 0078 LUFT 1

464464-78-9520 W 19930322 130 C ZF 0078 LUFT 1

464464-78-9520 W 19940321 1 M D 0079 LOFT

464464-78-9520 W 19940324 Il5 C ZF 0078 LUFT

464464-78-9520 w 19950612 1 M o 0078 LOFT

464464-78-9S20 W 19950615 115 C ZF 0078 LOFT

464464-78-9520 W 19970106

M 11 0919 LUFT

464464-78-9520 W 19970107 S08 C ZO 0919 LOFT

464464-76-9520 w 19970107 S09 C ZF 0919 LUFT

464464-79-9520 w 19970303 4 M o 0919 LOFT

464464-79-9520 W 19970303 170 C ZF 0919 LOFT 1

464464-78-9520 W 19970317 1 M D 0919 LUFT 1

464464-78-9520 W 19970320 Il5 C ZF 0919 LUFT

464464-78-9520 W 19980413 1 M 1 OSl9 LUFT 1

464464-78-9520 W 19980413 1 M o 0919 LUFT 1

464464-78-9520 W 19990420 115 C ZF 0919 LOFT 1

464464-78-9520 W 19981130

C ZG 0919 LOFT

464464-78-9520 W 1999l108 115 C ZF 0919 LOFT

464464-78-9520 W 20000324

C ZG 0919 LUFT

464464-78-9520 W 20001106 115 C ZF 0919 LOFT

464464-78-9520 W 20010205

C ZG 0919 LUFT

464464-79-9520 W 20010702 TOl C ZF 0919 LUFT

464464-78-9520 W 20010820 993 C ZC 0919 LUFT 1

464464-78-9520 W 20010820 060 C ZO 9900 LUFT 6

464464-78-9520 W 20010820 060 C ZF 9900 LUFT 6

464464-78-9520 W 20011001 170 C ZF 9900 LOFT 6

464464-79-9520 W 20011001 TOl C ZF 9900 LUFT 6

464464-78-9520 W 200l12l7 991 C ZC 9900 LUFT 6

464464-78-9520 W 20011217 X35 C ZO 0919 LUFT

464464-78-9520 W 20011217 135 C ZF 0919 LOFT

464464-7S-9520 W 20011217 W04 C ZF 0919 LUFT 1

464464-78-9520 W 20020122

C ZQ 0919 LOFT 1

464464-79-9520 W 200209~3 C16 C ZR 0919 LUFT 1

464464-79-9520 W 20021216 115 C zr 0919 LUFT 1

464464-79-9520 W 20030117

C ZG 0919 LOFT 1

464464-78-9520 W 20030309

C Ii: 0919 LOFT 1

46546S-55-5078 W 19900910

M II 3648

465465-55-5078 W 19900910

M C 3648 Luro

465465-55-5078 W 19900910

M o 3648 LUFO

465465-55-5078 W 19900910 003 C ZC 3648 LOFC 7

465465-55-5078 W 19900910 C03 C Z~ 3648 LUFO 7

465465-55-5078 W 19900910 C25 C ZR 3648 LOFO 7

465465-55-5078 W 19910304 1 M o 3648 LUFO 7

465465-55-5078 W 19910325

M II 3644 LOFO

465465-55-5078 W 19910325

M o 3644 LUFO

465465-55-5078 W 19910701

M B 364 B LOro 7

465465-55-5078 W 19910729

M o 3648 LUFO 7

46$465-55-5079 W 19910930 4 M o 3648 LUFO 7

465465-55-5078 W 19920113 AOl C ZO 3648 LUFO 7

465465-55-5078 W 19920113 AOl C ZF 3648 LUFO 7

465465-55-5078 w 19920126

M II 3643 LOrO 6

465465-55-5078 W 19920126 130 C ZO 3643 LUFO 6

465465-55-5078 W 19920126 130 C ZF 3643 LUFO 6

465465-55-5078 W 19920127 1 M o 3643 LOFO 6

46546S-5S-5078 w 19920928 4 M o 3643 LUFO 6

465465-55-5078 W 19920928 156 C ZF 3643 LOFO 6

465465-5S-5078 w 19930118

M C 3643 LOFP 6

46546S-5S-5078 W 19930329

M C 3643 LUFO 6

465465-55-5078 W 19930816

M C 3643 LUFP 6

Appendix l3

465465-55-5078 W 19931004 4 M o 3643 Lurp 6'

465465-55-5078 W 19931004 170 C ZF 3643 LUFP 6

465465-55-5078 W 19940214

M C 3643 LUFO 6

465465-55-5078 W 19940509 1 M o 3643 LUFO 6

465465-55-5078 W 19940509 115 C ZF 3643 LOFP 6

465465-55-5078 W 19941003 4 M o 3643 LOFO 6

465465-55-5078 W 19941003 170 C ZF 3643 LOFP 6

465465-55-5078 W 19941121 1 M o 3643 LOro 6

465465-55-5078 W 19941121 115 C ZF 3643 LUFP 6

465465-55-5078 W 19950907 1 M o 3643 LUFO 6

465465-55-5078 W 19950808 115 C ZF 3643 LUFP 6

465465-55-5078 w 1995l002 4 M o 3643 LOFO·6

465465-55-5078 w 19951002 170 C zr 3643 Lurp

465465-5S-5078 w 19960108

M C 3643 LUFO

465465-55-5078 w 1996040l 1 M o 3643 LUro

465465-55-5078 W 19960402 115 C ZF 3643 LOFO

465465-55-5076 w 19961007 4 M o 3643 LUFO 6

465465-55-5078 W 19961007 170 C ZF 3643 LOFO 6

465465-55-5078 W 19971006 4 M D 3643 Luro 6

465465-55-5079 W 19971006 170 C ZF 3643 LUFO 6

465465-55-5078 W 19980330 2 M 1 3642 LOFO 6

465465-55-5078 W 19980330

M II 3642 Loro 6

465465-55-5078 W 19980330

M o 3642 Loro 6

465465-55-5078 W 19980406 130 C ZO 3642 LUFO 6

465465-55-5078 W 19980406 130 C ZF 3642 LOFO 6

465465-55-5078 W 19981005 170 C ZF 3642 Luro 6

465465-55-5079 w 19981005 TOl C ZF 3642 Luro 6

46546S-SS-5078 W 19981005 C04 C Z~ 3642 LUFP

46546S-55-5078 W 19990$14 340 C ZC 3642 LUFP

465465-55-5078 W 19990514 600 C ZC 3642 LUFP

465465-5S-S078 W 19991l09 043 C ZC 3642 LOFP

465465-55-5078 w 19991109 A06 C ZO 3643 LUFP

465465-55-5078 w 19991109 A06 C ZF 3643 LOFP

465465-55-5078 W 19991109 W04 C ZF 3643 LOFP

465465-5$-5078 W 19991109 C04 C Z~ 3643 LUFO

465465-55-5078 W 19991227 115 C ZF 3643 LOFO

46546S-55-5078 W 20000605 991 C ZC 3643 LUFO 6

465465-55-5078 W 20000605 135 C ZO 0070 Loro 1

465465-55-5078 W 20000605 135 C ZF 0070 LOFO 1

465465-55-5078 W 20000605 W04 C ZF 0070 LUFO

465465-5$-5078 W 20010'702 XlS C ZF 0070 LOFO

465465-55-5078 w 20010702 TOl C ZF 0070 LUFO 1

465465-55-5078 W 20010702 TOl C ZF 0070 LUFO 1

465465-55-5078 W 20020201

C ZQ 0070 LOFO 1

465465-55-5078 W 20020912 993 C ZC 0070 LUFO 1

465465-55-5078 W 20020812 060 C ZO 3642 LOFO 6

465465-55-5078 W 20020812 060 C zr 3642 LUFO 6

465465-55-5078 W 20020923 C16 C Z~ 3642 Luro 6 465465-55-5079 ~ 20021007 903 C ZC 3642 Luro ,

465465-55-5078 W 20021021 804 C ZC 3642 LUFC 6

4654~5-5S-5078 W 20021021 170 C ZF 3642 LOFO 6

465465-55-5078 W 2002102l TOl C ZF 3642 LOFO 6

465465-55-5078 W 20030210 I15 C ZF 3642 LUFO

465465-55-5078 w 20030309

C Ii: 3642 LOFO

465465-55-5078 W 20030309

C Ii: 3642 LOFO

465465-55-5078 W 20030309

C E: 3642 LUFO

465465-58-4093 b 19690212 003 C ZC

465465-58-4093 b 19680212 C03 C Z~

LOn

465465-58-4093 b 19680212 C27 C Z~

LOFT

465465-58-4093 b 19830224

M B 9910 LUFT 7

465465-58-4093 b 19830224

M C 9910 LOFT 7

465465-58-4093 b 19830224

M D 9910 LOFT 7

465465-58-4093 b 19830930 4 M o 9910 LUFT 7

465465-58-4093 b 19840930 4 M D 9910 LOFT 7

465465-58-4093 b 19850325

M B 9924 LUFT 6

465465-58-4093 b 19850325

M o 9924 LOFT 6

465465-58-4093 b 19850701

M o 9924 LOFT 6

465465-58-4093 b 19950715

M o 9924 LUFT 6

Page 18

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 258 of 295

465465-59-4093 b 19950930 4 M o 9924 LUFT 6

465465-58-4093 b 19851007 1 M o 9924 LUFT 6

465465-58-4093 b 19851216

M B 9907 LUFT 6

465465-58-4093 b 19851216 2 M o 9907 LUI"T 6

465465-58-4093 b 19860310

M o 9907 LUFT 6

465465-58-4093 b 19881002

M o 9907 LUI'T 6

465465-58-4093 b 19891002 4 M o 9907 LUFT 6

465465-58-4093 b 19910930 4 M o 9907 LUI'T 6

465465-58-4093 b 19920113 AOl C ZO 9907 LUFT 6

465465-58-4093 b 19920113 AOl C ZF 9907 LUFT 6

465465-58-4093 b 19920928 4 M o 9907 LUFT 6

465465-59-4093 b 19921116 4 M o 9907 LUFT 6

46546$-59-4093 b 19921116 170 C ZI' 9907 LUFT 6

465465-58-4093 b 19931004 4 M D 9907 LUFT 6

465465-58-4093 b 19931004 170 C ZF 9907 LUFT 6

465465-58-4093 b 19941003 4 M o 9907 LUFT 6

465465-58-4093 b 19941003 170 e ZF 9907 LUFT 6

46546S-S8-4093 b 19950921

M B 0070 LUFT

465465-56-4093 b 19950821 2 M o 0070 LUI'T 1

465465-58-4093 b 19950825 130 C ZO 0070 LUFT 1

465465-58-4093 b 19950625 I35 e ZF 0070 LUFT

46S465-SS-4093 b 19960429

M B 9907 LUFT

465465-58-4093 b 19960429

M e 9907 LUFT

465465-SS-4093 b 19960429 2 M D 9907 LUFT

465465-58-4093 b 19960430 D60 C ZD 9907 LUFT

465465-58-4093 b 19960430 060 e ZF 9907 LUFT

465465-58-4093 b 19961007 4 M o 9907 LUFT

465465-58-4093 b 19961007 170 C ZF 9907 LUFT

465465-58-4093 b 19971006 4 M 1 9907 LUFT

465465-58-4093 b 19971006 4 M o 9907 LUFT 6

465465-58-4093 b 19971006 170 e ZF 9907 LUFT 6

465465-58-4093 b 19980518

M e 9907 LUFT

465465-58-4093 b 19991005 170 C ZF 9907 LUFT 6

465465-58-4093 b 19981005 TOl e ZF 9907 LUFT 6

465465-58-4093 b 19991004 170 e ZF 9907 LUFT 6

466465-58-4093 b 19991004 TOl e ZF 9907 LUFT 6

465465-5e-4093 b 19991004 TOl e ZF 9907 LUFT &

465465-58-4093 b 20001002 170 C ZF 9907 LUI'T

465465-58-4093 b 20001002 TOl e ZF 9907 LUFT

465465-5e-4093 b 20011001 170 C ZF 9907 LUFT

465465-5e-4093 b 20011001 TOl e ZF 9907 LUFT

465465-59-4093 b 20020923 e16 e ZR 9907-LUFT

465465-58-4093 b 20021007 803 e ze 9907 LUFT 6

465465-58-4093 b 20021020 TOl C zF 9907 LUFT 6

465465-58-4093 b 20021021 604 e ZC 9907 LUFT 6

465465-58-4093 b 20021021 I1S e ZF 9907 LUFT 6

465465-58-4093 b 20021021 170 C ZF 9907 LUFT 6 465465-58-4093 ~ 200210il TOl C ZF 9907 LUFT &

465465-58-4093 b 20030309

e Ii: 9907 LUFT 6

465465-79-4500 W 19901016

M B 3629

465465-79-4500 W 19901016

M C 3629 LUFP

465465-79-4500 W 19901016 o M o 3629 LtJFP

465465-79-4500 W 19901016 001 C ZC 3629 LUFP

465465-79-4500 W 19901016 C03 e ZR 3629 LUFP

465465-79-4500 W 19901231

M B 3608 LUFP

465465-79-4500 W 19901231

M D 3609 LUFP 6

465465-79-4500 W 19910114

M B 3648 LUFP 7

465465-79-4500 W 19910114

M o 3648 LUFP 7

465465-79-4500 W 19910128

M D 3648 LUFP 7

465465-79-4500 W 19910415 1 M o 3649 LUFP 7

465465-79-4500 W 19910715 1 M o 3648 LUFP 7

465465-79-4500 W 19910930 4 M o 3648 LUFP 7

465465-79-4500 W 19911014 1 M D 3649 LUFP 7

465465-79-4500 w 19911125

M B 3643 LUFP 6

465465-79-4500 W 19911125

M D 3643 iUFP 6

465465-79-4500 W 19920113 A01 e ZD 3643 LUFP 6

465465-79-4500 W 19920113 AOl C ZF 3643 LUFP 6

465465-79-4500 W 19920309

M I! 3642 LUFP 6

Appendix 13

465465-79-4500 w 19920309 2 M o 3642 LUFP 6

465465-79-4500 w 19920309 130 C ZO 3642 LUFP 6

465465-79-4500 w 19920309 130 C ZF 3642- LUFf 6

465465-79-4500 w 19920929 4_ M o 3642 LUFP 6

465465-79-4500 w 19920928 156 C ZF 3642 LUFf 6

465465-79-4500 w 19931004 4 M o 3642 LUFP 6

46546$-79-4500 w 19931004 170 C ZF 3642 LUFP 6

465465-79-4500 w 19941003 4 M o 3642 LUI'P 6

465465-79-4500 w 19941003 170 C ZF 3642 LUFf

465465-79-4500 w 19951002 4 M o 3642 LUFP

465465-79-4500 w 19951002 I70 e ZF 3642 LUFP

465465-79-4500 w 19960722

M B 0524 LUFP

465465-79-4500 w 19960722 2 M D 0524 LUFP

465465-79-4500 w 19960722 I35 e ZO 0524 LUFP 1

465465-79-4500 w 19960722 135 e ZF 0524 LUFP 1

465465-79-4500 w 19970217

M B 0891 LUFP 1

465465-79-4500 w 19970217 2 M o 0891 LUFP

465465-79-4500 w 19970227 130 C ZO 0891 LUFP

465465-79-4500 w 19970227 130 e ZF 0891 LUI'P

465465-79-4500 w 19970303 4 M o 0891 LUFP 1

465465-79-4500 w 19970303 170 e ZF 0891 LUFP 1

465465-79-4500 w 19980316 1 M 1 0891 LUFP 1

465465-79-4500 w 19950316 1 M o 0891 LUFP 1

465465-79-4500 w 19950323 115 e ZF 0891 LUFP 1

465465-79-4500 w 19990323

C za OS91 LUFP 1

465465-79-4500 w 19991011 I15 C ZF 0891 LUFP 1

465465-79-4500 w 20000502

C za 0891 LUFP 1

465465-79-4500 w 20001009 115 C ZF 0891 LUFP 1

465465-79-4500 w 20010702 TOl C ZF 0891 LUFP 1

465465-79-4500 w 20011008 115 C ZI' 0891 LUFP 1

465465-79-4500 w 20020620

e za 0891 LtlFP

465465-79-4500 w 20020923 C16 C ZR 0891 LUFP

465465-79-4500 w 20021021 I15 e ZF 0891 LUFP

465465-79-4500 w 20021116 I30 e ZO 0931 LUFP

465465-79-4500 w 20021118 130 C ZF 0931 LUFP

465465-79-4500 w 20021118 C10 C ZR 0931 LUFa

4&5465-79-4500 w 20030309

e Ii: 0931 LUFa

465465-79-4500 w 20030309

C E 0931 LUFa

465465-92-4101 w 19780629 003 C ze

465465-92-4101 w 19780629 C03 e ZR

LUFT

465465-92-4101 w 19780629 C27 e ZR

LUFT

465465-92-4101 w 19830224

M B 9910 LUFT 7

465465-92-4101 w 19630224

M e sno LUFT 7

465465-92-4101 w 19830224 4 M o 9910 LUFT 7

465465-92-4101 W 19830930 4 M o 9910 LUI'T 7

465465-92-4101 W 19840930 4 M o 9910 LUFT 7

465465-92-4101 W 19850325

M B 9924 LUFT

465465-92-4101 W 19850325

M o 9924 LUFT

465465-92-4101 W 19950701

M o 9924 LUFT

465465-92-4101 W 19850715 1 M o 9924 LUFT

465465-92-,101 W 196509~0 4 M o 9924 LUFT

465465-92-4101 W 19851007 1 M o 9924 LUI'T 6

465465-92-4101 W 19670803

M B 9926 LUFT 6

465465-92-4101 w 19870803

M D 9926 LUFT 6

465465-92-4101 W 19971116

M o 9926 LUFT 6

465465-92-4101 W 19880222

M o 9926 LUFT 6

465465-92-4101 W 19881002 4 M D 9926 LUFT 6

465465-92-410l W 19891002 4 M o 9926 LUFT 6

465465-92-4101 W 19910930 4 M o 9926 LUFT 6

465465-92-4101 W 19920113 AOl e ZO 9926 LUFT 6

465465-92-4101 W 19920113 A01 C ZF 9926 LUI'T 6

465465-92-4101 w 19920928 4 M o 9926 LUFT 6

465465-92-4101 W 19920928 I56 e ZF 9926 LUFT 6

465465-92-4101 W 19931004 4 M o 9926 LUFT 6

465465-92-4101 w 19931004 170 C ZF 9926 LOFT 6

465465-92-4101 W 19941003 4 M o 9926 LUFT &

465465-92-4101 W 19941003 I70 C ZF 9926 LUFT 6

465465-92-4101 W 19950220

M B 0070 LUFT 1

Page 19

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 259 of 295

465465-92-4101 w 19950220 2 M o 0070 LUFT

465465-92-4101 w 19950220 130 C Zo 0070 LUFT

465465-92-4101 w 19950220 t35 C ZF 0070 LUFT 1

465465-92-4101 w 19960108

M B 9926 LUFT 6

465465-92-4101 w 1996010B 2 M o 9926 LUFT 6

465465-92-4101 w 19960112 030 C ZO 9926 LU~T 6

465465-92-4101 w 19960112 060 C ZF 9926 LUFT 6

465465-92-4101 w 19961007 4 M o 9926 LUFT 6

465465-92-4101 w 19961007 170 C ZF 9926 LUFT 6

465465-92-4101 w 19971006 4 M 1 9926 LtlFT 6

465465-92-4101 w 19971006 4 M o 9926 LUFT

465465-92-4101 w 19971006 170 C ZF 9926 LUFT

465465-92-4101 w 19981005 170 C ZF 9926 LUFT

465465-92-4101 w 199Bl005 TOl C ZF 9926 LUFT

465465-92-4101 w 19991004 170 C ZF 9926 LUFT 6

465465-92-4101 w 19991004 TOl C ZF 9926 LUFT 6

465465-92-4101 w 19991004 TOl C ZF 9926 LUFT 6

465465-92-4101 w 20001002 170 C ZF 9926 LUFT 6

465465-92-4101 w 20001002 TOl C ZF 9926 LUFT 6

465465-92-4101 w 20011001 170 C ZF 9926 LUFT 6

4654G5-92-4101 w 20011001 TOl C ZF 9926 LUFT

465465-92-4101 w 20020923 C16 C ZR 9926 LUFT

465465-92-4101 w 20021007 903 C ZC 9926 LUFT

465465-92-4101 w 20021021 804 C ZC 9926 LUFT

465465-92-4101 w 20021021 170 C ZF 9926 LUFT 6

465465-92-4101 w 20021021 TOl C ZF 9926 LUFT 6

465465-92-4101 w 20030309

C Ii: 9926 LUFT 6

466466-08-0174 0 19800224

M C

466466-08-0174 0 19800224 o M 0

466466-08-0174 0 19800224 001 C ZC

466466-08-0174 0 19800224 C03 C ZR

LUFF

466466-08-0174 0 19800224 C23 C ZR

LUFF

466466-0e-0174 0 19830224

M !i 5711 LUFF 7

466466-08-0174 0 19830224

M C 5711

7

466466-0B-0174 0 19830224

M o 5711

7

466466-0e-0174 0 19830421

M F 5111

7

466466-08-0174 0 1ge31213

M !i 5721

9

466466-08-0174 0 19840103

M B 5702

7

466466-08-0174 0 19940116

M o 5702

466466-08-0174 0 19840220

M B 5701

466466-08-0174 0 19840220

M o 5701

7

466466-0B-0174 0 19840319

M !i 5711

7

466466-08-0174 0 19840319 2 M o 5711

7

466466-08-0174 0 19840604

M o 5711

7

46646'-08-0174 0 19840910

M o 5711

7

466466-0e-0174 0 19840930 4 M D 5711

7

466466-08-0174 0 19850930 4 M o 5711

7

466466-08-0174 0 19B60428

M B 5721

8

466466-08-0174 0 19860428

M o 5721

8

466466-0B-0174 0 19860530

M I' 5721

8

466466-08-0174 0 1987042B

M B 6754

7

466466-08-0174 0 19870428

M C 6754 LUFF 7

466466-08-0174 0 19870428 041 C ZC 6754 LUFF

466466-0e-0174 0 19871005 1 M o 6754 LUFF 7

466466-08-0174 0 198e0229

M B 6735 LUFF 6

466466-0e-0174 0 19880801

M o 6735 LUFF 6

466466-08-0174 0 19881002

M o 6735 LUFF 6

466466-0S-0174 0 19S81121

M B 6796 LUFF

466466-08-0174 0 19881121

M o 6796 LUFF

466466-0e-0174 0 1989t002 4 M o 6796 LUFF

466466-0B-0174 0 19900122

M B 6732 LUFF

466466-08-0174 0 19900122 2 M o 6732 LUFF

466466-0e-0174 0 19901203 1 M o 6732 LUFF

466466-0S-0174 0 19910617 1 M o 6732 LUFF 6

466466-08-0174 0 19910930 4 M o 6732 LUI'I' 6

466466-0S-0174 0 19911202 1 M o 6732 LUFF 6

466466-0e-0174 0 19920113 AOl C ZO 6732 LUFF 6

466466-0S-0174 0 19920113 A01 C zr 6732 LUFF 6

Appendix 13

466466-08-0174 0 1992092B 4 M o 6732 LUFF 6

466466-08-0174 0 19920928 156 C ZF 6732 LUFF 6

466466-08-0174 0 19931004 4 M o 6732 LUFF 6

466466-08-0174 0 19931004 170 C ZF 6732 LUFF 6

466466-0e-0174 0 19931220 1 M o 6732 LUFF 6

466466-08-0174 0 19931220 115 C ZF 6732 LUFF 6

466466-08-0174 0 19941003 4 M o 6732 LUFF 6

466466-08-0174 0 19941003 170 C ZF 6732 LUFF 6

466466-0e-0174 0 19951002 4 M 0 6732 LUFF 6

466466-oe-0174 0 19951002 170 C ZF 6732 LUFF 6

466466-08-0174 0 19961007 4 M o 6732 LUFF 6

466466-08-0174 0 19961007 170 C ZF 6732 LUFF 6

466466-08-01.74 0 19971006 4 M o 6732 LUFF 6

466466-08-0174 0 19971006 170 C ZF 6732 LUFF G

466466-08-0174 0 19980622 2 M 1 0930 LUFF 1

466466-08-0174 0 199B0622

M B 0930 LUFF 1

466466-0S-0174 0 19980622 2 M o 0930 LUFF 1

466466-08-0174 0 199B0626 130 C ZO 0930 LUFF 1

466466-0e-0174 0 19980626 130 C ZF 0930 LUFF 1

466466-09-0174 0 199B0626 W04 C ZF 0930 LUFF 1

466466-08-0174 0 19980824 993 C ZC 0930 LUFF

466466-0e-0174 0 19980e24 060 C ZO 6732 LUFF

466466-08-0174 0 19980B24 060 C ZF 6732 LUFF 6

466466-08-0174 0 19980824 W04 C ZF 6732 LUFF 6

466466-0B-0174 0 19981005 170 C ZF 6732 LUFF 6

466466-0B-0174 0 199Bl005 TOl C ZF 6732 LUFF 6

466466-08-0174 0 19981221 991 C ZC 6732 LUFF 6

406466-08-0174 0 1998122i 130 C ZO ·0930 LUFF

466466-0e-0174 0 19981221 135 C ZO 0930 LUFF

466466-08-0174 0 19981221 130 C ZF 0930 LUFF

466466-08-0174 0 19981221 W04 C ZF 0930 LUFF

466466-0e-0174 0 19990215 993 C ZC 0930 LUFF

466466-0e-0174 0 19990215 030 C ZO 6732 LUFF

466466-0B-0174 0 19990215 060 C ZO 6732 LUFF

466466-09-0174 0 19990215 D60 C ZF 6732 LUFF

466466-08-0174 0 19990215 W04 e ZF 6732 LUFF

466466-08-0174 0 19991004 170 C ZF 6732 LUFF

466466-0e-0174 0 19991004 TOl C ZF 6732 LUFF

466466-08-0174 0 19991004 TOl C ZF 6732 LUFF

466466-08-0174 0 20000508 130 C ZO 6801 LUFF

466466-08-0174 0 20000508 130 C ZF 6801 LUFF 6

466466-0e-0174 0 2000050B W04 C ZF 6BOl LUFF 6

466466-08-0174 0 20000703 991 C ZC 6801 LUFF 6

466466-08-0174 0 20000703 130 C ZO 0930 LUFF 1

466466-08-0174 0 20000703 130 C ZF 0930 LUFF 1

466466-0B-0174 0 20010212 115 C ZF 0930 LUFF 1

466466-08-0174 0 20010702 TOl C ZF 0930 LUFF 1

466466-08-0174 0 20020211 115 C ZF 0930 LUFF 1

466466-08-0174 0 20020507

C ZG 0930 LUFF 1

466466-08-0174 0 20020923 e16 C ZR 0930 LUFF 1

466466-08-0174 0 20030210 115 C ZF 0930 LUFF

466466-0e-0174 0·20030309

C E 0930 LUFF

466466-0e-0174 0 20030309

e E 0930 LUFI'

466466-0S-0174 0 20030309

C ! 0930 LUFF 1

466466-35-0856 w 19770614

M C

LUFF

466466-35-0856 w 19770614 001 C ze 466466-35-0856 w 19770614 C03 C ZR

LUFF LUFF

466466-35-0856 w 19770614 C25 C ZR

LUFP

466466-35-0856 w 19830224 466466-35-0856 w 19830224

M B 3643 LUFP M C 3643 LUFe 6

466466-35-0856 w 19830224

M o 3643 LUFe 6

466466-35-0856 w 11830930 4 M o 3643 LUFe 6
4S6466-35-0856 w 19840930 4 M o 3643 LUFe 6

466466-35-0856 w 19850930 466466-35-0856 w 19860106

4 M o 3643 Luro 6 M B 3642 LUFe 6

466466-35-0856 w 19860106

M o 3642 Lure 6

466466-35-0856 w 1987051S 466466-35-0856 w 19870518

M !i 3643 LUFe 6 2 M o 3643 LUFe 6

Page 20

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 260 of 295

466466-35-0956 w 19S51002

1'1 o 3643 LUFO 6

466466-35-0856 W 19990410

1'1 a 3642 LU!"O 6

466466-35-0856 W 19890410
466466-35-0956 w 19991002

M o 3642 LUFO 6 M o 3642 LU!"O 6

466466-3S-0956 W 19900305

M a 0544 LUFO 3

466466-35-0856 W 19900312

M o OSH LUFO 3

466466-35-0856 W 19900402

1'1 a 3642 LUFO 6

466466-35-0856 W 19900402 1 1'1 o 3642 LUFO 6

466466-35-0856 W 19910930 4 M o 3642 LUFO 6

466466-35-0956 W 19920113 AOl C ZO 3642 LPFP 6

466466-3S-0856 W 19920113 AOl C ZF 3642 LUFP 6

466466-35-0856 W 19920929 4 M o 3642 LUFO 6

466466-35-0856 W 1992092B I56 C ZF 3642 LUFP 6

466466-35-0856 W 19931004 4 1'1 o 3642 LUFO 6

466466-35-0856 W 19931004 I70 C ZF 3642 LUFP

466466-35-0856 W 19941003 4 1'1 o 3642 LUFO

466466-35-0856 W 19941003 170 C ZF 3642 LUFP

466466-35-0856 W 19950102

M C 3642 LUFP

466466-35-0856 W 19950123

1'1 a 0544 LUFP

466466-3S-0856 W 19950123 2 M o 0544 LUFP

466466-35-0B56 W 19950127 135 C ZO 0544 LUFP

466466-35-0856 W 19950127 135 C ZF 0544 LUFP

466466-35-0856 W 19960219 1 M o 0544 LUFP

466466-35-0856 W 19960227 I15 C ZF 0544 LUFP

466466-35-0856 W 19970203

M a 3700 LUFP

466466-35-0856 W 19970203 2 M o 3700 LUFP

466466-35-0B56 W 19970207 060 C ZO 3700 LUFP

466466-35-0B56 W 19970207 060 C ZF 3700 LUFP

466466-35-0856 W 19971006 4 M o 3700 LUFP 6

466466-35-0856 W 19971006 I70 C ZF 3700 LUFP 6

466466-35-0856 W 19971013 2 M 1 OB91 LUFP 1

466466-35-0956 W 19971013

M a 0891 LUFP 1

466466-35-0856 W 19971013

1'1 C OB91 I.UFP 1

466466-35-0856 W 19971013 2 1'1 o 0891 LUFP 1

466466-35-0856 W 19971017 I35 C ZO 0891 LUFP 1

466466-35-0856 W 19971017 I35 C ZF 0891 LUFP 1

466466-35-0856 W 19981120

C ZG 089l LUFI' 1

466466-35-0856 W 199B1123 I1S C ZF 0891 LUFP 1

466466-35-0856 W 19990524 993 C ZC OB91 LUFP

466466-3S-0B56 W 19990524 060 C %0 3700 LUFI'

466466-35-0856 W 19990524 060 C ZF 3700 LUFP

466466-35-0856 W 19990524 W04 C ZF 3700 LUFp 6

466466-35-0856 W 19991004 R01 C %0 3642 LUFI' 6

466466-35-0856 W 19991004 170 C ZF 3642 LUFP

466466-35-0656 W 19991004 TOl C ZF 3642 LUFP

466466-35-0856 W 19991004 TOl C ZF 3642 LUFP

466466-35-08S6 W 19991004 W04 C ZF 3642 LUFP 6

466466-35-0856 W 20001002 I70 C ZF 3642 LUFP 6

466466-35-0856 W 20001002 TOl C ZF 3642 LUFI' 6

466466-35-0856 W 20011001 I70 C ZF 3642 LUFP 6

466466-35-0856 W 20011001 TOl C ZF 3642 LUFP 6

466466-35-0856 W 20020923 C16 C ZR 3642 LUFP 6

466466-35-0856 W 20021001 803 C ZC 3642 LUFP 6

466466-35-0856 W 20021021 904 C ZC 3642 LUFP

466466-35-0856 W 20021021 170 C ZF 3642 LUFP 6

466466-35-0856 w 20021021 TOl C ZF 3642 LUFP 6

466466-35-0i56 W 20030309

C E 3642 Lurp 6

466466-47-S664 W 19910B06

M a 6796

466466-47-8664 W 19910B06

1'1 C 6796 LUFF

466466-47-8664 W 19910806

1'1 o 6796 LUFF

466466-47-8664 W 19910806 001 C ZC 6796 LUFF

466466-47-8664 W 19910806 C03 C ZR 6796 LUFF 8

466466-47-8664 W 19910930 4 M o 6796 LUFF 8

466466-47-8664 W 19920113 AOl C ZO 6796 LUFF 8

466466-47-8664 W 19920113 AOl C ZF 6796 I.UFF 8

466466-47-8664 W 19920217 2 1'1 o 6796 LUFF 8

466466-47-8664 w 19920217 I15 C ZF 6796 I.UFP B

466466-47-8664 W 19920921 1 M o 6796 LUFF 9

Appendix 13

466466-47-S664 W 19920921 I15 C ZF 6796 LUFF

466466-47-8664 W 19920929 4 M o 6796 LU!"F 8

466466-47-S664 W 19920928 I56 C ZF 6796 LU!"F 8

466466-47-8664 W 19921214

M a 6803 LU!"F 6

466466-47-8664, W 19921214

M o 6803 LUF!" 6

466466-47-8664 W 19921214 I30 C ZO 6803 LU!"F 6

466466-47-S664 W 19921214 I30 C ZF 6803 LUFF 6

466466-47-8664 W 19930215

M C 6803 LUFF 6

466466-47-8664 W 19930816

1'1 C 0803 LUFF 6

466466-47-8664 W 19931004

1'1 o 6903 LUFF 6

466466-47-S664 W 19931004 I70 C ZF 6803 LUFF 6

466466-47-8664 W 19940103

1'1 C 6803 LUFF 6

466466-47-8664 W 19941003 4 M o 6B03 LUFF 6

466466-47-8664 W 19941003 170 C ZF 6B03 LUFF 6

466466-47-8664 W 19941017 1 M o 6803 LUFF 6

466466-47-9664 W 19941019 I15 C ZF 6803 LUFF 6

466466-47-B664 W 19950911 1 M o 6803 LUFF 6

466466-47-8664 w 19950911 I15 C ZF 6803 LUFF

466466-47-8664 W 19951002 4 M o 6803 LOl'l'

466466-47-B664 W 19951002 170 C ZF 6803 LUFF

466466-47-8664 W 19960715 1 M o 6803 LUFF

466466-47-8664 W 19960716 I15 C ZF 6803 LUFF

466466-47-B664 W 19960722

1'1 a 0070 LUFF

466466-47-8664 W 19960722 2 M o 0070 LUFF 1

466466-47-8664 W 19960722 135 C ZO 0070 LUFF 1

466466-47-8664 W 19960722 135 C ZF 0070 LUFF 1

466466-47-8664 W 1,970217

M a 0930 LUFF 1

466466-47-8664 W 19970217 2 M D 0930 LUFF 1

466466-47-9664 W 19970221 I30 C ZO 0930 LUFF 1

466466-47-S664 W 19970221 I30 C ZF 0930 LUFF 1

466466-47-8664 W 19970303 4 1'1 o 0930 LUFF 1

466466-47-8664 W 19970303 170 C ZF 0930 LUFF 1

466466-47-8664 W 19980316

1'1 1 0930 LUFF

466466-47-8664 W 19980316 1 M o 0930 LUFF

466466-47-8664 W 19980319 115 C ZF 0930 LUFF 1

466466-47-8664 w 19980529

M F 0930 LUFF 1

466466-47-8664 W 19980529 101 C ZC 0930 LUFF 1

466466-47-8664 W 19980529 340 C ZC 0930 LUFF

466466-47-8664 W 20030309

C E 0930 LUFF

467467-06-2553 W 19800421 001 C ZC

467467-06-2553 W 19830224

M S 3644

6

467467-06-2553 W 19830224

1'1 C 3644 LUFP 6

467467-06-2553 W 19B30224 4 1'1 o 3644 LUFP 6

467461-06-2553 W 19930427

1'1 F 3644 LUFP 6

467467-06-2553 W 19841205

M a 3644 LUFP 6

467467-06-2553 W 19841205

M C 3644 LUI'P 6

467467-06-2553 W 19841205 o 1'1 D 3644 Lun 6

467467-06-2553 W 19850304

M o 3644 LUFP 6

467467-06-2553 W 19850603

1'1 o 3644 LUFI' '6

467467-06-2553 W 19850930

M o 3644 Lun 6

467467-06-2553 W 19B60414

M I" 3644 LUI"P 6

467467-06-2553 W 19870119

M a 3643 LUFP 6

467467-06-2553 W 19B70119

M C 3643 LUFP 6

467467-06-2553 W 19870119 2 M o 3643 LUFP 6

467467-06-2553 W 19870119 C03 C ZR 3643 LUFP 6

467467-06-2553 W 19870615

M o 3643 LUFP

467467-06-2553 W 19870921

1'1 o 3643 LUFP

467467-06-2553 W 19B81002

1'1 o 3643 LUFI'

467467-06-2553 W 1989091B

M a 3642 LUFp·6

467467-06-2553 W 19890919

M o 3642 LUFP 6

467467-06-2553 W 19891002 4 1'1 o 3642 LOFP 6

467467-06-2553 W 19910922

1'1 a 0544 LUFP

467467-06-2553 W 19910923

1'1 D 0544 LUFP

4'7467-06-2553 W 19920105

M S 3642 LUFP

467467-06-2553 W 19920105

1'1 o 3642 IiUFP 6

467467-06-2553 W 19920113 AOl C ZO 3642 LUFP 6

467467-06-2553 W 19920113 AOl C ZF 3642 LUFP 6

467467-06-2553 W 19920928 4 M o 3642 LUFP 6

page 21

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 261 of 295

467467-06-2553 w 19920928 IS6 C ZF 3642 LUFP

467467-06-2553 w 19930329

M C 3642 LUFP

467467-06-2553 w 19930823

M C 3642 LUFP

467467-06-2553 w 19931004 4 M o 3642 LUFP

467467-06-2553 w 19931004 I70 C ZF 3642 LUFP

467467-06-2553 w 19940502

M B 0070 LUFP

467467-06-2553 w 19940502 2 M o 0070 LUFP

467467-06-2553 w 19940509 130 C ZO 0070 LVFP

467467-06-2553 w 19940509 I30 C ZF 0070 LUFP

467467-06-2553 W 19941128 1 M o 0070 LUFP
467467-06-2553 w 19941202 115 C ZF 0070 LVFP 1

467467-06-2553 w 19950529 1 M o 0070 LUFP 1

467467-06-2553 W 19950602 I15 C ZF 0070 LUFP 1

467467-06-2553 w 19960304

M B 0848 LUFP

467467-06-2553 w 19960304

M o 0848 LUFP

467467-06-2553 w 19960308 130 C ZO 0848 LUFP

467467-0~-2553 w 19960308 130 C ZF 0848 LVFP

461467-06-2553 W 19970217

M B 0891 LUFP

467467-06-2553 w 19970217 2 M o 0891 LUFP

467467-06-2553 w 19970227 %30 C ZO 0891 LUFP

467467-06-2553 w 19970227 I30 C ZF 0891 LUFP 1

467467-06-2553 W 19970303 4 M o 0891 LUFP 1

467467-06-2553 W 19970303 I70 C ZF 0891 LVFP 1

467467-06-2553 w 19970901

M B 0846 LUFP 2

467467-06-2553 W 19970901

M C 0846

2

467467-06-2553 W 19970904 S08 C ZO 0846

2

467467-06-2553 W 19970904 S08 C ZF 0846

2

467467-06-2553 W 19971229 170 C ZF 0846

2

467467-06-2553 W 19980401 2 M 1 0810 LUFP 3

467467-06-2553 W 19990401
467467-06-2553 w 19980401

M B 0810 LUFP M C 0810 LUFP

467467-06-2553 W 19980401 2 M o 0810 LUFP

467467-06-2553 W 19980406 030 C ZO 0810 LUFP

467467-06-2553 W 19980406 030 C ZF 0810 LUFP

467467-06-2553 W 19980717

M P' 0810 LUn

467467-06-2553 W 19980717 101 C ZC 0810 LUFP

467467-06-2553 W 19980921 797 C ZC 0810 LUFP
467467-06-2553 w 19981001 300 C ZC 0810 LUFP

467467-06-2553 W 20030309

C E 0810 LIlFP

467467-06-3407 W 19800609

M C

467467-06-3407 w 19800609 003 C ZC

467467-06-3407 W 19800609 C03 C ZR

LUFT LUFT LVFT

467467-06-3407 W 19800609 C27 C ZR

LUFT

467467-06-3407 W 19830224
467467-06-3407 w 19830224 467467-06-3407 w 19830224

M B 9915 LUFT 7 M C 9915 LUFT 7 4 M !) 9915 LVFT

467467-06-3407 W 19830815 1 M o 9915 LUFT

467467-06-3407 W 19830930

M o 9915 LUFT

467467-06-3407 W 19840611

M o 9915 LVFT

467467-06-3407 W 19840820
467467-06-3407 w 198409JO

M o 9915 LUFT 7 M o 9915 LUFT 7

467467-06-3407 w 19841203

M B 9914 LUFT 6

467467-06-3407 W 19841203

M o 9914 LUFT 6

467467-06-3407 W 19850513 1 M o 9914 LUFT 6

467467-06-3407 W 19850930 4 M o 9914 LUFT 6

467467-06-3407 W 19851104

M o 9914 LUFT 6

467467-06-3407 W 19860818

M o 9914 LVFT 6

467467-06-3407 W 19870202

M o 9914 LVFT 6

467467-06-3407 W 19870504
467467-06-3407 w 19870907

1 M !) 9914 LUFT 1 M o 9914 LUFT

467467-06-3407 w 19880222 467467-06-3407 w 19881002

M o 9914 LUFT 4 M o 9914 LUFT

467467-06-3407 W 19891002 4 M o 9914 LUFT

467467-06-3407 W 19910930 4 M o 9914 LUFT

467467-06-3407 w 19920113 AOl C ZO 9914 LUFT

467467-06-3407 W 19920113 AOl C ZF 9914 LUFT

467467-06-3407 w 19920928

M o 9914 LUFT

467467-06-3407 W 19921116 4 M o 9914 LOFT

Appendix 13

467467-06-3407 w 19921116 I70 C ZF 9914 LUFT 6

467467-06-3407 w 19931004

M o 9914 LUFT 6

467467-06-3407 w 19931004 I70 C ZF ~914 LUFT 6

467467-06-3407 w 19941003 4 M o 9914 LUFT 6 467467-06-3407 w 19941003 I70 C ZF 9914 LUFT 6 467467-06-3407 w 19951002 4 M o 9914 LVFT 6
467467-06-3407 w 19951002 I70 C ZF 9914 LUFT 6

467467-06-3407 w 19961007 4 M o 9914 LUFT 6 467467-06-3407 w 19961007 I70 C ZF 9914 LUFT 6

467467-06-3407 w 19971006 -4 M 1 9914 LUFT 6

467467-06-3407 W 19971006 4 M o 9914 tuFT 6

467467-06-3407 w 19971006 I70 C ZF 9914 LUFT 6

467467-06-3407 w 19980202

M C 9914 LUFT 6

467467-06-3407 w 19981005 170 C ZF 9914 LUFT 6 467467-06-3407 w 19981005 TOl C ZF 9914 LUFT 6 467467-06-3407 w 19990913 991 C ZC 9914 LUFT 6
467467-06-3407 w 19990913 130 C ZO 0920 LUFT

467467-06-3407 w 19990913 I35 C ZF 0920 LUFT

467467-06-3407 w 19990913 W04 C ZF 0920 LUFT

467467-06-3407 w 20000323

C Z9 0920 LUFT

467467-06-3407 w 20001009 I1S C ZF 0920 LUFT

467467-06-3407 w 20010122

C ZG 0920 LUFT

467467-06-3407 w 20010702 TOl C ZF 0920 LUFT

467467-06-3407 W 20011022 I15 C ZF 0920 LUFT

467467-06-3407 W 20020124

C ZG 0920 LVFT

467467-06-3407 W 20020923 C16 C ZR 0920 LUFT

467467-06-3407 w 20021104 I15 C ZF 0920 LUFT

467467-06-3407 w 20030120

C ZG 0920 LUFT

467467-06-3407 W 20030309

C E 0920 LUFT

467467-62-5980 W 19611204 001 C ZC

467467-62-5980 W 19611204 C03 C ZR

LUFT

467467-62-5980 w 19671123 C27 C ZR

LIlFT

467467-62-5980 W 19830224

M B 9903 LUFT 6

467467-62-5980 W 19830224

M C 9903 LUFT 6

467467-62-5980 W 19830224

M o 9903 LUFT

467467-62-5980 w 19830'30 4 M o 9903 LVFT

467467-62-5980 W 19840930 4 M o 9903 LVFT

467467-62-5980 W 19850930 4 M o 9903 LUFT

467467-62-5980 W 19860602

M B 9907 LVFT

467467-62-5980 w 19860811 1 M o 9907 LVFT 6

467467-62-5980 w 198el002 4 M o 9907 LUFT 6

467467-62-5980 W 19891002 4 M o 9907 LVFT 6

467467-62-5980 W 19900115

M B 9903 LUFT 6

467467-62-5980 W 19900115 2 M o 9903 LUFT 6

467467-62-5980 W 19910930 4 M o 9903 LUFT 6

467467-62-5980 W 19920113 A01 C ZO 9903 LUFT

467467-62-5980 W 19920113 A01 C ZF 9903 LVFT

467467-62-5980 W 19920928

M o 990J LUFT

467467-62-5980 W 19921116

M o 9903 LUFT

467467-62-5980 W 19921116 170 C ZF 9903 LUFT 6

467467-62-5980 w 19931004 4 M o 9903 LVFT 6

467467-62-5980 W 19931004 170 C ZF 9903 LUFT 6

467467-62-5980 W 19940404

M B 0070 LOFT 1

467467-62-5980 w 19940404 2 M D 0070 LUFT

467467-62-5980 W 19940408 I30 C ZO 0070 LUFT

467467-62-5980 W 19940408 I30 C ZF 0070 LUFT

467467-62-5980 W 19950206 1 M o 00'0 LUFT

467467-62-5980 W 19950215 I15 C ZF 0070 LUFT

467467-62-5980 W 19960318 1 M o 0070 LUFT
467467-62-5980 w 19960320 I1S C ZF 0070 LVFT

467467-62-5980 W 19970106

M B 0919 LUFT

467467-62-5980 w 19970106 2 M !) 0919 LUFT

467467-62-5980 w 19970107 S08 C ZO 0919 LVFT

467467-62-5980 W 19970107 S08 C ZF 0919 LUFT 1 467467-62-5980 w 19970303 4 M o 0919 LVFT 1

467467-62-5980 W 19970303 170 C zr 0919 LUFT 1

467467-62-5980 W 19980427 1 M 1 0919 LUFT 1

467467-62-5980 W 19980427 1 M o 0919 LUFT 1

Page 22

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 262 of 295

467467-62-5980 w 19980504 115 C zr 0919 LurT

467467-62-5960 w 19990102

C ZG 0919 LUFT

467467-62-5980 w 19991108 115 C ZF 0919 LUFT

467467-62-5980 w 20000327 993 C ZC 0919 LurT

467467-62-5980 w 20000327 060 C ZO 9903 LUFT

467467-62-5980 w 20000327 060 C ZF 9903 LurT

467467-62-5980 w 20000327 W04 C ZF 9903 LUFT

467467-62-5980 w 20001002 170 C ZF 9903 LUFT

467467-62-5960 w 20001002 TOl C ZF 9903 LUFT

467467-62-5980 w 20011001 170 C ZI' 9903 LUFT

467467-62-5980 w 20011001 TOl C ZF 9903 LurT

467.67-62-5980 w 20020923 C16 C ZR 9903 LUFT 6

467467-62-5980 w 20021007 803 C ZC 9903 LUFT 6

467467-62-5980 w 20021021 804 C ZC 9903 LUrT 6

467467-62-5980 w 20021021 170 C ZF 9903 LUFT 6

467467-62-5980 w 20021021 TOl C ZP 9903 LurT 6

467467-62-5980 w 20021031 300 C ZC 9903 LUFT 6

467467-62-5980 w 20030309

C Ii: 9903 LUFT 6

467467-62-5980 w 20030309

C Ii: 9903 LUFT 6

467467-62-5980 w 20030309

C Ii: 9903 LUFT 6

551551-61-3349 b 19840823

M B 6754

551551-61-3349 b 19840823

M C 6754 LUFF 7

551551-61-3349 b 19840823 o M o 6754 LUFF 7

551551-61-3349 b 19840823 001 C ZC 6754 LUFF 7

551551-61-3349 b 19940823 C03 C ZR 6754 LUFF 7

551551-61-3349 b 19840930 4 M o 6754 LUFF 7

551551-61-3349 b 19841105 1 M o 6754 LUFF

551551-61-3349 b 19850114

M B 6768 LUFF

551551-61-3349 b 19850114 2 M o 6768 LUFF

551551-61-3349 b 19850930 4 M o 6768 LUFF

551551-61-3349 b 19851104 1 M o 6708 LUFF

551551-61-3349 b 19870209

M B 6800 LUI'I'

551551-61-3349 b 19870209

M o 6900 LUFF

551551-61-3349 b 19970302 1 M o 6800 LUI'I'

551551-61-3349 b 19870713 1 M o 6900 LUFF

551551-61-3349 b 19871116 1 M o 6900 LUI"

551551,61-3349 b 19880606 1 M o 6800 LUFF 7

551551-61-3349 b 19981002 4 M o 6800 LUFF 7

551551-61-3349 b 19890814 1 M o 6800 LUFF 7
551551-61-3349 b 19891002 4 M o 6800 LUFF 7

551551-61-3349 b 19900409

M B 6767 LUFF 7

551551-61-3349 b 19900409 2 M o 6767 LUFF 7

551$51-61-3349 b 19910408 1 M o 6767 LurF 7

551551-61-3349 b 19910930

M o 6767 LUFF 7

551551-61-3349 b 19911202

M Il 6766 LUFF

551551-61-3349 b 19911202

M o 6766 LUFr

551551-61-3349 b 19920113 A01 C ZO 6766 LUI'I'

551551-61-3349 b 19920113 AOl C ZF 6766 LUFF

551551-61-3349 b 19920928 4 M o 6766 LUFF

551551-61-3349 b 19920928 156 C ZF 6766 LUFF

551551-61-3349 b 19930927 1 M o 6766 LUFF

551551-61-3349 b 19930927 I15 C ZF 6766 LUFF

551551-61-3349 b 19931004 4 M o 6766 LUFF

551551-61-3349 b 19931004 I70 C ZF 6766 LUFF

551551-61-3349 b 19940627 1 M o 6766 LUFF

551551-61-3349 b 19940627 115 C ZF 6766 LUFF

551551-61-3349 b 19941003 4 M o 6766 LUFF

551551-61-3349 b 19941003 I70 C ~F 6766 LUFF

551551-61-3349 b 19941212 1 M o 6766 LUFF

551551-61-3349 b 19941215 115 C ZF 6766 LUFF

551551-61-3349 b 19950529

M a 0070 LUFF

551551-61-3349 b 19950529 2 M o 0070 LUFF

551551-61-3349 b 19950602 135 C ZO 0070 LUFF

551551-61-3349 b 19950602 135 C ZI' 0070 LUFI'

551551-61-3349 b 19960930 1 M o 0070 LUI"

551551-61-3349 b 19961010 115 C ZF 0070 LUFF

551551-61-3349 b 19970217

M B 0928 LUFF 1

551551-61-3349 b 19970217 2 M o 0928 LUFF 1

Appendix l3

551551-61-3349 b 19970221 130 C ZO 0928 Lurr

551551-61-3349 b 19970221 130 C zr 0928 LurF

551551-61-3349 b 19970303 4 M o 0928 LUFr

551551-61-3349 b 19970303 170 C ZF 0928 LUFr

551551-61-3349 b 19960130

C ZCl 0928 LUFI'

551551-61-3349 b 19980316

M 1 0928 LUFr

551551-61-3349 b 19980316 1 M o 0928 LUFF

551551-61-3349 b 19980319 115 C ZF 0928 LUFF

551551-61-3349 b 19990624

C ZG 0928 LUFF

551551-61-3349 b 19991011 I1S C zr 0928 LUI"

551551-61-3349 b 20000505

C ZCl 0926 LUFF

551551-61-3349 b 20001204 115 C zr 0928 LUFF

551551-61-3349 b 20010426

C ZG 0928 LUFF

551551-61-3349 b 20010702 TOl C ZF 0928 LUFF

551551-61-3349 b 20011203 115 C ZF 0928 LUFF

551551-61-3349 b 20020311

C ZCl 0929 LUFF

551551-61-3349 b 20020923 C16 C ZR 0928 LUFF

551551-61-3349 b 20021202 115 C ZF 0928 LUFF

551551-61-3349 b 20030309

C Ii: 0929 LUI'"

551551-61-3349 b 20030309

C Ii: 0929 LlJFF

594594-20-2280 0 19940404

M B 9906

594594-20-2280 0 19940404

M C 9906 LUFT

594594-20-2280 0 19940404 o M o 9906 LUFT

594594-20-2290 0 19940404 003 C ZC 9906 LUFT 8

594594-20-2280 0 19940404 A02 C ZO 9906 LUFT 8

594594-20-2280 0 19940404 A02 C ZF 9906 LUFT 8

594594-20-2280 0 19940801

M B 9910 LUn 7

594594-20-2280 0 19940801 2 M o 9910 LUFT 7

594594-20-2280 0 19940801 130 C ZO 9910 LUFT 7

594594-20-2280 0 19940801 I30 C ZF 9910 LUI"T 7

594594-20-2280 0 19941003 4 M o 9910 LUFT 7

594594-20-2290 0 19941003 170 C zr 9910 LUFT 7

594594-20-2280 0 19941031

M C 9910 LUFT 7

594594-20-2290 0 19950102

M o 9910 LUFT 7

594594-20-2280 0 19950109 115 C ZF 9910 LUFT 7

594594-20-2280 0 19950403

M B 9926 LUFT 6

594594-20-2280 0 19950403

M o 9926 LUFT 6

594594-20-2280 0 19950404 130 C ZO 9926 LUFT 6

594594-20-2280 0 19950404 130 C ZF 9926 LUFT 6

594594-20-2280 0 19950710 1 M o 9926 LUFT 6

594594-20-2280 0 19950713 115 C ZF 9926 LUFT 6

594594-20-2280 0 19951002 4 M o 9926 LUFT 6

594594-20-2280 0 19951002 170 C ZF 9926 LUFT

594594-20-2280 0 19951106 1 M o 9926 LUI'T

594594-20-2280 0 19951106 115 C 21' 9926 LUFT

594594-20-2280 0 19960e16

M I' 9926 LUFT

594594-20-2280 0 19970113

M B 9906 LUrT

594594-20-2280 0 19970113

M C 9906 LUrT

594594-20-2280 0 19970113 o M o 9906 LurT

594594-20-2280 0 19970113 023 C ZC 9906 LUFT

594594-20-2280 0 19970113 C03 C ZR 9906 LUFT

594594-20-2290 0 19970113 C27 C ZR 9906 LurT 8

594594-20-2280 0 19970114 A04 C ZO 9906 LUFT e

594594-20-2280 0 19970114 A04 C ZF 9906 LUFT 8

594594-20-2280 0 19970217

M B 9910 LUrT 7

594594-20-2280 0 19970217 2 M o 9910 LUFT 7

594594-20-2280 0 19970220 130 C ZO 9910 LUFT 7

594594-20-2260 0 19970220 130 C ZF 9910 LUFT 7

594594-20-2280 0 19970825 1 M o 9910 LUFT 7

594594-20-2280 0 19970825 115 C ZF 9910 LUFT

594594-20-2280 0 19971006 4 M o 9910 LUFT

594594-20-2280 0 19971006 170 C ZF 9910 LUFT

594594-20-2290 0 19980223 1 M o 9910 LUFT

594594-20-2280 0 19980223 115 C ZF 9910 LUFT

594594-20-2280 0 19980518

M 1 9924 LUFT

594594-20-2280 0 19980518

M B 9924 LUFT

594594-20-2280 0 19980518

M o 9924 LUFT

594594-20-2280 0 19980521 130 C ZO 9924 LUFT

Page 23

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 263 of 295

594594-20-2280 0 19980521 130 C zr 9924 LUrT

594594-20-2280 0 19981005 170 C ZF 9924 LUFT

594594-20-2280 0 19981005 TOl C Z~ 9924 LUFT

594594-20-2280 0 19981116 115 C ZF 9924 LUFT

594594-20-2280 0 19990517 I15 C ZF 9924 LUFT 6

594594-20·2280 0 19990726 991 C ZC 9924 LU~T 6

594594-20-2280 0 19990726 I30 C ZD 0919 LUFT 1

594594-20-2280 0 19990726 I30 C ZF 0919 LUFT 1

594594-20-2280 0 19990726 W04 C ZF 0919 LUrT 1

594594-20-2280 0 20000329

C za 0919 LUFT 1

594594-20-2280 0 20000731 993 C ZC 0919 LUFT 1

594594-20-2280 0 20000731 060 C ZO 9924 LUFT 6

594594-20-2280 0 20000731 D60 C ZF 9924 LUFT

594594-20-2280 0 20000824 S08 C ZD 9983 LUFT 7

594594-20-2280 0 20000824 soe C ZF 9983 LUFT 7

594594-20-2280 0 20000824 C04 C ZR 9983 LUFO 7

594594-20-2280 0 20000824 C24 C ZR 99B3 LUFG 7

594594-20-2280 0 20001002 170 C ZF 9983 LUFG 7

594594-20-2280 0 20001002 TOl C ZF 9983 LUFa 7

594594-20-2280 0 20001009 115 C ZF 9983 LUFa 7

594594-20-2280 0 20010115 115 C ZF 9983 LUFa 7

594594-20-2280 0 20010409 I1S C ZF 9983 LUFa 7

594594-20-2280 0 20010709 I15 C ZF 9983 Lu~a 7

594594-20-2280 0 20011001 170 C ZF 9983 LUFa 7

594594-20-2280 0 20011001 TOl C ZF 99S3 LUFa 7

594594-20-2280 0 20011008 115 C ZF 9983 LUFa 7

594594-20-2280 0 20020415 X15 C ZF 9983 LUFa 7

594594-20-2280 0 20020923 C16 C ZR 9983 LUFa 7

594594-20-2280 0 20021007 803 C ZC 9983 LUFa 7

594594-20-2280 0 20021020 TOl C ZF 9983 LUFa 7

594594-20-2280 0 20021021 804 C ZC 9983 LUFa 7

594594-20-2280 0 20021021 170 C ZF 9983 LOFa 7

594594-20-2280 0 20021021 TOl C ZF 99B3 LUFa 7

594594-20-2280 0 20021028 X15 C ZF 9983 LUFa 7

594594-20-2280 0 20030309

C E 9983 LUFG 7

594594-20-2280 0 20030309

C S 9983 LU~Q 7

594594-20-2280 0 20030309

C E 9983 LUFa 7

Appendix 13

Page 24

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 Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 56 of 295
Report on the~ Impact of Personnel Policies, Procedures and Practice on Racial Disparities at LUFKIN INDUSTRIES, INC.
McClain, et al. vs. LUFKIN INDUSTRIES, INC. Case No. 9:97CV063
Prepared by Richard F. Martell, Ph.D.

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TABLEOF CONTENTS
I. QUALIFICATIONS, ASSIGNMENT, AND MATERIALS REVIEWED
II. SUMMARY OF FINDINGS
III. THEORY AND RESEARCH ON STEREOTYPING AND DISCRIMINATION
A. What Is A Stereotype?
B. What Are The Effects Of Racial Stereotypes On Personnel Evaluations And Decisions?
C. When Do Stereotypes Lead to Discrimination In Personnel Evaluations And Decisions?
IV. LUFKIN'S PERSONNEL PROCEDURES, POLICIES, AND PRACTICES ARE SUBJECTIVE, AMBIGUOUS, AND HIGHLY DISCRETIONARY
A. Initial Job Assignments Are Based On Criteria And Measurement Practices That Are Subjective, Ambiguous, And Highly Discretionary
B. Promotions For Non-Entry Bargaining Unit Positions Are Based On Criteria And Measurement Practices That Are Subjective, Ambiguous, And Highly Discretionary
C. Selection Decisions For Salaried Employees Are Based On Criteria And Measurement PracticesThat Are Subjective, Ambiguous, And Highly Discretionary
D. Allocation of Opportunities For Training And Career Development Are Subjective, Ambiguous, And Highly Discretionary
V. LUFKIN'S ORGANIZATIONAL CULTURE CONTRIBUTES TO AND SUSTAINS RACIAL DISPARITIES WITHIN THE WORKFORCE
A. Lufkin Lacks Commitment To Systematically Measuring Whether Employment Opportunities Are Equally Available To All Employees Regardless Of Race And To Monitoring The Treatment Aud Status Of African-American Employees
B. Lufkin Does Little To Implement Personnel Policies, Procedures And Practices Designed To Discourage the Use of Racial Stereotypes In Personnel Decision-making
VI. CONCLUSION
REFERENCES, CURRICULUM VITAE, APPENDICES

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I. .QUALIFICATIONS, ASSIGNMENT; ANJ)MATERIALS REVIEWED
]. I am Associate Professor of Psychology at Montana State University. I received a Ph.D. in psychology from New York University in 1988, where my studies were concentrated in industrial-organizational psychology. My doctoral dissertation examined organizational factors that influence stereotyping and discrimination in the workplace and was awarded the NYU Douglas H. Fryer Award for Outstanding Scholarship on Behavior in Organizations. My first academic appointment, from 1988-1992, was in the department of psychology at Rice University, Houston, Texas. From 1992 to 1996, I was on the faculty of Columbia University, Teachers College, where I was promoted with tenure, to Associate Professor. My research program is in human resource management, and one of my specific interests is in the dynamics of stereotyping and discrimination in organizational settings. Much of my research in this area is concerned with identifying the conditions under which individuals stereotype and discriminate when making personnel evaluations and decisions, pinpointing the psychological mechanisms responsible for biased assessments, and examining the impact of discrimination against protected class members on their ensuing organizational mobility. My investigation in this latter area is funded by the National Science Foundation. My research is published in top-tier, peer-reviewed scientific journals, and I currently serve on the editorial board of the Journal of Applied Psychology. In addition, over the past fifteen years of university teaching, I have covered the topics of stereotyping and discrimination in organizational settings at both the undergraduate and graduate levels. My curriculum vitae, a statement of previous expert witness experience, and my rate sheet are attached to this Report.
2. I have been retained by Goldstein, Demchak, Baller, Borgen & Dardarian, LLP, counsel for the plaintiffs, to review Lufkin Industries, Inc. ("Lufkin") personnel policies, procedures, and practices and assess their impact on initial job assignments, selection and promotion decisions, compensation, and access to training and career opportunities of AfricanAmericans employed at Lufkin.
3. In preparing this Report on the impact of personnel policies, procedures and practices on racial disparities at Lufkin, I have reviewed the deposition testimony of managers and supervisors who have responsibility for human resource management policies, procedures and practices at Lufkin, and that pertain to personnel decision-making at Lufkin. These include Mr. Viron Barbay, Human Resources Representative; Mr. Richard Gilley, Manager, Trailer Division; Mr. John Glick, Vice-President and General Manager, Power Transmission Division; Mr. John Havard, Manager, Human Resources; Mr. Larry Long; Manager, Oilfield Manufacturing; Mr. Paul Perez, Vice-President, Human Resources; Mr. Steve Reynolds, General Manager, Foundry Division. I have also read the deposition testimony of Ms. Susan Felts, Secretary to the General Manager, Trailer Division. I have also reviewed the Statistical Analysis of Racial Patterns in Lufkin Workforce prepared by Richard Drogin, Ph.D. Appendix I contains a complete list of the specific documents I have reviewed.
4. The conclusions expressed in this Report are based on the deposition testimony of numerous Lufkin managers and supervisors as well as my review of Lufkin documents that pertain to personnel decision-making. My analysis of racial disparities at Lufkin draws upon my expertise in theory and research dealing with stereotyping and discrimination in the workplace.

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Th_e conclu.sion~ expressed in this Report _a~~ _based on my professional background and _ experience as an industrial-organizational psychologist trained in the scientific study and .application of human resource management practices. In this Report, I will apply established social science theory and research on stereotyping and discrimination to the facts of the case.
II. SUMMARY OF FINDINGS
5. This Report is provisional. As stated in their deposition testimony, Mr. John Glick, Vice-president and General Manager of Power Transmission, and Mr. Richard Gilley, Manager of the Trailer Division, indicated that there were other individuals who had more knowledge of Lufkin personnel practices in their respective departments. Moreover, I understand that the deposition of Mr. John Havard, who was designated by Lufkin to provide testimony regarding Lufkin personnel practices in several areas, has not been completed. Further, I was informed by plaintiffs' counsel that the court on July 11, 2003 ordered that the parties could take additional depositions. Given that additional discovery is forthcoming, I reserve the right to amend, either in writing, deposition or at trial any aspect of the Report that may have to be modified or augmented because of information received since the production of this Report.
6. I have concluded that distinctive features of Lufkin's Human Resource Management System ("HRMS") are responsible for racial disparities that currently exist and have existed at Lufkin during the time period covered by this lawsuit. Having analyzed the personnel procedures, policies and practices embodied in the HRMS, I have identified three company-wide personnel practices that systematically disadvantage African-Americans at Lufkin.
7. Personnel evaluations and decisions are based on criteria and measurement procedures and practices that are very subjective, ambiguous, and discretionary in nature. Lufkin does not have in place measures to prevent racial stereotypes from systematically impacting initial job assignments, and selection and promotion decisions.
8. Training and career development opportunities are assigned to Lufkin employees in a manner that is very subjective and at the personal discretion of Lufkin management, thus, permitting racial stereotypes to influence opportunities for training and career development.
9. The Lufkin corporate culture lacks commitment to monitoring the treatment and status of African-American employees and does little to implement personnel policies, procedures and practices that discourage the use of racial stereotypes in personnel-decision making.
10. In the remainder of this Report, I will provide an overview of scientific theory and research on stereotyping and discrimination. The aim is to document the effects of racial stereotypes on personnel decision-making, and to pinpoint personnel practices and organizational factors that foster the use of racial stereotypes in the workplace. I will then outline the basis of my Opinion.

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III. OVERVIEW OF THEORY AND RESEARCH ON STEREOTYPING AND DISCRIMINATION.
) ). Stereotyping and discrimination have been the topic of scientific research for over 80 years, resulting in the publication of thousands ofjournal articles and books. These research investigations have used a variety of research methods including controlled laboratory and field experiments, archival studies and survey research, which, together, produce a well-established body of scientific theory and research. Three key questions have been the subject of much of this research, namely, what is a stereotype, what are the effects of stereotypes on personnel evaluations and decisions, and when do stereotypes lead to workplace discrimination? The answers to these three questions are germane to my analysis and opinion in this case.
A. What is a stereotype?
12. A stereotype is an organized set of conscious and unconscious beliefs regarding the traits, attributes, and behaviors thought to characterize individual members of identifiable groups (Hamilton & Sherman, 1994; Hilton & von Hippel, 1996; Martell, Parker, Emrich, & Swerdlin, 1998; Martell & DeSmet, 2001). African Americans constitute one such group. In the case of African-Americans, stereotypic depictions are mostly unfavorable. African-Americans are seen as less intelligent, hard-working, ambitious, responsible, organized, and successful than Whites; and they are more often depicted as ignorant, dishonest, lazy, and complaining (Davis & Smith, 1991; Dovidio & Gaertner, 1986; Gaertner & McLaughlin, 1983; Judd, Park, Ryan, Bauer, & Kraus, 1995; Wittenbrink, Judd, & Park, 1997). Racial stereotypes also have a strong affective component, causing Whites to have ambivalent (and sometimes hostile) feelings toward African-Americans. Racial stereotypes are widely shared and resistant to change (Devine, 1989; Devine & Baker, 1991; Dovidio, Brigham, Johnson, & Gaertner, 1996; Dovidio, Evans, & Tyler, 1986; Dovidio & Gaertner, 1986; Feagin & Sikes, 1994; Judd et aI., 1995; Katz, Hass, & Wackenhut, 1986; Stangor, Sullivan, & Ford, 1991; Zarate & Smith, 1990).
13. Grouping people into different ethnic and racial categories is a fundamental feature of human perception. Research demonstrates the ease with which people are categorized along ethnic and racial lines (Fiske & Neuberg, 1990; Fiske & PaveIchak, 1986). For example, an African-American male is more likely (and more quickly) to be categorized, and subsequently treated, as African-American than as male (Zarate, Bonilla, & Luevano, 1995; Zarate & Smith, 1990. Once categorized as a member of a particular group, and in the absence of any systematic efforts to do otherwise, the stereotypic traits, behaviors, and expectations that comprise the category are attributed to individual group members. Stereotyping occurs quickly and with ease, as it is an efficient way to form judgments and reach conclusions regarding the likely attributes of members of a stereotyped group. Given the mostly negative content of racial stereotypes, African-Americans are disadvantaged with respect to how they are subsequently perceived and treated. In all, stereotypes often serve as an easy default option for individuals in the course of decision-making (Pendry & Macrae, 1994).
14. A good deal of stereotyping occurs automatically, that is, outside of conscious awareness (Bargh, 1999; Bodenhausen & MacCrae, 1996; Wilson & Brekke, 1994; Wittenbrihk et aI., 1997). Stereotypic beliefs appear to be so "overlearned" that they stand at the ready,

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.. ~-. ·~wajting to he applied in ways that escape conscious awareness. Much like the proprioceptive system manages sensory infonnafion tokeeps one's body properly oriented in space, with no conscious awareness, unconscious stereotypes keep the belief system balanced and free of the dissonance that would accompany conscious awareness of our stereotypic beliefs. This helps to explain how even well-meaning people can unwittingly invoke stereotypes and proceed to discriminate in a manner that escapes conscious awareness. An example is a classic study which found that in the course of conducting an interview, White interviewers unknowing sat significantly farther away from African-American applicants than from White applicants and concluded the interview approximately 25% sooner (Word, Zanna, & Cooper, 1974; for similar examples, see Fazio, Jackson, Dunton, & Williams, 1995; Dovidio, Kawakami, Johnson, Johnson, & Howard, 1997; and von Hippel, Sekaquaptewa, & Vargas, 1997).
15. Stereotypes are pervasive and enduring. As children and continuing into adulthood, people develop attachments to their own racial group (Uthe in-group"), to which mostly positive attributes and behaviors are assigned, whereas, members of other racial groups are seen more negatively ("the outgroup"), to which mostly negative attributes and behaviors are assigned. The fonnation of racial "in-groups" and "out-groups" proceeds rather automatically, and these distinctions are maintained by strong cultural values, ongoing socialization processes and signs and symbols perpetuated by the media (Aronson, Wilson, & Akert, 2000). Once firmly in place, stereotypes remain largely resistant to change, even in the face of disconfirming evidence. There is one exception, however. Research indicates that African-Americans do not demonstrate a strong in-group favorability bias (Fiske, 1997). This is testimony to the power of racial stereotypes, where once stigmatized by the dominant White culture, and treated in a way that reinforces the stigma, it is not easy for African-Americans to escape the influence of unfavorable racial beliefs. Thus, even the victims of stereotypes can succumb to cultural forces embedded in schools, the media, and elsewhere throughout society, so as to come to agree, at least unconsciously, with society's generally negative depiction of African-Americans.
B. What are the effects of racial stereotypes on personnel evaluations and decisions?
16. Social science research (see paragraphs 17-24 below) has documented that stereotypic beliefs, if allowed to proceed unchecked, lead to discrimination against AfricanAmericans on a wide range ofpersonnel assessments. This occurs because decision-makers begin to think in racial tenns when race is irrelevant to actual job qualifications. Once categorized along racial lines, African-Americans are assumed to possess the characteristics attributed to the racial group, even in the absence of concrete evidence. Because racial stereotypes cause African-Americans to be seen as lacking the requisite skills, abilities, or behaviors associated with, among other things, competent work performance, managerial potential, and organizational commitment, they will be unfavorably judged. Racial stereotypes hurt-they cause African Americans to be judged more harshly and accorded less favorable treatment than their White counterparts.
17. African-Americans are discriminated against in hiring and initial job assignments. As compared to their White counterparts, African-Americans are likely to be tracked into Iowskill, low pay, low prestige jobs and task assignments that are less likely to lead to more senior,

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, higher paying positions(Bendrick, Jackson, & Reinoso, 1994; Bills, 1988; Braddock & McPartland, 1987; Feagin & Sikes, 1994; Ilgen & Yountz, 1986; Kaufman, 1986; Lefkowitz, 1994; McConohay, 1983; Mueller, Parcel, & Tanaka, 1989; Neckerman & Kirschenman, 1991; Pettigrew & Martin, 1987; Sigelman & Welch, 1991}.
18. African-Americans are discriminated against in work perfonnance assessments and promotion decisions. As compared to their White counterparts, the work performance of African-Americans is often judged less favorably and their rates of promotion are lower (Baldi & McBrier, 1997; DeJung & Kaplan, 1962; Greenhaus, Parasuraman & Wormley, 1990; Hamner, Kim, Baird & Bigoness, 1974; Kraiger & Ford, 1985; Landau, 1995; Pulakos, White, Oppler, & Borman, 1989; Sackett & DuBois, 1991; Sackett, DuBois, & Noe, 1991; Weil & Wesley, 1993).
19. Explanations for the success of African-Americans reveal racial bias. As compared to their White counterparts, the work performance of African-Americans is more likely to be attributed to external and/or unstable causes and not to their inherent ability (Greenhaus & Parasuraman, 1993; Heneman, Greenberger, & Anonyuo, 1989; lIgen & Yountz, 1986; Yarkin, Town, & Wallston, 1982). This form of racial bias serves to diminish the accomplishments of African-Americans in work settings.
20. African-Americans are discriminated against with respect to job training and developmental opportunities. This is especially likely when such efforts, if successful, will increase the representation of African-Americans in higher status positions occupied primarily by Whites. This occurs due to a perceived threat among Whites, as when a mostly White group is threatened with the prospect of racial integration (Fiske & Ruscher, 1993; Pettigrew & Meertens, 1995; Smith, 1993). Moreover, there is much research showing that African-Americans, as outgroup members, are far less likely to receive help and assistance, formal or informal, than their White counterparts (Brewer & Brown, 1998; Dovidio, 1984). The basic principle is that people exhibit less help to someone they perceive to be a member of an out-group. In all, as compared to their White counterparts, African-Americans are more frequently denied key, job-related experiences needed for advancement (ligen & Yountz, 1986; Powell & Butterfield, 1997; Thomas & Alderfer, 1989), are assigned jobs of less complexity and challenge (Braddock & McPartland, 1987; Kaufman, 1986; Lefkowitz, 1994; Mueller et aI., 1989), and are accorded less help, direction, information and guidance (Dovidio, 1984).
21. African-Americans often find themselves isolated from the informal social networks that are critical to success in organizations. This stems from a feeling of personal discomfort among Whites, who are the in-group, with people perceived as dissimilar to themselves, and speaks to the negative affective component of stereotypes (Stangor, Sullivan, & Ford, 1991). As a result, African-Americans find that they have less access to important sources ofjob-related information as well as less support from White supervisors and co-workers. Differential access to job-related information has negative consequences for African-Americans, resulting in less awareness of opportunities for training and career advancement than their White counterparts (Feagin & Sikes, 1994; Greenhaus et aI., 1990; ligen & Yountz, 1986; Landau, 1995; Thomas & Alderfer, 1989).

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. 22, The workplace discrimination faced by African-Americans produces negative, long-term consequences for organizational mobility, resulting in the overrepresentation of~'o· _.. African-Americans in low-paying, lower status jobs that offer limited opportunity for future promotion. Organizational scholars recognize the lasting impact of early job experiences, opportunities and performance evaluations on individuals' organizational mobility (Berlew & Hall, 1966; Forbes & Piercy, 1991; Martell et aI., 1996; Rosenbaum, 1979, 1984,1989; Sheridan, Slocum, Buda, & Thompson, 1990). Individuals who are initially selected into skilled jobs, and who are perceived and treated more favorably early on in their career, are significantly more likely to advance within the organization. This is because most organizations rely on "career ladders" in which certain jobs or positions provide the pool of candidates from which to promote individuals (Baron, Davis-Blake, & Bielby, 1986; Stewman, 1986). Individuals assigned to jobs that are more favorable accrue a promotion advantage over their counterparts who have not been. If allowed to stand, racial discrimination in personnel evaluations and decisions produces segregation in organizations, whereby African-Americans are over-represented in low skilled, lower paying jobs and positions, with little opportunity to move into positions of higher status in the organization.
23. Racial segregation in organizations is the result of many very "small" decisions that disadvantage African-Americans. Although counterintuitive, the proposition that small differences can yield rather large and pervasive results is a key element of complexity theory (Casti, 1994; Eidelson, 1997). Social science research demonstrates how a very small degree of bias, favoring one group over another, is sufficient to yield widespread and enduring racial segregation. Schelling (1971), for example, examined the impact of racial preferences on patterns of segregation that evolve over time. To do this, he constructed a hypothetical checkerboard "neighborhood" so that every individual (Black or White) occupied a particular square. Each individual's degree of dissatisfaction and thus propensity to move to another square was determined by the racial composition of the immediately adjacent squares. Results of the simulation yielded a remarkable phenomenon: Even an extremely modest preference for one's own racial group produced, over time, highly racially-segregated neighborhoods. This finding illustrates the sizeable impact of small and subtle preferences on racial segregation. Similar findings were observed in a computer simulation designed to model the organizational processes that guide initial hiring and subsequent mobility up the organizational hierarchy. In this study, an extremely small amount of bias against out-group members was sufficient to diminish their organizational mobility and result in widespread segregation throughout the company (Martell et aI., 1996).
24. Racial segregation has the unfortunate consequence of reinforcing racial stereotypes insofar as the underrepresentation of African-Americans in particular jobs and occupations unwittingly supports the implicit belief that African-Americans are not qualified for these jobs and occupations. As such, certain jobs and careers become racially-stereotyped as more (or less) suited for African-Americans. Thus, by dintof their underrepresentation (or complete absence) in more skill-based, higher paying jobs and careers, African-Americans are disadvantaged (Morrison & von Glinow, 1990; Kraiger & Ford, 1985).

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C. When Jlo stereotypes lead to discrimination?
25. Discrimination against African-Americans in work settings is not inevitable. This underscores a fundamental assumption that psychologists have recognized for decades - attitudes do not always lead to their corresponding behavior. Similarly, stereotypes do not lead inevitably to discrimination (American Psychological Association, 1991; Blanchard, Lilly, & Vaughn, 1991; Blanchard, Crandall, Brigham, & Vaughn, 1994; Brewer, 1996; Eberhardt & Fiske, (996). An abundance of social science theory and research demonstrates that whether stereotypes are used is "context-dependent." As noted by Nobel Laureate, Gary Becker, in his 1992 Nobel Lecture, " ... sometimes the environment greatly softens, while at other times it magnifies, the impact of a given amount of prejudice" (p. 387). The point ~ere is that the nature of an organization's personnel policies, procedures and practices plays a key role in regulating the impact of stereotypes in the workplace. Careful attention to these factors in the design and implementation of an organization's personnel decision-making processes discourages racial stereotyping and thus enhances the treatment and status of African-Americans in work settings.
26. Because people tend to hold racial stereotypes, if left to collect and interpret information in the absence of explicit criteria and objective measurement procedures and instruments, it is likely that much "stereotype-confirming information" will emerge and disadvantage African-American job candidates. In contrast, if decision-makers are guided by criteria and measurement practices that are more objective and unambiguous in nature, then personal discretion (which fosters stereotypic thinking) will assume a far less significant role. For, as more accurate and unbiased information is encountered, decision-makers are faced with stereotype-inconsistent information, that is, work-related information depicting AfricanAmericans in a more positive and less stereotypically negative manner. As a result of encountering stereotype-inconsistent information, African-Americans are increasingly likely to be categorized not in terms of their race (which disadvantages African-Americans) but in other more positive ways such as a "good worker" (Brewer, 1996; Fiske & Neuberg, 1990; Rothbart & John, 1985). The point here is that any individual may be categorized in numerous ways (e.g., age, race, sex, "good-worker"), depending on the nature of the information used by decisionmakers. Information gathering strategies that are more structured in nature, insofar as explicit, unambiguous criteria and measurement procedures are in place, will cause information regarding the actual skills, abilities and work performance of African-Americans to be more accessible; this, in tum, reduces the negative impact of racial stereotypes on the perception, judgment and treatment of African-Americans.
27. Furthermore, assessments based on information that is very subjective and discretionary in nature may cause decision-makers to be overly confident in the accuracy and "unbiased nature" of their evaluations and decisions. This-occurs because decision-makers mistakenly perceive that they have adequate (and unbiased) information with which to render what they believe to be are accurate, non-discriminatory personnel evaluations and decisions (Brewer, 1996; Darley & Gross, 1983; Denhaerinck, Leyens, & Yzerbyt, 1989; Hilton & Fein, 1989; Yzerbyt, Schadron, Leyens, & Rocher, 1994). Research reveals that decision-makers are often not unaware that their assessments of African-Americans reflect stereotypic thinking. A long line of research suggests that decision-makers are not in a position to assert what they did not consider in their decisions (Bargh, 1999; Wilson & Brekke, 1994;Wittenbrink et aI., 1997).

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It is·important, therefore, to examine what decision-makers do, and not what they say or believe;

to determine whetherbiased evaluations and decisions are being made:

.

-

28. Organizations can control stereotyping in personnel decision-making. Many organizations understand that to discourage discrimination in evaluations and decisions it is important to: (a) employ evaluative criteria that are objective, unambiguous and well-defined; (b) evaluate job candidates using measurement practices and procedures that produce reliable and valid assessments; (c) ensure that all relevant prescribed human resource management (HRM) policies, procedures and practices are in written form, so that personal discretion in decisionmaking is minimized; and, (d) provide adequate training and oversight in the implementation of HRM policies, procedures and practices that discourage discrimination in personnel evaluations and decisions (Brief, Buttram, Reizenstein, Pugh, & Douglas, 1997; Konrad & Linnehan, 1995). As organizations institute more formal HRM p~ocedures to help guide decision-makers, a practice that serves to limit the personal discretion of individual decision-makers, the treatment and status of members of "protected classes" improves significantly (Konrad & Linnehan, 1995).

29. The use of "Structured Behavior Interviews" and "Assessment Centers" for personnel decision-making evaluating are two excellent examples of well-developed HRM procedures and practices. Each is built on: (a) the results of a formal job analysis that accurately identifies critical criteria for job performance; (b) measurement instruments and procedures designed to accurately rate observed work performance; and, (c) rater training that is systematic and on-going.

30. For example, the structured interview is often used by organizations as an assessment tool to measure individuals' knowledge, skills, and abilities (KSA's). A structured interview is of great practical value as it can be used in large, Fortune 500 companies, as well as smaller companies, such as Lufkin. It is designed specifically to obtain a sample of behaviors that are important to effective work performance, as determined by the previous conduct of a formal job analysis. Subject matter experts are used to customize the content of the questions and create a rating system for evaluating candidate responses. In a structured interview, interviewers follow a predetermined sequence of questions that are behavioral in nature. Included among the objectives of the structured interview are: (a) interview validity, with respect to whether the interview measures what it claims to measure; (b) interview reliability, with respect to whether the interview yields consistent measurement; (c) interview practicality, with respect to keeping the interview focused and at a consistent length; and (d) interview fairness, with respect to using a standardized measure of competencies. Research indicates that these two formal personnel practices can be effective in discouraging the use of stereotypes in personnel decision-making (Campion, Pursell, & Brown, 1988; Huck & Bray, 1976; Kacmar & Hochwarter, 1995; Lin, Dobbins, & Farh, 1992; Moses & Boehn, 1975; Ritchie & Moses, 1983).

31. In all, theory, research and practice in management science, social psychology and industrial-organizational psychology demonstrate that whether stereotypic beliefs are invoked in the decision-making process is dependent on the nature of the evaluative criteria and the quality of the performance measurement tools. (For a comprehensive review of the role of SUbjectivity, personal discretion, and the nature of evaluative criteria, standards, and measurement procedures, see American Psychological Association, 1991; Biernat & Manis, 1994; Biernat, Manis, &

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II
Nelson, 1991; Brewer, 1996; Darley & Gross, 1983; Denhaerinck et al., 1989; Fiske & Taylor, 1991; Fiske & Neuberg, 1990; Fiske, Neuberg~ Beattie, & Milberg (1987). Hilton & Fein, 1989; .. Hilton & von Hippel, 1990; Leyens, Yzerbyt, & Schadron, 1992; Messick & Mackie, 1989; Pratto & Bargh, 1991; Rothbart & John, 1985; Seta & Seta, 1993).
IV. IV. LUFKIN'S PERSONNEL PROCEDURES, POLICIES, AND PRACTICES ARE SUBJECTIVE, AMBIGUOUS, AND HIGHLY DISCRETIONARY
32. In the sections to follow, my analysis will rely on the depositiontestimony of Lufkin managers and supervisors, Lufkin documents provided to me, and additional documents that relate to Lufkin personnel decision-making (see Appendix A) to support my conclusion that Lufkin personnel policies, procedures and practices, as they relate to the personnel evaluations and decisions accorded to African-American employees, contribute to racial disparities in the .Lufkin workforce.
A. Initial Job Assignments Are Based On Criteria And Measurement Practices That Are Subjective, Ambiguous, And Highly Discretionary
33. Lufkin's placement practices were subject to an audit in 1994/1995 by the OFCCP, which found that minorities were relegated to jobs with less desirable work conditions than non-minorities with similar experience and qualifications (L-161 021-161 024). The report also concluded that initial job assignments ofminorities were concentrated in the Foundry department and to less desirable jobs in other departments.
34. The specific steps and procedures involved in the hiring of hourly, bargaining unit employees into entry-level positions are prescribed in Lufkin documents (Human Resource Quality Procedure !Local Hiring Procedures for Bargaining Unit Employees: L-I1374) and outlined in deposition testimony of Lufkin Managers (Perez depo, p. 87-115; Barbay depo, p. 46104; Havard depo, p. 91-145; Glick depo, p. 66-78; Long depo, p. 53-60; Reynolds, 77-80). Lufkin represents its hiring procedure as follows: To begin, all hourly applicants are initially processed through the Texas Workforce Commission (TWC). When ajob opening becomes available, Lufkin telephones (or in the last 6 months, forwards an email to) the TWC, and communicates, among other things, the position title and minimum job requirements. The stated minimum requirements for entry-level positions differ somewhat by Division. The Power Transmission department, for example, requires a high school diploma or GED for entry-level positions. TWC conducts a search for job applicants that meet the minimum requirements of the position and proceeds to identify a pool of qualified applicants. These job applicants will then meet with a Lufkin representative from Human Resources for a preliminary employment interview, at which time they also complete a Lufkin job application form. (Currently, Mr. Barbay, the Lufkin Human Resources Representative is responsible for entry-level hourly hires, whereas in the past, other individuals, including Mr. Havard, the Manager of Human Resources since 1994, have been involved). The interview is designed to determine whether and to what extent each applicant meets the minimum job requirements of the position for which he or she is applying. A number of qualifying applicants are then selected for a second, onsite job interview at Lufkin with the manager or supervisor of the hiring unit. (This second interview was eliminated in 2002.) The hiring decision is made by the area manager or supervisor. An

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element of the hiring process, clearly stated in Lufkin documents and restated in deposition testimony, is that the job request made to the TWC contains cthe Position Title. It is fot tbis:c - - cc specific position that applicants are applying. As noted by Mr. Sarbay, Human Resources Representative, individuals are assigned to the position they apply for (Sarbay depo, p. 90).
35. However, Lufkin and TWC documents provided to me, the deposition testimony of at least one Lufkin manager, the results of the Drogin Statistical Analysis of Racial Patterns in Lufkin Workforce, and the findings of two audits conductea by the Office of Federal Contract Compliance Programs (OFCCP) indicate a significant departure from Lufkin's stated policy with respect to entry-level job assignments. Specifically, in contrast to Lufkin written policy, personal discretion is exercised by managers in deciding which specific jobs are assigned to particular applicants, to the extent that applicants may apply initially for one specific position or department and, yet, be assigned for hiring consideration for a different position and department.
36. Lufkin's placement practices were subject to an audit in 1994/1995 by the OFCCP. A letter dated January 31, 1995 from Ms. Lois Jimmerson, Houston District Director of the U.S. Department of Labor, to Mr. Douglas Smith, CEO of Lufkin (L-161021-161024), stated the findings of the audit, as follows: "Lufkin's placement practices resulted in minorities being relegated to jobs with less desirable work conditions than non-minorities with similar experience and qualifications." Further, analysis of initial job assignments revealed that minorities are concentrated in the Foundry department. As described in the OFCCP report, "Evidence obtained on-site and during a visit to T.E.C. revealed that both minorities and non-minorities are referred for jobs in the Foundry, but minorities are consistently assigned to the Foundry and less desirable jobs in other departments."
37. A subsequent audit of Lufkin was conducted by the OFCCP. As indicated in a letter dated September 6, 1996 from Ms. Lois Jimmerson, Houston District Director of the U.S. Department of Labor, to Mr. Douglas Smith, CEO of Lufkin (L-161033-161036), the audit found a disproportionate hiring pattern for the Machinist Helper position such that minorities were significantly underrepresented in the position.
38. The Drogin Report found that newly hired, entry-level African-American employees at Lufkin are disproportionately placed into the Foundry department. Additional statistical analysis compared entry-level candidates with the same start date. Similar findings were found. This later analysis controls for the possibility, however unlikely, that AfricanAmericans as a group apply for entry-level positions only on days when jobs in the Foundry are available.
39. In a November 12, 1996 letter from defendants attorney, John H. Smither to Ms. Lois Jimmerson, Office of Federal Contract Compliance Program, Me Smither challenged the conclusions of a statistical analysis of entry-level hiring patterns at Lufkin (L-22680-22683). On page two of his letter, Me Smither stated: "Moreover, in connection with the alleged discrimination against minority applicants for the machinist helper position .... we found that hires for specific entry-leveljobs were often made from requisitions for some other entry-level job. Thus, hires cannot be related directly to the applicant flow with respect to any specific entry-leveljob simply because the number ofapplicants truly considered is not entirely known"

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-{italics inserted}. This suggests that, contrary to Lnfkinpolicy, and Mr. Barbay's deposition testimony in which he stated that applicants were assigned only to the position for which they had initially applied, individuals may be assigned into positions that differ from the job contained in the initial job request made to the TWC.
40. According to the testimony of Mr. Long, Manager of the Oilfield Manufacturing, when conducting onsite job interviews of an applicant for a specific entry-level, bargaining unit position, area managers have referred applicants judged as especially talented and with highpotential for positions to other divisions for further consideration,(Long depo, p. 55-56).
41. A review of computer printouts of two job orders generated by the TWC indicated that a specific position was not included in either job description (TWC00298-TWC00020).
42. Other data received from the TWC by plaintiffs' counsel revealed that no hiring department was explicitly identified for the majority ofjob requisitions received from Lufkin, further suggesting departures from Lufkin's written policies regarding initial hiring and job assignments.
43. Making initial job assignments to positions that are not contained in the original Lufkin requisition is contrary to Lufkin policy. Thus, as with hiring decisions, there exist no formal guidelines, written procedures, objective criteria or sound measurement instruments or procedures with which to make initial job assignments. Consequently, over the span of the liability period covered in this lawsuit, initial job assignments for entry-level bargaining unit positions have been based on criteria and measurement practices that are subjective and ambiguous (see below).
44. Deposition testimony revealed ambiguity in the nature of the minimum job requirements used to screen job applicants: For example, one of the qualifications is previous work experience in an "Industrial Environment." There are no written guidelines on how to accurately measure this "criterion." It is treated as a discretionary judgment (perez depo, p. 8789; 105; Barbay depo, p. 84-85).
45. There are no written guidelines, standards or criteria for selecting among the best applicants and eliminating less qualified applicants (Perez depo, p. 110-11); Barbay depo, p.235-240). It is up to interviewer discretion to select the person who most strongly matches the minimum job requirements. This requires a subjective judgment.
46. Deposition testimony indicates that most if not all entry-level bargaining unit jobs . have not been subject to a formal job analysis (Barbay depo, p. 83; 144). As noted earlier, the formal conduct of a job analysis is the foundation upon which personnel practices and procedures rest. Job analyses provide an objective basis for numerous personnel decisions and procedures. First, a formal job analysis is used to accurately determine the knowledge, skills, and abilities required to perform a job, as well as the relative importance of each criterion. Second, a formal job analysis serves as the basis for constructing a fair and accurate performance appraisal instrument. Third, a formal job analysis is a required step in constructing job descriptions that accurately convey the requirements of the position. Another benefits of a formal job analysis is

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that- it reduces individuals' personal discretion in deciding which criteria are job-related, how they should be weighed, and measured. For example, absent a formal job analysis, the hasis for requiring a high school diploma or GED for entry-level positions in some Divisions but not in others lacks justification.
47. The personnel interview conducted by business unit managers and supervisors, which is used to evaluate job applicants for hiring and job assignments, is very subjective (Perez depo, p. 112-114; 189; Barbay depo, p. 80-83; Glick depo, p. 66-78). There are no written guidelines for the conduct of the interview. No written guidelines are provided to managers to assist in identifying and assigning weights to each applicant's strengths and weaknesses. A formal, structured interview is not used, nor is formal training in the conduct of an employment interview provided. There are no written guidelines or formal training to determine what questions are job-related, that is, directly related to performance on the job. Thus, other than being instructed to select the best person for the job, managers are left to their own discretion in making hiring and job assignments. Further, all the Human Resource department employees and managers involved in hiring and job assignments are White.
B. Promotion for Non-Entry Level Bargaining Unit Positions Are Based On Criteria And Measurement Practices That Are Subjective, Ambiguous, And Highly Discretionary
48. At Lufkin, movement of hourly employees into non-entry level positions is governed by the Collective Bargaining Agreement (''CBA'') (1996-1999 CBA: L-11124-11174; 1999':'2002; CBA: L-I0824-10874). As it relates to promotions of hourly employees, the CBA contains specific, company-wide personnel procedures and practices that are very subjective, ambiguous, and highly discretionary in nature.
49. In the case of internal promotion, an open position is posted for bid over a 3-day period. The posting contains the job title, shift and area information. It does not include the job requirements. According to the CBA (Division 3: Terms of Employment. Article 22, Seniority, 1-11145-11] 46), the most senior, qualified individual is awarded the position. The CBA, however, includes an "Ability Clause," which accords Lufkin management the right to promote an internal candidate oflesser seniority. The exact wording of the ability clause is a follows: " ... departmental seniority shall govern if their ability to perform the work is approximately equaL "'Ability' as the term is used in the phrase 'ability to perform,' shall be understood to include the employee's capacity to perform the work, to which they are assigned, with efficiency equal to that of other employees under consideration ..." ... "The determination ofan employee's ability to perform the work is a function of management." In my judgment, the ability clause is ambiguous and subjective in nature. Specifically, there is no fixed, universal standard or measure of performance against which to assess the most senior employee's ability. How much "ability" the most senior employee must have to warrant promotion is not established. Instead, judgments are comparative in nature insofar as an employee's perceived ability is compared to other, less senior employees under consideration. Overall, decisions made by Lufkin management to not promote the most senior job candidate, based on the judgments of "ability," are subjective, ambiguous and highly discretionary in nature.

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50. Deposition testimony of Lufkin managers indicate that the definition and measurement of "ability" is very sUbjective and arbitrary(Perezdepo, 15.··143-149; Reynolds depo, p. 136-140; Glick depo, p. 92-97). Vice-President of Human Resources, Mr. Perez, could not point to any written documentation or objective criteria for defining or"measuring "ability" as used. in Article 22 of the CBA. He characterized judgments of ability as subjective in nature (Perez depo, p. 143-149). Mr. Reynolds, General Manager of the Foundry, is unaware of actual guidelines, criteria or documentation regarding how to judge and compare the ability of one employee against another (Reynolds depo, p. 136-140). Vice-President and General Manager of Power Transmission, Mr. Glick, reported being unaware of specific criteria for specific job
positions (Glick depo, p. 92-97). Finally, Manager of the Trailer Division, Mf. Gilley, reported
knowing of no written guidelines regarding how to decide an employee had demonstrated successful perfonnance in a particular job (Gilley depo, p. 202-204). In none of the documents presented to me was there evidence of: (a) the conduct of fonnal job analysis to establish a comprehensive list of objective criteria for jobs; (b) fonnal, objective rating instruments and methods used to assess job candidates; or, (c) adequate rater training in employee assessment and feedback. It is these three factors that, together, help to ensure that judgments of ability are unaffected by racial stereotypes. In their absence, racial stereotypes can influence judgments regarding the abilities of African-Americans in work settings.
51. As part of the promotion process, job candidates are interviewed by the immediate supervisor to assess their qualifications for the job. The interview, however, is extremely unstructured - there is not a standardized list of questions to ensure that all candidates are asked the same questions. Mr. Reynolds, for example, testified that he is unaware of the use of any instruments, strategies or criteria designed for use by supervisors to: (a) measure applicants' skills or fit for the job; or, (b) ensure that all job applicants are interviewed in a consistent manner (Reynolds depo, p. 94-108). The only guidance are admonitions against asking questions that are related to a job candidate's group membership, such as questions that are of a racial nature, and a general statement that questions should be "job-related." Interviewers at Lufkin are left mostly to their own discretion in the design and conduct ofjob interviews.
52. Deposition testimony suggested two additional criteria that must be met if a potential job candidate is to be judged qualified (Perez depo, p. 139-142; Gilley depo, p. 182; Reynolds depo, p. 153-156; 161-187). These criteria are unacceptable attendance and a serious plant rule violation. However, my review of the CBA failed to find any statements to the effect that unacceptable attendance or plant rule violations rendered an employee ineligible for promotion consideration.
53. Nonetheless, deposition testimony of Lufkin managers indicate much discretion in the application of the attendance criteria. Mr. Perez stated that attendance problems can be overlooked, and that the rule is applied at the personal discretion of the Superintendent (Perez depo, p. 139-142). In contrast, Mr. Reynolds stated that a candidate with unacceptable attendance under the Lufkin attendance program is not eligible for promotion (Reynolds depo, p. 153-156; 161-187), whereas Mr. Gilley stated that he was unaware of attendance as a criterion for promotion (Gilley depo, p. 182).

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. 54... As for the role of a serious plant rule violation in determining eligibility for promotion, there is no clear and objective definition of what constitutes a serious plantfUle . violation. As discussed by Mr. Perez, this rule is not written in any Lufkin documents. Moreover, whether the rule is used in promotion decisions is at the discretion of the Superintendent (Perez depo, p. 139-142). In his testimony regarding the plant violation rule, Mr. Reynolds indicated that there are no written criteria contained within the Lufkin Employee Handbook as to when a formal warning or letter will be written in response to a plant rule violation. The decision to issue a formal written letter is at the discretion of the Manager or General Manager of the Division. Further, Mr. Reynolds indicated that he uses his own personal, unwritten guidelines, as do other managers in the Foundry, to determine whether a rule violation results in a formal warning (Reynolds depo, p. 153-156; 161-187).
55. For some jobs, Lufkin uses tests to aid in promotion decisions. In the Foundry, for example, Mr. Reynolds testified that approximately 25% of positions have a test designed specifically for use in selecting Lufkin hourly employees into non-entry level hourly positions. Generally, a score of 70% constitutes a passing grade. However, Mr. Reynolds noted that there can be departures from this rule. Specifically, in the event two individuals each have a passing score, it is possible to select the employee with less seniority. He also noted that the minimum passing score of 70% is not always followed, as he can decide to lower the score ifhe chooses (Reynolds depo, p. 192-194).
56. There are two additional elements of the CBA that are SUbjective in nature and accord Lufkin management much discretion in promotion decisions. First, not all hourly jobs are posted. Because these jobs are not posted, decisions as to which employees are best qualified for such positions are at the discretion of management. Second, Lufkin reserves the right to promote from outside the job bid list in the event a qualified internal candidate cannot be identified. There are no written criteria for judging qualifications and the decision to promote from outside the job bid list is at the discretion of Lufkin management.
57. The deposition testimony of Lufkin managers and a review of Lufkin documents reveal the following. For many positions, a comprehensive formal job analysis has not been conducted to identify the skills, attributes and behaviors required for the position. There are no written Lufkin guidelines for establishing what constitutes a "more qualified" job candidate, which allows Lufkin management a great deal of discretion in the decision-making process. There are no written Lufkin guidelines for rating candidates on the various criteria used by managers in making final promotion decisions among candidates. Deposition testimony indicates that managers can exercise enormous personal discretion, both in the criteria used to evaluate candidates and the standards applied to make such assessments.· These are the conditions which previously reviewed theory and research indicate lead to less favorable treatment of African-Americans in work settings.

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C. Selection: Decision~ .for SaJaried Employ_ees Are Based On Criteria And Measurement Practices That Are Subjective, Ambiguous; AndHighly Discretionary
58. Deposition testimony reveals that movements into salaried positions at Lufkin are governed by a personnel decision-making process that is very subjective, lacks written objective criteria, and relies on the discretionary judgments of managers rather than on well-developed assessment instruments and procedures to evaluate the fit of applicants' qualifications with the requirements of the job. These are the conditions which previously reviewed theory and research indicate lead to less favorable treatment of African-Americans in work settings.
59. Selection into salaried positions can involve external hiring or internal promotion from within Lufkin. There is no formal procedure that governs whether Lufkin fills a salaried position from inside or outside the company. Vice-President and General Manager of Power Transmission, Mr. Glick, characterized the decision as a subjective process, with no written criteria (Glick depo., p. 125).
60. At Lufkin, promotion into salaried positions begins with a discussion between the hiring Department Head and Human Resources, who, together, determine whether or not to post an available position (Lufkin Human Resources Quality Procedure: Salaried Job Posting Policy: 1-31-95, L-l 1380; Gilley depo., 191-193). If posted, interested employees can sign their name to the job posting. Next, Mr. Barbay, Lufkin Human Resources Representative, conducts a preliminary screen of employees' personnel files to determine which applicants meet the minimum job requirements for the opening and, in his words, "potentially had, ... , the skills to do the position..." (Barbay depo., p. 125). Although Mr. Barbay meets with the hiring Supervisor and consults the Position Description, much personal discretion is exercised in judging whether and to what extent applicants meet the minimum qualifications for the job. According to his deposition testimony, there are no written guidelines with regard to: (a) measuring the job requirements contained in the Position description; (b) weighing the relative importance of various job requirements contained in the Position Description; (c) assessing whether an applicant's qualifications meet the minimum job requirements; (d) measuring and weighing the relative importance of applicant qualifications; or, (e) assessing the degree of fit between job requirements and an applicant's qualifications.
61. The next step in the selection for salaried employees is a second int~rview with the manager in the business unit, which may also involve the participation of other employees. Deposition testimony and my own reading of Lufkin documents indicate that three specific features of the decision-making process yield final selection decisions into salaried positions that are very subjective, ambiguous and discretionary in nature.
62. First, managers noted their heavy reliance on Lufkin Position Descriptions as the basis for determining relevant job criteria (Perez depo, 122; Barby depo, 140-142; Glick depo, 107-118). As is generally true of most Position Descriptions that are designed to advertise and solicit job applications, the accompanying list of required skills and abilities is not complete. And, seldom are the specific weights assigned to the importance of various skills and abilities contained in the description. Position Descriptions cannot take the place of a complete and

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comprehensive list of objective criteria to be used for as§essing an applicant's qualifications. The LufkIn Position Descriptions that aCC()mpany job postings forsala.ried positions do not provide a complete list of relevant criteria nor are the criteria always stated objectively. Nonetheless, Position Descriptions at Lufkin playa major role in identifYing relevant job criteria and assessing the degree of applicant - job fit. Without rating guidelines and a comprehensive list of objectively defined criteria, Lufkin managers are forced to rely on their own subjective judgment regarding whether and to what extent applicants meet the requirements ofthe job.
63. Proper identification and subsequent weighing of relevant job criteria requires a formal job analysis. To properly conduct a job analysis to develop a Position Description for use in hiring requires extensive training, feedback and independent evaluation of the job analysts' competence. According to Mr. Barbay, who is largely responsible for constructing Position Descriptions, he has no formal training in the design and conduct of a job analysis for the drafting of Position Descriptions (Barbay depo, p. 139). Similarly, Mr. Havard, Manager of Human Resources, testified that he is unaware of any efforts on the part of Lufkin to formally validate the criteria contained in Position Descriptions (Havard depo, p. 165-166).
64. In a discussion of one particular requirement contained in a Position Description, «Technical background, as well as adequate years of related experience...," Mr. Barbay noted that there was no written criterion that clearly defined "adequate" or "related" experience. Nor did the Position Description indicate the relative importance of these criteria. According to Mr. Barbay, no written guidelines are provided to help managers match qualifications listed in the Position Descriptions with job candidate qualifications (Barbay depo, p. 141-143).
65. Furthermore, additional deposition testimony (Reynolds depo, p. 226-228) and my. review ofjob postings and subsequent hiring decisions (L-13612-13 70 1) revealed the use of criteria that are not included in the Position Description. These additional criteria were often in the form of subjective traits such as "people skills," "leadership ability," "self-confidence," and "ability to cooperate with others." These traits are impossible to measure without the use of formal rating instruments designed specifically to provide an accurate assessment. Mr. Reynolds testified to the absence of guidelines or measurement instruments for judging candidates on these very subjective traits.
66. Deposition testimony offered by Mr. Gilley, Manager of the Trailer Division, revealed an absence of written guidelines for assessing whether and to what extent candidates satisfY the qualifications contained in Position Descriptions (Gilley depo, p. 199-204). Specifically, Mr. Gilley could not identify any written guidelines for how to assess job candidates on many of the criteria contained in the Position Description of Maintenance Supervisor (L-13694) that was used in an actual hiring situation. A number of the criteria used in the hiring decision are extremely subjective in nature (e.g., supervisory skills; organizational skills; ability to prioritize a heavy workload) and thus require training to assess fairly and accurately. Mr. Gilley has been provided no formal training on how to evaluate candidates on many of the criteria contained in Position Descriptions.
67. Second, a selection interview technique used for personnel decision-making is no different than any other measurement instrument. It requires skill in design and execution. The

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«interviews" conducted at Lufkin to evaluate candidates for salaried positions are ora very unstructured nature. As·distinguished from an informal discussion, in which individuals' stereotypic beliefs and expectations can more easily influence decision-making, a structured interview requires: (a) the unambiguous specification of objective criteria to be used in the interview; (b) identification of clear and concrete questions designed specifically to accurately assess interviewees on each criterion; (c) emphasis on measuring interviewees' behavioral responses, preferably using relevant, job-related hypothetical scenarios, for which positive responses are identified a priori for purposes of scoring and objective evaluation; and, (d) that all interviewees are asked the same questions in identical order. The ability to conduct a structured interview does not come easily. It requires formal training, subsequent practice, and independent evaluation of one's interviewing skills.
68. At Lufkin, managers receive little formal training in the proper design and conduct of a personnel selection interview (Barbay depo, 170-172; Glick depo, p. 196-197). Lufkin documents regarding human resource management provide no evidence that managers are properly trained and thus qualified to design and conduct a formal job interview in a manner that is fair and accurate. Managers are not required to demonstrate proper interview techniques nor are they evaluated or given feedback regarding the quality and appropriateness of their interviewing style and skills (Barbay depo, p. 170-172).
69. Mr. Glick, for example, described the conduct of interviews ofjob candidates as a discussion of the candidates strengths and weaknesses, the likely long-term future of the candidate, and whether the group thought the candidate would be successful. Based on this unstructured interview, in which none of the features of a carefully devised structured interview were apparent, a final hiring decision was made (Glick depo, p. 97-125).
70. Mr. Gilley testified that when he conducted interviews for the position of Maintenance Supervisor there was nothing in writing regarding how to evaluate the job candidates on many of the criteria used in making the hiring decision (Gilley depo, p. 199).
71. The sample ofjob postings and subsequent hiring decisions (L-13612-13701) provided to me by plaintiffs' counsel contained evidence of specific interview questions that were used in three different promotion decisions. The questions were open-ended, some were vague, and no scoring system, to rank-order the applicants, was evident.
72. Third, to be fair and unbiased, employees' abilities and work performance must be accurately assessed. This requires the careful design of a work performance appraisal system, with particular attention to ensuring the criteria are objective and job-relevant, the instrument is reliable and valid, and raters are trained in its proper use.
73. At Lufkin, the performance of employees in exempt salaried positions is evaluated using the "Lufkin Industries, Inc. Exempt Performance Appraisal and Review" (L-000959), whereas the "Personnel Performance Rating" (L-000957) is used to evaluate nonexempt salaried employees (Havard depo, p. 186-189). Performance evaluations of salaried employees are used for a variety of purposes including performance review, promotions, developmental feedback,

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compensation; layoffs and demotions (Havard depo, p. 194-195). Deposition testimony and my

own review of these two rating instruments reveal a number of deficiencies.·

.

74. To begin with, there has been rio specific, formal training offered in the use of the measurement instruments. Nor are explicit guidelines provided to managers to use in evaluating employees (Havard depo, 189-195; Gilley depo, 230-232). This is a serious omission, as raters are not trained to ensure that they are evaluating employees against a common set of standards when making what are often very subjective judgments.

75. Furthermore, no evidence was provided to indicate that the rating instruments are based on the conduct of a formal job analysis, to help ensure that all the criteria are job-related. Nor is there any evidence of the reliability or validity of the rating instruments. That is, to what extent are raters consistent in their assessments (is the tool reliable?), and are performance evaluations related to actual job perfomiance (is the tool valid)?

76. These deficiencies are of particular concern insofar as many of the items on the rating instruments are subjective in nature. The rating instrument for nonexempt salaried employees, for example, requires subjective judgments of an individual's leadership, creativity, and aptitude. Moreover, there are no guidelines on the rating instrument with respect to calculating an overall rating.

77. The rating instrument for exempt salaried employees also requires subjective judgments. It clearly states at the top of the form that the overall perfonnance rating assigned to an employee is not the numerical average of each performance factor rating contained in the instrument. Rather, the overall performance rating "represents a composite of your thoughts and impressions of this person's activity in the job." The form also states that managers are to assign their own degree of importance to each of the performance factors when calculating an overall perfonnance score.

78. In all, each of these performance appraisal instruments contain deficiencies that invite the intrusion of excessive SUbjectivity and subsequent reliance on racial stereotypes.

D. Allocation of Opportunities For Training And Career Development Are Subjective, Ambiguous, And Highly Discretionary

79. At Lufkin, on-the-job training is key to developing many of the skills required to move into more advanced and higher paying jobs. This is especially true for entry-level, bargaining unit employees, who must bid on higher-level positions. For example, training in how to operate different types of machinery, as well as opportunities to develop skills in leadership and supervision, are important ways of preparing employees to qualify for ~ore advanced positions. Most training at Lufkin is of an informal, on-the-job nature. Individuals may solicit the help of fellow employees, often outside of normal working hours, or ask for the assistance of their supervisor (Gilley depo, p. 92; p. )05). In addition, managers may select particular employees for additional training and work experience (Barbay depo, p. 44; 147-150; Glick depo, p. 77-80; Gilley depo, p. 90-122). Deposition testimony reveals that Lufkin managers may exercise enonnous discretion in choosing which employees will receive job

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assignments and training opportunities to prepare them for promotion to higher skill-level jobs. Lufkin has no policy to guide managers in identifying which employees will be selected for additional on-the-job training and work experience. There are no formal, written criteria or valid measurement instruments or procedures for selection decisions. Rather, training opportunities are assigned based on each manager's SUbjective judgment ofa particular employee's"potential" or "ability" (Perez depo, p. 151; Glick depo, p. 77-87; 197-198; Gilley depo, p. 90-122).
80. Mr. Glick, Vice President and General Manager of the Power Transmission Division, testified that he is unaware of any guidelines, policies, or criteria used to select employees for additional job training and work experience, other than "business need" and the judgment of an individual's "aptitude." Mr. Glick stated that he is unaware of any criteria for rating an employee's aptitude (Glick depo, p. 78-87) or offormal reporting mechanisms to monitor Lufkin managers' training assignments (Glick depo, p. 198).
81. Mr. Gilley, Manager of the Trailer Division, testified that he is unaware of any objective criteria used in selecting employees for additional job training and work experience and that certain training opportunities are assigned at the sole discretion of the supervisor (Gilley depo, p. 90-122; 106-113).
82. Deposition testimony indicated that there is no central database, in which records of employees who have received training are maintained (Barbay depo, p. 186; Havard depo, p. 182; 184-185). Nor are training opportunities always posted at Lufkin (Gilley depo, p. 110). Consequently, it is not possible to effectively monitor the manner in which training opportunities are accorded to Lufkin employees.
83. Finally, the informal nature of training at Lufkin, in which the onus is placed on African-Americans to solicit help from fellow employees and managers, most of whom are likely
to be White, places African-Americans at a distinct disadvantage. As noted earlier, African-
Americans are often isolated from informal social networks in organizations, especially when they are in the minority, and enjoy less support from White supervisors and co-workers. Accordingly, as compared to their White counterparts, African-Americans are more frequently . denied key, job-related experiences needed for advancement (Ilgen & Yountz, 1986; Powell & Butterfield, 1997; Thomas & Alderfer, 1989), are assigned jobs ofless complexity and challenge (Braddock & McPartland, 1987; Kaufman, 1986; Lefkowitz, 1994; Mueller et al., 1989), and are likely to be accorded less help and guidance (Brewer & Brown, 1998; Dovidio, 1984).
84. In all, the decisions regarding which Lufkin employees receive training opportunities are such that supervisors: (a) are free to rely on their own discretion; (b) have no written criteria or guidelines; and (c) receive no training or oversight in their decisions. These are the conditions that promote reliance on racial stereotypes, which serves to disadvantage African-Americans.

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V. LUFKIN'S ORGANIZATIONAL CULTURE CONTRIBUTESTO AND SUSTAINS RACIAL DISPARITIES WITHIN THEIR WORKFORCE
85. Whether an organization's culture is perceived to be actively committed to the prevention of stereotyping and discrimination in the workplace influences the treatment accorded. African-Americans in the workplace. An organization's culture, that is, the set of shared values and practices embodied by a group, has long been recognized by scholars as a powerful source of influence on the behavior of employees (Schein, 1992; Smircich & Morgan, 1982; Tichy & Ulrich, 1984). If senior level managers assume a laissez-faire approach to ensuring equal employment opportunities, employees will fall back on their conscious (and unconscious) stereotypic beliefs when issuing personnel evaluations and decisions, causing African-Americans be treated less favorably than their White counterparts. The point here is that relying on stereotypic beliefs is appealing - it enables decision-makers to conserve their mental resources (Macrae, Milne, & Bodenhausen, 1994) and engage only in the amount of thought required to produce an apparently adequate assessment. Relying on stereotypes in the decision-making process reflects the very human tendency to "satisfice" rather than optimize the quality of one's evaluations and decisions (Simon, 1957). Thus, to prevent discrimination against protected class members, organizations understand that they must induce in their members a sufficient degree of motivation to avoid relying on stereotypes, and this motivation must remain in force. Should the motivation to avoid stereotyping be relaxed, discrimination will return in full-force (Bodenhausen & Macrae, 1996; Macrae, Bodenhausen, Milne, & Jetten, 1994). As discussed next, there are key elements of corporate culture that can serve to either foster versus discourage racial stereotyping.
86. Corporate leaders are the keepers of the culture; that is, they are pivotal in developing and maintaining the values and norms of the organization (Schein, 1992; Smircich & Morgan, 1982; Tichy & Ulrich, 1984). This is precisely why the visible support and continued oversight of senior management, beginning with the CEO and hislher senior executives, is associated with the success of programs, policies, and practices aimed at improving the treatment and status of African-Americans, and other historically underrepresented groups, in organizational settings (Bielby, 1987; Dovidio 1993; Hitt& Keats, 1984; Konrad & Linnehan, 1995). The reasoning here is straight-forward-when senior management is perceived to actively support and carefully monitor the treatment and status of African-Americans, organizational members will feel a greater pressure to behave in ways that do not violate the mandate that employees be treated in a non-discriminatory manner (Blanchard et aI., 1991; Blanchard et aI., 1994; DiMaggio & Powell, 1983; Edelman, 1992).
87. A company concerned with fostering an organizational culture that discourages the use of racial stereotypes in personnel decision-making must, at minimum, do the following. First, there must be recognition that racial stereotypes exist and can influence perception and judgment in the workplace. This is a critical first step, especially when the majority of key decision-makers in a company are White males who, as a group, have not been the target of wide-spread and pervasive stereotyping. Second, there must be a formal monitoring procedure in place to assess the treatment and status of African-Americans throughout the company. Third, there must be formal policies, procedures and practices in place to discourage employees from relying on racial stereotypes in their evaluations and treatment of African-Americans in the

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organization. In all, what these three features share is a commitment to ensuring equal employment opportunity that is comprised of more than words. Rather, the emphasis is on action. My assessment leads me to conclude that Lufkin's corporate culture is deficient in this regard. Throughout the company there is evidence of a lack of commitment to monitoring the treatment and status of African-American employees, and that little is done to implement personnel policies, procedures and practices designed specifically to discourage the use of racial stereotypes in personnel decision-making.
A. Lufkin Lacks Commitment To Systematically Measuring Whether Employment Opportunities Are Equally Available To All Employees Regardless Of Race And To Monitoring The Treatment And Status Of African-American Employees
88. Lufkin documents contain numerous references to the company's commitment to equal employment opportunity (EEO) (see the most recent Lufkin Equal Opportunity Policy and Affirmative Action Plan, L-14568; the Lufkin Orientation Checklist, L-211636; the Human Resources Procedures and Orientation Policy and Outline, L-I1378; and memos from Mr. Doug Smith, Lufkin's CEO, to Lufkin employees, L-211651; L-lI089). In these memos, for example, Mr. Smith states Lufkin's commitment to ensuring that all employment decisions conform with the principles ofEEO. This is a commitment that, according to the deposition testimony of Mr. Glick, a Vice-President at Lufkin, extends to all employees (Glick depo, p. 57). Nonetheless, based on the deposition testimony of numerous Lufkin managers, including the Department of Human Resources personnel, these laudatory words are not translated into concrete personnel policies, procedures or practices.
89. The deposition testimony of Lufkin managers reveals insufficient attention to monitoring the treatment and status of African-Americans in its workforce, even among seniorlevel managers and Human Resource personnel. For example, according to Mr. Glick, VicePresident and General Manager of Power Transmission, although he reports directly to Lufkin CEO, Mr. Smith, he has never spoken with him regarding EEO opportunities for his staff. Nor, has Mr. Smith ever raised the subject. In fact, Mr. Glick reported that he has never spoken with anyone at Lufkin regarding equal employment opportunities for African-Americans (Glick depo, p. 48-49). Similarly, Mr. Reynolds, General Manager ofthe Foundry, testified that he too, despite meeting with Lufkin CEO, Me. Smith, on a monthly basis, has never spoken with him regarding EEO at Lufkin. Nor, has Mr. Reynolds spoken to his superior, Mr. Larry Hoes, VicePresident of the Oil Field Division, about EEO at Lufkin (Reynolds depo, p. 34). Moreover, according to Human Resources Representative, Mr. Barbay, there are regularly scheduled weekly Human Resource department meetings at Lufkin, which are attended by the five employees in Human Resources, all of whom are White. The retention, recruitment, and training of Lufkin African-American employees has never been discussed at these meetings; although, Mr. Barbay did testify that he would talk one on one with his boss, Mr. John Havard, Manager of Human Resources, about these issues. However, I have seen no evidence that Mr. Barbay took any concrete action to address these concerns (Barbay depo, p. 38-44).
90. Lufkin managers are provided with very little information regarding the treatment and status of African-Americans within their own departments and throughout the company.

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Mr. Havard testified that Lufkin does not provide information to its managers regarding the racial composition of their respective departments. In fact, information regarding the representatioriof African-American employees in positions throughout the company is communicated to only three Lufkin employees, all of whom are employed in Human Resources (Havard depo, p. 90..;91).
91. For example, Mr. Long, Manager of Oilfield Manufacturing, testified that he: (a) does not generally receive copies of Lufkin's Affirmative Action Plan; he had seen the current Plan for January 1, 2003-December 31,2003, only the day before his deposition, (b) receives no statistics on the workforce in the Oilfield division as it relates to percentages of AfricanAmerican and White employees, and their corresponding pay; and, (c) does not convey to his managers the racial composition and pay rate of employees that they supervise.
92. Similarly, Mr. Reynolds testified to being unaware of whether Lufkin has ever performed a review of it personnel practices, policies, or procedures to ensure adherence to a policy of equal employment opportunity (Reynolds depo, p. 205). This observation, as it pertains to African-American employees, is consistent with the testimony of other managers at Lufkin.
93. Mr. Perez, for example, reported that he does not conduct a formal analysis of promotion decisions to assess the treatment of African-Americans (Perez depo, p. 150). And, despite serving as the Vice-Presidentfor Human Resources, he is unaware of the percentage of salaried positions held by African-Americans at Lufkin (Perez depo, p. 136).
94. In addition, Mr. Havard testified that he does examine the performance ratings· accorded Lufkin employees. Specifically, he examines the overall distribution of performance scores across the workforce. Companies often use this type of analysis to detect psychometric shortcomings in performance appraisal instruments. However, potential differences in the performance evaluations accorded African-Americans versus Whites are not examined (Havard depo, p. 203-204).
95. Another way to assess the status and treatment ofAfrican-Americans and other protected class members is to ask. To do this, companies often rely on formal attitude surveys of their workforce, in an effort to assess employees' perceptions, beliefs, and experiences. This is not done at Lufkin (Reynolds depo, p. 214; Glick depo, p. 127; Long depo, 92-93). Mr. Reynolds, for example, testified to being unaware of Lufkin ever conducting a survey to measure whether employees perceive there to be equal employment opportunities in the company (Reynolds depo, p. 214).
96. Similarly, Mr. Long indicated in his deposition testimony that the only time he could recall surveying African-American employees at Lufkin was in early 1997. However; neither before nor after 1997 has Mr. Long undertaken or directed anyone else to conduct a survey of African-Americans in the Oilfield Division regarding their interest in training. More generally, Mr. Long testified that he is unaware of any surveys conduded either in the Oilfield Division or at Lufkin to gather feedback regarding perceptions of equal employment opportunity at Lufkin (Long depo, p. 70-76).

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97. Lufkin does little to alert employees to the nature of discrimination in

.

organizational settings, and provides inadequate training to its managers on how to avoid the ..

influence of racial stereotypes on personnel decision-making (Barbay depo, p. 172; Havard depo,

p. 113-123; Glick depo, p. 55-58; 86-87). For example, Mr. Havard has as his responsibility

educating managers on EEO-related matters and ensuring that personnel decisions are consistent

with EEO policy. However, Mr. Havard testified that he has not received any training on the

nature of racial stereotyping or on how to avoid discrimination in personnel practices. Further

testimony by Mr. Havard revealed the following: (a) Lufkin managers are not required to receive

training in EEO, as it relates to work settings; (b) there is no written documentation to certify

which managers have (and have not) received EEO training; (c) Lufkin does not have a budget

for EEO training; and, (d) Lufkin does not require all mana~ers to receive EEO training, either

before or after they assume a supervisory role in the company.

98. Mr. Glick testified that he is unaware of any specific programs to promote equal opportunity for minority employees. Nor is he aware of any efforts to increase equal opportunity with regard to promotions or hiring. Mr. Glick could point to no specific steps, policies or procedures that have been implemented or altered in Power Transmission to insure equal employment opportunities for all employees (Glick depo, p. 55-58). Finally, he noted that Human Resources at Lufkin offers no guidelines to Power Transmission in how to increase or maintain EEO in the workplace.

99. In all, insufficient attention to racial diversity and the nature and effects of racial stereotypes in the workplace creates an environment of denial, whereby the unquestioned assumption guiding Lufkin personnel decision-making is that "we hire the most qualified person for the job." Yet, as noted earlier (Bargh, 1999; Bodenhausen & MacCrae, 1996; Wilson & Brekke, 1994; Wittenbrink, Judd, & Park, 1997), people can be unaware of the nature of their evaluations and decisions, and the role played by racial stereotypes. This is especially likely in environments where there is a history of racial segregation, and as a result, insufficient awareness of the extent to which what appear to be normal, everyday practices are systematically disadvantaging African-Americans. It is also more likely in organizational cultures where there is little commitment to monitoring the status and treatment of African-American employees.

B. Lufkin Does Little To Implement Personnel Policies, Procedures, And Practices Designed To Discourage The Use Of Racial Stereotypes In Personnel Decision-Making

100. Organizations can foster an environment in which decision-makers feel motivated to think in less stereotypic and more complex ways (Acker & Manis, 1996; Eberhardt & Fiske, 1996; Konrad & Linnehan, 1995; Langer, 1989; Langer, Bashner, & Chanowitz, 1985; Pettigrew & Martin, 1987). This can be done by ensuring that decision-makers are held accountable for their decisions to an external agent known to have non-biased, egalitarian values (Pendry & Macrae, 1996; Tetlock, 1995, 1992). One approach used by organizations is to require decisionmakers to offer a written detailed explanation and justification regarding their evaluations and selection decisions, which is accompanied by an expectation of feedback as to the quality of the decision-making process - two factors known to reduce discrimination (Crosby, Bromley, & Saxe, 1980 Powell & Butterfield, 1997). Yet another strategy is to ensure that African-

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Americans as a group playa critical role in personnel decision-making. The occasional token African-American decision-maker is not enough, however.
101. Another approach employed by organizations is to deliberately include a manager's effectiveness in creating equal opportunity for African-Americans in their annual performance appraisal. The success of this approach turns on the well-supported notion derived from almost a century of research on learning theory, which demonstrates that behavior rewarded is behavior observed. The fundamental principle at work here is that desired organizational behavior must be rewarded and undesired behavior sanctioned (Kerr, 1975).
102. In his deposition testimony Mr. Barbay testified that for selection of bargaining unit entry-level hires, no one reviews his decisions (Barbay depo, p. 85-86). In addition, he noted that there is little documentation required for justifying and explaining the basis of hiring decisions for salaried positions (Barbay depo, p. 129-135).
103. Mr. H'avard testified that since 1996 he has examined hourly to salaried, and salary to salary, promotions (Havard depo, p. 166). There are, however, no written requirements or formal guidelines in place to require decision-makers to explain and justify their decisions.
104. My review of Lufkin documents (L-13612-13699) revealed that sometimes there was a reason offered for the selection decision, whereas sometimes there was not. Few of the explanations, however, were detailed; most were rather cursory.
105. In all, to the extent that personnel actions are subject to formal overview and justification at all, Lufkin, managers' explanations are informal, cursory and not subject to written guidelines (Barby depo, p. 85-86; 129-135; Perez depo, exhibit 3). As such, there is little reason to believe that Lufkin managers experience a sufficient degree of motivation and pressure to explain and justifY their decision so as to override the use of racial stereotypes.
106. Lufkin managers are generally not evaluated with respect to their effectiveness in fostering equal employment opportunity (Reynolds depo, p. 125; Glick depo, p. 217-218; Havard, 196-199; Gilley depo, p. 232-233). As such, managers are not rewarded for fostering the broadly stated goals of Lufkin to ensure equal employment opportunity. Nor, are they sanctioned for failing to meet such goals.
107. In 1994-1995, the Office of Federal Contract Compliance Program (OFCCP) conducted an audit of Lufkin Industries, in which it was found that minorities were concentrated in the Foundry department and placed in jobs with less desirable working conditions than nonminorities with similar experiences and qualifications. Subsequent to the finding, Lufkin entered into a conciliation agreement which outlined specific corrective actions that Lufkin would take to mitigate the less favorable treatment accorded African-Americans. Among these actions were to improve the recruitment of minorities and develop an action plan designed to eliminate the causes of disparate treatment, and the resulting impact on minorities. The nature of Lufkin's response suggests a culture that is not committed to improving the treatment of AfricanAmerican employees.

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108. According to the testimony ofMr. John Havard, Manager of Human Resources,
he could not recall the findings of the OFCCP audit or the specific actions 10 be taken by Lufkin
as stated in the conciliation agreement Moreover, he testified that he did not recall: (a) seeing a written plan of action; (b) discussing the plan with any Lufkin employees; (c) making any changes in Lufkin hiring or job assignment practices for entry level employees; (d) who was responsible for developing the corrective plan of action; or, (e) discussing the OFCCP audit results with the Texas Workforce Commission (Havard depo, p. 93-131).
109. Mr Reynolds, who was the General Manager of the Foundry Division at the time of the 1994-1995 OFCCP audit and resulting conciliation agreement, testified that he was unaware of: (a) the audit; (b) its finding that minorities were placed in jobs with less desirable working conditions than non-minorities with similar experiences and qualifications; (c) the conciliation agreements entered into by Lufkin (Reynolds depo, p. 204-204); or, (d) any changes in the processes, criteria, or procedures for making promotion decisions, either for salary or hourly employees (Reynolds depo, p. 204-204; 151-152).
110. A follow-up audit of Lufkin Industries conducted by the OFCCP in 1995-1996 found that Lufkin discriminated against minority applicants for the Machinist Helper position due to their race (L-161 033 - 052; L-161 021-032). Mr. Havard testified that he could not recall having any discussions of the OFCCP audit and findings with the TWC, or with Mr. Barbay, the Lufkin Human Resources Representative, who had responsibility for hiring and assignments of entry-level, hourly employees at the time. Moreover, Mr. Havard could not recall any follow-up assessment of Lufkin hiring practices for Machinist Helper or any changes made by Lufkin in their Machinist Helper hiring procedures (Havard depo, p. 147-149)
11 L Mr. Glick has been the Lufkin Vice-President and General Manager of Power Transmission Division since September, 1994. Nonetheless, he testified to being unaware of the OFCCP audit and its finding of racial disparity in hiring of the Machinist Helper position. Moreover, according to Mr. Glick, he was unaware of: (a) the conciliation agreement entered into by Lufkin; (b) any changes to the hiring practices for Machinist Helper in Power Transmission; (c) any steps or practices developed to increase the number of minorities in Machinist Helper position; (d) any changes in the manner in which employees in Power Transmission are either hired from outside or promoted from within to fill vacant or available positions; or, (e) any corrective actions taken by Lufkin or anybody at Power Transmission to correct any problem areas with regard to equal employment opportunities (Glick depo, p. 177191).
112. Similarly, Mr. Long testified that only recently had he become aware of the 1995 OFCCP audit, its finding that Lufkin had discriminated against minorities in hiring of Machinist Helpers, and that Lufkin had signed a conciliatory agreement (Long depo, 86-88).
113. In all, deposition testimony depicts an organizational culture that is not committed to monitoring the treatment and status of African Americans in the company. Nor is it a culture that seems concerned with the potential impact of stereotypes on personnel decisions and implementing changes to its personnel policies, procedures, and practices so as to discourage the use of racial stereotypes in personnel decision-making.

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114. Given the nature of the culture, it is not surprising to find few formal grievances filed by Lufkin African-American employees. Indeed, one need only to be reminded of Lufkin's lack of response to the two OFCCP audits and formal charges of race discrimination that ensued. No concrete changes in Lufkin personnel practices were made, even though the conciliation agreement entered into by Lufkin required that it do so. In fact, numerous managers were unaware of the audit results and the action plan that resulted. An organization which does not exhibit a commitment to addressing racial disparities through concrete, visible steps - even in the face of OFCCP findings of discrimination against minorities and subsequent conciliatory agreements, is not an organization in which individual African-Americans are likely to feel able to successfully challenge personnel decisions on the grounds of unfair treatment. One need only to consult a basic principle of psychology that enjoys widespread scientific support: To act, we must see a clear relationship between our behavior and the desired goal (Bandura, 1986; 1997). In the absence of a relationship, few among us would strive for what, in the end, seems futile. This is the situation faced by African-Americans employees at Lufkin. It is an example of what is referred to in the scientific literature as "learned helplessness" (Seligman, 1975).
115. I have carefully read Lufkin's most recent Equal Employment Policy and Affirmative Action Program document, dated January 1, 2003 to December. 31, 2003 (L-1456314587). The Plan refers to various responsibilities, the dissemination of the Plail to Lufkin employees, and initiating statistical analyses to identifY problem areas. However, the Plan itself is not adequate to ensure equal employment opportunities for African-American employees at Lufkin. Among other things, the Plan devotes little attention to identification of the Lufkin personnel procedures, policies and practices that encourage the use of racial stereotypes in personnel decision-making and what concrete organization-wide changes will be required. Moreover, the Plan is not disseminated to the managers who are responsible for its implementation.
116. To be clear, culture change is never an easy task; it requires a deep institutional transformation that seldom can be accomplished without the intervention of outside experts. Given the nature of Lufkin's culture as described in this report, and the absence of formal education and training in human resource management among Lufkin human resource personnel, I am not confident that Lufkin alone can engineer systematic change in their personnel practices so as to begin to eliminate the racial disparities that have existed in Lufkin for quite some time.
VI. CONCLUSION
117. It is my conclusion that the personnel procedures, policies and practices of Lufkin are responsible for the existing racial disparities that currently exist and have existed at Lufkin during the time period covered by this lawsuit. Initial job assignments for bargaining unit employees, the selection for non-entry level bargaining unit positions and for salaried positions are based on criteria and measurement practices that are subjective, ambiguous and highly discretionary. As such, Lufkin does little to prevent racial stereotypes from negatively influencing and impacting the personnel decisions accorded African-Americans. AfricanAmerican employees at Lufkin are further disadvantaged by the subjective and discretionary nature in which opportunities for training and career development are allocated. Given the emphasis on training at Lufkin for job advancement, much of which is in the form of informal,

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on-the-job training and-career development opportunities, African-Americans have limited opportunity for job advancement. Moreover, Lufkin lacks commitment to systematically measuring or monitoring the treatment and status of African-American employees, and little is done to implement personnel policies, procedures or practices to actively discourage the use of racial stereotypes in personnel decision-making.

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Executed on .July l6, 2003 in Bozeman, Montana

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References
Acker, M. & Manis, M. (1996). Irrepressible stereotypes. Journal of Experimental Social Psychology, 32, 13-38.
American Psychological Association (1991). In the Supreme Court ofthe United States: Price Waterhouse v. Ann B. Hopkins: Amicus curiae brief for the American Psychological Association. American Psychologist, 46, 1061-1070.
Aronson, E., Wilson, T.D., & Akert, R.M. (2002). Social Psychology. (4th ed.). New Jersey: Pearson Education.
Baldi, S., & McBrier, D.B. (1997). Do the determinants of promotion differ for blacks and whites? Evidence from the U.S. labor market. Work and Occupations, 24, 478-497.
Bandura, A. (1997). Self-efficacy: The exercise of control. New York: Freeman.
Bandura, A. (1986). Social foundations of thought and action. Englewood Cliffs, NJ: Prentice Hall.
Bargh, J.A. (1999). The cognitive monster: The case against the controllability of
automatic stereotype effects. In S. Chaiken & Y,. Trope (Eds.), Dual process theories in social
psychology (pp. 361-382). New York: Guilford Press.
Baron, J.N., Davis-Blake, A., & Bielby, W.T. (1986). The structure of opportunity: How
promotion ladders vary within and among organizations. Administrative Science Quarterly, ll,
248-273.
Becker, G. S. (1993). Nobel Lecture: The economic way oflooking at behavior. The Journal of Political Economy, 101,385-409.
Bendrick, M., Jackson, C.W., & Reinoso, V.A. (1994). Measuring employment discrimination through controlled experiments. Review of Black Political Economy, ~ 25-48.
Berlew, D.E., & Hall, D.T. (1966). The socialization of managers: Effects of
expectations on performance. Administrative Science Quarterly, ll, 207-223.
Bielby, W.T. (1987). Modem prejudice and institutional barriers to equal employment opportunity for minorities. Journal of Social Issues, 43, 79-84.
Biernat, M., & Manis, M. (1994). Shifting standards and stereotype-based judgments. Journal of Personality and Social Psychology, 66,5-20.
Biernat, M., Manis, M., & Nelson, T.E. (1991). Stereotypes and standards ofjudgment. Journal of Personality and Social Psychology, 60, 485-499.

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 87 of 295
31
Blanchard, F.A., Crandall, C.s., Brigham, J.e., & Vaughn, L.A. (1994). Condemning and condoning racism: A social context approach to interracial settings. Journal of Applied Psychology, 79, 993-997.
Blanchard, F.A., Lilly, T., & Vaughn, L.A. (1991). Reducing the expression of racial
prejudice. Psychological Science, l, 111-115.
Bodenhausen, G.V., & Macrae, e. (1996). The self-regulation of intergroup perception: Mechanisms and consequences of stereotype suppression.. In C. Macrae, e. Stangor, & M. Hewstone (Eds.), Stereotypes and stereotyping. New York: Guilford Press.
Braddock, J.H., & McPartland, J.M. (1987). How minorities continue to be excluded from equal opportunities: Research on labor markets and institutional barriers. Journal of Social Issues, 43, 5-40.
Brewer, M.B. (1996). When stereotypes lead to stereotyping: The use of stereotypes in person perception. In e. Macrae, e. Stangor, & M. Hewstone (Eds.), Stereotypes and stereotyping. New York: Guilford Press.
Brewer, M.B. & Brown, R.I. (1998). Intergroup relations. In D.T. Gilbert, S.T. Fiske, & G. Lindzey (Eds.), The handbook of social psychology (4th ed., VoL 2, pp. 554-594). New York: McGraw-HilL
Brief, A., Buttram, R.T., Reizenstein, Pugh, & Douglas, S. (I 997). Beyond good intentions: The next steps toward racial equality in the American workplace. Academy of
Management Executive, 11. 59-72.
Campion, M., Pursell, E., & Brown, B. (1988). Structured interviewing: Raising the psychometric properties of the employment interview. Personnel Psychology, 41, 25-42.
Casti, J.L. (1994). Complexification: Explaining a paradoxical world through the science of surprise. HarperCollins.
Crosby, F., Bromley, S., & Saxe, L. (1980). Recent unobtrusive studies of black and white discrimination and prejudice: A literature review. Psychological Bulletin, 87, 546-563.
Darley J. M., & Gross, P. H. (1983). A hypothesis-confirming bias in labeling effects. Journal of Personality and Social Psychology, 44,20-33.
Davis, J.A., & Smith, T.W. (1991). General social surveys, 1972-1991: Cumulative codebook. Chicago: National Opinion Research Center.
Denhaerinck, P., Leyens, J.P., & Yzerbyt, V.Y. (1989). The dilution effect and group membership: An instance of the pervasive impact ofout-group homogeneity. European Journal of Social Psychology, 19,243-250.

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 88 of 295
32
Devine,P.G., & Baker, S.M. (1991). Measurement ofracial stereotype subtyping. Personality and Social Psychology Bulletin, 17,44-50.
Devine, P.G. (1989). Stereotypes and prejudice: Their automatic and controlled components. Journal of Personality and Social Psychology, 56, 5-18.
DeJung, 1.R., & Kaplan, H. (1962). Some differential effects ofrace of rater and ratee on early peer ratings of combat attitude. Journal of Applied Psychology, 46, 370-374.
DiMaggio, P.J., & Powell, W.W. (1983). The iron cage revisited: Institutional isomorphism and collective rationality in organizational fields. American Sociological Review, 48,147-160.
Dovidio, J.F. (1984). Helping behavior and altruism: An empirical and conceptual overview. In. L. Berkowitz (Ed.), Advances in experimental social psychology (VoL 17, pp. 361427). New York: Academic Press.
Dovidio, J.F. (1993). The subtlety of racism. Training and development, 47, 50-57.
Dovidio, J.F., Brigham, J.C, Johnson, B.T.& Gaertner, S.L. (1996). Stereotyping, prejudice and discrimination: Another look. In N. MacRea, C Stangor & M. Hewstone (eds.), Stereotypes and Stereotyping (pp. 276-319). New York: Guilford.
Dovidio, J.F., Evans, N., & Tyler R.B. (1986). Racial stereotypes: The contents of their cognitive representations. Journal of Experimental Social Psychology, 22, 22-37.
Dovidio, J.F., & Gaertner, S.L (1986). Prejudice, discrimination, and racism: Historical trends and contemporary approaches. In J.F. Dovidio & S.L. Gaertner (Eds.), Prejudice, discrimination and racism (pp. 1-34). Orlando, FL: Academic Press.
Dovidio, J.E, Kawakami, K., Johnson, C, Johnson, B., & Howard, A. (1997). On the nature of prejudice: Automatic and controlled processes. Journal of Experimental Social Psychology, 33, 510-540.
Eberhardt, J.L & Fiske, T. (1996). Motivating individuals to change: What is a target to do? In CN. MacRea, C Stangor & M. Hewstone (eds.), Stereotypes and Stereotyping (pp. 369415). Guilford Press.
Edelman, LB. (1992). Legal ambiguity and symbolic structures: Organizational mediation of civil rights law. American Journal of Sociology, 97,1531-1576.
Eidelson, R. J. (1997). Complex adaptive systems in the behavioral and social sciences.
Review of General Psychology, 1, 42-71.
Fazio, R.H., Jackson, J.R., Dunton, B.C, & Williams, CJ. (1995). Variability in automatic activation as an unobtrusive measure of racial attitudes: A bona fide pipeline? Journal of Personality and Social Psychology, 69, 1013-1027.

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 89 of 295
33
Feagin, J.R., & Sikes, M.P. (1994). Living with racism: The Black middle-class experience. Boston: Beacon Press.
Fiske, S.T. (1997). Stereotyping, prejudice, and discrimination. In D.T. Gilbert, S.T. Fiske, & G. Lindzey, (Eds.) The handbook of social psychology (41h ed.). New York: McGrawHill.
Fiske, S.T. & Ruscher, J.B. (1993). Negative interdependence and prejudice: Whence the affect? In D.M. Mackie & D.L. Hamilton (Eds.), Affect, cognition, and stereotyping: Interactive processes in group perception (pp. 239-268). New York: Academic Press.
Fiske, S.T., & Neuberg, S.L. (1990). A continuum of impression formation, from category-based to individual processes: Influences of information and motivation on attention and interpretation. In M. Zanna (Ed.), Advances in experimental social psychology (Vol. 23, pp. 1-74). New York: Academic Press.
Fiske, S.T, Neuberg, S.L., Beattie, A., & Milberg, S. (1987). Category-based and attribute-based reactions to others: Some infonnation conditions of stereotyping and individual processes. Journal of Experimental Soci'!l Psychology, 23, 399-427.
Fiske, ST., & Pavelchak, M.A. (1986). Category-based versus piecemeal-based affective responses: Developments in schema-triggered affect In RM. Sorrentino & E.T. Higgins (Eds.), Handbook of motivation and cognition (pp. 167-203). New York: Guilford.
Fiske, S.T, & Taylor, S.E. (1991). Social Cognition. New York: McGraw-HilL Forbes, J.B., & Piercy, J.E. (1991). Corporate mobility and paths to the top. New York: Quorum Books.
Gaertner, S.L., & McLaughlin, J.P. (1983). Racial stereotypes: Associations and ascriptions of positive and negative characteristics. Social Psychology Quarterly, 46, 23-30.
Greenhaus, J.H., Parasuraman, S., (1993). Job performance attributions and career
advancement prospects: An examination of gender and race effects. Organizational Behavior
and Human Decision Processes, 55,273-297.
Greenhaus, J.H., Parasuraman, S., & Wonnley, W.M. (1990). Effects of race on organizational experiences, job performance evaluations, and career outcomes. Academy of Management Journal, 33, 64-86.
Hamilton, D.L., & Sherman, J.W. (1994). Stereotypes. Handbook of Social Cognition, VoL 2, Applications, (R.S. Wyer & TK. Srull, eds.), pp. 1-68. Hillsdale, NJ: Erlbaum.
Hamner, W.e., Kim, J.S., Baird, L., & Bigoness, W.J. (1974). Race and sex as determinants of ratings by potential employers in a simulated work-sampling task. Journal of Applied Psychology, 59, 705-71 L

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 90 of 295
34
Heneman, R.L., Greenberger, D.B., & Anonyuo, C. (1989). Attributions and exchanges: The effects of interpersonal factors on the diagnosis of employee performance. Academy of Management Journal, 32, 466-476.
Hilton, J.L., & Fein, S. (1989). The role of typical diagnosticity in stereotype-based judgements. Journal of Personality and Social Psychology, 57, 201-211.
Hilton, J.L., & von Hippel, W. (1990). The role of consistency in the judgment of stereotype-relevant behaviors. Personality and Social Psychology Bulletin, l§, 430-448.
Hilton, J.L., & von Hippel, W. (1996). Stereotypes. In J.T. Spence, J.M. Darley, & DJ. Foss (Eds.), Annual review of psychology (Vol. 47, pp. 237-271). Palo Alto, CA: Annual Reviews.
Hitt, M.A. & Keats, B.W. (1984). Empirical identification of the criteria for effective affirmative action programs. Journal of Applied Behavioral Science, 20, 203-222.
Huck J.R., & Bray, D. (1976). Management assessment center evaluations and subsequent job performance of black and white females. Personnel Psychology, 29, 13-30.
lIgen, D.R., & Yountz, M.A. (1986). Factors affecting the evaluation and development of minorities in organizations. In K. Rowland & G. Ferris (Eds.), Research in personnel and human resource management: A research annual (pp. 307-337). Greenwich, CT: JAI Press.
Judd, C.M., Park, B., Ryan, C.S., Brauer, M., & Kraus, S. (1995). Stereotypes and ethnocentrism: Diverging interethnic perceptions of African American and White American youth. Journal of Personality and Social Psychology, 69,460-481.
Kacmar, K.M., & Hochwarter, W.A. (1995). The interview as a communication event: A field examination of demographic effects on interview outcomes. Journal of Business Communication, 32, 207-232.
Katz, I., Hass, R.G., & Wackenhut, 1. (1986). Racial ambivalence, value duality, and behavior. In J.f. Dovidio & S.L. Gaertner (Eds.), Prejudice, discrimination and racism (pp.3559). Orlando, FL: Academic Press.
Kaufman, R.L. (1986). The impact of industrial and occupational structure on BlackWhite employment allocation. American Sociological Review, 51,310-323.
Kerr, S. (1975). On the folly ofrewarding A, while hoping for B. Academy of Management Journal,~, 769-783.
Konrad, A.M., & Linnehan, F. (1995). Formalized HRM structures: Coordinating equal employment opportunity or concealing organizational practices? Academy of Management Journal, 38, 787-829.

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 91 of 295

35

Kraiger, K., & Ford, J.K. (1985). A meta-analysis ofratee race effects in perfonnance ratings. Journal of Applied Psychology, 70, 56-65.

Landau, J. (1995). The relationship ofrace and gender to managers, ratings of promotion

potential. Journal of Organizational Behavior, 16,391-400.

.

Langer, E. (1989). Mindfulness. Reading, MA: Addison-Wesley.

Langer, E., Bashner, R., & Chanowitz, B. (1985). Decreasing prejudice by increasing discrimination. Journal of Personality and Social Psychology, 49,113-120.

Lefkowitz, J. (1994). Race as a factor in job placement: Serendipitous findings of ethnic drift."Personnel Psychology, 47, 497-513.

Leyens, J.P., Yzerbyt, V.Y., & Schadron, G. (l992). The socialjudgeability approach to stereotypes. In W. Stroebe & M. Hewstone (Eds.), European Review of Social Psychology (Vol. 3, pp. 91-120). Chicester, UK:Wiley.

Lin, T., Dobbins, G., & Farh, J. (1992). A field study of race and age similarity effects on
interview ratings in conventional and situational interviews. Journal of Applied Psychology, 1
363-371.

Macrae, C.N., Bodenhausen, G.V., Milne, A.B., & Jetten, J. (1994). Out of mind but back in sight: Stereotypes on the rebound. Journal of Personality and Social Psychology, 67, 808-817.

Macrae, C.N., Milne, A.B., & Bodenhausen, G.V. (1994). Stereotypes as energy-saving devices: A peek inside the cognitive toolbox. Journal of Personality and Social Psychology, 66, 37-47.
Martell, R.F. (1996). Sex discrimination at work. In K.M. Bonnan and P. Dubeck (Eds.), Handbook of women and work. New York: Garland Publishing.

Martell, R. F., Lane, D. M., & Emrich, C. G. (1996). Male-Female differences: A
computer simulation. American Psychologist, 1L 157-158.

Martell, R.F., & DeSmet, A. (2001). A diagnostic-ratio approach to measuring beliefs about the leadership abilities of male and female managers. Journal of Applied Psychology, 86, 1223-1231.
Martell, R.F., Parker, c., Emrich, C.E., & Swerdlin, M. (1998). Sex stereotyping and the
executive suite: Much ado about something. Journal of Social Behavior and Personality, 11,12T·138.

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 92 of 295
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McConahay, J.B. (1983). Modem racism and modem discrimination: The effects of race, attitudes, and context on simulated hiring decisions. Personality and Social Psychology Bulletin, 2,551-558.
Messick, D.M., & Mackie, D. (1989). Intergroup relations. Annual Review of Psychology, 1Q, 45-81.
Morrison, A.M., & von Glinow, A.A. (1990). Women and minorities in management. American Psychologist, 45, 200-208.
Moses, J.L., & Boehm, V.R. (1975). Relationship of assessment center performance to management progress of women. Journal of Applied Psychology, 60, 526-529.
Mueller, e.W., Parcel, T.L., & Tanaka, K. (l989)~ Particularism in authority outcomes of
Black and White supervisors. Social Science Research, li, 1-20.
Neckerman, K.M., & Kirschenman, J. (1991). Hiring strategies, racial bias and inner-city workers. Special Issue: The underclass in the United States. Social Problems, 38, 433-447.
Pendry, L.F., & Macrae, e.N. (1994). Stereotypes and mental life:' The case of the motivated but thwarted tactician. Journal of Experimental Social Psychology, 30 303-325.
Pendry, L.F., & Macrae, e.N. (1996). What the disinterested perceiver overlooks: Goal-
directed social categorization.. Personality and Social Psychology Bulletin, g 249-256
Pettigrew, T.F. & Meertens, R.W. (1995). Subtle and blatant prejudice in western Europe. European Journal of Social Psychology, 25,57-75.
Pettigrew, T.F. & Martin, J. (l981). Shaping the organizational context for Black American inclusion. Journal of Social Issues, 43, 41,..78.
Powell, G.N., & Butterfield, D.A. (1997). Effect ofrace on promotions to top management in a federal department. Academy of Management Journal, 40, 112-128.
Pratto, F., & Bargh, J.A. (1991). Stereotyping based on apparently individuating infonnation: Trait and global components of sex stereotypes under attention overload. Journal of Experimental Social Psychology, 26-47.
Pulakos, E. D., White, L.A., Oppler, S.H., & Borman, W.e. (1989). Examination ofrace and sex effects on performance ratings. Journal of Applied Psychology, 74, 770-780.
Ritchie, RJ., & Moses, J.L. (1983). Assessment center correlates ofwomens' advancement into middle management: A 7-year longitudinal analysis. Journal of Applied Psychology, 68, 221-231.

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 93 of 295

38

Smith, E. R. (I 993). Social identity and social emotions: Toward new

.

conceptualizations of prejudice. In D. Mackie & DIL Hamilton (Eds.), Affect, cognition, and

stereotyping: Interactive processes in group perception. Academic Press.

Stangor, C, Sullivan, L., & Ford, T. (1991). Affective and cognitive determinants of
prejudice. Social Cognition, 2, 359-380.

Sunnafrank, M., & Fontes, N.E. (1981). General and crime-related racial stereotypes and
influence on juridic decisions. Cornell Journal of Social Relations, 11, 1-15.

Tetlock, P. E. (1992). The impact of accountability on judgement and choice: Toward a social contingency modeL In M. Zanna (Ed.), Advances in experimental social psychology (VoL 25, pp. 331-376). New York: Academic Press.

Tetlock, P.E. (1985). Accountability: The neglected social context ofjudgment and choice. In L.L. Cummings & B.M. Staw (Eds.), Research in'organizational behavior, (VoL 7, pp.297-332). JAI Press.

Thomas, D.A., Alderfer, c.P. (1989). The influence of race on career dynamics: Theory and research on minority career experiences. In M.Arthur, D.Hall, & B. Lawrence (Eds.), Handbook of career theory. Cambridge, England: Cambridge University Press.

Tichy, N., & Ulrich, D.O. (1984). The leadership challenge - A call for the transformational leader. Sloan Management Review, 26,59-68

Von Hippe1, W., Sekaquaptewa, D., & Vargas, P. (1997). The linguistic intergroup bias as an implicit indicator of prejudice. Journal of Experimental Social Psychology, 33,490-509..

Weil, P.A., & Wesley, N. (1993). Disparity found in the career attainment of black and white healthcare executives. Healthcare Executive, ~, 22-23.

Wilson, T.D., & Brekke, N. (1994). Mental contamination and mental correction: Unwanted influences on judgments and evaluations. Psychological Bulletin, 116, 117-142.

Wittenbrink, B., Judd, C.M., & Park, B. (1997). Evidence for racial prejudice at the implicit level and its rdationship with questionnaire measures. Journal of Personality & Social Psychology, 72, 262-274.

Word, C.O., Zanna, M.P., & Cooper, J. (1974). The nonverbal mediation of selffulfilling prophecies in interracial interaction. Journal of Experimental Social Psychology, 10, 109-120.

Yarkin, K., Town, J.P., & Wallston, B.S. (1982). Blacks, and women must try harder: Stimulus person, race and sex attributes of causality. Personality and Social Psychology Bulletin, ~, 21-24.

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 94 of 295
37
Rosenbaum, J. E. (1979). Tournament mobility: Career patterns in a corporation. Administrative Science Quarterly, 24, 220-241.
Rosenbaum, J. E. (1984). Career mobility in corporate hierarchy. New York: Academic
Rosenbaum, J. E. (1989). Organization career systems and employee misperceptions. In M. Arthur, D. Hall and B. Lawrence (Eds.), Handbook of Career Theory. Cambridge: Cambridge University Press.
Rothbart, M., & John, O.P. (1985). Social categorization and behavioral episodes: A cognitive analysis of the effects of intergroup contact. Journal of Social Issues, 41, 81-104.
Sacket, P.R.~ DuBois, C.L.Z., & Noe, A.W. (1991). Tokenism in performance evaluations: The effects of work group representation on male-female and Black-White differences in performance evaluations. Journal of Applied Psychology, 76, 263-267.
Sackett, P. R., & DuBois, c.L.Z. (1991). Rater-ratee race effects on performance evaluation: Challenging meta-analytic conclusions. Journal of Applied psychology, 76, 873877.
Schelling, T.e. (1971). Dynamics models of segregation. Journal ofMathematical
Sociology, 1, 143-186.
Schein, E.H. (1992). Organizational culture and leadership, Second Edition. Jossey-Bass.
Seligman, M.E.P. (1975). Helplessness: On depression, development, and death. San Francisco: Freeman.
Seta, J., & Seta, C.E. (1993). Stereotypes and the generation ofcompensatory and noncompensatory expectancies of group members. Personality and Social Psychology Bulletin, 19, 722-731.
Sheridan, J. E., Slocum, J. W., Buda, R., & Thompson, R. C. (1990). Effects of corporate sponsorship and departmental power on career tournaments. Academy of Management Journal, 33, 578-602.
Sigelman, L. & Welch, S. (1991). Black American's views of racial inequality: The dream deferred. Cambridge, UK: Cambridge University Press.
Simon, H. (1957). Models of man. New York: Wiley.
Smircich, L., & Morgan, G. (1982). Leadership: The management of meaning. Journal of Applied Behavioral Science,~, 257-273.

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 95 of 295
39
Yzerbyt, V.Y., Schadron, G., Leyens, J., & Rocher, S. (1994). Socialjudeability: The impact of meta-informational cues on the use of steteotypes. JoumalofPersonality & SociarPsychology, 66,48-55.
Zarate, M.A., & Smith, E.R. (1990). Person categorization and stereotyping. Social Cognition,~, 161-185.
Zarate, M.A., Bonilla, S., & Luevano, M. (1995). Ethic influences on exemplar retrieval and stereotyping. Social Cognition,.u, 145-162.

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Curriculum Vitae

RICHARD F. MARTELL
July 2003

PERSONAL
Work Address Department of Psychology Montana State University Bozeman, MT 59717-3440 Voice: (406) 994-3930 Fax: (406) 994-3804 E-mail:martell@montana.edu URL: http://www.montana.edulwwwpy

Home Address 8002 Balsam Drive Bozeman, MT 59718

. EDUCATION

PhD 1988 Industrial-Organizational Psychology; New York University MA 1986 General Psychology; New York University BA 1978 Psychology; Sonoma State University

ACADEMIC EMPLOYMENT

1997 - present

Associate Professor of Psychology, Montana State University

1996-1997

Associate Professor of Psychology (tenured), Columbia University,

Teachers College

1992 -1996

Assistant Professor of Psychology, Columbia University, Teachers College

Held Seat in the Faculty of the Graduate School ofArts and Sciences,

Columbia College

Approved Ph.D sponsor in the Graduate School of Arts and Sciences,

Columbia College

1988 -1992

Assistant Professor of Psychology, Rice University

PROFESSIONAL ACTIVITIES
Consulting Editor: Journal of Applied Psychology (1999-current). Editorial Board: Perspectives: Introduction to management (1999-2000)
Ad-Hoc Reviewer: Academy of Management Review, Group and Organizational Management, Academy of Management Journal, Journal of Organizational Behavior, Sex Roles, Journal of Applied Social Psychology, Organizational Behavior and Human Decision Making

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Program Committee Membership: Society of Industrial-Organizatiorial Psychology Convention (1993; 1995-1996; 1998-200I). Program Committee, American Psychological Association Convention, Division 14, (1992).
Professional Memberships: Academy of Management, American Psychological Society, Society for Industrial and Organizational Psychology.

CONSULTING

2001

Consulting Expert: Employed by Wm. Hanson law firm and Garrity, Avignone, Banick & Whetstone (Plaintiffs Law Firm: Lead Attorney-Bill Hanson) in a gender discrimination case filed against the US Department of the Interior.

1998

Consulting Expert: Employed by Lieff, Cabraser, Heimann, & Bernstein, San Francisco (Plaintiffs Law Firm: Lead Attorney-James Finberg) in a class action racial discrimination case against United Parcel Service of America, Inc.

1993-1995

Faculty Participant: Advanced Program in Organizational Development and Human Resource Management (ODHRM). Co-sponsored with University of Michigan School of Business.

1987-1988 Consultant: Employed by Citicorp, N.A. to assess and train high potential managers.

RESEARCH INTERESTS

Workplace Stereotyping and Discrimination: Identifying organizational factors that contribute to biased personnel assessments of members of stigmatized groups (e.g., women, AfricanAmericans); understanding how gender bias leads to the exclusion of women at senior levels of management; introducing methodological improvements in the measurement of stereotypes and detection of bias in work performance evaluations.

Work Performance Assessment: pinpointing the impact of cognitive biases in performance appraisal judgments; exploring the costs and benefits of using groups (versus individuals) to assess performance; developing rater training programs.

Alternative Research Methods: The study of human resource management using computational modeling, signal detection analyses and experimental methods derived from cognitive psychology

TEACHING

Psychology of PrejudicelDiversity at Work (UG; GRAD)

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Industrial-Organizational Psychology (UG; GRAD)

. Organizational Behavior (GRAD)- .'

..

Psychological Aspects of Organizations (GRAD)

Social Cognition in Organizations (GRAD)

Proseminar in Social Psychology (GRAD)

Practicum in Conflict Resolution (GRAD)

Research Methods (UG)

Social Psychology (UG)

REFEREED PUBLICATIONS

Martell, R.F., & Leavitt, K (2002). Reducing the performance-cue bias in work behavior ratings: Can groups help? Journal of Applied Psychology, 87, 1032-1041.

Martell, R.F., & DeSmet, A. (2001). A diagnostic-ratio approach to measuring beliefs about the leadership abilities of male and female managers. Journal of Applied Psychology, 86, 1223-1231
c., Martell, R.F., Parker, Emrich, C.E., & Swerdlin, M (1998). Sex stereotyping and the
executive suite: Much ado about something. Journal of Social Behavior and Personality,
li, 127-138.

Martell, R.F. (1996). What mediates gender bias in work behavior ratings? Sex Roles, 35,153169.

Martell, R.F., Lane, D.M., & Emrich, C.E. (1996). Male-Female differences: A computer
simulation. American Psychologist, iL 157-158.

Martell, R.F. (1996). Sex discrimination at work. In K.M. Borman and P. Dubeck (Eds.), Handbook of women and work. New York: Garland Publishing.

Martell, R.F., Guzzo, R.A., & Willis, C.E. (1995). A methodological and substantive note on the perfonnance-cue effect in ratings of work-group behavior. Journal of Applied Psychology, 80, 191-195.

Heilman, M.E., Block, C.J., & Martell, R.F. (1995). Sex stereotypes: Do they influence
perceptions of managers? Journal of Social Behavior and Personality, lQ, 237-252.

Martell, RF. & Borg, M. (1993). A comparison of the behavioral rating accuracy of groups and individuals. Journal of Applied Psychology, 78, 43-50.

Martell, RF., & Willis, C.E. (1993). Effects of observers' performance expectations on behavior ratings of work groups: Memory or response bias? Organizational Behavior and Human Decision Processes, 56, 91-109.

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Martell, R.F. (1991). Sex bias at work: The effects of attentional and memory demands on perfonnanceratings of men and women. Journal of Applied Social Psychology, 21,
1939-1960.
Martell, R.F., & Guzzo, R.A. (1991). The dynamics of implicit theories of group performance: When and how do they operate? Organizational Behavior and Human Decision Processes, 50, 51-74.
Heilman, M.E., Block, C.J., Martell, R.F., & Simon, M.C. (1989). Has anything changed? Current characterizations of men, women, and managers. Journal of Applied Psychology, 74, 935-942.
Heilman, M.E., Martell, R.F., & Simon, M.S. (1988). The vagaries of sex bias: Conditions regulating the undervaluation, equivaluation, and overvaluation of female job applicants. Organizational Behavior and H~an Decisions Processes, 11., 98-110.
Heilman, M.E., & Martell, RF. (1986). Exposure to successful women: Antidote to sex discrimination in applicant screening decisions? Organizational Behavior and Human Decision Processes, 37, 376-390.
MANUSCRIPTS UNDER REVIEW
Martell, R. F., & Evans, D. Reducing the effects ofrater expectations on work behavior ratings: A "source-monitoring" approach. Manuscript revised for publication in the Journal of Applied Psychology.
MANUSCRIPTS IN PREPARATION
Martell, RF., Emrich, c., & Robison-Cox, J. From bias to exclusion: Linking gender
discrimination and organizational mobility to explain the glass ceiling.
Martell, R.F. What moderates gender bias in personnel assessments? A model and research agenda.
RESEARCH IN PROGRESS
Martell, R F. Assessing the validity of field correlation research.
Martell, R.F., & Robison-Cox, J., & Emrich, C. Gender bias and organizational mobility: A computer simulation.
Robison-Cox, J., Martell, R.F., & Emrich, C. Estimating the "cost" of gender bias: A utility Analysis.

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Martell, R.F., & Bobocel, R. (2000). Leader of a roundtable discussion on: Ways of conducting research on employment discrimination. Psychological and Organizational Perspectives on Discrimination in the Workplace: Research, Theory, and Practice. A Scholarly Conference (by invitation only) sponsored by Rice University. Houston, TX.
Heilman, M.E., Eagly, A., & Martell, R.F. (2000). Co-leader of a roundtable discussion on: Gender discrimination in the workplace. Psychological and Organizational Perspectives on Discrimination in the Workplace: Research, Theory, and Practice. A Scholarly Conference (by invitation only) sponsored by Rice University. Houston, TX.
Martell, R.F. (1999). Sensitive dependence in organizations: Invited Paper: Midwestern Psychological Association Annual Meeting, Chicago, IL.
Martell, R.F. (1997). Social cognition: Basic processes and applications. A series of lectures presented at Tbilisi State University, Department of Psychology, Tbilisi, Republic of Georgia.
Martell, R.F. (1997, November). Importance of early stimulation for infant psycho-social development. Tbilisi Children's Home, Tbilisi, Republic ofGeorgia.
Martell, R.F. (1995). Sex bias in work assessments and organizational mobility. Division II: Dean's Breakfast Talk. Columbia University.
Martell, R.F. (1993). Stereotyping and discrimination at work. The Council on Scholarship on Women and Gender. Columbia University.
Martell, R.F. (1991). An industrial-organizational psychologist's approach to investigating gender bias at work. Department of Psychology, Texas A & M University.
Martell, R.F. (1988). Gender bias at work. Department of Psychology, Rice University.
Martell, R.F. (1988). A cognitive approach to understanding gender discrimination in personnel assessments. Department of Psychology, Baruch College, City University of New York.
GRANT ACTIVITY
National Science Foundation, Principal Investigator. Gender Bias and Organizational Mobility. 2003. Funded: $86,819
National Science Foundation, Co-Principal Investigator. ADVANCE: Increasing the Participation and Advancement of Women in Academic Science and Engineering Careers. 2002. Not funded.

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National Science Foundation, EPSCoR (MONTS) program, Principal Investigator: Effects of gender bias on organizational mobility: A computer simulation. 2000. Funded: $22,588

Scholarship and Creativity Grant, MSU, Office for Research and Creative Activities. Principal Investigator: Sensitive dependence in the workplace: Can a little gender bias cause the "glass ceiling" in organizations? 2000. Funded: $5000

EPSCoR funds to attend a National Science Foundation Social, Behavioral and Economic Sciences Conference on Funding Opportunities. 2000. Funded: $850.

National Science Foundation, EPSCoR program. Principal Investigator: Exploring the effects of human resource management (HRM) practices on small firm financial performance - A university-business collaboration. Selected as 1 of 3 pre-proposals from Montana for final submission. 1999. Not funded.

Office for Research and Creative Activities, MSU. Principal Investigator: Effects of human resource management (HRM) practices on small firm financial performance. 1998. Funded: $11,000

Office of International Education, MSU. Principal Investigator: Work attitudes, values and motivation of Georgian students and managers - Implications for a newly developing market economy. 1997. Funded: $3000

National Science Foundation, EPSCoR program. Co-principal Investigator: Center for applied behavioral and social sciences: Developing university-industry partnerships to enhance human resource practices in the Northwest EPSCoR region. Selected as 1 of 4 pre-proposals from Montana for final submission. 1997. Not funded.

HONORS AND AWARDS

Teaching Montana State University Columbia University

2002 President's Excellence in Teaching Nomination Teaching Commendation, 1994

Research Montana State University
New York University
New York University

2002 Award to sponsor a Native American "Leadership Alliance" student from Stanford University to work in my research lab Douglas H. Fryer Award for Outstanding Scholarship on Behavior in Organizations, 1989 Dean's Dissertation Fellowship, 1986-87.

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Documents Reviewed

APPENDIX 1

DOCUMENTS REVIEWED BY RICHARD MARTELL RE PREPARATION OF EXPERT REPORT FOR McCLAIN v. LUFKIN

MISC. DOCUMENTS

• 3/13/99 Memorandum Opinion re Class Certification • 3/8100 Protective Order • Original Complaint • Amended Complaint • 6/16/03 Drogin Report • Statistical database re Lufkin workforce - sent by R. Kakigi 6/03 • Exhibit 8 to deposition of J. Havard - 2/24/95 letter from OFCCP to Douglas Smith • McCune Report • EEOC charges and declarations ofS. McClain and B. Thomas • 9/4/01 TWC Statistical Analysis Memo from S. Grimes

DEPOSITION TRANSCRlPTS • Barbay, Viron • Felts, Susan • Gilley, Rickey • Glick, John • Havard, John • Long,Larry • Perez, Paul • Reynolds, Steve
•
LUFKIN PRODUCED DOCUMENTS

• 161021-161025 • 211622-211652 • 500002-500006, • 500008 • 900004-900041 • L000954-LOOI046 • LOOI090-LOOI196 • LOO1310-L001992 • L008764-L008784 • L012169-LOI0173 • Ll1067-Ll1422 • Ll1605-Ll1852

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• L13612-L13701 • L13963-Ll4509 • Ll 5284-Ll 5287 • L20811-L20821, • L20824-L20985 • L21125-L21165 • L21818-L21825 • L22043-L22072 • L22077-L22101 • L2211O-L22264 • L22495-L22503 • L22S05-L22560 • L22579-L22598 • L22600-L22604 • L22612-L2261S • L22620 • L22623-L22625 • L22629-L22630 • L22634-L22650 • L22663-L22671 • L22679-L22703 • L22733-L22744
TEXAS WORKFORCE COMMISSION (TWC) DOCUMENTS • TWCOOO13 • TWC00020-TWC00021 • TWC00178-TWCOOI80 • TWC00184 • TWC00298

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APPENDIX 3
Publications Authored Within The Preceding Ten Years.
Martell, R.F., & Leavitt, K (2002). Reducing the perfonnance-cue bias in work behavior ratings: Can groups help? Journal of Applied Psychology, 87, 1032-1041.
Martell, R.F., & DeSmet, A. (2001). A diagnostic-ratio approach to measuring beliefs about the leadership abilities of male and female managers. Journal of Applied Psychology, ~ 1223-1231
Martell, R.F., Parker, C, Emrich, CE., & Swerdlin, M (1998). Sex stereotyping and the executive suite: Much ado about something. Journal of Social Behavior and Personality,
n, 127-138.
Martell, R.F. (1996). What mediates gender bias in work behavior ratings? Sex Roles, 35, 153169.
Martell, R.F., Lane, D.M., & Emrich, CE. (1996). Male-Female differences: A computer simulation. American Psychologist, 21,157-158.
Martell, R.F. (1996). Sex discrimination at work. In KM. Bonnan and P. Dubeck (Eds.), Handbook ofwomen and work. New York: Garland Publishing.
Martell, R.F., Guzzo, R.A., & Willis, CE. (1995). A methodological and substantive note on the perfonnance-cue effect in ratings of work-group behavior. Journal of Applied Psychology, 80, 191-195.
Heilman, M.E., Block, CJ., & Martell, R.F. (1995). Sex stereotypes: Do they influence perceptions of managers? Journal of Social Behavior and Personality, lQ, 237-252.
Martell, R.F. & Borg, M. (1993). A comparison of the behavioral rating accuracy of groups and individuals. Journal of Applied Psychology, 78,43-50.
Martell, R.F., & Willis, CE. (1993). Effects of observers' performance expectations on behavior ratings of work groups: Memory or response bias? Organizational Behavior and Human Decision Processes, 56, 91-109.

Case 9:97-cv-00063-RC Document 220 Filed 07/29/2003 Page 106 of 295
52
APPENDIX 4 Compensation. Class counsel have agreed to pay me $200.00 per hour for research, consultation and report production. My hourly rate for deposition or trial testimony is $300 per hour

 
 Case 9:97-cv-00063-RC Document 620 Filed 03/31/2009 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

LUFKIN DIVISION

Sylvester McClain, et al. Plaintiffs,
v. Lufkin Industries, Inc.
Defendant.

§ Civil Action No. 9:97 CV 063 (CLARK) § § § § § § § §

FINAL JOINT STATUS REPORT ON BACK PAY ISSUES

Houston 3947601v.1

Case 9:97-cv-00063-RC Document 620 Filed 03/31/2009 Page 2 of 7

Plaintiffs, Sylvester McClain, et al. (“Plaintiffs”), and Defendant Lufkin Industries, Inc.

(“Lufkin” or “Defendant”), submit this Joint Status Report on Back Pay Issues to summarize the

status of the parties’ discussions over the past three and a half months, the outcome of those

discussions, and their recommendations for further proceedings on the back pay issues to be

resolved by the Court.

I.

WHAT THE PARTIES HAVE ACCOMPLISHED AND RESOLVED

Since the last Scheduling Conference on December 5, 2008, Plaintiffs and Defendant

have been in frequent, almost continuous discussions of the class back pay issues remaining

before the Court. These discussions have included numerous telephone conferences of counsel

for the parties, exchanges of data and analyses of the data by the parties and their respective

statistical analysts, direct communications between the experts as to technical matters, and

settlement negotiations concerning all of the issues described below and other matters. Much

has been accomplished, although it presently appears that unresolved issues will remain for the

Court to decide.

Among the things accomplished or agreed upon by the parties are the following. (1) The

respective experts have agreed on a single common electronic database of relevant Lufkin

Human Resources and Payroll information which provides the basis for both sides’ analyses and

proposals on the back pay issues. (2) Each side has gained an understanding of the assumptions

and methods used by the other side to analyze the data and formulate class back pay proposals.

(3) The parties have resolved several relatively small but complex previously disputed issues

relating to the method and accuracy of back pay calculations. (4) The parties agree on what

issues of law and/or calculation method must be resolved by the Court, and after much

consideration believe those issues can be framed clearly and simply for the Court’s efficient

consideration. (5) The parties have agreed upon a proposed procedure for the Court to receive their positions on the disputed issues and rule on the need for further proceedings.1 (6) The

1 Depending on how the Court rules, the Court may need to hear additional evidence.

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Case 9:97-cv-00063-RC Document 620 Filed 03/31/2009 Page 3 of 7
parties are able, and in principle willing, to carry out in a mutually understood and agreed-upon fashion whatever decisions the Court makes on the disputed issues to be submitted to it. In other words, the Court need only decide the questions presented that will guide the ultimate class back pay calculations; it need not carry out the calculations itself. (7) While the parties have not agreed on a specific method of allocating a back pay award among members of the class, they have discussed and are in general agreement about the principles governing such distribution, and are confident that once the general award parameters are determined they will be able to agree on a specific distribution method or formula.
II. ISSUES REMAINING TO BE DETERMINED BY THE COURT. The parties, of course, accept the directives of the Fifth Circuit, at pages 25-27 of its Slip
Opinion, as governing the method for calculating back pay. However, the process of applying the Fifth Circuit’s directives to the calculation of class back pay in this case has proved to be complicated and involves making many choices not clearly addressed in the Fifth Circuit’s opinion.
Five issues currently remain to be determined by the Court.2 Two (#s 1 and 5 listed below) involve legal and factual issues, and three (issues #2-4 below) are issues of calculation methodology. They are:
1. For what “liability period(s)” shall back pay be awarded? The parties are in agreement that the Fifth Circuit mandate applies to the period 1996-2002.3
2 The parties continue to discuss these issues, particularly issue 3 below, and are hopeful that additional agreement may be forthcoming. 3 Lufkin sets the start date for liability and damages at April 2, 1996, 300 days before the filing of Buford Thomas’ EEOC charge. Plaintiffs both urge an earlier start date, March 6, 1994, and question whether the available data permits a back pay analysis that begins at a date other than the start or end of a calendar year, and therefore must start no later than January 1, 1996. The parties agree that the end date, for this period, is December 31, 2002.
(continued . . .) -2-
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Case 9:97-cv-00063-RC Document 620 Filed 03/31/2009 Page 4 of 7
Plaintiffs contend that back pay must also be awarded for 1994-1995 under the Fifth Circuit’s order, 2003-2004, and 2005-2007, on rationales different for each of those periods. Defendant contends that back pay should not be awarded for any of these other periods, also for differing reasons. The parties agree that for any period in which back pay is owed, that pre-judgment interest on any amounts owed for that period will continue to accrue until the entry of judgment. 2. Whether damages should be adjusted based on comparisons involving employees who have left Lufkin’s employment and later returned; and if so, by how much. This question has been termed the “attrition” issue by the parties, and will be so designated in this Report. 3. The proper method for comparisons of the annual compensation of promoted and non-promoted employees in the year when the promotion occurred. This question has been termed the “first year damages” issue by the parties, and will be so designated in this Report. The parties’ experts are continuing to analyze the first year damages issues. 4. Whether to consider in calculating damages the compensation resulting from those promotions in which the comparisons show that African Americans were over-promoted (not under-promoted) for particular job and year comparisons. This question has been termed the “over-promotion compensation” issue by the parties, and will be so designated in this Report.
(continued …) Whether Lufkin is liable for conduct in the 1994-early 1996 time period is essentially a legal issue. If events prior to April 2, 1996 are barred by limitations, Lufkin contends the Court may consider the effect of such limitations on its previous findings which may require taking additional evidence. Plaintiffs contend that the Fifth Circuit ordered back pay for 1994-1995 and that ruling is law of the case. The parties also differ as to the need for taking additional evidence regarding periods following December 21, 2002.
-3-
Houston 3947601v.1

Case 9:97-cv-00063-RC Document 620 Filed 03/31/2009 Page 5 of 7
5. The appropriate pre-judgment interest rate to be applied to the class back pay award.4
III. THE PROPOSED METHOD FOR DECIDING THE DISPUTED ISSUES. The parties also agree on the following recommendation to the Court as to how the
disputed issues should be decided. The parties are to exchange expert witness declarations which shall not exceed ten pages
on April 10, 2009. The parties shall then submit their respective positions on the disputed issues, with supporting briefs not to exceed 15 pages, together with supporting expert witness declarations, by concurrent filing by April 17, 2009. There should be no reply briefs as each side would be fully familiar with the other’s positions and grounds, and can address them in a single filing. The Court may hear argument or permit or require other proceedings, including taking additional evidence, as it deems appropriate. The parties suggest that, at a minimum, a conference or hearing to explain their positions more fully would be helpful.5 The parties further request the Court to schedule such initial proceedings as it deems appropriate during the two week period beginning May 18, 2009, if convenient for the Court.
After the Court decides the issues submitted to it, as outlined above, the Court should permit and require the parties to translate its decisions into a specific class back pay award and formula for allocating the award among class members. The parties expect to be able to submit a judgment based on the Court’s determinations, which judgment would be agreed at least as to form, without prejudice to either party’s right to appeal. Moreover, the parties expect to be able to agree on the allocation of the class back pay award and a method of calculating and
4 There is no dispute that pre-judgment interest should be awarded through the date of entry of judgment, and that interest thereafter should accrue at the rate specified in 28 U.S.C. § 1961(a). 5 An in-chambers or other conference before or in addition to any hearing might provide an efficient way for the parties to explain their positions, particularly on technical or methodological issues.
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Case 9:97-cv-00063-RC Document 620 Filed 03/31/2009 Page 6 of 7

distributing individual amounts, and will ask the Court to allow them a post-decision opportunity to discuss and, if they reach agreement as expected, jointly submit a proposed plan.
IV. CONCLUSION The parties jointly request that the Court adopt the issue specification, decision-making
method, and schedule jointly proposed above. If the Court does not respond to this proposal by April 17, the parties will nevertheless file their pleadings in the manner suggested above.

Dated: March 31, 2009

Respectfully submitted,

By: s/ Morris J. Baller_____________________
Teresa Demchak, CA Bar No. 123989 tdemchak@gdblegal.com Morris J. Baller, CA Bar No. 048928 mballer@gdblegal.com Lin Chan, CA Bar No. 255027 lchan@gdblegal.com Goldstein, Demchak, Baller, Borgen & Dardarian 300 Lakeside Drive, Suite 1000 Oakland, CA 94612-3534 (510) 763-9800

Dated: March 31, 2009

By: s/ Timothy B. Garrigan___________________ Timothy Garrigan, TX Bar No. 07703600 tim2@sgclaw.org Stuckey, Garrigan & Castetter Law Offices 2803 North Street Nacogdoches, TX 75963-1902 (936) 560-6020
Attorneys for Plaintiffs

Dated: March 31, 2009

By: /s Douglas E. Hamel______________________ Douglas Hamel dhamel@velaw.com Christopher V. Bacon cbacon@velaw.com Vinson & Elkins 2806 First City Tower 1001 Fannin Street Houston, TX 77002-6760 (713) 758-2222
Attorneys for Defendant

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Houston 3947601v.1

Case 9:97-cv-00063-RC Document 620 Filed 03/31/2009 Page 7 of 7 CERTIFICATE OF SERVICE
I certify that on this 31st day of March, 2009, a copy of the foregoing Final Joint Status Report on Back Pay Issues was filed electronically through the Court’s CM/ECF System and was automatically copied to Plaintiffs through the Court’s electronic filing system.
/s Douglas E. Hamel_____________ Douglas E. Hamel
-6-
Houston 3947601v.1

 
 Case 9:97-cv-00063-RC Document 696 Filed 01/15/10 Page 1 of 106

**NOT FOR PRINTED PUBLICATION**

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION

SYLVESTER MCCLAIN, on his own behalf §

and on behalf of a class of similarly situated §

persons, ET AL.,

§

§

Plaintiffs,

§

§

v.

§

§

LUFKIN INDUSTRIES INC.,

§

§

Defendant.

§

§

CIVIL ACTION No. 9:97CV63 JUDGE RON CLARK

FINAL JUDGMENT

After affirming the court’s earlier judgment that Defendant Lufkin Industries Inc.’s

promotion practices had a disparate impact on black employees, the Fifth Circuit remanded this

case to this court to calculate the back pay award attributable to these discriminatory practices, to

craft an adequate remedial order on injunctive relief, and to award counsel a reasonable

reimbursement. McClain v. Lufkin Indus., Inc., 519 F.3d 264, 284 (5th Cir. 2008). In response to

that mandate, and in accordance with earlier interim orders of this court and agreements of the

parties, the court enters this final judgment pursuant to Rule 58 of the Federal Rules of Civil

Procedure.

I. Permanent Injunction

Pursuant to the Fifth Circuit’s mandate [Doc. #579], the parties’ joint report of

February 19, 2009 [Doc. #606], and the parties’ amended joint submission of

November 13, 2009 [Doc. #681], the court entered a permanent injunction on

1

Case 9:97-cv-00063-RC Document 696 Filed 01/15/10 Page 2 of 106

December 18, 2009 [Doc. #683] to remedy Defendant’s discrimination against black employees when determining promotions for hourly and salaried positions. It is hereby ORDERED that Defendant Lufkin Industries Inc. shall comply with, and fully implement, the permanent injunction, a copy of which is attached to this judgment as Appendix 1 and is hereby incorporated by reference.
II. Monetary Relief It is further ORDERED that Defendant Lufkin Industries Inc. shall pay to Plaintiffs the following amounts: 1. Three Million Two Hundred Sixty-nine Thousand Eight Hundred Forty-eight
Dollars ($3,269,848.00) in back pay; 2. Two Million Two Hundred Eighteen Thousand Four Hundred Twenty-one
Dollars and Forty-eight Cents ($2,218,421.48) in pre-judgment interest; and 3. Post-judgment interest on the entire sum calculated pursuant to 28 U.S.C. § 1961
at the rate of 0.41%; for all of which let execution issue if not timely paid.
It is further ORDERED that the Back Pay Award shall be allocated as follows between hourly and salaried promotions for the following time periods:

Time Period Hourly Promotions Salaried Promotions

1994-1995

$483,340.00

$109,868.00

1996-2002

$1,901,417.00

$128,055.00

2003-2004

$487,756.00

$0.00

2004-2007

$159,412.00

$0.00

It is further ORDERED that the pre-judgment interest shall be allocated as follows between hourly and salaried promotions for each year:

2

Case 9:97-cv-00063-RC Document 696 Filed 01/15/10 Page 3 of 106

Year Hourly Promotions Salaried Promotions

1994

$245,124.80

$55,719.32

1995

$274,907.73

$62,489.27

1996

$254,518.12

$17,141.07

1997

$229,463.40

$15,453.70

1998

$205,601.76

$13,846.69

1999

$182,876.39

$12,316.20

2000

$161,175.33

$10,854.70

2001

$140,565.50

$9,466.68

2002

$120,937.09

$8,144.77

2003

$91,797.00

$0.00

2004

$75,769.74

$0.00

2005

$13,192.50

$0.00

2006

$10,033.90

$0.00

2007

$7,025.82

$0.00

The above pre-judgment interest was calculated at a rate of 5.0% per annum, compounded annually. The back pay award for each time period was annualized and attributed to each calendar year within each period. For each year, interest began to accrue on July 1 of that year, except for 1994, where interest began to accrue on August 1, 1994.
It is further ORDERED that back pay and pre-judgment interest shall be divided among Named Plaintiffs, Class Representatives, and Class Members according to the methods and procedures specified in this section and in this court’s Order Re: Monetary Relief entered December 22, 2009 [Doc. #684], a copy of which is attached to this judgment as Appendix 2 and is hereby incorporated by reference. In the event of any conflict between said Order Re:

3

Case 9:97-cv-00063-RC Document 696 Filed 01/15/10 Page 4 of 106

Monetary Relief and this judgment, the terms of this judgment control. It is further ORDERED that the administration of amounts awarded, allocation of amounts awarded, notice to Class Members, and procedures for challenges by Class Members shall be accomplished as set out in said Order Re: Monetary Relief. A. Per Capita Awards to All Class Members
Each Class Member who worked less than ninety (90) days in hourly and salaried positions during the class period shall be entitled to receive $375.00 as a Class Member Per Capita Award, and each Class Member who worked ninety (90) or more days in hourly and salaried positions during the class period shall be entitled to receive $750 as a Class Member Per Capita Award. Per Capita Awards will be deducted from the Back Pay Award prior to the pro rata distribution described below. B. Participation Awards to Named Plaintiffs, Class Representatives, and Participating
Class Members The court awards Participation Awards in the following amounts to Named Plaintiffs,
Class Representatives, and Class Members for time spent assisting Class Counsel in the prosecution of this case:

Name Walter Butler Vivian Crain Calvin Deason Clifford Duirden Leroy Garner Roald Mark Eddie Mask

Participation Award $7,000.00 $4,000.00 $3,000.00 $8,000.00 $6,000.00 $6,000.00 $8,000.00

4

Case 9:97-cv-00063-RC Document 696 Filed 01/15/10 Page 5 of 106

Name

Participation Award

Sylvester McClain

$18,000.00

Rickey Menefee

$1,000.00

Clarence Owens

$8,000.00

Kelvin Pope

$5,000.00

Earl Potts

$8,000.00

Patrick Ross

$6,000.00

Kenneth Singleton

$2,000.00

Sherry Swint

$5,000.00

Buford Thomas

$14,000.00

Curtis Thomas

$1,000.00

Shirley Thomas

$1,000.00

Florine Thompson

$12,000.00

Benny Townsend

$1,000.00

James White

$2,000.00

Mary Williams

$8,000.00

C. Back Pay Awards Based on Time Worked The balance of the Class Monetary Relief Fund, consisting of the remaining Back Pay
Award and all of the pre-judgment interest, will be distributed pro rata, with the Back Pay Award distribution based on the time worked during the entire liability period, and the interest distribution based on the time worked during each calendar year. The time worked calculations and the amounts due based on such time worked shall be done for hourly and salaried categories of workers, and for the time periods 1994-1995, 1996-2002, 2003-2004, and 2005-2007, as set out in the Order Re: Monetary Relief.

5

Case 9:97-cv-00063-RC Document 696 Filed 01/15/10 Page 6 of 106
III. Attorneys’ Fees, Costs, and Litigation-Related Expenses Pursuant to the Fifth Circuit’s mandate [Doc. #579], Plaintiffs’ application, and the parties’ briefing thereon, the court, on April 2, 2009, entered an order [Doc. #621] and directed entry of a judgment [Doc. #622] for attorneys’ fees, litigation-related expenses, and costs of court incurred prior to January 1, 2009, and ordered Defendant Lufkin Industries Inc. to pay to Plaintiffs the following amounts: 1. Four Million Seven Hundred Forty Thousand One Hundred Ninety-five Dollars
and Eighty Cents ($4,740,195.80) in attorneys’ fees; 2. Nine Hundred Thirty-two Thousand Six Hundred Three Dollars and Eighty-four
Cents ($932,603.84) in litigation-related expenses; 3. One Hundred Forty Thousand Five Hundred Sixty-two Dollars and Twenty-six
Cents ($140,562.26) in taxable costs; and 4. Post-judgment interest on those sums calculated pursuant to 28 U.S.C. § 1961 at
the rate of 0.59%. Copies of the court’s Order Re: Attorneys’ Fees [Doc. #621] and Rule 54(b) judgment [Doc. #622] are attached to this judgment as Appendix 3 and are hereby incorporated by reference. The court is informed that Defendant Lufkin Industries Inc. has paid Plaintiffs the amounts awarded in the Order Re: Attorneys’ Fees and Rule 54(b) judgment, subject to its right to appeal.
Plaintiffs are hereby ORDERED to comply with Federal Rule of Civil Procedure 54(d)(1) and 54(d)(2), and with Local Rule CV-54, with regard to attorneys’ fees, litigationrelated expenses, and costs for their work on this case during the time period from January 1, 2009 through the date of this judgment, by submitting the bill of costs and claim for attorneys’ fees specified in those Rules no later than fourteen (14) days after entry of this judgment. The court retains jurisdiction of this matter for purposes of receiving and ruling on
6

Case 9:97-cv-00063-RC Document 696 Filed 01/15/10 Page 7 of 106 this and any further application(s) for attorneys’ fees, litigation-related expenses, and costs incurred by Plaintiffs’ counsel after the date of this judgment pursuant to a schedule to be determined by the court following receipt of Plaintiffs’ bill of costs and claim for attorneys’ fees.
IV. Conclusion It is further ORDERED that all relief not specifically granted herein is DENIED. All pending motions not previously ruled on are DENIED. This is a final judgment and is appealable. So ORDERED and SIGNED this 15 day of January, 2010.
___________________________________ Ron Clark, United States District Judge
7

Case 9:97-cv-00063-RC Document 696 Filed 01/15/10 Page 8 of 106
Appendix 1

CaCseas9e:997:9-c7v--c0v0-006036-R3C-RC DDoocucummeennt t668936 Filed 0112/158/12009PagPea9goef110o6f 50

**NOT FOR PRINTED PUBLICATION**

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION

SYLVESTER MCCLAIN, on his own behalf §

and on behalf of a class of similarly situated §

persons, ET AL.,

§

§

Plaintiffs,

§

§

v.

§

§

LUFKIN INDUSTRIES INC.,

§

§

Defendant.

§

§

CIVIL ACTION No. 9:97CV63 JUDGE RON CLARK

INJUNCTION

The Fifth Circuit, in vacating the Court’s earlier injunction, remanded to this Court “to craft

an adequate remedial order that will eliminate discrimination without hobbling Lufkin’s legitimate

promotion policies.” McClain v. Lufkin Industries, Inc., 519 F.3d 264, 284 (5th Cir. 2008). The

Court of Appeals left to this Court “the task of reviewing afresh the propriety of the injunction, and

if it is found necessary, of balancing plaintiffs’ requests for stronger measures to ensure Lufkin’s

compliance with the imprecision of the liability finding.” Id.

In carrying out the Fifth Circuit’s mandate, the Court has held multiple status conferences

with the parties in an attempt to narrow the disputed issues and identify areas of agreement. In

addition, subject to and without waiver of the parties’ rights to appeal, the parties have reached

agreements, incorporated into stipulations, on certain other issues related to the scope and terms of

1

CaCsaes9e:97:9-7cv-c-0v-00006036-3R-CRC DDooccuummeenntt668936 FFilieledd0112//1158//120009PagePa1g0eo2f 1o0f650
injunctive relief.1 In this Order, the Court (1) incorporates and combines the parties’ stipulations, so that all issues previously resolved or determined are set forth in this Order, (2) provides for the specific injunctive relief to be implemented by Defendant Lufkin Industries, Inc. (“Lufkin” or “Defendant”), and (3) provides for the procedures and methods by which this Injunction shall be implemented, monitored, and enforced.
Therefore, pursuant to Federal Rule of Civil Procedure 65, the Court enters this permanent injunction to partially remedy the discrimination found by Judge Cobb, and affirmed by the Fifth Circuit, toward black employees when determining promotions for hourly and salaried positions. It is therefore ORDERED as follows:
I. Injunctive Provisions A. Ombudsperson
1. Appointment of Ombudsperson a. The Court appoints Tony P. Rosenstein to serve as an outside Ombudsperson to monitor compliance with this Injunction and to hear complaints from class members regarding matters described in Section II.A.2.a. below. Mr. Rosenstein has read and signed the attached Scope and Limits of Appointment as Ombudsperson. The court is satisfied that his appointment will adequately safeguard the judicial process. b. Lufkin shall be responsible for the prompt payment of reasonable fees and expenses the Ombudsperson incurs in connection with his duties and
1 Lufkin's agreement with this Injunctive Relief is limited to form only and does not waive any arguments with respect to the statute of limitations, liability or appropriateness of injunctive relief.
2

CaCsaes9e:97:9-7cv-c-0v-00006036-3R-CRC DDooccuummeenntt668936 FFilieledd0112//1158//120009PagePa1g1eo3f 1o0f650
responsibilities under this Order. The Ombudsperson shall provide an invoice detailing his time spent and expenses incurred to Lufkin with each request for payment. 2. Duties and Responsibilities of the Ombudsperson a. Complaint Investigation i. The Ombudsperson shall have the authority to receive, investigate,
provisionally determine and recommend measures to resolve the following types of complaints: (1) complaints from Lufkin employees regarding Lufkin’s non-compliance with this injunction, (2) complaints from black employees regarding promotion and promotion related discrimination, and (3) complaints of retaliation from employees who allege that they have been retaliated against for making a complaint regarding non-compliance with a specific mandate of this injunction or a promotion-related matter to the Ombudsperson, Lufkin or one of the unions representing Lufkin’s employees. ii. Lufkin and its officers, agents, managers and supervisors shall not engage in or be a party to any act, policy, practice or procedure that discriminates or retaliates against (1) any employee of Lufkin who, in good faith, contacts the Ombudsperson regarding Lufkin’s alleged non-compliance with this injunction; (2) any black employee who, in good faith, contacts the Ombudsperson with regard to alleged
3

CaCsaes9e:97:9-7cv-c-0v-00006036-3R-CRC DDooccuummeenntt668936 FFilieledd0112//1158//120009PagePa1g2eo4f 1o0f650
promotion and promotion related discrimination; and (3) anyone who, in good faith, contacts the Ombudsperson regarding complaints of alleged retaliation for making a complaint regarding non-compliance with a specific mandate of this injunction or a promotion-related matter to the Ombudsperson, Lufkin or one of the unions representing Lufkin’s hourly employees. iii. In giving the Ombudsperson this authority, the Court does not intend for him to displace the unions’ statutory obligation to represent Lufkin’s hourly employees or to provide a substitute for the grievance processes set forth in the collective bargaining agreement. iv. Lufkin shall provide to its employees in writing a toll free number that employees can use to contact the Ombudsperson and other information as provided for in Section II.H.2. below and in Appendix 1 to this Order. v. In order to investigate any complaint, the Ombudsperson shall have the authority to conduct additional fact finding which may include requesting documents or other information from Lufkin and interviewing employees, supervisors or other Lufkin personnel. The Ombudsperson shall also have the authority to take such actions as appropriate to assist the resolution of the complaint, including recommending appropriate corrective action to Lufkin. If the Ombudsperson concludes after investigation that Lufkin has not
4

CaCsaes9e:97:9-7cv-c-0v-00006036-3R-CRC DDooccuummeenntt668936 FFilieledd0112//1158//120009PagePa1g3eo5f 1o0f650
complied with the injunction or has engaged in promotion related discrimination or retaliation, the Ombudsperson shall request that Lufkin take recommended remedial action and in the absence of such action report the matter to the Court and Class Counsel. 3. Monitoring a. The Ombudsperson shall be responsible for monitoring Lufkin’s implementation of, and compliance with, this Order and any other subsequent or superseding remedial orders of the Court. In connection with this responsibility, the Ombudsperson shall have the authority to: i. Review any documents maintained by Lufkin as described in Section II.E. below; ii. Audit Lufkin’s promotion procedures, practices and relateddecisions; iii. Conduct independent analyses of data related to Lufkin’s promotion procedures, practices and related-decisions; iv. Request additional information and data from Lufkin in order to carry out his audit and/or independent analyses of Lufkin’s promotion procedures, practices and related-decisions. v. Confer with Lufkin’s Internal Monitor selected pursuant to Section II.G. below, and other Lufkin managers for the purpose of reviewing with them Lufkin’s implementation of, and compliance with, this
5

CaCsaes9e:97:9-7cv-c-0v-00006036-3R-CRC DDooccuummeenntt668936 FFilieledd0112//1158//120009PagePa1g4eo6f 1o0f650

Order and any other subsequent or superseding remedial orders of the

Court.

vi. Receive information from, and confer with, Class Counsel or

Lufkin’s counsel regarding Lufkin’s implementation of, and

compliance with, this Order and any other subsequent or superseding

remedial orders of the Court.

4. Reporting

a. The Ombudsperson shall report quarterly to the Court with respect to (1) any

complaints requiring remedial action and the action taken thereon by Lufkin,

and (2) Lufkin’s compliance with the Promotion Procedures set forth in

Section II.B. below.

b. Class Counsel and Lufkin’s counsel shall be given a copy of these reports

and an opportunity to confer and respond at least five (5) days prior to filing

with the Court.

c.

The unions’ counsel shall be given a copy of any reports that document

promotion-related complaints made by hourly employees.

B. Compliance with Promotion Procedures

1. Lufkin shall comply with the following Promotion Procedures for employees

assigned to its facilities in Angelina County, Texas, until further order of the Court

as provided in Section III or the expiration of this Injunction.

2. For purposes of this order,

6

CaCsaes9e:97:9-7cv-c-0v-00006036-3R-CRC DDooccuummeenntt668936 FFilieledd0112//1158//120009PagePa1g5eo7f 1o0f650
a. “Bidder” means an employee who places, and does not withdraw, his or her name on a bid posted pursuant to Article 25, Section 1 of the 2008-2011 Master Collective Bargaining Agreement and/or any similar provision of any amended or subsequent collective bargaining agreement between Lufkin and its unions (hereafter “Master CBA”).
b. “Career Path” means those jobs set forth in Appendix 2. c. “Departmental Seniority” is as defined in the Master CBA, Article 22,
Section 1(b). d. “Eligible Employee” means:
i. For hourly job classifications on the IAM machining seniority roster and in the IAM Assembly and Distribution career paths on the Assembly and Shipping Department seniority roster, an Eligible Employee is an employee seeking to move: 1) Within the employee’s current career path on a seniority roster for which the employee has Departmental Seniority into an hourly job classification which has a maximum rate of pay greater than the maximum rate of pay for the employee’s current job classification; or 2) Into a different career path than the employee’s current career path for which the employee has Departmental Seniority on the seniority roster for the job classification into which the employee is seeking to move.
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ii. In addition to sub-sections (i) (1) and (2) above, an Eligible Employee is an employee in the Machinist or Shaft Finisher job classification who has Departmental Seniority on the seniority roster for the hourly job classification he is seeking and he is exercising his rights under IAM Letter of Stipulation No. 2.
iii. For hourly job classifications on all seniority rosters other than the IAM machining seniority roster including movements from job classifications in the Assembly or Distribution career paths not addressed in subsection (i) above, an Eligible Employee is an employee seeking to move from: 1) An hourly job classification not in a Line of Progression into an hourly job classification that (a) is on a seniority roster for which the employee has Departmental Seniority or is permitted to bid on pursuant to GMP Letter of Stipulation No. 22 and (b) has a greater maximum rate of pay than the employee’s current hourly job classification; 2) An hourly job classification not in a Line of Progression into an hourly job classification that is in a Line of Progression, that (a) is on a seniority roster for which the employee has Departmental Seniority or is permitted to bid on pursuant to GMP Letter of Stipulation No. 22 and (b) the highest hourly job classification in such Line of Progression, has a greater
8

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maximum rate of pay than the employee’s current job classification; 3) An hourly job classification that is in a Line of Progression into an hourly job classification that: (a) is on a seniority roster for which the employee has Departmental Seniority or is permitted to bid on pursuant to GMP Letter of Stipulation No. 22 and (b) has a greater maximum rate of pay than the maximum rate of pay for the highest job classification in the employee’s current Line of Progression; or 4) An hourly job classification that is in a Line of Progression into an hourly job classification that is in a different Line of Progression (the “Receiving Line of Progression”), that (a) is on a seniority roster for which the employee has Departmental Seniority or is permitted to bid on pursuant to GMP Letter of Stipulation No. 22 and (b) the highest hourly job classification in the Receiving Line of Progression has a greater maximum rate of pay than the maximum rate of pay for the highest hourly job classification in the employee’s current Line of Progression. iv. In addition to sub-sections (iii) (1) and (2) above, an Eligible Employee is an employee in the Chip-Grind Finish job classification who has Departmental Seniority on the seniority roster for the hourly
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job classification he is seeking and he is exercising his rights under GMP Letter of Stipulation No. 19. e. “Line of Progression” means: i. For the Fabrication Department: Parts Finisher, Structural Worker, Fork Lift, and Inspector lines; ii. For the Foundry Department: the Core Machine Operator, Molding Machine Operator, Welder, Electrician, Mechanic (Class B to Master Maintenance Specialist), and Fork Lift lines; and iii. For the Pattern Shop Department: the Pattern Maker and Pattern Tender lines. f. “Subordinate Job Classification” means a job classification that an employee is required to hold before promotion to a higher hourly job classification. 3. For promotions to the hourly job classifications set forth in Appendix 3, Lufkin shall offer the promotion to the Eligible Employee Bidder with the highest Departmental Seniority. If that bidder declines the promotion, Lufkin shall offer the position to the Eligible Employee Bidder with the next highest Departmental Seniority until all Eligible Employee Bidders have been offered the promotion. If no Eligible Employee Bidder accepts the position, the position may be filled pursuant to the Master CBA. Lufkin shall post the name of the Eligible Employee Bidder who is awarded the promotion on the main bulletin board for the applicable department. 4. For promotions to the hourly job classifications set forth in Appendix 4 and 4a, Lufkin shall offer the promotion to the Eligible Employee Bidder with the highest
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Departmental Seniority who has passed the applicable test or skill demonstration as set forth in Appendix 4 or as provided for in Section II.C.3. below. If that bidder declines the promotion, Lufkin shall offer the position to the Eligible Employee Bidder with the next highest Departmental Seniority who has passed the applicable test or skill demonstration until all Eligible Employee Bidders passing the applicable test or skill demonstration have been offered the promotion. If no Eligible Employee Bidder accepts the position, the position may be filled pursuant to the Master CBA. Lufkin shall post the name of the Eligible Employee Bidder who is awarded the promotion on the main bulletin board for the applicable department. 5. For promotions to the Crane Operator or Hydraulic Manipulator Operator job classifications in the Foundry Department, Lufkin shall promote the employee in the Learner job classification for the position with the highest Departmental Seniority provided the employee has completed a minimum of ninety (90) days service in the Learner job classification for the position. In order to be promoted to Crane Operator, the employee must also successfully complete the Crane Operator Learner Task Proficiency Check Off list, attached as Exhibit 5. If the employee in the Learner classification for the position does not have the requisite ninety (90) days service in the Learner job classification, Lufkin shall promote the employee in the Learner job classification with the next highest Departmental Seniority who meets the minimum ninety (90) days service in the Learner classification for the position. 6. For promotions to the hourly job classifications set forth in Appendix 6, Lufkin shall offer the promotion to the Eligible Employee Bidder with the highest Departmental
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Seniority who has at least ninety (90) days service in the Subordinate Job Classification and meets the other criteria as set forth in Appendix 6. If that bidder declines the position, Lufkin shall offer the position to the Eligible Employee Bidder with the next highest Departmental Seniority who has at least ninety (90) days service in the Subordinate Job Classification until all Eligible Employee Bidders with ninety (90) days service in the Subordinate Job Classification have been offered the promotion. If no employee in the Subordinate Job Classification has bid for the position or has the requisite length of service, Lufkin may treat the posting as a bid for the Subordinate Job Classification and award the promotion to the Eligible Employee Bidder with the highest Departmental Seniority or elect to hire for the position. If Lufkin elects to offer the Subordinate Job Classification to the Eligible Employee Bidder and that bidder declines the position Lufkin shall offer the position to the Eligible Employee Bidder with the next highest Departmental Seniority until all Eligible Employee Bidders have been offered the promotion to the Subordinate Job Classification. If no Eligible Employee Bidder accepts the position, the position may be filled pursuant to the Master CBA consistent with the provisions of this Order. Lufkin shall post the name of the Eligible Employee Bidder who is awarded the promotion on the main bulletin board for the applicable department. 7. For promotions to the Melter A job classification, Lufkin shall promote the employee in the Melter B job classification with the highest Departmental Seniority provided the employee has passed the Melter A test and demonstrated ability as set forth in the Melter A demonstration standards attached as Appendix 7.
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8. For promotion to the job classification Machinist (for gear hobs and grinders), as provided in IAM Letter of Stipulation No. 5, Lufkin shall offer the promotion to Sykes generator operators in order of Departmental Seniority and if none accept the promotion shall post and award the position as provided in paragraph 3 above.
9. For promotion to the hourly job classifications set forth in Appendix 8: a. If the Eligible Employee Bidder who is awarded the promotion is moving in the same career path and his current rate of pay is less than the maximum rate of pay for the Trainee job classification, he shall be classified initially in the Trainee job classification within the career path. b. If the Eligible Employee Bidder who is awarded the promotion is moving in the same career path and his current rate of pay is higher than the maximum Trainee job classification rate of pay, he shall be placed in the job classification on which he bid.2
2 For example, an Eligible Employee Bidder classified as a Machine Operator Class C earning $ 14.49 per hour, who in 2009, accepts Lufkin's offer of a Machine Operator Class A position will initially be classified as a Machine Operator Trainee because the 2009 maximum rate of pay for Machine Operator Trainee is greater than the employee's current rate of pay. If the Machine Operator Class C was earning $15.88 per hour at the time of his successful 2009 bid, he would be classified as a Machine Operator Class A because his current rate of pay is greater than the current maximum rate of pay for the Machine Operator Trainee classification.
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c. If the Eligible Employee Bidder who is awarded the promotion is moving into a different career path, he will be classified initially in the Trainee classification at the minimum hourly rate for the Trainee classification.3
d. Lufkin shall post the name of the Eligible Employee Bidder who is awarded the promotion on the main bulletin board for the applicable department.
10. For promotions to the hourly job classifications set forth in Appendix 9, Lufkin shall review and analyze the promotions, including the person who was promoted to the position, all persons offered but declining the position and all other persons qualified for the promotion by race on an annual basis and provide its written assessment and the underlying data used to make its assessment to the Ombudsperson. If the Ombudsperson determines that there is a racially disparate pattern in the promotions adverse to black employees, he shall review the promotion decisions that have been made in light of the requirements of the job and, if warranted, recommend remedial action to Lufkin. If Lufkin declines to implement such remedial action, the Ombudsperson shall report his findings, proposed remedial action and Lufkin’s response to the Court, Lufkin and Class Counsel. Lufkin shall retain the right to defend against implementation of the recommended remedial action, including on the ground that the racial disparities found by the Ombudsperson were not statistically significant or, in light of the job’s requirements, valid criteria were used
3 For example, an Eligible Employee Bidder who is in a Class II Assembler position at the time he accepts in 2009, Lufkin's offer of a Machine Operator Class A position will initially be classified as a Machine Operator Trainee and paid $12.19 per hour, which is the 2009 minimum rate of pay for the Trainee classification.).
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to make the promotion decisions. For purposes of this sub-section “other persons qualified for the promotion” means persons: (a) in the Subordinate Job Classification if the promotion is within a career path or into a specialist or master position or (b) in the Machine Operator A job classification if the promotion is to Machinist. 11. For job classifications in a career path, Lufkin shall retain all records and data necessary to analyze and shall analyze on an annual basis to determine whether there are any racial disparities in (a) the length of time in which discretionary merit and other pay increases are awarded to employees in Trainee classifications, for which such discretionary merit and other pay increases are provided for by the Master CBA and (b) the length of time employees spend in Trainee classifications before they are promoted out the of the classification. Lufkin shall report these analyses to the Ombudsperson. If the Ombudsperson determines that there is a racially disparate pattern with respect either to the time to pay increases or promotion from the trainee classification adverse to black employees, he shall investigate to determine the causes of such disparities and, if warranted, recommend remedial action to Lufkin. If Lufkin declines to implement such remedial action, the Ombudsperson shall report his findings, proposed remedial action and Lufkin’s response to the Court, Lufkin and Class Counsel. Lufkin shall retain the right to defend against implementation of the recommended remedial action, including on the ground that the racial disparities found by the Ombudsperson were not statistically significant or valid criteria were used for making the decisions.
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C. Testing Protocols 1. Lufkin shall comply the testing protocol described in Appendix 10 in its administration of any tests or skill demonstrations it uses for determining promotions to any of the jobs listed in Appendices 4, 5 and 7 or to be developed pursuant to Section II.C.3. below. 2. Lufkin shall analyze the results of each paper and pencil test and skill demonstration it administers by the race of the persons who take, pass and fail the test or skill demonstration and provide its written analysis and the underlying data used to conduct the analysis to the Ombudsperson. If the Ombudsperson determines there is a racially disparate pattern in the passing rate for such test or skill demonstration adverse to black employees, he shall review the job, the test, and the degree of the disparate pattern to determine whether to require Lufkin to validate the test or skill demonstration and if so, recommend such validation, including determining whether there is another suitable test or skill demonstration that has less adverse impact. If Lufkin declines to follow the Ombudsperson’s recommendation, the Ombudsperson shall report his findings, the recommended remedial action and Lufkin’s response to the Court, Lufkin and Class Counsel. Lufkin shall retain the right to defend against implementation of the recommended remedial action, including on the ground that the racial disparities found by the Ombudsperson were not statistically significant or that the test or skill demonstration is valid. 3. If during the term of this Order, Lufkin has a need to develop a test or skill demonstration for any of the job classifications listed on Appendix 4a, or any newly
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established or changed job classifications, Lufkin shall provide copies of the test or outline of the skill demonstration to the Ombudsperson and Class Counsel at least fourteen (14) days prior to Lufkin’s commencement of use of the test or skill demonstration. Class Counsel may provide comments on the test or skill demonstration to the Ombudsperson and Lufkin. D. Manager Training 1. Initial Training a. Within thirty (30) days of the entry of this injunction, Lufkin shall provide
Initial Training to all of its officers, executives, managers and supervisors in Angelina County on the terms of this Injunction including the promotion and testing procedures. b. Lufkin’s counsel or a member of Lufkin’s management who is knowledgeable about this litigation will provide the Initial Training. c. Lufkin shall provide such Initial Training to all new officers, executives, managers and supervisors in Angelina County, who have not previously received the Initial Training, within thirty (30) days of their hire or promotion. 2. Other Manager Training a. Lufkin shall engage the services of Dr. Winfred Arthur to develop and provide live training for its officers, executives, managers and supervisors that addresses the Court’s liability findings and reduction of subjectivity in decision making in the workplace. Dr. Arthur shall advise Lufkin on the
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appropriate specific content of the training and written materials to provide to trainees. Training for officers, executives and managers shall be a one day program and for supervisors a half day program. b. Lufkin shall provide this training within one hundred eighty (180) days of the date of entry of this Order. c. Lufkin shall provide similar training in videotape format to any newly hired or promoted officers, executives, managers and supervisors (who have not previously received the training) within thirty (30) days of their hire or promotion. d. Lufkin shall provide written verification to the Ombudsperson of the completion of the training and that all of its officers, executives, managers and supervisors received such training. E. Recordkeeping 1. Lufkin shall maintain paper and data records that reflect promotion-related decisions including bid sheets, postings and other written communications reflecting employee interest in promotions, forms documenting decisions, structured interview questions and responses, data analyses, paper and pencil tests, records of skill tests, job descriptions for salaried jobs, formal training, and all documentation pertaining to any internal employee complaints, including but not limited to, union grievances, arising from promotion-related decisions and the investigation and resolution of such complaints. 2. Lufkin shall retain such documents, records and data for the duration of this Order.
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F. Annual Executive EEO Updates a. Lufkin’s Internal Monitor will prepare an Annual Executive Report for Lufkin’s executive team. b. For purposes of this Order, Lufkin’s “executive team” means officers of the Company. c. The Annual Executive Report shall contain, as a minimum, summaries of any adverse impact analysis of promotions that has been provided to the Ombudsperson, and any reports provided by the Ombudsperson to the Court. Copies of any analyses or reports referred to in the Annual Executive Report will be attached to the report. d. A copy of this Report shall be concurrently provided to the Ombudsperson, who may submit comments or recommendations based on the Report, in which case such comments or recommendations shall also be provided to, and reviewed by, the executive team.
G. Internal Monitoring 1. Within fourteen (14) days of entry of this Injunction, Lufkin shall designate an Internal Monitor. At the same time, Lufkin shall advise the Court, the Ombudsperson and Class Counsel of the identity of the Internal Monitor. 2. The Internal Monitor shall be responsible for the following: a. Monitoring Lufkin’s compliance with the terms of this Injunction and coordinating with the Court-appointed Ombudsperson.
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b. Monitoring Lufkin’s compliance with the promotion and testing procedures, training procedures, data analyses, recordkeeping and reporting required by this Injunction.
c. Serving as Lufkin’s liaison with the Ombudsperson and responding to any requests for information from the Ombudsperson.
d. Overseeing the preparation of and submitting quarterly reports to the Ombudsperson which will include data on all promotions awarded in the prior quarter. This data will include the name of each person who was promoted, their race, the position from which they were promoted, the position to which they were promoted, as well as the name, race, and classification of each unsuccessful candidate for the promotion.
e. Conducting an adverse impact analysis of Lufkin’s promotion data every six months to determine if there are any statistically significant shortfalls in promotions of black employees not the product of a bona fide seniority system.
f. Reporting to Lufkin’s Chief Executive Officer and senior management staff regarding Lufkin’s implementation of, and compliance with, the Court’s remedial orders and concurrently sending a copy of such report to the Ombudsperson.
g. Conducting and reporting to the Ombudsperson the annual analyses required under Sections II.B.10. and 11. and II.C.2. of this Order.
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h. Preparing the Annual Executive Report required under Section II.F. of this Order.
H. Communications 1. Lufkin shall provide a copy of this Injunction to all officers, executives, supervisors and managers as part of the Initial Training required under Section II.D.1. of this Order. Lufkin shall also provide copies of any subsequent remedial orders of the Court modifying or amending this Order to its officers, executives, supervisors and managers, and to the unions. 2. Within fourteen (14) days of the entry of this Injunction, Lufkin shall provide to all employees a copy of the notice attached as Appendix 1 which summarizes the terms of this injunction and identifies the Ombudsperson, explains his role, and provides a phone number and other contact information for him. II. Jurisdiction This court specifically retains jurisdiction to enforce this permanent injunction. III. Modification of this Order In the event that changed or other circumstances make a modification of this Order necessary
to ensure its purposes are fully effectuated, the parties shall attempt in good faith to reach agreement on such modification suitably tailored to the changed or other circumstance, including by conferring with one another and the Ombudsperson, and submit the modification to the Court by stipulation. If the parties are not able to reach such agreement, any party may move the Court to modify the Order.
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This Order shall remain in effect for five (5) years from the date of its entry. So ORDERED and SIGNED this 18 day of December, 2009.
___________________________________ Ron Clark, United States District Judge
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Case 9:97-cv-00063-RC Document 696 Filed 01/15/10 Page 59 of 106
Appendix 2

CaCsaes9e:97:9-7cv-c-0v-00006036-3R-CRC DDooccuummeenntt668946 FFilieledd0112//1252//120009PagePa6g0eo1f 1o0f620

**NOT FOR PRINTED PUBLICATION**

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION

SYLVESTER MCCLAIN, on his own behalf §

and on behalf of a class of similarly situated §

persons, ET AL.,

§

§

Plaintiffs,

§

§

v.

§

§

LUFKIN INDUSTRIES INC.,

§

§

Defendant.

§

§

CIVIL ACTION No. 9:97CV63 JUDGE RON CLARK

ORDER Re: MONETARY RELIEF

The Fifth Circuit has upheld and approved of Judge Cobb’s conclusion that “the size of

the class and the inherent uncertainty of the individual claims contraindicates the use of an

individualized approach” to the award of back pay and that a formula-driven approach is

appropriate. McClain v. Lufkin Industries, Inc., 519 F.3d 264, 281 (5th Cir. 2008). This Court’s

obligation on remand is “to compute the total additional wages attributable each year to each

promotion and divide the value among the class members . . . with whatever modifications will

both expediently and fairly apportion the lost wages among class members.” Id.

In carrying out the Fifth Circuit’s mandate, the Court has previously entered several

orders on various issues related to the determination of the class monetary relief to be awarded to

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Plaintiffs pursuant to the Fifth Circuit’s decision on back pay.1 In addition, the parties have reached agreements, which have been incorporated into stipulations, on certain other issues related to the determination of monetary relief.2 In this order, the Court (1) incorporates and combines its prior orders and the parties’ stipulations, so that all issues previously resolved or determined are set forth in this order, (2) provides for the amount of class back pay and prejudgment interest to be awarded to Plaintiffs and the Class, and (3) provides for the procedures and methods by which the awards to individual Plaintiffs, Class Representatives, and Class Members shall be determined and paid.
I. Total Amount of Back Pay (Damages) Awarded to the Class The Court awards a total of $3,269,845 (the “Back Pay Award”), plus pre-judgment interest (see Section II below), in back pay to Plaintiffs for themselves and members of the Class. The Back Pay Award includes the back pay amounts for different groups within the Class (i.e., hourly and salaried) and parts of the liability period determined by stipulations and agreements of the parties and/or prior Orders.3 The Back Pay Award, along with pre-judgment interest, is to be distributed to individual Class Members as specified in parts III.C-K of this Order.
1 [See Doc. #647, Order Re: Damages; Doc. #650, Order Re: Damages (2005-2007); Doc. #662, Order (clarifying that pre-judgment interest is to be compounded annually, and directing Plaintiffs to submit a plan for distribution of class back pay award).]
2 [See Doc. #620, Joint Status Report on Back Pay Issues; Doc. #648, Def.’s Stipulation Re: Damages; Doc. #660, Pls.’ Status Report on Monetary Relief.]
3 The determinations of these amounts are reflected in the orders and other filings referred to in footnotes 2 and 3, supra.
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II. Pre-Judgment Interest on Award of Back Pay

The Court awards pre-judgment interest on the Back Pay Award, as specified in this

paragraph, to and including the date a final judgment is entered based on this order. Interest shall

be calculated at the rate of 5% per annum, compounded annually. For the purpose of calculating

pre-judgment interest, the amounts of back pay determined for each of the various parts of the

liability period will be annualized and attributed to each calendar year within each period, and for

hourly and salaried positions separately, as follows:

Year

Hourly Positions Salaried Positions

March-December 1994 $217,503.00

$49,440.60

1995

$265,837.00

$60,427.40

1996

$271,631.00

$18,293.57

1997

$271,631.00

$18,293.57

1998

$271,631.00

$18,293.57

1999

$271,631.00

$18,293.57

2000

$271,631.00

$18,293.57

2001

$271,631.00

$18,293.57

2002

$271,631.00

$18,293.57

2003

$243,878.00

0

2004

$243,878.00

0

2005

$53,137.00

0

2006

$53,137.00

0

2007

$53,137.00

0

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Total Back Pay Award (Hourly & Salaried), without interest $3,269.845.00 Interest shall accrue on the amount of back pay damages attributed to each year from July 1 of such year, except that for 1994, the start date of interest accrual shall be August 1, 1994.4
III. Class Monetary Award and Allocation Procedures A. Third Party Administrator
1. The Court appoints Rosenthal & Co. of Novato, California to serve as the Third Party Administrator.5 The Third Party Administrator shall be responsible for: (a) receiving funds from Lufkin and administering those funds to be distributed pursuant to the Court’s Order; (b) tracing all Class Member addresses for current addresses; (c) calculating the awards for individual Class Members; (d) preparing and mailing the individual Notices of Judgment Distribution Calculation to Class Members; (e) maintaining a toll-free number designed to provide information to, and communication with, Class Members; (f) responding to questions from Class Members; (g) determining challenges submitted by Class Members to the accuracy of individual Notices of Judgment Distribution Calculation; (h) seeking additional information from Class Members, Class Counsel, or Lufkin when appropriate or necessary to determine eligibility or calculate distribution amounts; (i) implementing the Class Monetary Award and Allocation Procedures; (j)
4 The class back pay period commences in March, rather than January, of 1994, and includes the full years 1995-2007. Selecting August 1 as the date on which pre-judgment interest on the amount of damages accruing for 1994 shall commence to accrue is the half-way point between March and December 1994. Similarly, for each of the other years in the class liability period, interest shall commence to accrue on July 1, or the half-way point between January and December of the year.
5 The Court notes that Rosenthal & Co. was retained by Class Counsel to prepare and mail the Notice to the Class ordered by Judge Cobb in October 2003. [See Doc. #299.] Rosenthal & Co. thus has some familiarity with Lufkin's personnel databases and address information for class members.
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determining amounts due for taxes and other withholdings; (k) sending payments to Class members and tracking delivery and receipt of payments; (l) providing the final Class Member Distribution List and accounting for all class funds to the Court and parties; and (m) performing any other duties reasonable and necessary to carry out its responsibilities as set forth in this order.
2. Within seven (7) days of the date a final judgment is entered based on this order, Lufkin will direct the wire transfer of Fifty Thousand Dollars ($50,000) to the Class Monetary Relief Account. This amount is intended as an advance to cover costs and expenses associated with the Class Monetary Award and Allocation Procedures, as set forth below in Section III.B.
3. All fees, costs, and expenses, if any, of the Third Party Administrator in excess of the Fifty Thousand Dollars ($50,000) advanced by Lufkin to the Third Party Administrator as provided for in Section III.A.2 above shall be paid from the Class Monetary Relief Account, including the interest earned on the Class Monetary Relief Account. All such payments in excess of Fifty Thousand Dollars ($50,000) to the Third Party Administrator from the Class Monetary Relief Account shall be approved in advance by Class Counsel with notice to Lufkin. B. Establishment of the Class Monetary Relief Account
1. Within three (3) business days of the date a final judgment is entered based on this order, the Third Party Administrator will open an interest-bearing account (the “Class Monetary Relief Account”) with a unique Taxpayer Identification Number.
2. Within three (3) business days of the date a final judgment is entered based on this order, the Third Party Administrator will calculate the total amount of pre-judgment interest that is due on the Back Pay Award pursuant to Section II above (the “Class Pre-Judgment Interest
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Award”), and advise the parties and the Court of that amount and the total of the Class PreJudgment Interest Award plus the Back Pay Award (“the Class Monetary Relief Fund”).
3. Within ten (10) days of the date a final judgment is entered based on this order, Lufkin will direct the wire transfer of the Class Monetary Relief Fund, as calculated by the Third Party Administrator, to the Class Monetary Relief Account. C. Identification of Class Members and Determination of Time Worked
1. Within ten (10) days from the date a final judgment is entered based on this order, Lufkin shall provide the Third Party Administrator, in computer readable format, a final list of all Class Members, defined as all African-American employees who were employed by Lufkin Industries, Inc. in its Angelina County, Texas facilities, in any position, at any time during the liability period of March 6, 1994 to December 31, 2007 (the “Class List”). The Class List shall include, for each employee: his/her full name, current or last known address, telephone or other contact numbers, and social security number. All parties shall treat the social security numbers as strictly confidential and to be used by them only to carry out the procedures specified in this order. The Class List shall be used by the Third Party Administrator in sending notices and payments to Class Members as specified herein. By the same date, Lufkin shall also produce to the Third Party Administrator, in computer readable format, personnel and payroll data for all Class Members necessary for the Third Party Administrator to determine the proportionate monetary shares of all Class Members. Such data shall include, at a minimum, for each Class Member: (1) his or her dates of employment by Lufkin in its Angelina County, Texas facilities during the period March 6, 1994 to December 31, 2007; (2) the dates he or she worked in hourly and salaried positions (each category separately); and (3) the number of paid weeks worked in
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hourly and salaried positions (each category separately) in any of Lufkin’s Angelina County, Texas facilities by year for the period March 6, 1994 to December 31, 2007. Lufkin shall also provide an identical copy of the Class List and such personnel and payroll data to Class Counsel.
2. Within ten (10) days from the date it receives the Class List from Lufkin, the Third Party Administrator shall update the Class List using the National Change of Address or other comparable publicly available databases and information provided by Class Counsel, and shall provide the updated Class List to the parties. D. Allocation of Back Pay Amounts and Pre-Judgment Interest
Back pay and pre-judgment interest shall be divided among Plaintiffs, Class Representatives, and Class Members according to the methods and procedures specified in this section. The parties estimate that this division will result in approximately 84% of the Class Monetary Relief Fund being allocated on the basis of time worked by Class Members who satisfy a minimum period of employment requirement (roughly equating time worked with the possibility of lost promotions), with the remaining approximately 16% being allocated in minimum Per-Capita Awards to all Class Members regardless of time worked, and Participation Awards to twenty-two (22) named Plaintiffs, Class Representatives, and actively participating Class Members whose efforts benefitted the Class and contributed to the successful result for the Class in this case. 1. Per Capita Awards to all Class Members
Each Class Member who worked less than ninety (90) days in hourly and salaried positions during the class period shall be entitled to receive $375 as a Class Member Per Capita Award, and each Class Member who worked ninety (90) or more days in hourly and salaried
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positions during the class period shall be entitled to receive $750 as a Class Member Per Capita Award.6 Per Capita Awards will be deducted from the Back Pay Award prior to the pro-rata distribution described in Section III.D.3 below. 2. Participation Awards to Named Plaintiffs, Class Representatives, and Participating Class
Members The Court recognizes that the named Plaintiffs, Class Representatives, and other Class
Members who spent time assisting Class Counsel in the prosecution of the case, including sitting for depositions, attending mediation sessions, testifying at court hearings and at trial, and devoting other time and providing other assistance, represented the Class and made possible the relief obtained by this litigation and undertook the personal burdens and perceived risks of retaliation. These named Plaintiffs, Class Representatives, and Class Members may and should be awarded individual Participation Awards in addition to their proportionate share recoveries from the Class Monetary Relief Fund. The Court awards a total of $134,000, approximately 2.4% of that Fund, to twenty-two individuals.
“[C]ourts routinely approve incentive awards to compensate named plaintiffs for the services they provided and the risks they incurred during the course of the class action litigation.” In re Lorazepam v. Clorazepate Antitrust Litig., 205 F.R.D. 369, 400 (D.D.C. 2002) (quoting In re S. Ohio Correctional Facility, 175 F.R.D. 270, 272 (S.D. Ohio 1997)); see also In re Dun & Bradstreet Credit Servs. Customer Litig., 130 F.R.D. 366, 373 (S.D. Ohio 1990) (“Numerous courts have not hesitated to grant incentive awards to representative plaintiffs who have been able to effect substantial relief for classes they represent.”); In re Revco Sec. Litig., Nos., 851,
6 Based on information currently available, these Class Member Per Capita Awards will amount in the aggregate to $749,250, or approximately 14% of the Class Monetary Relief Fund.
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89CV593, 1992 WL 118800, at *7 (N.D. Ohio May 6, 1992) (“Numerous courts, recognizing that serving as a class representative involves a substantial time commitment to the litigation, have permitted such awards.”); Van Vranken v. Atl. Richfield, 901 F. Supp. 294, 300 (N.D. Cal. 1995). Other courts have noted that, particularly in discrimination litigation, named plaintiffs should be compensated for running the risk of retaliation in the workplace:
In discrimination-based litigation, the plaintiff is frequently a present or past employee whose present position or employment credentials or recommendation may be at risk by reason of having prosecuted the suit, who therefore lends his or her name and efforts to the prosecution of litigation at some personal peril. Roberts v. Texaco, 979 F. Supp. 185, 201 (S.D.N.Y. 1997). Courts also have approved incentive awards to active class members who are not named plaintiffs, but who provided assistance in the prosecution of the class action. E.g., Huguley v. Gen. Motors Corp., 128 F.R.D. 81, 85 (E.D. Mich. 1989); Bryan v. Pittsburgh Plate Class Co., 59 F.R.D. 616, 617 (W.D. Pa. 1973). The total amount of the Participation Awards and the individual amounts awarded here are reasonable and consistent with awards in other cases in the Fifth Circuit. See In re Catfish Antitrust Litig., 939 F. Supp. 493, 504 (N.D. Miss. 1996) (approving incentive awards of $10,000 to each of the four named plaintiffs); Shaw v. Toshiba Am. Info. Sys., Inc., 91 F. Supp. 2d 942, 973 (E.D. Tex. 2000) (approving incentive awards of $25,000 to each of two named plaintiffs). The Court notes that particularly in this case, where the named Plaintiffs, Class Representatives, and Class Members to be awarded Participation Awards have had to expend time and effort on the case in order to represent the class, keeping it engaged and encouraging it to remain patient for over a decade, and to incur actual or perceived risk of retaliation by their employer, such Participation Awards are especially appropriate. The Court further notes that the Participation
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Awards, individually and in the aggregate, are modest in proportion to the Class Back Pay Relief Fund, and under the formula-driven approach used in this case, it is unlikely that these awards could fairly be said to diminish significantly any absent Class Member’s particular award in relation to his or her actual loss.
The Court awards such Participation Awards to the named Plaintiffs, Class Representatives, and Class Members named in Exhibit A to this order, in the amount specified for each in Exhibit A.7 These amounts were determined based on a point system, in which points were assigned to several objectively verifiable tasks and roles, including: service as a named Plaintiff, filing of an EEOC charge on which class claims were based, attendance at mediation sessions, service as a Class Representative, testifying at trial, incurring the perceived risk of possible retaliation as a result of continuing to work at Lufkin after being designated as a Plaintiff or Class Representative, giving deposition testimony, testifying at class certification hearings, and testifying by declaration. See Dun & Bradstreet, 130 F.R.D. at 374 (“[A] differentiation among class representatives based upon the role each played may be proper in given circumstances.”). Participation Awards will be deducted from the Back Pay Award prior to the pro-rata distribution as described in Section III.D.3 below. 3. Back Pay Awards Based on Time Worked
The balance of the Class Monetary Relief Fund, consisting of the remaining Back Pay Award and all of the pre-judgment interest, will be distributed pro rata, with the Back Pay Award
7 Based on the information currently available, the amount of the Participation Awards, in the aggregate, is $134,000, or approximately 2.4% of the Class Monetary Relief Fund. The largest single individual Participation Award, for named Plaintiff McClain, is $18,000, or approximately 0.3% of the Class Monetary Relief Fund.
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distribution on the basis of the time worked during the entire liability period, and the interest distribution based on the time worked during each calendar year. The time worked calculations and the amounts due based on such time worked shall be done for hourly and salaried categories of workers, and for the time periods 1994-1995, 1996-2002, 2003-2004, and 2005-2007 separately, based on the annual back pay numbers by category as set forth in section II above. a. Distribution of Back Pay Principal Based on Time Worked
The balance of the Class Monetary Relief Fund (“Eligible Class Member Award”), approximately $4,594,000 (or approximately 83.9% of the Class Monetary Relief Fund), shall be allocated among and paid to individual Class Members who worked a minimum of at least one consecutive ninety (90) day period for Lufkin in its Angelina County, Texas facilities during the liability period (“Eligible Class Members”). The Eligible Class Member Award will be distributed pro rata based on the number of “Eligible Class Weeks” worked by each Eligible Class Member in each job category (hourly or salaried) and each time period (1994-1995, 19962002, 2003-2004, and 2005-2007). Any class member who worked in both job categories and/or in more than one time period shall receive his or her pro rata distribution from each of the categories and/or periods in which he/she worked. “Eligible Class Weeks” is defined as all paid weeks worked by Eligible Class Members for Lufkin in its Angelina County, Texas facilities during the back pay liability period. The Third Party Administrator shall be responsible for identifying all Eligible Class Members and calculating their pro rata shares of the Back Pay Award based on the employment records and data produced by Lufkin pursuant to Section III.C.1 above.
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b. Distribution of the Class Pre-Judgment Interest Award The Class Pre-Judgment Interest Award, calculated pursuant to Section II above, shall be
distributed among Eligible Class Members as specified in this section. For each year in the liability period, the interest for that year shall be distributed to Eligible Class Members pro rata based on the number of Eligible Class Weeks worked in that job category and during that year by each Eligible Class Member. The Third Party Administrator shall be responsible for identifying all Eligible Class Members and calculating their pro rata shares based on the employment records and data produced by Lufkin pursuant to Section III.C.1 above. E. Notice of Estimated Awards to Class Members
1. The Third Party Administrator shall provide a list of all Class Members’ estimated awards to the Court, Lufkin, and Class Counsel within twenty-one (21) days after Lufkin provides it with the records specified in Section III.C.1 above.
2. At the same time, the Third Party Administrator will prepare and mail a “Notice of Judgment Distribution Calculation” for each Class Member. The Notice shall contain a brief description of the lawsuit (to be agreed upon by the parties), the Court’s final judgment regarding back pay and interest, a concise description of the distribution formula, and the data used to calculate the Class Member’s estimated individual award. The Notice also shall advise Class Members that they do not have a right to challenge the distribution formula, but they do have a right to challenge the accuracy of the data (dates of employment, time worked, and job category) used to calculate the Class Member’s individual award. The Notice also shall advise Class Members that the Class Member’s estimated individual award may change depending on the resolution of Class Member Challenges.
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3. The Third Party Administer will trace all mailed Notices of Judgment Distribution Calculation that are returned as undeliverable and re-mail notices where updated addresses may be obtained with reasonable effort and expense. F. Class Member Challenges
1. Class Members receiving “Notice of Judgment Distribution Calculation” shall not be required to respond or take any action with respect to the Notices in order to receive their estimated individual awards, or any adjustment to the awards that may be necessary due to the Third Party Administrator’s resolution of Challenges or otherwise, as provided for herein.
2. Class Members wishing to challenge the accuracy of the data used to calculate their estimated individual awards must submit such challenge and request for correction of errors in information used to calculate their estimated share of the Class Monetary Relief Fund (“Challenge”) in writing to the Third Party Administrator in a timely manner as specified herein. Class Members shall not have the right to raise any other claims or contentions in Challenges.
3. The Third Party Administrator will mail Notices of Judgment Distribution Calculation upon request. If an individual requesting such Notice is not on the Class List, the portion of the Notice which would otherwise state the individual data used to calculate estimate award will state that Lufkin’s records indicate that the person is not African-American and/or was not employed by Lufkin in its Angelina County facilities during the liability period. Such individuals may challenge the accuracy of that information through the procedures set forth in this Section and as described on the Notice of Judgment Distribution Calculation.
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4. Class Members must send their written Challenges to their estimated individual awards as well as any applicable documentation, to the Third Party Administrator, postmarked by no later than forty-five (45) days after the date of the Notice (“Challenge Filing Deadline”).
5. The Third Party Administrator shall retain all of the job history information or other electronic data pertaining to Class Members that it receives from Lufkin from which the Third Party Administrator determined the Class Members’ estimated individual awards, as specified above. Lufkin shall respond to a request by the Third Party Administrator for additional information the Third Party Administrator determines to be necessary to respond to a Class Member’s Challenge, within fourteen (14) days of such request.
6. The Third Party Administrator shall attempt to expeditiously resolve each such Challenge within thirty (30) days after its receipt of such Challenge. Challenges to the computation of Class Members’ estimated individual awards will be resolved without hearing by the Third Party Administrator. The Third Party Administrator’s decision shall be communicated to the Class Member in writing and shall be final, binding and non-appealable.
7. The Third Party Administrator shall be available through the toll-free line to respond to Challenges and questions from Class Members. G. Distribution of the Monetary Awards
1. As soon as practicable after making the calculations required by Section III.D. above, and resolution of all Challenges pursuant to Section III.F above, but in any event no more than one hundred twenty (120) days from the date of the initial mailing of Notices of Judgment Distribution Calculation, the Third Party Administrator shall recalculate the Class Members’ individual distributions and provide a Final Distribution List to the parties and file a copy with
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the Court. The parties may submit any comments on the Final Distribution List in writing within ten (10) days after the date the Third Party Administer files the Final Distribution List with the Court.
2. Within fourteen (14) days of the Court’s entry of an order directing distributions based on the Final Distribution List and any comments filed by the parties, the Third Party Administrator shall distribute the monetary awards to Class Members via UPS Ground delivery service (with delivery tracking).
3. The Third Party Administrator shall only issue checks in the names of Class Members, unless Section III.J below is applicable.
4. The Third Party Administrator will include with the check(s) due to the Class Member a statement showing the gross amount of the payment(s) for both back pay and interest awards and an itemized statement of all deductions made. Appropriate deductions from gross amounts that are determined to be wage payments will be made for federal income taxes, the employee’s share of social security and Medicare taxes, and any state or local income or payroll taxes that may apply. Any amounts designated as interest shall not be subject to withholdings and shall be reported, if required, to the IRS on Form 1099-INT. Any amounts designated as lost wages or payments in lieu of wages shall be subject to payroll tax withholding deductions and shall be reported to the IRS on Form W-2. The statement will advise Class Members that, regardless of withholding, all or part of the amount received may be taxable, that the Court, Lufkin, Plaintiffs’ counsel and the Third Party Administrator are not providing tax advice, and that it is the responsibility of the Class Member to determine and pay any applicable taxes.
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5. All checks issued by the Administrator pursuant to this order shall be payable within ninety (90) days of the date the check was issued, and shall be made non-payable and void thereafter. H. Tax Withholdings and Reporting
The Third Party Administrator will inform Lufkin of the employer’s share of all taxes or contributions (i.e., matching social security, Medicare, or other required withholding or payroll taxes) required to be paid by Lufkin, and Lufkin shall timely remit all such payments to the Third Party Administrator for payment to appropriate taxing authorities. The Third Party Administrator will be responsible for preparing and filing all appropriate tax filings and reports (except for any unemployment compensation taxes that may be due, which will be the sole responsibility of Lufkin to calculate and pay), including, but not limited to, W-2 and 1099 forms for all Plaintiffs, Class Representatives, and Class Members for their payments from the Class Monetary Relief Fund, as well as any required for the Class Monetary Relief Account. The Third Party Administrator will be responsible for reporting and remitting to the appropriate taxing authorities both the employee taxes withheld on amounts paid from the Class Monetary Relief Fund, and the employer’s share of taxes or contributions required to be paid by Lufkin in a timely manner after receipt of the amount due for those payments from Lufkin. I. Tracking and Procedures for Undeliverable Checks
1. The Administrator shall track the delivery of all checks mailed to Class Members and make all reasonable and customary efforts, including follow-up mailings and further searches, and/or reissuance of checks, to ensure their actual delivery.
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2. Any checks that remain undeliverable after the Administrator’s efforts to accomplish delivery shall be voided. Returned checks for which no updated address is available shall be included in the funds re-distributed pursuant to Section III.K below.
3. Sixty (60) days after the initial mailing of checks, the Administrator will provide an accounting to Class Counsel of all checks returned undeliverable for which no updated address is available, and of all uncashed checks. J. Deceased Settlement Class Members
Any allocation payable to a deceased Class Member shall be made payable to the estate or legal successor of the deceased Class Member upon timely receipt by the Third Party Administrator of proper written proof of the estate’s or legal successor’s entitlement to receive the deceased Class Member’s assets. K. Distribution of Remaining Funds
In the event that Class Members entitled to participate in the Class Monetary Relief Fund cannot be located by the Third Party Administrator, mailed checks are returned as undeliverable, delivered checks are not cashed within ninety (90) days of their mailing, and/or that the Class Monetary Relief Fund is not completely distributed for any other reason, the remaining undistributed sum shall be re-distributed in the following order: (1) to make any additional payments to Class Members occasioned by mistakes in the calculations of their tenure for Lufkin in its Angelina County, Texas facilities during the liability period, or other errors or omissions of Lufkin or the Third Party Administrator; (2) if the amount remaining after such additional payments have been made is $100,000 or more, to make a supplemental pro-rata distribution to Eligible Class Members, in proportion to the amounts allocated to them on the Final Distribution
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List. Any amounts remaining in the Class Monetary Relief Fund after the completion of the foregoing payments and distributions shall be designated as a Cy Pres Fund to be distributed to one or more cy pres recipients who shall be designated by Plaintiffs subject to the Court’s approval of the designation(s). Such designation(s) shall be submitted to the Court within two hundred forty (240) days after the entry of the judgment based on this order. L. Report from Third Party Administrator
Within thirty (30) days of the final distribution of the monies from the Class Monetary Relief Fund, the Third Party Administrator shall furnish an accounting of all distributions from the Class Monetary Relief Fund to the Court, with copies to Class Counsel and Lufkin.
IV. Implementation of This Order The parties shall expeditiously and cooperatively, insofar as possible, carry out this order, including the making and implementation of any further agreements, processes, and mechanisms necessary to carry out its terms and intent, other than those specified in this order. In the event the parties encounter any disputes necessary to resolve in order to implement the provisions of this order efficiently, fairly, and expeditiously, they shall bring such disputes to the Court’s attention for prompt resolution.
V. Attorneys’ Fees and Costs Any award of attorneys’ fees and costs to Plaintiffs for their counsel’s advances or work on the monetary and injunctive relief issues in this case since December 31, 2008, is expressly reserved for further proceedings and orders of the Court. Payments made to the Class or individual Class Members as specified in this order are without prejudice to the right of Plaintiffs
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CaCseas9e:997:-9c7v--c0v0-06030-6R3C-RC DDocoucmumenetn6t 86496 Filed 1021/2125/21009PagPea7g8eo1f91o0f620 to seek further payments by Lufkin for costs and attorneys’ fees incurred in obtaining this order at a time and in a manner to be prescribed by the Court.
VI. Entry of Final Judgment The Court intends to enter Final Judgment in this case on January 15, 2010. Based on this anticipated judgment date, the parties are hereby ORDERED to submit, by January 12, 2010], a joint report that includes (1) a list of Class Members and amounts to be awarded, and (2) proposals for the specific language or form appropriate for the judgment.
So ORDERED and SIGNED this 22 day of December, 2009. ___________________________________ Ron Clark, United States District Judge
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Exhibit A

Name
Walter Butler Vivian Crain Calvin Deason Clifford Duirden Leroy Garner Roald Mark Eddie Mask Sylvester McClain Rickey Menefee Clarence Owens Kelvin Pope
Earl Potts Patrick Ross Kenneth Singleton Sherry Swint Buford Thomas Curtis Thomas Shirley Thomas Florine Thompson Benny Townsend James White Mary Williams
Total

Participation Award
$7,000.00 $4,000.00 $3,000.00 $8,000.00 $6,000.00 $6,000.00 $8,000.00 $18,000.00 $1,000.00 $8,000.00 $5,000.00 $8,000.00 $6,000.00 $2,000.00 $5,000.00 $14,000.00 $1,000.00 $1,000.00 $12,000.00 $1,000.00 $2,000.00 $8,000.00 $134,000.00

Case 9:97-cv-00063-RC Document 696 Filed 01/15/10 Page 80 of 106
Appendix 3

CaCsaes9e:97:9-7cv-c-0v-00006036-3R-CRC DDooccuummeenntt662916 FFilieledd0014//1052//120009PagePa8g1eo1f 1o0f624

**NOT FOR PRINTED PUBLICATION**

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION

SYLVESTER MCCLAIN, on his own and on §

behalf of a class of similarly situated persons, §

et al.,

§

§

Plaintiffs,

§

§

v.

§

§

LUFKIN INDUSTRIES, INC.

§

§

Defendant.

Civil Action No. 9:97-CV-063 JUDGE RON CLARK

ORDER Re: ATTORNEYS’ FEES

Plaintiffs move for an interim award of attorneys’ fees, costs and expenses. [Doc. #599].

The motion includes a request of attorneys’ fees, and the costs and expenses previously awarded

by Judge Cobb. Plaintiffs also submitted a Supplemental Bill of Taxable Costs [Doc. #600],

requesting costs accrued after Judge Cobb’s award. By applying the lodestar methodology, the

court awards attorneys’ fees totaling $4,740,195.80. The court also awards $140,562.26 in costs

and $932,603.84 in litigation related expenses.

I. BACKGROUND

February 26, 1997

Plaintiffs filed an employment discrimination suit alleging that Defendant Lufkin Industries, Inc. engaged in racial discrimination in violation of Title VII and 42 U.S.C. § 1981.

March 31, 1999

The court granted Plaintiffs’ motion for class certification.

January 13, 2005

After a bench trial, Judge Cobb entered a Memorandum and Order finding that Defendant Lufkin Industries discriminated by unlawfully making initial assignment and promotion decisions that

1

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January 19, 2005

disparately impacted Plaintiffs. [Doc. #461]. The court ordered Lufkin Industries to pay class back pay pursuant to a formula and awarded injunctive relief. Judge Cobb entered final judgment a day later. [Doc. #462].
On Plaintiffs’ motion, Judge Cobb ordered further proceedings “to determine the specific details of non-monetary remedial measures and to enter such supplemental remedial orders as may be necessary and appropriate.” [Doc. #464].

March 10, 2005 August 29, 2005
February 29, 2008

Plaintiffs filed an initial motion for an award of attorneys’ fees and costs. [Doc. Nos. 499-502].
The court entered an Amended Final Judgment, reiterating a finding of discrimination, ordered Lufkin Industries to pay back pay, entered an injunction, and awarded attorneys’ fees and costs. [Doc. #552].
The Fifth Circuit vacated the injunctive order and remanded to this court to craft a more specific remedial order. The Fifth Circuit also reversed and remanded the portion of Judge Cobb’s order awarding damages and attorneys’ fees indicating that additional analysis was necessary. McClain v. Lufkin Industries, Inc., 519 F.3d 264 (5th Cir. 2008).

II. APPLICABLE LAW Title VII provides that a court may, in its discretion, award the “prevailing party” in any action under that subchapter “a reasonable attorney’s fee.” 42 U.S.C. § 2000e-5(k). A plaintiff may be considered a “prevailing party” if he succeeds on any significant issue in litigation that achieves some of the benefit the party sought in filing suit. Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S. Ct. 1933, 1939 (1983). Fee applicants bear the burden to show the reasonableness of the hours billed and must provide evidence in addition to their own affidavits. Blum v.

2

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Stenson, 465 U.S. 886, 896, 104 S.Ct. 1541, 1547 (1984); Walker v. U.S. Dept. of Housing & Urban Dev., 99 F.3d 761, 770 (5th Cir. 1996).
The determination of what is a “reasonable attorney’s fee” is left to the discretion of the trial court. Hensley, 461 U.S. at 433. To decide the appropriate attorney’s fee, the trial court must calculate a “lodestar” fee by multiplying the number of hours reasonably expended on the case by a reasonable hourly rate. Rutherford v. Harris County, 197 F.3d 173, 192 (5th Cir. 1999).
The court should exclude time that is “excessive, duplicative, or inadequately documented” from the number of hours reasonably expended. Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir. 1993) (citing Hensley, 461 U.S. at 432-34, 103 S.Ct. at 1939; Von Clark v. Butler, 916 F.2d 255, 259 (5th Cir.1990)).
A reasonable hourly rate is set by the prevailing market rate charged by local attorneys. Blum, 465 U.S. at 895, 104 S.Ct. at 1547. A rate is reasonable if it is “in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Blum, 465 U.S. at 896, 104 S.Ct. at 1547. Thus, a more experienced attorney with expertise in a particular area of law may command a higher rate. The applicant must provide evidence of the education and experience of each attorney and paralegal for whom fees are requested.
Generally, the reasonable hourly rate is established through affidavits of other attorneys practicing in the district. Tollett v. City of Kemah, 285 F.3d 357, 368-69 (5th Cir. 2002). If the court deviates from an attorney’s normal billing rate which falls within the range of market rates
3

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for similarly capable attorneys, the court must articulate its reasoning. Watkins v. Fordice, 7 F.3d 453, 459 (5th Cir. 1993).
To adjust for inflation, deferred payment, and unpaid interest, the court may award attorneys’ fees at the current hourly rate instead of historic hourly rates charged during the litigation process. Missouri v. Jenkin by Agyei, 491 U.S. 274, 284, 109 S.Ct. 2463, (1989) (holding that plaintiffs are entitled to “an appropriate adjustment for delay in payment-whether by the application of current rather than historic hourly rates or otherwise.”).
Where the claimed rate and number of hours are established as reasonable, the resulting product is presumed to be reasonable. Blum, 465 U.S. at 897, 104 S. Ct. at 1548. A presumption exists that the calculated lodestar is the reasonable fee and should only be modified in an exceptional case. Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir. 1993).
In determining whether to modify a lodestar, the court considers the twelve Johnson factors. Rutherford v. Harris County, Tex., 197 F.3d 173, 192 (5th Cir.1999). The Johnson factors are: (1) time and labor required; (2) novelty and complication of the issues; (3) skill required; (4) whether the attorney had to refuse other work to litigate the case; (5) attorney’s customary fee; (6) whether fee is fixed or contingent; (7) whether the client or case circumstances imposed any time constraints; (8) the amount involved and the results obtained; (9) attorney’s experience, reputation, and ability; (10) whether the case was “undesirable;” (11) nature and length of relationship with the clients; and (12) awards in similar cases. Id. at n.23; Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). “[T]he most critical factor in determining the reasonableness of a fee award in a civil rights suit is the degree of success
4

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obtained.” Giles v. Gen. Elec. Co., 245 F.3d 474, 491 n.31 (5th Cir. 2001) (quoting Farrar v. Hobby, 506 U.S. 103, 114, 113 S. Ct. 566 (1992)).
III. ANALYSIS A. Prevailing Party
It is uncontested that Plaintiffs are the prevailing party. Judge Cobb previously found for Plaintiffs and the Fifth Circuit affirmed most of the District Court’s findings, including the finding of unlawful disparate impact resulting from Lufkin’s subjective decision making. Plaintiffs will obtain class back pay and an injunction. Plaintiffs sought this relief and are the prevailing party. B. Number of Hours
Plaintiffs assert that the hours billed are reasonable because new legal theories of “classwide discrimination arising from subjective decision making” were involved for which “no blueprint” was available. Doc. #599 at 12. Plaintiffs further contend that business judgment was exercised by deleting over 3,000 hours from time actually billed. Id. at 13. They provide detailed billing records for the attorneys and staff who worked at the law firm Goldstein, Demchak, Baller, Borgen & Dardarian (“the Demchak Firm”) (Doc. #599, Ex. 24 to the Declaration of Teresa Demchak) and those who worked at the law firm of Stucky, Garrigan & Castetter (“the Garrigan Firm”) (Doc. #599, Ex. 1 to Declaration of Timothy B. Garrigan).
Defendant objects to certain time billed on the basis that certain entries are duplicative or excessive time billed, the Demchak Firm overstaffed, the partners participated in work that lower paying attorneys could handle, the Garrigan Firm’s records are alleged inadequate, and individuals billed non-working travel time at their full hourly rate. Id. at 15-19.
5

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1. Allegedly Excessive, Duplicative, or Overstaffed Time Excessive or duplicative time should be excluded. Watkins v. Fordice, 7 F.3d 453, 457
(5th Cir. 1993). The court also excludes hours that are overstaffed, being mindful that “the skill and experience of lawyers vary widely.” Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 1939-40 (1983). a. June 28, 2000 to November 30, 2000
Defendants assert that the Demchak Firm charged excessive fees before being appointed counsel for Plaintiffs as they charged approximately 422 hours to review papers, research and confer to decide if they wanted to be involved in the case during the time period between June 28, 2000 and November 30, 2000.1 Reviewing the detailed records kept by the Demchak Firm, the court does not find excessive or duplicative time entries. Attorneys for the Demchak Firm reviewed the case documents during this time period. A review of the case is necessary to understand the legal and factual issues involved in the litigation. The attorneys also performed more substantive work on issues, such as (1) who would be an appropriate mediator; (2) potential bifurcation of the trial; and (3) providing notice to possible class members, including preparing for meetings with union representatives. All of these hours should be included in the lodestar calculation.
1Defendants assert that approximately 422 hours were billed between June 28, 2000 and October 2, 2000 by the Demchak Firm, citing the Declaration of Carolyn Wood. The declaration indicates that 422.4 hours were performed by the Demchak Firm between June 28, 2000 and November 30, 2008. The court assumes this is the appropriate time frame Defendant intended to indicate in its response.
6

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b. December 2000 to May 2003 Defendant objects to the amount billed between December 2000 and May 2003 when the
parties were mediating the case. Defendant insinuates that the amount charged is excessive because on a per day of mediation, the amount charged is large. However, Defendant billed for a number of activities over the two and a half year period and there were 22 days of mediation over that time frame. Dividing the total amount billed of the entire period by the number of mediations does not provide an accurate reflection of all of the work that occurred. Rather it is simply an attempt to skew the numbers to appear more favorable to Defendant’s position.
Defendant further objects to the number of attorneys present at the mediations, with as many as four attorneys present at some of them. Defendant does not object to any specific entries or discuss why all attorneys were not needed at the mediations. For example, Defendant does not assert that it had only one attorney present. The court does not find any excessive or duplicative entries that must be removed. c. The number of hours billed during depositions
Defendant criticizes the number of hours Plaintiffs’ counsel spent taking depositions. Defendant objects to the number of attorneys present during five depositions in which at least two and once three attorneys were present. Usually, this court would find it excessive for more than two attorneys to attend a deposition in a complex case — one deposing the witness and another aiding the deposing attorney. Defendant has not asserted that a second attorney was not necessary, or at least helpful, at any deposition. Given the issues in this particular case, the fact that Ms. Demchak, a lead partner, was also present at one, or even a few, depositions is not
7

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excessive. The court finds that the time billed for depositions is reasonable and will not be excluded. d. The number of lawyers present at trial
Defendants indicate that Plaintiffs had five lawyers at counsel table during the first phase of trial then three lawyers present during the second phase of trial. Defendants do not provide the number of attorneys present at their table and do not indicate that they only had one attorney present. The court does not find the number of Plaintiffs’ attorneys present at trial to be an excessive number given the complexity of the case. Multiple attorneys are often needed in complex cases. The court does not find this to be duplicative or excessive. e. The number of hours spent reviewing documents
Defendants object to the 782.4 hours that the Demchak Firm spent analyzing and reviewing bid sheets. It is uncontested that Plaintiffs’ own expert considered the bid sheets unreadable and not worthy of analysis. It may be reasonable for senior attorneys to review the bid sheets and the expert’s opinions, but once an expert determined that the bid sheets were not worthy of analysis, additional time spent by paralegals and younger attorneys was unnecessary. The Demchak Firm makes no showing that the timed billed was prior to the expert’s determination. The following time for review of bid sheets will be excluded.

Reviewer Konecky Dungan Rafanan Gurtner

Number of Hours Spent 7.60 363.90 134.40 216.50

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Stern

167.50

2. Litigation Activities of Partners Defendant objects to certain activities to which partners Ms.Demchak and Mr. Baller
billed their time. Specifically, Defendants assert that Ms. Demchak should not have billed such excessive hours to draft Findings of Fact and Conclusions of Law; prepare for and attend depositions; discovery; or spend so much time drafting Plaintiffs’ First Motion for Attorneys Fees; and that Mr. Baller should not have billed such excessive hours to draft Findings of Fact and Conclusions of Law.
The court recognizes that good attorneys litigate in their own manner and does not require an attorney to practice in a certain way. While Ms. Demchak engaged in tasks often associated with attorneys more junior than herself, it is possible that she completed these tasks more quickly, with less need for subsequent review and revision by another attorney. League of United Latin American Citizens No. 4552 (LULAC) v. Roscoe Independent School Dist., 119 F.3d 1228, 1233, n.3 (5th Cir. 1997). It is also understandable that she wished to take part in the drafting of the Motion for Attorney Fees due to the large amount owed to Plaintiffs’ counsel. The court does not find that any of these activities in which Ms. Demchak and Mr. Baller participated were unnecessary and should be excluded. 3. The Garrigan Firm’s Records
Defendant contends that the Garrigan Firm’s Records are inadequate because they lack detail. Doc. #610 at 18. Defendant does not cite specific examples, rather asserting that the Garrigan Firm’s records “consist almost entirely” of non-detailed entries. While inadequate documentation may reduce the award of attorneys’ fees, the court finds the Garrigan Firm’s

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records sufficiently detained to determine (1) the activity; (2) the participants; and (3) the work

product. See Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir. 1993). While not verbose, the

Garrigan Firm’s records provide sufficient detail to understand the nature of the work. A

representative entry, the time entry on September 4, 2003, states:

travel: Nac-Beaumont-Nac mediation post-mediation mtg w/ Atty Demchak & clients

5 hr 7 hr 30 min
30 min

Doc. #599, Ex. 1 to Declaration of Timothy Garrigan at p. 92.

The court is easily able to determine that Mr. Garrigan traveled from Nacogdoches, TX to

Beaumont, TX then drove back to Nacogdoches. He also attended a mediation between the

parties and then had a meeting with his clients and Ms. Demchak.

Moreover, because Mr. Garrigan interacted with his co-counsel from the Demchak Firm,

many cross-references exist in each firm’s billing records. These provide the additional

clarification desired and the court sees no reason to reduce the hours billed by the Garrigan Firm.

4. Travel Billed at the Full Rate

Defendant contends that Plaintiffs’ counsel are not entitled to the full billing rate for

travel time. The Demchak Firm billed 545 hours of travel time, in addition to the 153 hours of

working travel time, while the Garrigan Firm billed 301 hours of travel time. An attorney’s stock

in trade consists of knowledge, the ability to communicate and time. The court finds it

reasonable to travel to a deposition, mediation, or trial and bill the time at an attorneys’ full rate.

Working while traveling is often difficult and is unsafe if the attorney is driving a car. It might

be unreasonable for an attorney to bill large amounts of travel time for a short event of relatively

minor importance that could be handled telephonically or by local counsel, but there is no

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indication that this occurred. When attorneys from the Demchak Firm traveled to the Eastern District they performed multiple functions, such as a deposition coupled with a number of days of mediation. The court does not find that either the Garrigan Firm or the Demchak Firm has excessively billed travel time. The court will not make reductions for any travel time. 5. Summary of Excluded Hours
The total number of hours the court will exclude for all unreasonable entries, objected to by Defendant or found by the court, is as follows:

Attorney Konecky Dungan Rafanan Gurtner Stern

Total Hours Excluded 7.6 363.9 134.4 216.5 167.5

C. Appropriate Rate 1. Mr. Garrigan of the Garrigan Firm
Mr. Garrigan bills his time at $400/hr. To support his billing rate he offers affidavits of partners who engage in complex litigation in the Eastern District of Texas, namely Clayton Dark, Claude Welch, and Otis Carroll.2 These attorneys practice regularly in this court, and the court is familiar with their qualifications and the quality of their work. They state that Mr. Garrigan’s rate of $400/hr is reasonable.

2Stephen D. Susman also provided his billing rate, but he practices nationally and is located in Houston, which is located in the Southern District of Texas, not the Eastern District. The court does not find his affidavit probative of the rates charged in the Eastern District of Texas.
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Mr. Garrigan’s comparison to those who participate in complex litigation is appropriate. This class action was complex. See Amchem Prods. v. Windsor, 521 U.S. 591, 614, 117 S. Ct. 2231, 2245 (1997); Gates v. Cook, 234 F.3d 221, 227 (5th Cir. 2000) (“It is a well-established principle that district courts enjoy wide latitude in managing complex litigation in general and class actions in particular.”); Fed. R. Civ. P. 23 (g)(1)(A)(ii); see also Manual for Complex Litigation § 21 (4th ed. 2004).
Depending on the circumstances, a “normal” employment law case may also qualify as complex litigation. Manual for Complex Litigation § 32.1 (4th ed. 2004) (“complexity can be introduced into employment discrimination suits by class action allegations, questions regarding the scope of discovery, the technical nature of expert testimony, and issues relating to the granting of relief, whether by way of judgment or consent decree.”). When the class was certified, Judge Cobb approved Mr. Garrigan as class counsel because he was experienced both in employment law and complex litigation. McClain v. Lufkin Indus., Inc., 187 F.R.D. 267, 282 (E.D. Tex. 1999). The class action and the nature of the case which involved discrimination in the hiring and promotion procedures at Lufkin Industries and the asserted legal theories makes this case a complex case.
Attorneys experienced in employment law from the Eastern District of Texas agree that the case needed to be handled by attorneys experienced in complex litigation and find the rates charged by Mr. Garrigan are reasonable. See e.g. Declaration of Joe C. Tooley at ¶1 (stating that Mr. Garrigan’s request of $400/hr is within the range of fees charged by those in the Eastern
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District of Texas who handle complex litigation matters);3 Declaration of Franklin Jones, Jr. at 2 (stating that Mr. Garrigan’s rate of $400/hr is within the range of fees paid to attorneys in the Eastern District of Texas).4 The court will therefore apply a $400/hr rate for the work performed by Mr. Garrigan. 2. Partners at the Goldstein Demchak Law Firm
Plaintiffs contend that the court should disregard the local rates for the Goldstein Demchak Law Firm (“Demchak Firm”) and apply a rate commensurate with attorneys from the northern California area where the Demchak Firm is located because of its unique experience dealing with employment discrimination class action cases.
When the Demchak Firm entered the case in 2000, Mr. Garrigan had already certified the case and Lufkin’s appeal had been rejected. While it was still necessary to mediate the case, complete discovery, and try the case, Mr. Garrigan participated to a greater extent than any other attorney. He certified the class, was lead counsel throughout the entirety of the case, and examined 11 out of 22 witnesses at trial. The Demchak Firm possessed experience settling class action employment cases, but there is no evidence to suggest that they were experienced at trying such cases.
Plaintiffs have firmly established that in calculating the fee for Mr. Garrigan the appropriate community for rate comparison purposes are those who participate in complex litigation in the Eastern District of Texas. It would be difficult to justify assigning a higher
3 The court will take notice that Mr. Tooley practices in the field of civil rights in the district.
4 The court is familiar with Mr. Jones’ experience in the district. 13

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hourly rate to second-chair attorneys, no matter how skilled in employment law. No unusual circumstances exist to suggest that those in the Eastern District who have experience with complex litigation were unavailable and could not have effectively participated. The court is aware of many attorneys in the Eastern District experienced in employment law and complex litigation. Two who would not be likely to have a conflict with Lufkin Industries are Clyde Siebman and John Werner. Absent sufficient evidence that experienced, qualified local counsel were unwilling to participate, the court will not assume counsel from distant states were necessary. Counsel at the Demchak Firm are located in Oakland, California, but it was their choice to participate on this case. Mr. Garrigan brought the suit, certified the class and carried the yeoman’s burden at depositions and trial. Based on the affidavits, Mr. Garrigan was the attorney with extensive experience as first chair in actual trials. The Demchak Firm’s attorneys undoubtedly provided valuable support but they cannot expect to receive rates fifty percent higher than Mr. Garrigan’s, especially when the court has approved the time they spent in traveling from California.
Hourly rates should be computed according to the prevailing market rates in the relevant legal market. Van Ooteghem v. Gray, 774 F.2d 1332, 1338 (5th Cir. 1985). This court will apply local rates for the Demchak Firm. Hopwood v. State of Texas, 236 F.3d 256, (5th Cir. 2000) (affirming the district court’s reduction in the hourly rate of Theodore Olson, an appellate litigator of note whose rate had been upheld as reasonable by the D.C. Circuit in an unrelated case, because the relevant market was Austin, TX, not the District of Columbia).
However, the rates should not be less than $250/hr, as Defendant contends. Doc. #610 at 14. Partners from the Demchak Firm actively participated in discovery, conducted a number of
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depositions and examined 11 witnesses at trial. Their contributions provided valuable secondchair assistance to Mr. Garrigan. The court will apply the hourly market rate for all partners at the Demchak Firm at $400/hr, the same market rate charged by Mr. Garrigan. This includes Teresa K. Demchak, Morris J. Baller, David A. Borgen, and Linda M. Dardarian. 3. Associates, Law Clerks, Paralegals and Case Clerks
The Garrigan Firm billed time for a paralegal, and the Demchak Firm billed time for associates, a law clerk, senior paralegals, paralegals, and case clerks. The individuals billed between $110/hr and $465/hr. Plaintiffs fail to provide any affidavits from attorneys practicing in the Eastern District of Texas setting out reasonable ranges for associates, law clerks, paralegals, or case clerks. The court is left with the representations made by Defendant and the attorneys who provided affidavits to Defendant.
Defendants provide specific rate information from three different attorneys located in the Eastern District of Texas — Curtis Fenley, Larry Germer, and Richard Alderman. The maximum rates charged by the attorneys for associates is $125 at Mr. Fenley’s firm and $160 at Mr. Germer’s firm. Defendants’ associates are qualified and the court will use the $160/hr fee set by Mr. Germer’s firm as the appropriate market rate for associates.
The Garrigan Firm billed its paralegal at $125/hr. As discussed above, the Garrigan Firm billed its partner’s time at the market rate. The court likewise finds that the Garrigan Firm billed its paralegal, Ms. Davis, at the appropriate market rate for this complex case, given her extensive experience, and will use this $125/hr fee as the market rate for the hours billed by The Demchak Firm’s “Senior Paralegals.” The other paralegals and case clerks will be billed at the rate requested, as these lower rates appear commensurate with their experience and responsibilities.
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In sum, the court determines the rate to be applied in the lodestar calculation for each individual’s time as follows5: For the Garrigan Firm:

Individual Timothy Garrigan (Partner) Anne Davis (Paralegal)
For the Demchak Firm:

Rate ($/hr) 400 125

Individual Teresa K. Demchak (Partner) Morris J. Baller (Partner) David A. Borgen (Partner) Linda M. Dardarian (Partner) Darci E. Burrell(Associate) Joshua G. Konecky (Associate) Meetali Jain (Associate) Nina Rabin (Associate) James Kan (Associate) Jennifer A. Stalzer (Law Clerk) Lisa M. Dungan (Senior Paralegal) Scott G. Grimes (Senior Paralegal) Lynn E. Sagramoso (Senior Paralegal) Damon Valdez (Senior Paralegal) Wendy E. Whitt (Senior Paralegal)

Rate ($/hr) 400 400 400 400 160 160 160 160 160 125 125 125 125 125 125

5Plaintiffs’ counsel provided a billing record as Appendix 1 to its motion. Doc. #599-2. 16

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May G. Rafanan (Paralegal)

100

Mark Thurston-Baller (Paralegal)

100

Natasha Gurtner (Paralegal)

100

Charlotte Manapat-Nguyen (Paralegal)

100

Lena Borgen (Case Clerk)

73

Rebekah Stern (Case Clerk)

73

D, Lodestar Calculation The Lodestar is calculated by multiplying the rate for each individual by the number of
hours worked by that individual.

Individual Timothy Garrigan Anne Davis

Rate ($/hr) 400 125

Net Hours 3213 407

Billable Amount $1,285,200.00 $50,875.00

Teresa K. Demchak 400

Morris J. Baller

400

David A. Borgen

400

Linda M. Dardarian 400

Darci E. Burrell

160

Joshua G. Konecky 160

Meetali Jain

160

Nina Rabin

160

James Kan

160

Jennifer A. Stalzer

125

Lisa M. Dungan

125

Scott G. Grimes

125

Lynn E. Sagramoso 125

4,625 1,066.4 29.8 325.4 2,317.1 882.4 67.8 308.9 129.6 27.6 1,203.5 584.4 31

$1,850,000.00 $426,560.00 $11,920.00 $130,160.00 $370,736.00 $141,184.00 $10,848.00 $49,424.00 $20,736.00 $3,450.00 $150,437.50 $73,050.00 $3,875.00

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Damon Valdez

125

Wendy E. Whitt

125

May G. Rafanan

100

Mark Thurston-Baller 100

Natasha Gurtner

100

Charlotte

100

Manapat-Nguyen

Lena Borgen

73

Rebekah Stern

73

30 159.2 272.9 64.3 656.9 50.2
41.6 419.5

$3,750.00 $19,900.00 $27,290.00 $6,430.00 $65,690.00 $5,020.00
$3,036.80 $30,623.50

Total

$4,740,195.80

E. Adjustment Due to the Johnson Factors Once a claimed hourly rate and the claimed number of hours has been found to be

reasonable, the product is presumed to be a reasonable fee. Blum, 465 U.S. at 897, 104 S. Ct. at

1548. Plaintiff has the burden of proving that the case is exceptional and consideration of the Johnson factors warrants an upward adjustment. Watkins, 7 F.3d at 457; Rutherford, 197 F.3d at 192-93.

Exceptional results are generally reflected in the lodestar. Blum, 465 U.S. at 899, 104

S.Ct. at 1549. It is rare that an applicant can show results that transcend what can be expected given the hourly rates and hours expended. See Delaware Valley 478 U.S. 546, 567, 106 S.Ct.

3088, 3099 (1986); Shipes v. Trinity Industries, 987 F.2d 311, 322 (5th Cir. 1993). In this case

counsel charged high hourly rates, commensurate with their experience, and spent a great deal of time on the case. They did not prevail on every issue but did achieve a significant benefit. They have provided insufficient specific evidence of startling or exceptional results or adverse

circumstances that would overshadow or dwarf the presumptively correct lodestar. 18

CaCseas9e:997:-9c7v--c0v0-06030-6R3C-RC DDocoucmumenetn6t 26196 Filed 041/0125/21009PagPea9g9eo1f91o0f624
1. The Degree of Success Obtained Plaintiffs were not successful on all of their claims. Plaintiffs did not succeed on an
initial assignment claim, which was factually distinct from the promotion claim, or the disparate treatment claims that Plaintiffs advanced in the district court and on appeal. Nevertheless, Plaintiffs obtained significant relief. Plaintiffs will obtain both monetary and injunctive relief.
While the specific monetary and injunctive relief has not yet been crafted, the amount of monetary award does not impose a presumptive limit on Plaintiffs’ recovery of attorneys’ fees. See, e.g., Volk v. Gonzalez, 262 F.3d 528, 535 (5th Cir. 2001); see also, City of Riverside v. Rivera, 477 U.S. 561, 574 (1986); Green, 284 F.3d at 663 (applying Riverside’s holding in Title VII case).
Plaintiffs were ultimately successful on some, but not all, of their initially asserted claims, achieving significant results. This factor is neutral and does not suggest an upward or a downward adjustment. 2. The Other Johnson Factors
Defendant argues that none of the other factors suggest an upward adjustment. Plaintiffs likewise do not contend that any of the other factors support an increase in the award, merely maintenance of the award. The court agrees with the parties and similarly finds that none of the other factors suggest either an upward or a downward departure as this is not an exceptional case. The lodestar’s strong presumption of reasonableness holds and the court will not adjust the lodestar. Watkins, 7 F.3d at 457. For completeness, the court will briefly discuss the other factors.
19

CaCsaes9e:97:9-7cv-c-0v-00006036-3R-CRC DDooccuummeenntt662916 FFilieledd0014//1052//120009PagePa1g0e0 2o0f 1o0f624
a. Time and labor required This case involved significant time and labor expended over more than a decade.
Attorneys’ hours and labor were included in the lodestar calculation. No additional adjustment is required to fully compensate the attorneys for the work performed. b. Novelty and complication of the issues, skill required, attorney’s customary fee.
These factors are all reflected in the number of hours billed and the reasonable hourly fee. City of Burlington v. Dague, 505 U.S. 557, 562-63, 112 S.Ct. 2638, 2641 (1992). Any adjustment to this factor would constitute double counting. Similarly, no enhancement due to this case being taken on a contingent fee is required. Id. at 566-67, 2643. This factor supports awarding the lodestar, without adjustment. c. Whether the attorney had to refuse other work to litigate the case
This case involved over 10,000 attorney and paralegal hours. This case likely prevented the attorneys from pursuing other work. On the other hand, this case also provided the opportunity to bill many more hours than most other cases. These issues are reflected in the lodestar calculation in the number of hours billed and the hourly rate. There is no evidence that either firm lost clients because of a conflict or because the case was viewed undesirable. These factors support awarding the lodestar, without adjustment. d. Whether the client or case circumstances imposed any time constraints
This case did not present any particular time constraints besides the large amount of time and labor required as discussed above. This factor supports awarding the lodestar, without adjustment.
20

CaCsaes9e:97:9-7cv-c-0v-00006036-3R-CRC DDooccuummeenntt662916 FFilieledd0014//1052//120009PagePa1g0e1 2o1f 1o0f624
e. Attorney’s experience, reputation, and ability Attorneys from the Garrigan Firm and the Demchak Firm are comparable to those
practicing employment and complex litigation in the Eastern District of Texas. The court set rates for attorneys commensurate with this finding. This factor supports awarding the lodestar, without adjustment. f. Whether the case was “undesirable”
This case was taken on a contingency fee basis. Declaration of Timothy Gerrigan at ¶ 7. From the beginning named Plaintiffs desired to pursue a class action. Id. Although these may present difficulties, the case is no more or less desirable than any other employment case in which an attorney is paid a contingent fee. Any additional complexity from the pursuit of a class action is reflected in a larger number of hours being billed compared to non-class action employment cases. This factor supports awarding the lodestar, without adjustment. g. Nature and length of relationship with the clients
There is no evidence that counsel knew Plaintiffs prior to the litigation of this case or have represented any Plaintiff in another matter. The decision to represent Plaintiffs was an isolated decision and this factor does support deviation from the lodestar. h. Awards in similar cases
The parties do not present any comparable case and the court does not find any. However, the calculated lodestar, $4,737,714.30, is comparable to the amount billed by Defendants’ counsel in this case, $4,864,923.37. Counsel for both sides dealt with the same set of facts and legal issues, and it would not be unusual if similar attorneys’ fees were generated. The court finds the comparison a useful method of cross-checking the amount requested by
21

CaCsaes9e:97:9-7cv-c-0v-00006036-3R-CRC DDooccuummeenntt662916 FFilieledd0014//1052//120009PagePa1g0e2 2o2f 1o0f624
Plaintiffs’ counsel. See Alan Hirsch & Diane Sheehey, Awarding Attorneys’ Fees and Managing Fee Litigation 108 (Federal Judicial Center 2d ed. 2005). This factor supports award of the lodestar, without enhancement. G. Other Costs 1. Prior to January 15, 2005
Judge Cobb awarded Plaintiffs’ counsel $127,658.60 in taxable costs and $840,129.72 in litigation related expenses. Defendant now objects to a portion of this amount — the litigation costs for work done by Richard Drogin. Doc. #610 at 22. No claim of error in this regard was made in Defendant’s Notice of Appeal [Doc. #557], and the Circuit Court did not indicate that this was one of the issues to be considered on remand. The court finds that this point has been waived. Alternatively, Defendant’s only argument — that Dr. Drogin spent time analyzing data pertaining to issues on which Plaintiff did not ultimately prevail — is not well taken. Plaintiff achieved significant results including a substantial monetary award. Defendant is liable for the full amount of litigation related expenses previously awarded. 2. Costs from January 15, 2005 through December 31, 2008
Plaintiffs filed a Supplemental Bill of Taxable Costs requesting $12,903.66 in costs. [Doc. #600]. They also requested $92,474.12 in other litigation related costs and expenses. Doc. #599 at 1. Defendant did not respond to Plaintiffs’ Supplemental Bill of Taxable Costs or Plaintiffs’ request for additional litigation related expenses and is assumed not to oppose either. L.R. CV-7(d). The court finds these costs and expenses reasonable and awards Plaintiffs the additional amount of $12,903.66 in taxable costs and $92,474.12 in other litigation related costs and expenses.
22

CaCsaes9e:97:9-7cv-c-0v-00006036-3R-CRC DDooccuummeenntt662916 FFilieledd0014//1052//120009PagePa1g0e3 2o3f 1o0f624
IV. Conclusion This case was tried before Judge Cobb who found that Lufkin Industries has engaged in discriminatory practices; entered an injunction; and awarded monetary damages, attorneys’ fees, and litigation expenses. The Circuit Court upheld the liability findings as to promotions and remanded not with instruction to eliminate the injunction, but to word it more clearly. The awards of monetary damages and attorneys’ fees were not to be canceled but were to be recalculated. No point of error raised by Defendant concerning the calculation of litigation expenses or costs was mentioned in the Circuit Court’s opinion, and that part of Judge Cobb’s order was not reversed. Therefore this court finds that even though a final judgment on the merits has not been entered, Plaintiffs are the prevailing party. See Texas State Teachers Ass'n v. Garland Independent School Dist., 489 U.S. 782, 791-93, 109 S.Ct. 1486, 1493-94 (1989); Walker v. City of Mesquite, TX, 313 F.3d 246, 249-50 (5th Cir. 2002). They have achieved significant results in terms of injunctive relief and a monetary award regardless of the precise wording of the final injunction or the exact amount eventually awarded. The fees, expenses and costs set out in this order “represents compensation for work that is compensable no matter what the course of subsequent events.” See Shipes v. Trinity Industries, Inc., 883 F.2d 339, 344 (5th Cir. 1989). In accordance with Fed. R. Civ. P. 54 (b), the court determines there is no just reason for further delay in the entry of this order,6 and the
6This case has been pending for twelve years. Counsel for Defendants have been paid in accordance with whatever schedule they chose to agree upon, while counsel for Plaintiffs have been uncompensated and have advanced substantial sums of their own money. It appears to the court that Defendants have had little interest in correcting their discriminatory practices before, and even after, the Circuit Court affirmed Judge Cobb’s finding of liability. Further delay would
23

CaCsaes9e:97:9-7cv-c-0v-00006036-3R-CRC DDooccuummeenntt662916 FFilieledd0014//1052//120009PagePa1g0e4 2o4f 1o0f624
accompanying judgment shall be a final appealable judgment as to these fees, expenses, and costs.
IT IS THEREFORE ORDERED that Plaintiffs’ Motion for an Interim Award of Reasonable Attorneys’ Fees, Costs, and Expenses [Doc. #599] is GRANTED IN PART, and Defendant Lufkin Industries, Inc. shall pay Plaintiffs $4,740,195.80 for attorneys’ fees and $932,603.84 in litigation related expenses. (This amount includes the $840,129.72 previously awarded by Judge Cobb.)
IT IS FURTHER ORDERED that Plaintiffs’ Supplemental Bill of Taxable Costs [Doc. #600] is APPROVED, and Defendant Lufkin Industries, Inc. shall pay Plaintiffs $140,562.26 in taxable costs. (This amount includes the $127,658.60 in taxable costs previously awarded by Judge Cobb.)
So ORDERED and SIGNED this 2 day of April, 2009.
___________________________________ Ron Clark, United States District Judge
neither advance justice nor further Congressional intent in encouraging qualified counsel to take on such complicated and time consuming cases.
24

CCaassee99:9:977--ccvv--0000006633--RRCC DDooccuummeenntt669262 FilFeidled010/41/50/21/0200P9age P1a0g5eo1f 1o0f62

**NOT FOR PRINTED PUBLICATION**

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION

SYLVESTER MCCLAIN, on his own and on §

behalf of a class of similarly situated persons, §

et al.,

§

§

Plaintiffs,

§

§

v.

§

§

LUFKIN INDUSTRIES, INC.

§

§

Defendant.

Civil Action No. 9:97-CV-063 JUDGE RON CLARK

JUDGMENT Re: ATTORNEYS’ FEES

For the reasons stated in the Order Re: Attorneys’ Fees entered contemporaneously with

this judgment, the court has determined that there is no just reason for further delay in entry of

this judgment. Pursuant to Fed. R. Civ. P. 54(b) and for the reasons stated in said Order, the

court directs the entry of this judgment as a final judgment as to Plaintiffs’ claims for attorneys’

fees, litigation expenses, and costs of court incurred prior to January 1, 2009.

IT IS THEREFORE ORDERED that Defendant Lufkin Industries, Inc. shall pay

Plaintiffs $4,740,195.80 for attorneys’ fees; $932,603.84 in litigation related expenses; and

$140,562.26 in taxable costs.

IT IS FURTHER ORDERED that post-judgment interest on the above sums shall be

calculated pursuant to 28 U.S.C. § 1961 at the rate of 0.59%.

IT IS FURTHER ORDERED execution shall issue if the above sums are not paid within

21 days of the entry of this Order. The court retains jurisdiction of this matter for the purposes

1

CCaassee99:9:977--ccvv--0000006633--RRCC DDooccuummeenntt669262 FilFeidled010/41/50/21/0200P9age P1a0g6eo2f 1o0f62 set out in the order of remand concerning Plainitffs’ other claims and for receiving and ruling on a further application for attorneys’ fees, costs, and expenses incurred by Plaintiffs’ counsel on and after January 1, 2009, pursuant to a schedule to be determined after further proceedings in this matter.
So ORDERED and SIGNED this 2 day of April, 2009. ___________________________________ Ron Clark, United States District Judge
2

 
 Case 9:97-cv-00063-RC Document 683 Filed 12/18/09 Page 1 of 50

**NOT FOR PRINTED PUBLICATION**

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION

SYLVESTER MCCLAIN, on his own behalf §

and on behalf of a class of similarly situated §

persons, ET AL.,

§

§

Plaintiffs,

§

§

v.

§

§

LUFKIN INDUSTRIES INC.,

§

§

Defendant.

§

§

CIVIL ACTION No. 9:97CV63 JUDGE RON CLARK

INJUNCTION

The Fifth Circuit, in vacating the Court’s earlier injunction, remanded to this Court “to craft

an adequate remedial order that will eliminate discrimination without hobbling Lufkin’s legitimate

promotion policies.” McClain v. Lufkin Industries, Inc., 519 F.3d 264, 284 (5th Cir. 2008). The

Court of Appeals left to this Court “the task of reviewing afresh the propriety of the injunction, and

if it is found necessary, of balancing plaintiffs’ requests for stronger measures to ensure Lufkin’s

compliance with the imprecision of the liability finding.” Id.

In carrying out the Fifth Circuit’s mandate, the Court has held multiple status conferences

with the parties in an attempt to narrow the disputed issues and identify areas of agreement. In

addition, subject to and without waiver of the parties’ rights to appeal, the parties have reached

agreements, incorporated into stipulations, on certain other issues related to the scope and terms of

1

Case 9:97-cv-00063-RC Document 683 Filed 12/18/09 Page 2 of 50
injunctive relief.1 In this Order, the Court (1) incorporates and combines the parties’ stipulations, so that all issues previously resolved or determined are set forth in this Order, (2) provides for the specific injunctive relief to be implemented by Defendant Lufkin Industries, Inc. (“Lufkin” or “Defendant”), and (3) provides for the procedures and methods by which this Injunction shall be implemented, monitored, and enforced.
Therefore, pursuant to Federal Rule of Civil Procedure 65, the Court enters this permanent injunction to partially remedy the discrimination found by Judge Cobb, and affirmed by the Fifth Circuit, toward black employees when determining promotions for hourly and salaried positions. It is therefore ORDERED as follows:
I. Injunctive Provisions A. Ombudsperson
1. Appointment of Ombudsperson a. The Court appoints Tony P. Rosenstein to serve as an outside Ombudsperson to monitor compliance with this Injunction and to hear complaints from class members regarding matters described in Section II.A.2.a. below. Mr. Rosenstein has read and signed the attached Scope and Limits of Appointment as Ombudsperson. The court is satisfied that his appointment will adequately safeguard the judicial process. b. Lufkin shall be responsible for the prompt payment of reasonable fees and expenses the Ombudsperson incurs in connection with his duties and
1 Lufkin's agreement with this Injunctive Relief is limited to form only and does not waive any arguments with respect to the statute of limitations, liability or appropriateness of injunctive relief.
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Case 9:97-cv-00063-RC Document 683 Filed 12/18/09 Page 3 of 50
responsibilities under this Order. The Ombudsperson shall provide an invoice detailing his time spent and expenses incurred to Lufkin with each request for payment. 2. Duties and Responsibilities of the Ombudsperson a. Complaint Investigation i. The Ombudsperson shall have the authority to receive, investigate,
provisionally determine and recommend measures to resolve the following types of complaints: (1) complaints from Lufkin employees regarding Lufkin’s non-compliance with this injunction, (2) complaints from black employees regarding promotion and promotion related discrimination, and (3) complaints of retaliation from employees who allege that they have been retaliated against for making a complaint regarding non-compliance with a specific mandate of this injunction or a promotion-related matter to the Ombudsperson, Lufkin or one of the unions representing Lufkin’s employees. ii. Lufkin and its officers, agents, managers and supervisors shall not engage in or be a party to any act, policy, practice or procedure that discriminates or retaliates against (1) any employee of Lufkin who, in good faith, contacts the Ombudsperson regarding Lufkin’s alleged non-compliance with this injunction; (2) any black employee who, in good faith, contacts the Ombudsperson with regard to alleged
3

Case 9:97-cv-00063-RC Document 683 Filed 12/18/09 Page 4 of 50
promotion and promotion related discrimination; and (3) anyone who, in good faith, contacts the Ombudsperson regarding complaints of alleged retaliation for making a complaint regarding non-compliance with a specific mandate of this injunction or a promotion-related matter to the Ombudsperson, Lufkin or one of the unions representing Lufkin’s hourly employees. iii. In giving the Ombudsperson this authority, the Court does not intend for him to displace the unions’ statutory obligation to represent Lufkin’s hourly employees or to provide a substitute for the grievance processes set forth in the collective bargaining agreement. iv. Lufkin shall provide to its employees in writing a toll free number that employees can use to contact the Ombudsperson and other information as provided for in Section II.H.2. below and in Appendix 1 to this Order. v. In order to investigate any complaint, the Ombudsperson shall have the authority to conduct additional fact finding which may include requesting documents or other information from Lufkin and interviewing employees, supervisors or other Lufkin personnel. The Ombudsperson shall also have the authority to take such actions as appropriate to assist the resolution of the complaint, including recommending appropriate corrective action to Lufkin. If the Ombudsperson concludes after investigation that Lufkin has not
4

Case 9:97-cv-00063-RC Document 683 Filed 12/18/09 Page 5 of 50
complied with the injunction or has engaged in promotion related discrimination or retaliation, the Ombudsperson shall request that Lufkin take recommended remedial action and in the absence of such action report the matter to the Court and Class Counsel. 3. Monitoring a. The Ombudsperson shall be responsible for monitoring Lufkin’s implementation of, and compliance with, this Order and any other subsequent or superseding remedial orders of the Court. In connection with this responsibility, the Ombudsperson shall have the authority to: i. Review any documents maintained by Lufkin as described in Section II.E. below; ii. Audit Lufkin’s promotion procedures, practices and relateddecisions; iii. Conduct independent analyses of data related to Lufkin’s promotion procedures, practices and related-decisions; iv. Request additional information and data from Lufkin in order to carry out his audit and/or independent analyses of Lufkin’s promotion procedures, practices and related-decisions. v. Confer with Lufkin’s Internal Monitor selected pursuant to Section II.G. below, and other Lufkin managers for the purpose of reviewing with them Lufkin’s implementation of, and compliance with, this
5

Case 9:97-cv-00063-RC Document 683 Filed 12/18/09 Page 6 of 50

Order and any other subsequent or superseding remedial orders of the

Court.

vi. Receive information from, and confer with, Class Counsel or

Lufkin’s counsel regarding Lufkin’s implementation of, and

compliance with, this Order and any other subsequent or superseding

remedial orders of the Court.

4. Reporting

a. The Ombudsperson shall report quarterly to the Court with respect to (1) any

complaints requiring remedial action and the action taken thereon by Lufkin,

and (2) Lufkin’s compliance with the Promotion Procedures set forth in

Section II.B. below.

b. Class Counsel and Lufkin’s counsel shall be given a copy of these reports

and an opportunity to confer and respond at least five (5) days prior to filing

with the Court.

c.

The unions’ counsel shall be given a copy of any reports that document

promotion-related complaints made by hourly employees.

B. Compliance with Promotion Procedures

1. Lufkin shall comply with the following Promotion Procedures for employees

assigned to its facilities in Angelina County, Texas, until further order of the Court

as provided in Section III or the expiration of this Injunction.

2. For purposes of this order,

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Case 9:97-cv-00063-RC Document 683 Filed 12/18/09 Page 7 of 50
a. “Bidder” means an employee who places, and does not withdraw, his or her name on a bid posted pursuant to Article 25, Section 1 of the 2008-2011 Master Collective Bargaining Agreement and/or any similar provision of any amended or subsequent collective bargaining agreement between Lufkin and its unions (hereafter “Master CBA”).
b. “Career Path” means those jobs set forth in Appendix 2. c. “Departmental Seniority” is as defined in the Master CBA, Article 22,
Section 1(b). d. “Eligible Employee” means:
i. For hourly job classifications on the IAM machining seniority roster and in the IAM Assembly and Distribution career paths on the Assembly and Shipping Department seniority roster, an Eligible Employee is an employee seeking to move: 1) Within the employee’s current career path on a seniority roster for which the employee has Departmental Seniority into an hourly job classification which has a maximum rate of pay greater than the maximum rate of pay for the employee’s current job classification; or 2) Into a different career path than the employee’s current career path for which the employee has Departmental Seniority on the seniority roster for the job classification into which the employee is seeking to move.
7

Case 9:97-cv-00063-RC Document 683 Filed 12/18/09 Page 8 of 50
ii. In addition to sub-sections (i) (1) and (2) above, an Eligible Employee is an employee in the Machinist or Shaft Finisher job classification who has Departmental Seniority on the seniority roster for the hourly job classification he is seeking and he is exercising his rights under IAM Letter of Stipulation No. 2.
iii. For hourly job classifications on all seniority rosters other than the IAM machining seniority roster including movements from job classifications in the Assembly or Distribution career paths not addressed in subsection (i) above, an Eligible Employee is an employee seeking to move from: 1) An hourly job classification not in a Line of Progression into an hourly job classification that (a) is on a seniority roster for which the employee has Departmental Seniority or is permitted to bid on pursuant to GMP Letter of Stipulation No. 22 and (b) has a greater maximum rate of pay than the employee’s current hourly job classification; 2) An hourly job classification not in a Line of Progression into an hourly job classification that is in a Line of Progression, that (a) is on a seniority roster for which the employee has Departmental Seniority or is permitted to bid on pursuant to GMP Letter of Stipulation No. 22 and (b) the highest hourly job classification in such Line of Progression, has a greater
8

Case 9:97-cv-00063-RC Document 683 Filed 12/18/09 Page 9 of 50
maximum rate of pay than the employee’s current job classification; 3) An hourly job classification that is in a Line of Progression into an hourly job classification that: (a) is on a seniority roster for which the employee has Departmental Seniority or is permitted to bid on pursuant to GMP Letter of Stipulation No. 22 and (b) has a greater maximum rate of pay than the maximum rate of pay for the highest job classification in the employee’s current Line of Progression; or 4) An hourly job classification that is in a Line of Progression into an hourly job classification that is in a different Line of Progression (the “Receiving Line of Progression”), that (a) is on a seniority roster for which the employee has Departmental Seniority or is permitted to bid on pursuant to GMP Letter of Stipulation No. 22 and (b) the highest hourly job classification in the Receiving Line of Progression has a greater maximum rate of pay than the maximum rate of pay for the highest hourly job classification in the employee’s current Line of Progression. iv. In addition to sub-sections (iii) (1) and (2) above, an Eligible Employee is an employee in the Chip-Grind Finish job classification who has Departmental Seniority on the seniority roster for the hourly
9

Case 9:97-cv-00063-RC Document 683 Filed 12/18/09 Page 10 of 50
job classification he is seeking and he is exercising his rights under GMP Letter of Stipulation No. 19. e. “Line of Progression” means: i. For the Fabrication Department: Parts Finisher, Structural Worker, Fork Lift, and Inspector lines; ii. For the Foundry Department: the Core Machine Operator, Molding Machine Operator, Welder, Electrician, Mechanic (Class B to Master Maintenance Specialist), and Fork Lift lines; and iii. For the Pattern Shop Department: the Pattern Maker and Pattern Tender lines. f. “Subordinate Job Classification” means a job classification that an employee is required to hold before promotion to a higher hourly job classification. 3. For promotions to the hourly job classifications set forth in Appendix 3, Lufkin shall offer the promotion to the Eligible Employee Bidder with the highest Departmental Seniority. If that bidder declines the promotion, Lufkin shall offer the position to the Eligible Employee Bidder with the next highest Departmental Seniority until all Eligible Employee Bidders have been offered the promotion. If no Eligible Employee Bidder accepts the position, the position may be filled pursuant to the Master CBA. Lufkin shall post the name of the Eligible Employee Bidder who is awarded the promotion on the main bulletin board for the applicable department. 4. For promotions to the hourly job classifications set forth in Appendix 4 and 4a, Lufkin shall offer the promotion to the Eligible Employee Bidder with the highest
10

Case 9:97-cv-00063-RC Document 683 Filed 12/18/09 Page 11 of 50
Departmental Seniority who has passed the applicable test or skill demonstration as set forth in Appendix 4 or as provided for in Section II.C.3. below. If that bidder declines the promotion, Lufkin shall offer the position to the Eligible Employee Bidder with the next highest Departmental Seniority who has passed the applicable test or skill demonstration until all Eligible Employee Bidders passing the applicable test or skill demonstration have been offered the promotion. If no Eligible Employee Bidder accepts the position, the position may be filled pursuant to the Master CBA. Lufkin shall post the name of the Eligible Employee Bidder who is awarded the promotion on the main bulletin board for the applicable department. 5. For promotions to the Crane Operator or Hydraulic Manipulator Operator job classifications in the Foundry Department, Lufkin shall promote the employee in the Learner job classification for the position with the highest Departmental Seniority provided the employee has completed a minimum of ninety (90) days service in the Learner job classification for the position. In order to be promoted to Crane Operator, the employee must also successfully complete the Crane Operator Learner Task Proficiency Check Off list, attached as Exhibit 5. If the employee in the Learner classification for the position does not have the requisite ninety (90) days service in the Learner job classification, Lufkin shall promote the employee in the Learner job classification with the next highest Departmental Seniority who meets the minimum ninety (90) days service in the Learner classification for the position. 6. For promotions to the hourly job classifications set forth in Appendix 6, Lufkin shall offer the promotion to the Eligible Employee Bidder with the highest Departmental
11

Case 9:97-cv-00063-RC Document 683 Filed 12/18/09 Page 12 of 50
Seniority who has at least ninety (90) days service in the Subordinate Job Classification and meets the other criteria as set forth in Appendix 6. If that bidder declines the position, Lufkin shall offer the position to the Eligible Employee Bidder with the next highest Departmental Seniority who has at least ninety (90) days service in the Subordinate Job Classification until all Eligible Employee Bidders with ninety (90) days service in the Subordinate Job Classification have been offered the promotion. If no employee in the Subordinate Job Classification has bid for the position or has the requisite length of service, Lufkin may treat the posting as a bid for the Subordinate Job Classification and award the promotion to the Eligible Employee Bidder with the highest Departmental Seniority or elect to hire for the position. If Lufkin elects to offer the Subordinate Job Classification to the Eligible Employee Bidder and that bidder declines the position Lufkin shall offer the position to the Eligible Employee Bidder with the next highest Departmental Seniority until all Eligible Employee Bidders have been offered the promotion to the Subordinate Job Classification. If no Eligible Employee Bidder accepts the position, the position may be filled pursuant to the Master CBA consistent with the provisions of this Order. Lufkin shall post the name of the Eligible Employee Bidder who is awarded the promotion on the main bulletin board for the applicable department. 7. For promotions to the Melter A job classification, Lufkin shall promote the employee in the Melter B job classification with the highest Departmental Seniority provided the employee has passed the Melter A test and demonstrated ability as set forth in the Melter A demonstration standards attached as Appendix 7.
12

Case 9:97-cv-00063-RC Document 683 Filed 12/18/09 Page 13 of 50
8. For promotion to the job classification Machinist (for gear hobs and grinders), as provided in IAM Letter of Stipulation No. 5, Lufkin shall offer the promotion to Sykes generator operators in order of Departmental Seniority and if none accept the promotion shall post and award the position as provided in paragraph 3 above.
9. For promotion to the hourly job classifications set forth in Appendix 8: a. If the Eligible Employee Bidder who is awarded the promotion is moving in the same career path and his current rate of pay is less than the maximum rate of pay for the Trainee job classification, he shall be classified initially in the Trainee job classification within the career path. b. If the Eligible Employee Bidder who is awarded the promotion is moving in the same career path and his current rate of pay is higher than the maximum Trainee job classification rate of pay, he shall be placed in the job classification on which he bid.2
2 For example, an Eligible Employee Bidder classified as a Machine Operator Class C earning $ 14.49 per hour, who in 2009, accepts Lufkin's offer of a Machine Operator Class A position will initially be classified as a Machine Operator Trainee because the 2009 maximum rate of pay for Machine Operator Trainee is greater than the employee's current rate of pay. If the Machine Operator Class C was earning $15.88 per hour at the time of his successful 2009 bid, he would be classified as a Machine Operator Class A because his current rate of pay is greater than the current maximum rate of pay for the Machine Operator Trainee classification.
13

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c. If the Eligible Employee Bidder who is awarded the promotion is moving into a different career path, he will be classified initially in the Trainee classification at the minimum hourly rate for the Trainee classification.3
d. Lufkin shall post the name of the Eligible Employee Bidder who is awarded the promotion on the main bulletin board for the applicable department.
10. For promotions to the hourly job classifications set forth in Appendix 9, Lufkin shall review and analyze the promotions, including the person who was promoted to the position, all persons offered but declining the position and all other persons qualified for the promotion by race on an annual basis and provide its written assessment and the underlying data used to make its assessment to the Ombudsperson. If the Ombudsperson determines that there is a racially disparate pattern in the promotions adverse to black employees, he shall review the promotion decisions that have been made in light of the requirements of the job and, if warranted, recommend remedial action to Lufkin. If Lufkin declines to implement such remedial action, the Ombudsperson shall report his findings, proposed remedial action and Lufkin’s response to the Court, Lufkin and Class Counsel. Lufkin shall retain the right to defend against implementation of the recommended remedial action, including on the ground that the racial disparities found by the Ombudsperson were not statistically significant or, in light of the job’s requirements, valid criteria were used
3 For example, an Eligible Employee Bidder who is in a Class II Assembler position at the time he accepts in 2009, Lufkin's offer of a Machine Operator Class A position will initially be classified as a Machine Operator Trainee and paid $12.19 per hour, which is the 2009 minimum rate of pay for the Trainee classification.).
14

Case 9:97-cv-00063-RC Document 683 Filed 12/18/09 Page 15 of 50
to make the promotion decisions. For purposes of this sub-section “other persons qualified for the promotion” means persons: (a) in the Subordinate Job Classification if the promotion is within a career path or into a specialist or master position or (b) in the Machine Operator A job classification if the promotion is to Machinist. 11. For job classifications in a career path, Lufkin shall retain all records and data necessary to analyze and shall analyze on an annual basis to determine whether there are any racial disparities in (a) the length of time in which discretionary merit and other pay increases are awarded to employees in Trainee classifications, for which such discretionary merit and other pay increases are provided for by the Master CBA and (b) the length of time employees spend in Trainee classifications before they are promoted out the of the classification. Lufkin shall report these analyses to the Ombudsperson. If the Ombudsperson determines that there is a racially disparate pattern with respect either to the time to pay increases or promotion from the trainee classification adverse to black employees, he shall investigate to determine the causes of such disparities and, if warranted, recommend remedial action to Lufkin. If Lufkin declines to implement such remedial action, the Ombudsperson shall report his findings, proposed remedial action and Lufkin’s response to the Court, Lufkin and Class Counsel. Lufkin shall retain the right to defend against implementation of the recommended remedial action, including on the ground that the racial disparities found by the Ombudsperson were not statistically significant or valid criteria were used for making the decisions.
15

Case 9:97-cv-00063-RC Document 683 Filed 12/18/09 Page 16 of 50
C. Testing Protocols 1. Lufkin shall comply the testing protocol described in Appendix 10 in its administration of any tests or skill demonstrations it uses for determining promotions to any of the jobs listed in Appendices 4, 5 and 7 or to be developed pursuant to Section II.C.3. below. 2. Lufkin shall analyze the results of each paper and pencil test and skill demonstration it administers by the race of the persons who take, pass and fail the test or skill demonstration and provide its written analysis and the underlying data used to conduct the analysis to the Ombudsperson. If the Ombudsperson determines there is a racially disparate pattern in the passing rate for such test or skill demonstration adverse to black employees, he shall review the job, the test, and the degree of the disparate pattern to determine whether to require Lufkin to validate the test or skill demonstration and if so, recommend such validation, including determining whether there is another suitable test or skill demonstration that has less adverse impact. If Lufkin declines to follow the Ombudsperson’s recommendation, the Ombudsperson shall report his findings, the recommended remedial action and Lufkin’s response to the Court, Lufkin and Class Counsel. Lufkin shall retain the right to defend against implementation of the recommended remedial action, including on the ground that the racial disparities found by the Ombudsperson were not statistically significant or that the test or skill demonstration is valid. 3. If during the term of this Order, Lufkin has a need to develop a test or skill demonstration for any of the job classifications listed on Appendix 4a, or any newly
16

Case 9:97-cv-00063-RC Document 683 Filed 12/18/09 Page 17 of 50
established or changed job classifications, Lufkin shall provide copies of the test or outline of the skill demonstration to the Ombudsperson and Class Counsel at least fourteen (14) days prior to Lufkin’s commencement of use of the test or skill demonstration. Class Counsel may provide comments on the test or skill demonstration to the Ombudsperson and Lufkin. D. Manager Training 1. Initial Training a. Within thirty (30) days of the entry of this injunction, Lufkin shall provide
Initial Training to all of its officers, executives, managers and supervisors in Angelina County on the terms of this Injunction including the promotion and testing procedures. b. Lufkin’s counsel or a member of Lufkin’s management who is knowledgeable about this litigation will provide the Initial Training. c. Lufkin shall provide such Initial Training to all new officers, executives, managers and supervisors in Angelina County, who have not previously received the Initial Training, within thirty (30) days of their hire or promotion. 2. Other Manager Training a. Lufkin shall engage the services of Dr. Winfred Arthur to develop and provide live training for its officers, executives, managers and supervisors that addresses the Court’s liability findings and reduction of subjectivity in decision making in the workplace. Dr. Arthur shall advise Lufkin on the
17

Case 9:97-cv-00063-RC Document 683 Filed 12/18/09 Page 18 of 50
appropriate specific content of the training and written materials to provide to trainees. Training for officers, executives and managers shall be a one day program and for supervisors a half day program. b. Lufkin shall provide this training within one hundred eighty (180) days of the date of entry of this Order. c. Lufkin shall provide similar training in videotape format to any newly hired or promoted officers, executives, managers and supervisors (who have not previously received the training) within thirty (30) days of their hire or promotion. d. Lufkin shall provide written verification to the Ombudsperson of the completion of the training and that all of its officers, executives, managers and supervisors received such training. E. Recordkeeping 1. Lufkin shall maintain paper and data records that reflect promotion-related decisions including bid sheets, postings and other written communications reflecting employee interest in promotions, forms documenting decisions, structured interview questions and responses, data analyses, paper and pencil tests, records of skill tests, job descriptions for salaried jobs, formal training, and all documentation pertaining to any internal employee complaints, including but not limited to, union grievances, arising from promotion-related decisions and the investigation and resolution of such complaints. 2. Lufkin shall retain such documents, records and data for the duration of this Order.
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Case 9:97-cv-00063-RC Document 683 Filed 12/18/09 Page 19 of 50
F. Annual Executive EEO Updates a. Lufkin’s Internal Monitor will prepare an Annual Executive Report for Lufkin’s executive team. b. For purposes of this Order, Lufkin’s “executive team” means officers of the Company. c. The Annual Executive Report shall contain, as a minimum, summaries of any adverse impact analysis of promotions that has been provided to the Ombudsperson, and any reports provided by the Ombudsperson to the Court. Copies of any analyses or reports referred to in the Annual Executive Report will be attached to the report. d. A copy of this Report shall be concurrently provided to the Ombudsperson, who may submit comments or recommendations based on the Report, in which case such comments or recommendations shall also be provided to, and reviewed by, the executive team.
G. Internal Monitoring 1. Within fourteen (14) days of entry of this Injunction, Lufkin shall designate an Internal Monitor. At the same time, Lufkin shall advise the Court, the Ombudsperson and Class Counsel of the identity of the Internal Monitor. 2. The Internal Monitor shall be responsible for the following: a. Monitoring Lufkin’s compliance with the terms of this Injunction and coordinating with the Court-appointed Ombudsperson.
19

Case 9:97-cv-00063-RC Document 683 Filed 12/18/09 Page 20 of 50
b. Monitoring Lufkin’s compliance with the promotion and testing procedures, training procedures, data analyses, recordkeeping and reporting required by this Injunction.
c. Serving as Lufkin’s liaison with the Ombudsperson and responding to any requests for information from the Ombudsperson.
d. Overseeing the preparation of and submitting quarterly reports to the Ombudsperson which will include data on all promotions awarded in the prior quarter. This data will include the name of each person who was promoted, their race, the position from which they were promoted, the position to which they were promoted, as well as the name, race, and classification of each unsuccessful candidate for the promotion.
e. Conducting an adverse impact analysis of Lufkin’s promotion data every six months to determine if there are any statistically significant shortfalls in promotions of black employees not the product of a bona fide seniority system.
f. Reporting to Lufkin’s Chief Executive Officer and senior management staff regarding Lufkin’s implementation of, and compliance with, the Court’s remedial orders and concurrently sending a copy of such report to the Ombudsperson.
g. Conducting and reporting to the Ombudsperson the annual analyses required under Sections II.B.10. and 11. and II.C.2. of this Order.
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Case 9:97-cv-00063-RC Document 683 Filed 12/18/09 Page 21 of 50
h. Preparing the Annual Executive Report required under Section II.F. of this Order.
H. Communications 1. Lufkin shall provide a copy of this Injunction to all officers, executives, supervisors and managers as part of the Initial Training required under Section II.D.1. of this Order. Lufkin shall also provide copies of any subsequent remedial orders of the Court modifying or amending this Order to its officers, executives, supervisors and managers, and to the unions. 2. Within fourteen (14) days of the entry of this Injunction, Lufkin shall provide to all employees a copy of the notice attached as Appendix 1 which summarizes the terms of this injunction and identifies the Ombudsperson, explains his role, and provides a phone number and other contact information for him. II. Jurisdiction This court specifically retains jurisdiction to enforce this permanent injunction. III. Modification of this Order In the event that changed or other circumstances make a modification of this Order necessary
to ensure its purposes are fully effectuated, the parties shall attempt in good faith to reach agreement on such modification suitably tailored to the changed or other circumstance, including by conferring with one another and the Ombudsperson, and submit the modification to the Court by stipulation. If the parties are not able to reach such agreement, any party may move the Court to modify the Order.
21

Case 9:97-cv-00063-RC Document 683 Filed 12/18/09 Page 22 of 50 III. Term of this Order
This Order shall remain in effect for five (5) years from the date of its entry. So ORDERED and SIGNED this 18 day of December, 2009.
___________________________________ Ron Clark, United States District Judge
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 Case 9:97-cv-00063-RC Document 608 Filed 02/19/2009 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION

SYLVESTER MCCLAIN, on his own

§

behalf and on behalf of a class of similarly §

situated persons, et al.,

§

§

Plaintiffs,

§

vs.

§

§

LUFKIN INDUSTRIES,

§

§

Defendant.

§

CIVIL ACTION NO. 9:97-CV-063 JUDGE CLARK

JOINT REPORT ON DAMAGES At the status conference on December 5, 2008, the Court ordered the parties to confer regarding a “base number for damages” and advise the Court on those issues on which they were in agreement and identify those issues on which they were not in agreement. Plaintiffs’ expert, Richard Drogin, has calculated damages for Plaintiffs in a manner consistent with Plaintiffs’ understanding of the Court’s instructions at that conference (i.e. without interest, and separately for various portions of the liability period to be determined by the Court). Plaintiffs provided Dr. Drogin’s initial damages estimates to Lufkin on December 15, 2008. After Lufkin’s experts reviewed theses estimates, Lufkin requested additional back up data to analyze Plaintiffs’ estimates, which was provided on January 6, 2008. The purpose of this exchange of data was to quantify the amount at stake with regard to the various potentially disputed damages issues, to determine whether some could be compromised on a pragmatic basis given the possible outcomes of the disputed issues, and to identify those not worth arguing about because of the limited amounts involved. The analytical work involved in this process was detailed and somewhat time-consuming. In the course of this process, the parties have conducted

Case 9:97-cv-00063-RC Document 608 Filed 02/19/2009 Page 2 of 8

several further telephonic conferences, one of which included the respective experts who were

able to communicate directly about technical issues.

The base damages (without interest) calculated by Dr. Drogin are:

Time Period
1994-1995 1996-2002 2003-2004 2005-2008 TOTAL

Hourly Damages $ 669,543 $3,252,289 $ 831,335 $ 298,701 $5,051,890

Job Salaried Damages $ 132,458 $ 393,336 $ 0 $ 0 $ 525,824

Job Total Damages
$ 802,001 $3,645,625 $ 831,335 $ 298,701 $5,577,662

Proceeding from Dr. Drogin’s damage calculations, and after conferring on several

occasions about the issues involved, the amounts at stake with regard to each of the issues, and

the possibility for compromise, the parties advise the Court as follows:

1. Dr. Drogin’s initial calculations double-counted the damages for promotions from

hourly positions to salaried positions by including such damages in both the hourly damages and

salary damages calculation. The parties agree that the double counting should be eliminated

from either the hourly or the salaried job damages totals. Lufkin calculates that this will reduce

total damages claimed by Plaintiffs by approximately $310,000. Plaintiffs are in the process of

confirming this amount and discussing from which damages number it should be deducted.

2. Dr. Drogin’s damages analysis did not use the same methodology Dr. Drogin used

for his liability findings in accounting for seniority. In his liability analysis, the applicant pool

consisted only of those employees with equal or greater seniority than the successful applicant,

whereas in his damages model he disregards seniority. Dr. Drogin did not control for seniority in

the damages calculations because of the relatively high level of complexity involved in using

such a control, and methodological issues. Because Lufkin estimates that the reduction in

damages attributable to this difference in methodology would not justify the expense of the

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Case 9:97-cv-00063-RC Document 608 Filed 02/19/2009 Page 3 of 8
complicated analysis necessary to compute the difference and having it confirmed by Dr. Drogin, for this purpose Lufkin does not object to Dr. Drogin’s methodology in eliminating seniority from the damage calculation.
3. Dr. Drogin’s damages calculation includes damages for the period 1994 through 1995. The parties previously advised the Court in chambers that the appropriateness of damages for this period (actually the period from March 6, 1994 through April 2, 1996) was challenged by Lufkin based upon the Fifth Circuit’s determination that Sylvester McClain did not properly exhaust administrative remedies for the class and the applicable time period based on the exhaustion of such remedies by Buford Thomas runs from a later date. Plaintiffs contend that this issue was settled by the Fifth Circuit’s affirmance of Judge Cobb’s rulings with respect to the applicable time period and the number of promotions to be used in calculating damages, and its denial of Lufkin’s petition for rehearing on this specific issue. The difference in damages attributable to the disputed time period that may be subject to limitations is at least $950,000, and the parties disagree on whether this amount is properly included in damages. This is a legal issue that would not require any evidentiary hearing but one on which, along with others that may remain after further discussions of the parties, the parties wish to submit briefs and present such oral argument as the Court may receive.
4. Dr. Drogin’s damages calculation includes the period 2003 through 2008, including damages of approximately $1,130,000 for the time period. The period 2003-2004 was before the entry of Judge Cobb’s decision but after the cut off date used in the analyses submitted by the parties at trial. The period 2005-2008 is after Judge Cobb’s decision. Using discovery taken on remand from the Fifth Circuit’s decision, the Plaintiffs now have, and have analyzed, the same or equivalent employee databases for the 2003-2007 period. Lufkin also
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Case 9:97-cv-00063-RC Document 608 Filed 02/19/2009 Page 4 of 8
advised the Court in chambers that damages for this 2003-2008 time period, for which no evidence was taken during trial nor were any liability findings made by the District Court, are not appropriate. Lufkin believes that if evidence is taken regarding this time period, it will show that there is no unlawful disparate impact in the hourly or salaried promotions. Plaintiffs’ position is that the Court did enter findings of discrimination based on evidence about the period through trial (which ended in October 2004) although that evidence did not include post-2002 employee data; and that an analysis of the data for 2003-2007 would show that the effects of the discriminatory practices found by the District Court and affirmed by the Fifth Circuit continued during that period. The parties disagree regarding liability and damages for the period. Lufkin submits that if the Court were to consider damages for this period, an evidentiary hearing would be required. Plaintiffs submit that any such hearing could be limited to data analyses showing the quantitative effects of Lufkin’s continuing practices. The parties wish to brief and argue this issue, whether or not the Court conducts an evidentiary hearing.
5. Dr. Drogin’s damage calculations attributable to years subsequent to the year of promotion (i.e., differentials in compensation between otherwise similarly situated individuals in the promoted and non-promoted groups following the promotion decisions determined by the Court to be included in the damages calculations) include a condition that the difference in wages is calculated considering only those employees who worked 1500 hours or more during the year and who were active at year-end. This condition was not imposed by Dr. Drogin for the year of promotion. Lufkin estimates that the failure to impose this condition overstates damages by approximately $1,200,000 in the aggregate for all years and approximately $625,000 for the period 1996 through 2002. The parties disagree as to whether this amount should be included in the damages, but continue to discuss a compromise on this issue. If not resolved, Lufkin
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Case 9:97-cv-00063-RC Document 608 Filed 02/19/2009 Page 5 of 8
believes that the Court should have an evidentiary hearing on this issue; Plaintiffs reserve their position on the need for such a hearing pending further and ongoing analysis of the rather complicated technical issues involved. The parties are continuing to explore alternative analyses and possible compromise on this issue.
6. Dr. Drogin’s damage calculations include an attrition factor in which damages in subsequent years the damages are reduced proportionate to the number of promoted employees leaving the workforce. If an employee returns to the workforce, however, Dr. Drogin no longer mitigates the damage as a result of the promoted employee leaving. Lufkin estimates that this overstates the damages in the amount of approximately $1,120,000 in the aggregate and $620,000 for the period 1996 through 2002. The parties disagree as to whether this amount should be included in the damages, but continue to discuss a compromise on this issue. If not resolved, Lufkin believes that the Court should have an evidentiary hearing on this issue; Plaintiffs reserve their position on the need for an evidentiary hearing pending further and ongoing analysis of the rather complicated issues involved.
7. Dr. Drogin’s damage calculations do not take into account any jobs where African Americans are over selected for promotion or any years in which employees who were not promoted earn more than those promoted. The effect of this methodology, is that Dr. Drogin calculates damages as if the shortfall were 216 for hourly employees and 14 for salaried employees. Lufkin contends this is inappropriate in light of the Fifth Circuit’s determination that the shortfall in promotions for hourly employees was 127 and for salaried employees 8. Plaintiffs contend that damages calculations, unlike the liability calculations previously performed by Dr. Drogin, appropriately exclude those situations where despite the existence of a pattern of discrimination with adverse impact, in particular instances there was no financial
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Case 9:97-cv-00063-RC Document 608 Filed 02/19/2009 Page 6 of 8
injury. Lufkin estimates this overstates the damages by approximately $1,200,000 in the aggregate and approximately $900,000 for the time period 1996 through 2002. This is a legal issue that would not require any evidentiary hearing but the parties would like to submit briefs and present such argument as the Court wishes to hear.
8. As the parties have previously advised the Court, they are in disagreement as to the appropriate interest rate to be applied to damages. The Court noted this issue at the December 5 conference. The parties wish to submit briefs and present such argument as the Court wishes to hear on this subject.
9. As a result of the foregoing issues (after taking into account the parties’ agreement that double counting of promotions should be eliminated), the parties’ disagreement as to damages is limited to issues that significantly affect the damages calculation. The parties are continuing to conduct and exchange analyses of the data and to discuss the issues with the goal of either eliminating, narrowing, or at least clarifying the issues that remain for resolution. If the parties are unable to reach further agreement on all issues on or before March 13, 2009, the parties recommend that the Court order simultaneous briefing on the areas of disagreement to be filed by March 31, 2009, and set the matter for further hearing thereafter. If the Court accepts this recommendation, the parties would advise the Court by March 13, 2009 what issues remain for resolution so that the Court can schedule such proceedings as it finds appropriate.
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Case 9:97-cv-00063-RC Document 608 Filed 02/19/2009 Page 7 of 8

OF COUNSEL:
VINSON & ELKINS L.L.P. 1001 Fannin Street Houston, Texas 77002-6760

Respectfully submitted,
____________/s/__________________ DOUGLAS E. HAMEL Attorney-In-Charge dhamel@velaw.com State Bar No. 08818300 CHRISTOPHER V. BACON Of Counsel State Bar No. 01493980 2300 First City Tower 1001 Fannin Street Houston, Texas 77002-6760 (713) 758-2036 (Telephone) (713) 615-5388 (Telecopy)
s/_________________________________ TERESA DEMCHAK MORRIS J. BALLER Goldstein, Demchak, Baller, Borgen & Dardarian 300 Lakeside Drive, Suite 1000 Oakland, CA 94612 (510) 763-9800 (telephone) (510) 835-1417 (telecopy)
s/___________________________________ TIMOTHY B. GARRIGAN State Bar No. 07703600 Stuckey, Garrigan & Castetter P.O. Box 631902 Nacogdoches, TX 75963-1902 (936) 560-6020 (telephone) (936) 560-9578 (telecopy

-7-

Case 9:97-cv-00063-RC Document 608 Filed 02/19/2009 Page 8 of 8 CERTIFICATE OF SERVICE
I certify that on this 19th day of February 2009, a copy of the foregoing document was filed electronically through the Court’s CM/ECF System and was automatically copied to Plaintiffs through the Court’s electronic filing system.
____________/s/____________________ Attorney for Defendant
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Houston 3894566v.2

 
 Case 9:97-cv-00063-RC Document 606 Filed 02/19/2009 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION

SYLVESTER MCCLAIN, on his own

§

behalf and on behalf of a class of similarly §

situated persons, et al.,

§

§

Plaintiffs,

§

vs.

§

§

LUFKIN INDUSTRIES,

§

§

Defendant.

§

CIVIL ACTION NO. 9:97-CV-063 JUDGE CLARK

JOINT REPORT ON PROPOSAL FOR INJUNCTIVE RELIEF

At the Status Conference on December 5, 2008, the Court ordered the Parties to confer on

a “methodology on injunction” and advise the Court on those issues on which they were in

agreement and identify those issues on which they were not in agreement. The Parties will

discuss their positions on disputed issues in separate submissions.

As the Parties previously advised the Court, the Parties have agreed that Industrial

Organizational Psychologist Dr. Michael Campion be appointed to review Lufkin’s promotion

policies, procedures, and practices for hourly and salaried positions to determine if those

policies, procedures, and practices will address and remedy the Court’s findings of unlawful

subjectivity in promotions. If Dr. Campion determines that change to Lufkin’s current selection

and related practices is needed to address and remedy the Court’s findings, Dr. Campion will

make recommendations regarding the development, implementation and monitoring of remedial

measures. Dr. Campion will inform Lufkin, Class Counsel, and the Court in writing of his

findings and recommendations. The Parties propose that Dr. Campion be given 90 days to

Case 9:97-cv-00063-RC Document 606 Filed 02/19/2009 Page 2 of 8
complete his report once he has been appointed, subject to his request for additional time, if needed. Following his report to the Court, the Parties would request 20 days to respond before the Court enters any order on Dr. Campion’s report. The Parties also agree that in addition to his review of Lufkin’s current selection and related practices, Dr. Campion should review such portions of the Court’s record as he deems necessary, including at his discretion, the Court’s findings with respect to hourly and salaried promotion in the Amended Final Judgment, the trial record (trial exhibits, expert witness reports and testimony), the Fifth Circuit Court of Appeals’ panel decision of February 29, 2008, this Joint Report, the Court’s injunction and any subsequent remedial Orders, and the Parties’ briefing. In order to conduct his review, Dr. Campion shall have the authority to (a) obtain documents and data from Lufkin and plaintiffs; (b) interview Lufkin’s managers and employees and Defendant’s Counsel; (c) interview plaintiffs and Class Counsel; and (d) contact Lufkin’s unions and their representatives.
Notwithstanding Dr. Campion’s recommendations, and subject to the Parties’ reservation of rights set forth immediately before counsel’s signatures, the Parties have also agreed to the following:
1. The Appointment of Outside Ombudsperson. The Parties have agreed that the Court should appoint an outside ombudsperson, whose fees and expenses would be paid by Lufkin, to monitor compliance with any injunction entered by the Court and to hear complaints from class members regarding the matters described in paragraph 2. As with Dr. Campion, the Parties will attempt to reach an agreement on the person who would serve in that role, no later than February 27, 2009. If the Parties are not able to agree on an ombudsperson, no later than March 6, 2009, each Party will propose three candidates for the Court to consider. Additionally, the Parties will be allowed to rank order the choices of the other Party and file any specific
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Case 9:97-cv-00063-RC Document 606 Filed 02/19/2009 Page 3 of 8
objections and/or arguments that they might have to the other Party’s proposals. Such proposals and rankings would be for the Court’s information only and not binding on it and the Court may conduct any other or additional proceedings deemed appropriate to select and appoint an ombudsperson.
2. The Development of a Complaint Mechanism. The Parties have agreed that the ombudsman would have authority to receive, investigate, provisionally determine and recommend measures to resolve complaints from Lufkin employees regarding Lufkin’s noncompliance with Court-ordered relief and from black employees regarding promotion and promotion related discrimination. All Lufkin employees should be provided with a toll free number and other contact information for the ombudsperson. The ombudsperson may also address complaints of retaliation to the ombudsman, at least to the extent that an employee alleges that he has been retaliated against for making a complaint regarding non-compliance with a specific mandate of the court's injunction or a promotion-related matter to the ombudsperson, Lufkin or the union.
In order to investigate any complaint, the ombudsperson may request documents or other information from Lufkin and interview employees, supervisors or other Lufkin personnel. The ombudsperson shall also have the authority to take such actions as appropriate to assist the resolution of the complaint, including recommending appropriate corrective action to Lufkin. If the ombudsperson concludes after investigation that Lufkin has not complied with the injunction or has engaged in promotion related discrimination or retaliation, the ombudsperson shall request Lufkin take recommended remedial action and in the absence of such action report to the Court and Class Counsel.
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Case 9:97-cv-00063-RC Document 606 Filed 02/19/2009 Page 4 of 8
The Parties are in disagreement as to whether an employee should be required to first complain about promotion decisions to human resources or the employee’s union before complaining to the ombudsperson. It is Lufkin’s position that the employee should first make his or her complaint to the union or to Lufkin’s Human Resources Department. It is Plaintiffs’ position that, at least initially, a class member wishing to complain about race discrimination in the promotion process should be able to elect whether to pursue a union grievance or complaint to the Human Resources Department, or complain to the ombudsman. The Parties also disagree on the ombudsperson’s authority to receive complaints of alleged discrimination regarding some employment practices unrelated to promotions.
3. Training. Training for all supervisors and managers on issues raised in the lawsuit is appropriate. Training provided to each supervisor and manager will depend on the level of their involvement in decisions affecting promotions. The Parties are also in agreement that some training will be necessary on processes affected by any Court-ordered relief.
The Parties agree to jointly attempt select a consultant that Lufkin will retain to assist it in the development of the training, including but not limited to, advising Lufkin on the appropriate content, written materials to provide to trainees, length, format and frequency of such training and who will provide the training.
4. Internal Monitoring and Recordkeeping. The Parties agree that Lufkin should designate an individual within Lufkin to monitor Lufkin’s compliance with any injunction. This individual will be responsible for coordination with the Court-appointed industrial organizational consultant; monitoring the establishment, implementation, revision and execution of Lufkin’s procedures for promotion and other promotion-related employment practices as may be recommended by the consultant and ordered by the Court; communication with, and provision of
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information as requested by, the ombudsman; preparation of reports regarding Lufkin’s implementation of, and compliance with, the Court’s remedial orders for the ombudsman; and reviewing promotion decisions and periodically analyzing promotion data to determine if there are any statistically significant shortfalls in promotions of black employees, and reporting to Lufkin’s CEO and senior management staff regarding Lufkin’s implementation of, and compliance with, the Court’s remedial orders.
The Parties also agree that Lufkin should maintain any paper and data records that reflect any promotion-related decisions including bid sheets, postings and other written communications reflecting employee interest in promotions, forms documenting decisions, structured interview questions and responses, data analyses, paper and pencil tests, records of skill tests, job descriptions for salaried jobs, formal training, and all documentation pertaining to any internal employee complaints, including but not limited to, union grievances, arising from promotionrelated decisions and the investigation and resolution of such complaints.
5. External Monitoring. The ombudsperson identified in Paragraph 1 should be responsible for monitoring Lufkin’s compliance with the Court’s remedial orders. The ombudsperson should have the authority to review any documents maintained by Lufkin described in Paragraph 4, audit Lufkin’s promotion procedures, practices and related decisions, and conduct an independent analysis of Lufkin’s promotion- related data.
In cases where employees complain to the ombudsperson that the terms of the injunction have not been followed, or where black employees complain about discriminatory promotionrelated decisions, the ombudsperson should have authority to conduct additional fact finding which may include requesting documents, information and data from Lufkin, and interviewing
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supervisors and employees. The ombudsperson should report quarterly to the Court on the number of non-compliance, promotion-related and retaliation complaints that the ombudsperson has received and the ombudsperson’s findings and on those complaints. Plaintiffs’ counsel and Lufkin’s counsel should be given a copy of these reports and an opportunity to respond.
The Parties also agree that the ombudsperson should also provide the Court with reports on the promotion data that he receives from Lufkin. The ombudsman should have the authority to conduct an independent assessment of the data he receives from Lufkin and to request additional information and data from Lufkin to assist him in his independent analysis. Plaintiffs’ counsel and Lufkin’s counsel should be given a copy of the ombudsman’s reports to the Court, and an opportunity to confer and respond at least five days prior to filing with the Court. The Parties disagree on the frequency of these reports and the trigger or indicator that would require the ombudsman to report to the Court that further investigation is warranted.
6. Dissemination of the Court’s Liability Findings, the Fifth Circuit’s Order and the Court’s Remedial Orders to Lufkin’s Employees. The Parties agree that Lufkin will provide a copy of the Court’s ultimate injunction and any subsequent remedial orders to all supervisors and managers. The Parties also agree that Lufkin will provide to all employees a written communication that would be subject to the Parties’ agreement, which would summarize the terms of the injunctive relief in easy-to-understand language, and identify the ombudsperson, explain his role, and provide a phone number and other contact information for him.
7. Areas of Disagreement. In addition to the areas of disagreement identified above, the Parties have been unable to reach agreement on the issues of (1) procedures for manager accountability for compliance with the Court’s remedial orders and the fair employment laws as related to the issues that were the subject of the Court’s liability findings; and (2)
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adequate duration of continuing court jurisdiction. Simultaneously with this submission, the Parties submit separate position statements on these issues as well as the areas of difference identified above.
8. The Parties submit this Joint Proposal without Prejudice to Their Rights to Challenge the Court’s Judgment.
Defendant Lufkin’s agreement is without waiver of or without prejudice to its reservation of right to challenge the Court’s underlying liability findings and need for injunctive relief based on the Fifth Circuit’s decision that Sylvester McClain did not exhaust administrative remedies and that changed circumstances make injunctive relief as to salaried promotions unnecessary.
Plaintiffs do not concede that the Fifth Circuit’s decision regarding the initial assignment claim has any bearing on the scope of the relief as reflected in the above agreements. Plaintiffs also reserve the right to challenge Lufkin’s contention that “changed circumstances” clearly and convincingly make injunctive relief as to salaried promotions unnecessary.
Respectfully submitted,

OF COUNSEL
GOLDSTEIN, DEMCHAK BALLER & DARDARIAN
300 Lakeside Drive, Suite 1000 Oakland, California 94612

_____________/s/________________________ TERESA DEMCHAK CA Bar No. 123989 tdemchak@gdblegal.com MORRIS J. BALLER CA Bar No. 048928 mballer@gbdlegal.com 300 Lakeside Drive, Suite 1000 Oakland, California 94612-3534 (510) 763-9800 (Telephone)
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OF COUNSEL: STUCKEY, GARRIGAN &
CASTETTER LAW OFFICES 2803 North Street Nacogdoches, Texas, 75963-1902
OF COUNSEL: VINSON & ELKINS L.L.P. 1001 Fannin Street Houston, Texas 77002-6760

___________/s/_____________________________ TIMOTHY GARRIGAN Attorney-in-Charge State Bar No. 07703600 tim@sgclaw.org 2803 North Street Nacogdoches, Texas, 75963-1902 (936) 560-6020
Attorneys for Plaintiffs and the Class
____________/s/__________________ DOUGLAS E. HAMEL Attorney-In-Charge dhamel@velaw.com State Bar No. 08818300 CHRISTOPHER V. BACON Of Counsel State Bar No. 01493980 2300 First City Tower 1001 Fannin Street Houston, Texas 77002-6760 (713) 758-2036 (Telephone) (713) 615-5388 (Telecopy)
Attorneys for Defendant, LUFKIN INDUSTRIES, INC.

Houston 3894289v.1

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 Case 9:97-cv-00063-RC Document 461 Filed 01/13/05 Page 1 of 38

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION

SYLVESTER MCCLAIN, on his own

§

behalf and on behalf of a class of similarly §

situated persons, et al.

§

Plaintiff

§

§

V.

§ Case No. 9:97-CV-063

§ Judge Howell Cobb

LUFKIN INDUSTRIES,

§

§

Defendant

§

I. Introduction

MEMORANDUM AND ORDER

Plaintiff class members sued Lufkin Industries, alleging disparate impact employment

discrimination in Lufkin’s initial assignments to jobs, promotions, and compensation. After

reviewing the anecdotal and statistical evidence presented by both sides, the court concludes that

plaintiffs have proven their case and are entitled to back pay and injunctive relief. Having

received suggested findings of fact and conclusions of law from both parties, the court will

not file a separate findings of fact. In lieu thereof, the following memorandum and order will

serve as findings of fact and conclusions of law.

II. Factual Scenario

A. Background

Several ago, plaintiffs Sylvester McClain and Buford Thomas sued Lufkin Industries for

employment discrimination. The plaintiffs’ claims were certified as a class action in 1999.

McClain v. Lufkin Indus., 187 F.R.D 267 (E.D.Tx 1999). The court also designated eleven

Case 9:97-cv-00063-RC Document 461 Filed 01/13/05 Page 2 of 38
additional class representatives. The case was closed from 2001-2003 while the parties
attempted mediation, but that mediation failed. Between filing and trial, a number of claims
were dropped with prejudice, including plaintiffs’ general claim of disparate treatment. Only
the claims of discrimination in initial assignments, promotions, and compensation went to trial.1
1In its proposed pretrial order, Lufkin submitted a list of 96 witnesses that it intended to call before the court. Because the court was of the opinion that the testimony of so many witnesses would be duplicative, redundant, and largely irrelevant to the issues raised by a claim of disparate impact, it limited each party to 20 hours each in which to present its case. Lufkin protested the limitations when they were imposed and renewed its objection numerous times thereafter. After the close of trial, Lufkin submitted offers of proof on behalf of more than a dozen witnesses that it stated it would have called but for the court’s time constraints. The court, having reviewed those offers of proof, finds that they contained no probative information and would not have affected the court’s ruling even if the witnesses had testified.
With one exception, the offers can be divided into two groups: those on behalf of Lufkin management and those on behalf of class members. Lufkin called most of its representatives at trial and elicited testimony on Lufkin’s formal policies and procedures. The offers of proof did not contradict that testimony, nor did they supplement it in any meaningful form. The offers from Richard Gilley, David Jinkins, Larry Long, and Steve Reynolds all included the same information and followed the same format, reiterating the statements Lufkin made at trial. The different individual information offered, such as which jobs are supposed to be posted and which jobs are awarded on the basis of ability, is not new evidence to the issues before the court.
The offers on behalf of the class members would have been probative, had the plaintiffs retained their claim for disparate treatment. After reviewing those offers of proof, the court remains satisfied that many Lufkin managers and supervisors are not racists, that blacks have the opportunity to advance (at least to a certain level) at Lufkin Industries, and that many of the class members appreciate the jobs they hold at Lufkin. Similar statements were offered at the class certification hearing and at trial. The court was convinced of those facts before reading the offers of proof and none of the proposed testimony contained therein is particularly probative to a claim of disparate impact.
The one exception to those two categories is the offer of proof for Lisa Dungan, an employee of plaintiffs’ counsel who supervised a review of the first database used by Dr. Baker. That database was riddled with flaws and inaccuracies and Lufkin produced a second, revised database on the eve of trial. The court accepts arguendo the proposition that Lufkin’s new database is more accurate than the initial database it produced. Ms. Dungan, however, never saw the second database. As that would be the extent of her testimony, the court does not consider it particularly relevant that Lufkin “lacked the time” to recall Ms. Dungan to say so.
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Lufkin Industries is a publicly traded corporation headquartered in Lufkin, Texas. It is headed by Chief Executive Officer Doug Smith. Smith is also Chairman of the eight-member Board of Directors. The company is divided into four production divisions: Foundry, Trailer, Oilfield, and Power Transmission. Each division is run by a vice-president and/or general manager with considerable policy-setting authority. The corporate sector manages the general affairs and internal workings of the company. In the more than 100 years that Lufkin Industries has been in business, no woman or person of color has ever been on the Board of Directors or headed a division.
Each production division performs different tasks. The Foundry takes molten metal and shapes it into castings for commercial sale and use in Lufkin’s other divisions. The Trailer division’s products - freight vans, flatbeds, and floats - can be seen throughout the nation’s highways. The Oilfield division makes oil pumping units and services and repairs those units. The Power Transmission division uses high-tolerance machines to produce heavy industrial gearing; some of its equipment can hold tolerances of a few microns.2
The working conditions in the various divisions differ greatly. The Foundry’s work environment combines sweltering heat, deafening sound, and a thick layer of dirt and soot. The work is heavy and physically demanding. In contrast, workers in the Power Transmission division use sophisticated machinery in a clean, air-conditioned environment. The workers in the Foundry are disproportionately black and Hispanic; the workers in Power Transmission are disproportionately white. The Oilfield and Trailer divisions constitute a middle ground of desirability between the Foundry and Power Transmission. Every division offers career
2A micron is 1/1000th of a milimeter 3

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opportunities and the potential for advancement, but there is a general hierarchy of pay that corresponds to working conditions.
B. Initial Assignments Entry-level jobs in Lufkin’s workforce are available solely through the Texas Workforce Commission (“TWC”). The TWC maintains a database of job applicants, which it consults when Lufkin submits a job requisition. After the TWC receives a job requisition, it creates a work order for the requested positions. The TWC checks its database and selects applicants who meet the stated minimum eligibility requirements for a job (such as a high school diploma or prior industrial experience). Some of Lufkin’s entry-level positions, particularly in the Power Transmission and Oilfield divisions, now require a high school-level education.3 Approximately 91% of blacks and 90% of whites hired by Lufkin meet that minimum qualification. In the Foundry, 90% of blacks and 85% of whites have a GED, high school diploma, and/or some posthigh school education. Once the TWC has assembled a group of qualified applicants, it refers them to the Lufkin personnel assigned to make the hiring decision. Once a TWC client is referred to Lufkin, the TWC steps out of the picture. The TWC has no input as to whether an individual applicant is hired for any given position. Hiring decisions are made by Lufkin representatives, usually Viron Barbay, who travel to the TWC’s offices to interview job applicants. Mr. Barbay interviews the applicants in the order in which they submit their application forms to the TWC reception. At the beginning of the class period, Barbay would make a first cut of the applicants, referring selected candidates to the
3Lufkin defines this as a high school diploma or GED. 4

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Lufkin production managers for a second and decisive interview. But for some time now, Mr. Barbay has had sole authority to make the hiring decisions. At various times during the class period, Barbay was assisted or supplemented by other Lufkin HR employees, but Barbay testified that he was responsible for most of the hiring decisions during the class period. When Barbay did receive assistance, the other Lufkin HR personnel were invariably white. In theory, each applicant was always referred by the TWC for the specific job for which he or she applied
C. Promotions 1. Hourly Jobs
Advancement through the ranks of hourly workers at Lufkin Industries is putatively governed by the Collective Bargaining Agreement (“CBA”) between Lufkin and the three unions that represent the hourly workers. Seniority is the main criterion, but ability is also a necessary qualification. Once a worker moves past the entry-level unskilled jobs, that worker usually needs training to get the skills needed for more advanced positions. That training often comes on the job, when as workers are assigned daily tasks that developed skills and abilities. Lufkin also makes additional training available outside the work day and reimburses tuition for employees who choose to attend Angelina College.
All qualified employees4 are eligible to bid on new job openings. The company must post bid sheets for each new hourly opening, then give interested workers several days to sign their name. After two to three days (depending on the division), the bid sheets are taken down and the job is to be awarded to the most senior bidder. According to the CBA, Lufkin need not
4“Qualified” employees must have, at a minimum, satisfactory attendance/discipline record and at least 90 days working for Lufkin.
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award the job to the most senior bidder, if the new job would constitute a lateral move or demotion. In theory, the posting process is a rigid and inflexible system that ensures the promotion of the most senior qualified person interested in the job.
Although seniority is the paramount qualification listed in the CBA, Lufkin has established several other rules that affect promotions. For some positions, Lufkin requires an “objective” test that generally involves a demonstration of basic math, literacy, and competence with the relevant machinery. Some of the criteria are objectively verifiable, such as math skills or reading ability. Other criteria are left to the satisfaction of individual managers.
To ensure that competent workers occupy all positions, the company has also inserted an “ability” clause in the CBA that allows Lufkin to fill positions on the basis of ability and regardless of seniority. The ability clause appears to trump all other considerations.
The “bypass” rule is an exception to the seniority rule. It states that an employee will not receive a position on first shift (i.e., the most-desired daytime shift) unless that employee has spent at least two years on a nighttime shift or has twice been “bypassed” for promotion by lesssenior employees with the nighttime shift qualification.
2. Salaried positions Salaried jobs are sometimes posted, but they are not governed by the CBA and can be filled by anyone deemed suitable by Lufkin management. Lufkin has complete discretion to promote from within or hire from outside the company. Salaried positions do not necessarily pay more than hourly positions; in some cases, a worker at the top of the pay range for an hourly position would be taking a pay cut to accept a salaried position. However, salaried positions are
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often less physically demanding and offer the potential for advancement up the corporate ladder to the lucrative positions in management. III. Legal Issues
A. Maintaining Class Standing To maintain their class certification, plaintiffs had the burden to show that they met the four requirements of Rule 23(a): numerosity, commonality, typicality, and adequacy of representation. Fed. R. Civ. P. 23(a). Because the case has gone forward under Rule 23(b)(2), the plaintiffs must also show that Lufkin has acted on grounds generally applicable to the class. For the same reasons discussed in the class certification motion, the court finds that each requirement has been satisfied. McClain, 187 F.R.D. at 277-82. The plaintiffs’ decision not to pursue individual damages ensures that injunctive relief - rather than monetary relief predominates. See Allison v. Citgo, 151 F.3d 402, 413 (5th Cir. 1998). Lufkin has entered a motion challenging the adequacy of representation by each of the class members other than Sylvester McClain and Buford Thomas. The court is of the opinion that, given the length of the trial, the court’s decision to proceed in Beaumont rather than Lufkin, and the demands of the representatives’ respective jobs at Lufkin’s facility in Angelina County, all named class members have maintained themselves as adequate representatives. B. Exhaustion of administrative remedies As this court has already decided, Sylvester McClain’s January 29, 1995 letter to the EEOC was sufficient to exhaust administrative remedies on the class claims of discrimination in initial assignments, promotions, and compensation. See McClain, 187 F.R.D. at 271; Orders entered 3/31/1999, Dkt #309 (denying Lufkin’s motion for summary judgment on plaintiffs’
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initial assignment claim as being outside the scope of McClain’s EEOC charge). As long as an EEOC investigation could reasonably be expected to grow out of the initial charge, the requirement for exhaustion of administrative remedies is satisfied. Fine v. GAF Chem. Corp., 995 F.2d 576, 578 (5th Cir. 1993). An EEOC charge is to be construed liberally, particularly when it is prepared by a layperson. See Clark v. Kraft Foods, Inc., 18 F.3d 1278 (5th Cir. 1994) (“[L]iberal construction [is] accorded EEOC charges, especially those by unlawyered complainants.” Id. at 1280 n.7, quoting Fellows at 451; Price v. Southwestern Bell Tel. Co., 687 F.2d 74, 78 (5th Cir. 1982) (“Consistent with the remedial purposes underlying Title VII, we construe employment discrimination charges with the ‘utmost liberality,’ bearing in mind that such charges are generally prepared by laymen untutored in the rules of pleading.”), quoting Terrell v. U.S. Pipe & Foundry Co., 644 F.2d 1112 (5th Cir. 1981); see also Anjelino v. New York Times Co., 200 F.3d 73, 93-95 (3d Cir. 1999) (allowing sexual harassment claims to proceed even though the allegations were not specifically pled in the EEOC charges; plaintiffs’ use of the term “abusive atmosphere” was sufficient to put defendant on notice). When the EEOC charge complains of systemic or widespread abuses, as McClain’s 1995 charge did, it can reasonably be expected to produce a class-wide investigation. See Richardson v. Byrd, 709 F.2d 1016, 1020 n.4 (5th Cir. 1983) (rejecting argument that the class claim was barred because of failure to complain of class-wide discrimination in the EEOC complaint, and holding, “a class action may be based upon an EEOC complaint of individual discrimination as long as an ‘EEOC investigation of class discrimination . . . could reasonably be expected to grow out of [the] allegations in [the] initial EEOC charge.’ ”) quoting Fellows v. Universal Restaurants, 701 F.2d 447, 451-52 (5th Cir. 1983)). EEOC procedural regulations provide that a “charge is sufficient”
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when it “identif[ies] the parties and … describe[s] the action or practices complained of.” See Foster v. Ruhrpumpen, 365 F.3d 1191, 1196 (10th Cir. 2004) (“Because the charges as filed ‘identify the parties’ and ‘describe generally the action or practices complained of,’ 29 C.F.R. § 1601.12(b), they satisfy the requirements set forth in the EEOC regulations.”).
The administrative exhaustion requirement also exists to help the EEOC act effectively as an investigator and mediator. Clayton v. Rumsfeld, 2004 WL 1739465, *3 (5th Cir. 2004) (unpublished). If the EEOC is given no reason to investigate particular claims, it has no chance to resolve the underlying problems Id. In Lufkin’s case, however, McClain’s EEOC’s charge was written while the OFCCP was investigating claims similar to those now before the court. The EEOC and OFCCP share overlapping enforcement responsibilities, see 64 Fed. Reg. 17664 (1999), and it seems only reasonable to take into account on-going federal investigations when considering what an agency might have known. Given the broad scope of McClain’s claims and the obvious facial disparities in initial assignments, promotions, and compensation, it would be reasonable to expect an investigation into those issues to arise out of McClain’s initial EEOC charge.
The court, having heard and considered all of the evidence presented at trial, reaffirms its previous finding that McClain successfully stated a charge that went beyond his own personal grievances and encompassed the claims now before the court. McClain therefore exhausted his administrative remedies before filing suit. There is no need for other class members to do so; they may “piggyback” onto McClain’s efforts. Albemarle Paper Co. v. Moody, 422 U.S. 405, 414 n.8 (1975).
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C. Satisfying the Legal Requirements for a Claim of Title VII Disparate Impact Plaintiffs have the burden to identify an employment practice that is facially fair but produces discriminatory results. Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971). “[T]he necessary premise of the disparate impact approach is that some employment practice, adopted without a deliberately discriminatory motive, may in operation be functionally equivalent to intentional discrimination.” Watson v. Fort Worth Bank & Trust Co., 487 U.S. 977, 987 (1985). Plaintiffs establish a prima facie case of disparate impact by (1) identifying the specific employment practices being challenged, (2) establishing the disparate impact of the practices on the protected group, and (3) demonstrating that the disparity is the result of one or more of the employment practices identified. Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642, 656-57 (1989). Plaintiffs are generally required to show that each challenged employment practice “causes” a disparate impact. 42 U.S.C. § 2000e-2(k)(l)(B)(I). However, if plaintiffs can demonstrate that the elements of an employer’s decision making process are not capable of separation for analysis, then the entire decision making process may be analyzed as a single employment practice. Id.; see also McClain, 187 F.R.D. at 273; Munoz v. Orr, 200 F.3d 291, 304 (5th Cir. 2000) (“where a promotion system uses tightly integrated and overlapping criteria, it may be difficult as a practical matter for plaintiffs to isolate the particular step responsible for observed discrimination.”); Malave v. Potter, 320 F.3d 321, 327 (2d Cir. 2003) (“a decision making process may be analyzed as a single employment practice if the complaining party can demonstrate to the court that the elements of [the employer’s] decision making process are not capable of separation for analysis.”) (internal quotation marks and citation omitted); Bannister v.
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Dal-Tile Int’l, Inc., No. Civ. A. 3:02-CV-2498, 2003 WL 21145739, at *2 (N.D. Tex. 2003) (plaintiff can bypass the requirement of pinpointing the specific employment practice or practices that caused the alleged disparate impact by showing that “the factors of [a defendant’s] decision-making process are so interwoven that they are incapable of separation.”); Stender v. Lucky Stores, Inc., 803 F. Supp. 259, 335 (N.D.Cal. 1992) (“[w]here the system of promotion is pervaded by a lack of uniform criteria, criteria that are subjective as well as variable, discretionary placements and promotions, the failure to follow set procedures and the absence of written policies or justifications for promotional decisions, the court is not required to ‘pinpoint particular aspects of [the system]’ that are unfavorable to women,” and finding “that the elements of [the employer’s] subjective and ambiguous decision making processes are not separable for the purposes of analysis, and therefore may be analyzed as one employment practice.”); Butler v. Home Depot, Inc., 984 F. Supp. 1257, 1264 (N.D. Cal. 1997); Schallop v. New York State Dept. of Law, 20 F. Supp. 2d 384, 402 (N.D. N.Y. 1998) (“[Plaintiff] contends that because it would be impossible to isolate one particular aspect of the reappointment process, the entire process may be characterized as a single employment practice. When employment decisions are made based on variable, subjective criteria, this approach is appropriate under Title VII.”); 137 Cong. Rec. S15276 (daily ed. Oct. 25, 1991) (explanation of § 2000e-2(k)(1)(B)(i) in the legislative history, that “When a decision-making process includes particular, functionallyintegrated practices which are components of the same criterion, standard, method of administration, or test … the particular, functionally-integrated practices may be analyzed as one employment practice.”), quoted in Appleton v. Deloitte & Touche L.L.P., 168 F.R.D. 221, 226 (M.D. Tenn. 1996).
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The causal element is satisfied with respect to discretionary and subjective employment decision making practices where an employer lacks objective criteria or guidelines for making those decisions, and leaves the decision making to the discretion of members of the majority group. See Stender, 803 F. Supp. at 320-21 (listing cases supporting that proposition). The mere presence of subjectivity does not raise an inference of discrimination. Watson, 487 U.S. at 990. But when discretionary, subjective decision making is supplemented by evidence that subconscious stereotypes and prejudice operate in a vacuum created by the absence of objective, validated criteria, causation can be found. See Id.; Stender, 803 F. Supp. at 321; Butler, 984 F. Supp. at 1264
Once plaintiffs establish a prima facie case of disparate impact, the burden shifts to the employer to show that the challenged employment practice is job related for the position(s) in question and consistent with business necessity. 42 U.S.C. § 2000e-2(k)(1)(A)(i); see Carpenter v. Stephen F. Austin State Univ., 706 F.2d 608, 621 (5th Cir. 1983); EEOC v. Premier Operator Servs, Inc., 113 F. Supp. 2d 1066, 1075 (N.D. Tex. 2000). Under Griggs, in order to prove business necessity, an employer must show that its selection criteria bears “a manifest relationship to the employment in question.” Griggs, 401 U.S. at 432. In Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642, 650 (1989), the Supreme Court lowered this standard, requiring only the employer show that the challenged practice, “serves, in a significant way, the legitimate employment goals of the employer.” Id. at 659. The 1991 Civil Rights Act overruled this aspect of Wards Cove, see Stender, 803 F. Supp. at 321 & n. 20, underscoring the principle that the business necessity standard is once again an exacting one. See Watkins v. Scott Paper Co., 530 F.2d 1159, 1168 (5th Cir. 1976) (business necessity requires that the employment
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practices “must not only directly foster safety and efficiency … but also be essential to those goals.”).
Even if an employer successfully mounts a business necessity defense, a plaintiff may overcome that defense by demonstrating the existence of an alternative employment practice which serves the employer’s business necessity without causing the adverse impact, and which the employer had refused to adopt, 42 U.S.C. § 2000(e)(k)(1)(B)(ii); see also Premier Operating Servs., 113 F. Supp. 2d at 1075; Stender, 803 F. Supp. at 322.
D. Supporting a claim of disparate impact with statistical evidence Anecdotal evidence of discrimination against individuals brings the cold statistics to life and may buttress the showing of class wide discriminatory practice. See Int’l Bhd. of Teamsters, 431 U.S. 324, 339 (1977). However, plaintiffs need not prove any individual case of discrimination to prevail on a pattern or practice disparate impact claim. Id. at 342, n. 24; Bernard v. Gulf Oil Corp., 841 F.2d 547, 568 (5th Cir. 1988). The essence of a pattern or practice claim lies in the absence of evidence; while no individual has a clear-cut claim, the group as a whole has presented evidence establishing the unquestioned presence of discrimination. Statistical proof alone can make out a prima facie case of disparate impact. Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642, 650 (1989); Teamsters, 431 U.S. at 339. To establish causation, statistics must be “of a kind and degree sufficient to show that the practice in question has caused the exclusion of applicants for jobs or promotions because of their membership in a protected group.” Watson, 487 U.S. at 994. However, “[a] plaintiff in a Title VII suit need not prove discrimination with scientific certainty; rather, his or her burden is to prove discrimination
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by a preponderance of the evidence.” Bazemore v. Friday, 478 U.S. 385, 400 (1986). “[A]s long as the court may fairly conclude, in light of all the evidence, that it is more likely than not that impermissible discrimination exists, the plaintiff is entitled to prevail.” Id. at 400-401; Siler-Khodr v. Univ. of Texas Health Science Ctr. San Antonio, 261 F.3d 542, 547 (5th Cir. 2001), quoting Bazemore.
As this court has previously held in this case, “There are no bright-line rules regarding what degree of statistical disparity is necessary to support a disparate impact claim. Traditionally, the statistics must show a ‘gross disparity’ in how the different races are affected. … A deviation greater than three standard deviations is sufficient to support a prima facie case.”). Class Certification Order, 187 F.R.D. at 276 (citations omitted). See Thomas v. Deloitte Consulting LP, No. 3-02-CV-0343-M, 2004 WL 1960097, at *5 (N.D. Tex. 2004) (“The Fifth Circuit has never adopted a ‘bright line’ test for statistical significance. Indeed, most courts have rejected the arbitrary application of a 5% threshold.”) (internal citation omitted); Rendon v. AT & T Technologies, 883 F.2d 388, 397-98 (5th Cir. 1989) (rejecting argument that there is a strict legal benchmark requiring a particular number of standard deviations to demonstrate that data has statistical significance). Moreover, “[w]hether a given [test result] should be regarded as statistically significant must be determined on a case by case basis since the value signifying statistical significance is dependent upon sample size.” Overton v. City of Austin, 871 F.2d 529, 544 (5th Cir. 1989) (Jones, J., concurring).
A disparity of 1.96 or more standard deviations is a generally accepted metric for statisticians looking to establish statistical significance. Palmer v. Shultz, 815 F.2d 84, 96 n.9 (D.C. Cir. 1987) (adopting a threshold of 1.96 standard deviations as sufficient to raise an
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inference of discrimination based on the Supreme Court’s language in Castenada and Hazelwood); Albemarle Paper Co., 422 U.S. at 431. Even statistical disparities falling just short of the traditional standard of 2 (or 1.96) standard deviations may sometimes be meaningful, since consistent shortfalls in every category are probative of a pattern of discrimination, especially when other evidence confirms allegations of discrimination. See e.g., E.E.O.C. v. Am. Nat’l Bank, 652 F.2d 1176, 1192 (4th Cir. 1981), cert. denied, 459 U.S. 923 (1982) (rejecting employer’s argument that the plaintiff’s statistics were not probative unless they exceeded two or three standard deviations, holding that “well short of three standard deviations, the probability levels for chance as explanation have already dropped far below the point at which courts of law concerned with proof by the ‘greater weight’ or ‘preponderance’ of the evidence would presumably have discarded the hypothesis of chance.”); Malave v. Potter, 320 F.3d 321, 327 (2d Cir. 2003) (courts generally consider a statistically significant disparity of two standard deviations to be sufficient to warrant an inference of discrimination in a prima facie case of disparate impact.) See also Kadas v. MCI Systemhouse Corp., 255 F.3d 359, 362, 363 (7th Cir. 2001); Thomas, 2004 WL 1960097, at * 5; Payne v. Travenol Laboratories, Inc., 673 F.2d 798, 821 (5th Cir. 1982).
Despite the necessary primacy of statistical evidence, proof of intent remains relevant to a claim of disparate impact employment discrimination. “The distinguishing features of the factual issues that typically dominate in disparate impact cases do not imply that the ultimate legal issue is different than in cases where disparate treatment analysis is used. . . . Rather, the necessary premise of the disparate impact approach is that some employment practices, adopted without a deliberately discriminatory motive, may in operation be functionally equivalent to
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intentional discrimination.” Watson, 487 U.S. at 987 (citation omitted). Evidence of discriminatory intent can buttress and bolster statistical data, while also serving to rebut a defense of business necessity.
E. Establishing Damages Plaintiffs who prove their claims of discrimination remain entitled to injunctive relief. That relief includes back pay and is limited to those who can demonstrate that they were at least “potential victims.” Teamsters, 431 US at 367. Back pay is not automatically awarded simply because a plaintiff has proven racial discrimination. U.S. v. Ga. Power Co., 474 F.2d 906, 922 (5th Cir. 1973). It is to be awarded only when “properly owing to the plaintiffs.” Id. However, when it is properly owing, the court should not confuse the impossibility of precise ascertainment with the impossibility of relief. Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 260 (5th Cir. 1974). When plaintiffs have demonstrated that they are owed back pay, relief must also be crafted to avoid a “quagmire of hypothetical judgments.” Id. Any uncertainty is to be settled in favor of the prevailing plaintiffs and against the discriminating employer. Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364, 1380 n. 53 (5th Cir. 1974). The preferred Teamsters method requires each class member to establish damages individually, but a departure from that approach is justified when subjective employment practices, including lack of objective hiring criteria and word-of-mouth recruitment, “make[] it difficult to determine precisely which of the claimants would have been given a better job absent discrimination, but it is clear that many should have.” Domingo II, 727 F.2d at 1444; Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 167, 176 (N.D.Cal 2004). As the Domingo court further explained: ‘When the class size or the ambiguity of promotion or hiring practices or the illegal
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practices continued over an extended period of time calls forth [a] quagmire of hypothetical judgment ... a class-wide approach to the measure of back pay is necessitated.’” Id. quoting Pettway , 494 F.2d at 261; See also EEOC v. O & G Spring & Wire Forms Spec. Co., 38 F.3d 872, 879-880 & n. 9 (7th Cir.1994) (approving district court's use of formula approach); Hameed v. Int'l Ass'n of Bridge Workers, Local 396, 637 F.2d 506, 520, 521 & n. 18 (8th Cir.1980) (same) (and cases cited therein); Stewart v. Gen’l Motors Co., 542 F.2d 445, 452-53 (7th Cir.1976) (same) (and cases cited therein); EEOC v. Chicago Miniature Lamp Works, 668 F. SUPP. 1150, 1151-52 (N.D.Ill.1987); Green v. United States Steel Corp., 640 F. SUPP. 1521, 1525-26 (E.D.Pa.1986), aff'd in part and vacated in part on other grounds, 843 F.2d 1511 (3rd Cir.1988), vacated in part on other grounds, 490 U.S. 1103, 109 S. Ct. 3151, 104 L. Ed.2d 1015 (1989).
The Fifth Circuit has approved the use of racially drawn, class-wide formulas, but only as a last resort. U.S. Steel, 520 F.2d at 1055-56. Using a formula generates a windfall for some employees who were never actually harmed by discrimination. Stewart, 542 F.2d at 452-453; Pettway, 474 F.2d at 262; O & G Spring & Wire Forms, 38 F.3d at 879. Hameed, 637 F.2d at 519-20. As a corollary, a formula undercompensates the genuine victims of discrimination by forcing them to share their award with their undeserving brethren. Id. Unfortunately, that result is inevitable when an employer’s specific employment decisions do not allow a precise reconstruction of the effects of discrimination. Pettway, 474 F.2d at 262; see also Johnson, 491 F.2d at 1380.
Formulas are to be used only after the court has considered and rejected all alternative methods of superior certainty. Id. At a minimum, the court should attempt to distinguish
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subgroups of the class who were injured to a greater or lesser extent. See Id. at 1056 (rejecting approach that would have used an “indiscriminate black-white averaging approach . . . absent at least a precise breakdown of subgroups from the standpoint of plant age); Pettway, 474 F.2d at 262. Even when the court can not isolate the effects of discrimination on any given individual, the court may still be able to identify subgroups who were especially hard-hit by the discriminatory policy. Conversely, there may also be subgroups who suffered relatively little harm. Identifying those subgroups is one way to ensure that back pay is awarded to those who are most deserving.
A prevailing plaintiff is also entitled to pre-judgment interest in most cases. Prejudgment interest “should” be included in back pay, absent good reasons not to award it. Gloria v. Valley Grain Prod., Inc. 72 F.3d 497, 499 (5th Cir. 1996). The Fifth Circuit has consistently approved awards of pre-judgment interest in Title VII cases so as to make whole the injured party. Sellers v. Delgado Cmty. Coll., 839 F.2d 1132, 1140 (5th Cir. 1988); Thomas v. Tex. Dep’t of Criminal Justice (5th Cir. 2002). The federal rate of interest set by 28 U.S.C. § 1961 is appropriate, but is not the only acceptable rate. Williams v. Trader Pub. Co., 218 F.3d 481, 488 (5th Cir. 2000). The decision as to where to set the rate of interest is generally left to the sound discretion of the trial court. Valdez v. Church’s Fried Chicken, 683 F. SUPP. 596, 636 (W.D. Tex. 1988); Odom v. Frank, 782 F. SUPP. 50, 52 (N.D. Tex. 1991). IV. Factual Application
A. Initial Assignments Lufkin’s subjective practices and policies disparately impacted its black employees. If Lufkin’s claims were to be believed, there is no way for racism to influence any aspect of its
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initial assignment process or promotions. According to Lufkin’s description of its practices and procedures, the TWC controls the flow of applicants to each division; there is thus no way for an applicant to find work in a position other than one he himself selected. Lufkin also claims that its promotions process is entirely governed by the CBA and objective tests of ability and skill, with no significant subjective component. Lufkin’s official policies describe lay out a colorblind process with no room for individual bias. Unfortunately, the evidence and testimony given before the court do not support Lufkin’s claims.
The testimony of Tami Poulan satisfies the court that Lufkin’s account of its process for initial assignments is not entirely accurate. Ms. Poulan is an employee of the TWC and an uninterested witness not affiliated with either party; the court thus gives substantial weight to her testimony and the business records produced by the TWC. Those records show that the TWC sometimes receives job requisitions from Lufkin that may lack a specific job title or department location. In those circumstances, there is no way that the TWC could refer applicants for a specific job.
Even when Lufkin’s requisition does specify a specific job position, there are instances of applicants who are willing to accept “any work” or “industrial work.” The records list almost 400 workers who were hired for positions other than the ones for which they were referred. When Lufkin is looking to fill multiple positions at the same time, nothing prevents it from picking and choosing among the applicants for all positions. Applicants who are interested in clerical jobs or positions in the Power Transmission or Oilfield divisions may nevertheless be willing to accept a position in the Foundry or Trailer divisions if that is all they are offered.
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When Lufkin’s hiring personnel are allowed to exercise their discretion, discriminatory intent becomes relevant.
Evidence of discriminatory intent was offered by class member Vivian Crain. Ms. Crain testified that Viron Barbay, the man largely responsible for initial assignments during the class period, allegedly used racial slurs, told racist jokes, and spoke poorly of minority applicants. Mr. Barbay’s conduct during the actual interviews has also been called into conduct by other class members.
The testimony of class member Kelvin Pope is also probative. Mr. Pope testified at trial that he was discouraged from applying as a welder. According to Pope, he was told by Viron Barbay that if he applied as a welder and was unable to pass a stick, bend, xray, and stress test, then he would be unable to reapply as a welder for 60 days. Pope said that Barbay told him to apply as a basic helper in the trailer division, crossing out his application for a position as machinist helper or forklift operator. When Pope subsequently took the actual welding test, it was much easier than the test described by Barbay and required none of the techniques that Barbay had mentioned.
The testimony offered by class members at trial does not alone establish discrimination on Lufkin’s part; it merely demonstrates the considerable discretion possessed by Viron Barbay and raises questions about his use of that discretion. However, that testimony must also be considered in light of the TWC’s records showing an abundance of workers assigned to positions other than the ones for which they were referred. Thus, despite Lufkin’s contentions that the TWC’s rules and its own procedures make channeling impossible, black applicants can be
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channeled into less-desirable positions. The statistical evidence discussed below offers more reason to believe that they have been.
B. Promotions 1. Hourly positions
The evidence before the court also shows that white employees have a significant advantage in gaining the skills and abilities needed to qualify them for promotion.5 Because workers’ day-to-day assignments are not governed by the CBA, supervisors have broad latitude to schedule workers as they see fit. No one checks or oversees that process and there is no right in the CBA to a specific position within a job classification. White employees can be, and are, selected and groomed for further advancement and managerial roles. Black employees are more likely to be placed in dead-end positions and left to seek training on their own, outside of regular work hours.
Class member Leroy Garner testified at the class certification hearing that the ability clause overrode seniority for many of the better jobs. Promoted African-Americans are held to a higher standard and given just two weeks to demonstrate proficiency at a new job. In contrast, whites are given more leeway and time to learn the intricacies of their new jobs while at work.
Class member Calvin Deason testified at trial that he was bypassed for a storekeeper position even though he was the most senior bidder. Deason said that he was told by Lufkin management that “we don’t want to let experienced people out of the cleaning room.” The job was instead given to a white probationary employee with two weeks’ tenure. Lufkin claims that
5Although the specific claim for class-wide discrimination in training is no longer before the court, the availability of training remains relevant in assessing Lufkin’s claim that its promotions are color-blind and not influenced by discriminatory policies and decision-making.
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Deason was denied the job because it would be a demotion and he was thus not an eligible bidder, but Lufkin eventually gave the job to a probationary employee. Under the CBA, probationary employees are not eligible bidders. Lufkin notes that the CBA does not govern postings when there are no eligible bidders, but the incident demonstrates the reality of Lufkin’s subjective decision-making; when confronted with a unfettered choice between a black employee and a white employee interested in the same job, it gave the job to the white employee. Even when blacks do get additional training or education (by their own initiative or otherwise), they are discouraged from applying for better positions. Plaintiffs allege that some, though by no means all, of Lufkin’s managers and supervisors actively discouraged black employees who had bid on better jobs. The effects of that discouragement are a potential variable unreflected in Dr. Baker’s statistics.
Lufkin has many “objective” requirements that it cites as binding rules, but the evidence before the court demonstrates that Lufkin’s managers have considerable discretion in applying or ignoring those rules. Attendance bookkeeping, availability of leave time, extra job training, and preferential day-to-day job assignments are all subject to flexibility and manipulation. Those rules have direct and/or indirect effects on an employee’s prospects for promotion. The unions, which are supposed to act as watchdogs, are called in only when a worker is directly disadvantaged. When a white worker receives an unfair advantage that hurts no one else, such as an absence that is not marked or a chance to train on a new machine, the unions have no leverage.
Lufkin’s requirement that personnel for some jobs be “qualified” allows subjectivity and personal bias to influence the promotion process directly. As Kelvin Pope testified, class
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members can be told that they are unlikely to pass a required test, or flunked if the components of test are sufficiently subjective. Because managers and supervisors at Lufkin give whites preferential treatment, blacks are less likely to gain the necessary skills. Even positions awarded to the senior bidder regardless of qualification can be influenced when supervisors are discouraging blacks from applying black advancement. It is thus not surprising that blacks are hesitant to bid and may choose to withdraw their bids even if selected.
2. Salaried positions The evidence shows that class members in salaried positions also face difficulties; class members Florine Thompson and Sylvester McClain testified that they were demoted despite taking advantage of Lufkin’s education/tuition reimbursement program to further their education. Both had expressed discontent with aspects of Lufkin’s race-related policies; both were demoted from salaried positions to hourly positions. Ms. Thompson has earned two associate degrees, but was demoted from her salaried position and now works as a security guard. She testified that her demotion occurred shortly after raised concerns about a hostile working environment with Lufkin management. It took Mr. McClain years to get promoted to a salaried position and, according to his testimony, required the direct intervention of a former Lufkin CEO, Frank Stevenson. Shortly after Mr. Stevenson left, McClain was demoted to an hourly position and told “You will never be able to move up in management again. This is the only job we have for you. So don’t even try.” C. Statistical Evidence Though anecdotal evidence is useful to provide a context, a lawsuit based on a theory of disparate impact generally requires statistical evidence to document and substantiate claims of
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discrimination. Both sides presented voluminous data supporting their points. The plaintiffs’ statistical case was presented by Dr. Richard Drogin, while Lufkin’s rebuttal was offered by Dr. Mary Baker. Dr. Drogin found evidence of significant statistical disparities in both the initial assignment of blacks to the Foundry as well as promotion of blacks throughout Lufkin Industries.
1. Statistical Evidence on Initial Assignments During the class period, blacks were disproportionately assigned to the Foundry. Of all African-Americans hired for entry-level jobs at Lufkin, 51.8% were assigned to the Foundry. In contrast, only 24.3% of similarly situated whites were assigned to the Foundry. As a necessary corollary, black employees are far less likely to be assigned to positions in the other divisions. As a result of this pattern of initial assignments, African-Americans make up more than a quarter of the Foundry’s workers and a slightly smaller proportion of the employees in the Trailer and Oilfield division, but in the Power Transmission division and Corporate sector, black employees make up just 7% to 10% of the workforce. In contrast, white employees constitute more than 70% of the Trailer and Oil Field divisions and almost 90% of the Power Transmission division and Corporate sector. In the Foundry, where the hottest, dirtiest, noisiest, and most physically demanding jobs are to be found, whites make up little more than a third of the workforce.6 If the rate of initial assignment of black workers to the Foundry had mirrored the representation of black employees throughout the company, Dr. Drogin testified that he would have expected 65 fewer black employees being assigned to the foundry. The actual outcome was
6Hispanic workers make up the remainder of the Foundry’s employees. 24

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statistically significant at almost nine standard deviations; in other words, the possibility that the pattern of initial assignments occurred by random chance was less than one in 100,000,000,000. That figure is well beyond the widely accepted standard of three standard deviations. See McClain,187 F.R.D. at 276. Dr. Drogin also testified that 44 black workers would be expected in the other divisions. Their absence is statistically significant at more than five standard deviations. The explanation that random chance allowed resulted in that pattern is less than one in one million.
Not surprisingly, Lufkin has attacked Dr. Drogin’s methodology and results. Lufkin claims that Dr. Drogin’s assumptions were flawed, that his statistical models were poorly constructed, and that his results are therefore useless in describing the actual situation at Lufkin Industries. Lufkin claims that it hires only those individuals referred to it by the TWC, and that those individuals are referred for specific positions only. As such, Lufkin claims that there is no way for it to channel black employees into the Foundry or away from other divisions. Lufkin also criticized Dr. Drogin’s decision not to control for the possibility that Lufkin’s high school degree requirement had a disparate impact on blacks. However, Lufkin’s own data indicate that its black employees are more likely to possess a high school diploma or GED equivalent and more likely to possess additional schooling beyond the high school level. Over 90% of the African-Americans hired by Lufkin have a high school education, meaning that almost all of Lufkin’s black employees meet the minimum criteria for Lufkin’s entry-level jobs. Lufkin has offered no evidence that individual qualifications explain any of the disparities.
As part of Lufkin’s defense, Dr. Baker also testified that her statistical analysis showed that Lufkin’s initial assignments to the Foundry correlate closely with the pools of actual
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applicants available to Lufkin, and that Lufkin’s decisions are statistically race-neutral given the actual people who applied. Dr. Baker claimed that Dr. Drogin’s statistical models did not match the actual processes used by Lufkin, that her models were based on the actual processes used, and that her analyses were thus more relevant to the issues before the court. For the reasons discussed above, the court has already found that Lufkin’s initial assignment processes may or may not have matched their claims. Dr. Drogin’s statistical models are reasonably valid, given the uncertainty about the actual processes and the actual makeup of the applicant pools.
Dr. Baker’s statistical claims are also undercut by her curious decision not to analyze the assignment of workers to any division other than the Foundry. Her decision not to do so, in light of the plaintiffs’ Second (and final) Amended Complaint makes little sense. In their complaint,” plaintiffs alleged that “Defendant, Lufkin Industries, has assigned disproportionately more black African American class members to difficult and unpleasant jobs and disproportionately fewer black African American class members to less strenuous and more desirable positions.” Plas. Second Amended Compl. ¶113. The court’s March 31, 1999 Order certifying the case as a class action also included the underassignment claim. McClain, 187 F.R.D. at 273 (“Plaintiffs assert (and their statistics support) that African-Americans are over represented in difficult and unpleasant jobs, and under represented in less strenuous positions. This channeling process is not guided by any objective standards or procedures of reviewing them.”). At trial, Dr. Baker’s testimony and attempted defense of her methodology was singularly unconvincing and offered little additional credence to her rationale. Even if the court chose to accept Dr. Baker’s contention that the actual applicant pools do not show any overassignment of black new hires to the Foundry, the court would of necessity accept the corollary presented by Dr. Drogin: that
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Lufkin underassigns black workers to all other divisions. Since Lufkin claims that there are no objective criteria that would disproportionately
disadvantage African-Americans, the logical conclusion to be drawn from the testimony and evidence presented to the court is that Lufkin’s subjective procedures are responsible for the concentration of black employees in the Foundry. After considering the expert testimony of both sides, the court sees no alternative to the conclusion that Lufkin is discriminating in its initial hiring.
2. Promotion Statistics a. Hourly Promotion Statistics
Plaintiffs have also provided statistical evidence of discrimination in promotions. Overall, Dr. Drogin found that from March 6, 1994 through 2002, there were 2,326 promotions within the hourly wage (EEO-6 to -8) levels; 1,325 of which went to whites and 476 to African Americans. African Americans received 127 fewer promotions than expected from their representation in the availability pools in each year during 1994-2002. This disparity has a Zvalue of –7.61, indicating a statistically significant under-promotion of African Americans with a one in one hundred million chance of occurrence by random fluctuation.
The pattern of African American shortfalls in promotions is consistent across years. The disparities found by Dr. Drogin are statistically significant in 5 out of the 8 years for which complete year data is shown. The total shortfall of African American promotions would occur by chance less than one time in ten trillion.
Dr. Drogin also analyzed rates of promotions of African Americans in each of the EEO categories 6, 7 and 8 separately, noting that these three categories include the jobs held by 90%
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of Lufkin’s African American employees. African Americans received 77.84 fewer promotions then expected out of EEO-8 positions, 24.51 fewer promotions than expected from EEO-7 jobs, and 24.80 fewer promotions than expected from EEO-6 jobs. The shortfall was statistically significant for all these categories, with levels of significance ranging from -2.68 to -6.17 standard deviations.
Dr. Drogin found that for the ten hourly jobs with at least 50 promotions into them, there was a shortfall in African American promotions into 9 out of the 10 jobs, and the shortfall is statistically significant for 5 of the 10 jobs.
Dr. Baker’s rebuttal was unpersuasive. Her promotion analysis relies, as her initial assignment analysis relies, on the information she was given by Lufkin’s management. The court is not persuaded that the information is accurate or reliable. Dr. Baker claims that her use of the actual bid sheets is a superior metric, but that argument ignores a substantial part of the plaintiffs’ argument. Because African-Americans are systematically discouraged from bidding on jobs, are discouraged from taking promotions awarded through the bid process, and have difficulty getting assignments that will help them acquire the skills needed for further promotions, analyzing the actual bid sheets merely incorporates several tainted variables. The parties have also debated whether all bid sheets have been produced and whether Lufkin’s resulting database is accurate. Though there is some dispute as to whether so-called “automatic” promotions listed in the CBA should be counted, there is sufficient evidence to find discrimination in promotions regardless. After considering the evidence in its totality, the court finds Dr. Baker’s reliance on tainted data in support of questionable conclusions unconvincing.
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b. Salaried Promotion Statistics In addition to the promotion disparity in the hourly ranks, a statistically significant shortfall in promotions to the salaried workforce also exists. Between 1994 and 2002, Lufkin awarded 386 promotions from hourly positions to salaried jobs. Based solely on the proportion of African-Americans in the workforce, blacks would be expected to have received 42.85 promotions. In actuality, Black workers received only 34 promotions. The shortfall of 8.85 promotions is statistically significant at the .05 level. Drs. Drogin and Baker again disagreed with the appropriate model; Dr. Drogin looked at all salaried workers, while Dr. Baker looked at each division separately. The statistical significance is not as robust here, but that is in part an artifact of the smaller sample size. Dr. Drogin’s decision to aggregate the data serves his ends, just as Dr. Baker’s decision to refine the data serves hers. After hearing the testimony offered at trial, the court finds Dr. Drogin’s analysis more persuasive.
3. Compensation (Income) Statistics The net result of Lufkin’s discriminatory practices is a significant shortfall in income for black employees. According to Dr. Drogin, the average pay of blacks for every EEO category and almost every year is below the relevant average pay of whites. That pattern holds true even after controlling for seniority, EEO category, part-time/full-time status, and shift. Given the court’s finding above that Lufkin discriminates in its initial assignment and promotion processes, any other conclusion would be surprising. As an example, blacks in skilled craftsman positions7 are disproportionately concentrated in the lower-paying jobs. They hold 24% of the positions
7EEO category 6, the highest level of blue-collar production jobs at Lufkin 29

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that pay less than the category average of $13.31 an hour, but only 7.8% of the positions paying more than $13.31 an hour.
Dr. Drogin found shortcomings in most every time period, EEO category, and division, but even after controlling for year, time in job, shift, full-time/part-time status, EEO category, and end-of-year employment status. Those numbers were 21 cents/hour in both 1994 and 1995; 23 cents/hour in 1996; 28 cents/hour in 1997; 34 cents/hour in 1998; 38 cents/hour in 1999; 42 cents/hour in 2000; 45 cents/hour in 2001; and 54 cents/hour in 2002.
Dr. Baker criticized Dr. Drogin’s decision not to control for job classification. According to Lufkin, once job classification is considered, the compensation disparity disappears. That finding is absolutely correct and fundamentally meaningless. Essentially, Lufkin claims that workers in the same job classification get the same pay.
That conclusion is utterly unsurprising; it simply means that employees performing exactly the same job were paid exactly the same wage. Plaintiffs have never claimed nor suggested otherwise. What plaintiffs actually argue, and what this court finds, is that Lufkin’s discrimination in initial assignments and promotions has concentrated blacks in lower-paying jobs. Job classification is thus a variable that is tainted by the discrimination already found in initial assignments and promotions. Dr. Baker’s criticism is not relevant to that finding, much less dispositive. Dr. Baker’s decision to incorporate job classification into her analysis renders her results largely irrelevant to the claims before the court.
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D. Calculating Back Pay 1. Relevant Considerations
In order to maintain their class status under Rule 23(b)(2), plaintiffs have abandoned all individual claims and compensatory damages. Plaintiffs have not addressed, and the court need not consider, individual claims for damages. However, because plaintiffs proved their claim of disparate impact employment discrimination, class members are entitled to back pay. Although the court is convinced that Lufkin discriminated against black employees with regard to initial assignments and promotions, there is no way for the court to identify individual employees deserving of back pay. It is impossible for this court to say which Foundry employees should have been assigned to a better division, or whether an employee assigned to the Trailer division actually deserved a spot in Power Transmission. There is no practical way to separate the employees who were discouraged from bidding on a job from those who were simply not interested. There is no efficient way to decide which employees were encouraged not to accept a promotion from the employees who decided that they did not want a new job. There is no way at all to determine which employees were harmed by a lack of promotion-enhancing on-the-job training
The court is mindful of the Fifth Circuit’s admonition to avoid uniform class-wide remedies whenever possible. But in this case, given the facts before it, the court finds that a formula-driven approach is necessary. The number of class members and the inherent uncertainty of the individual claims contraindicates the use of a special master or “minihearings.” However, the court need not resort to a single per-capita award for all class members.
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There are a few objective qualifications that will serve to increase or decrease each class member’s award of back pay.
The plaintiffs’ claim based on initial assignment states that workers in the Foundry were injured by being channeled away from the more lucrative opportunities in the Trailer, Oilfield, and Power Transmission production divisions. Obviously, those black employees who were assigned to the Power Transmission division (which holds the highest-paying jobs with the best general working conditions) can have no cause for complaint. The statistical evidence does not support a claim that workers were channeled into the Trailer or Oilfield divisions (nor do plaintiffs make such a claim). Black employees assigned to the Foundry are thus a distinct subgroup of the class, and their back pay should reflect the fact that they were harmed by discrimination in both initial assignments and promotions. More than 90% of Lufkin’s black Foundry workers met the “minimum” qualifications to work in other divisions and the court will not attempt to differentiate workers who were qualified to work in other divisions; the evidence produced at trial indicates that the requirements to work in the other divisions have been flexible over the class period. The court thus cannot say with any reasonable degree of certainty whether or not any given individual would have been suitable for employment in another division.
Just as Foundry workers were particularly harmed, some employees could not have been injured during the class period. Some workers presumably reached the absolute top of the pay scale for their respective division for their entire tenure during the class period. The court wishes to make clear that it suspects the group of affected employees is relatively small. It is not sufficient that the worker was merely at the top of the pay scale for a given job classification; the evidence suggests that many promotions resulted in a temporary pay cut, as employees at the
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top of a classification’s pay range to take jobs with lower immediate pay but higher maximum pay. The court is referring to those workers making more than any other hourly worker in each division, regardless of category. For those employees, there was nowhere higher to go. Even after the effects of discrimination, those employees had reached the pinnacle of the ladder; for the period in which they occupied those positions and that pay grade, they could not have been harmed by discrimination within the hourly ranks. Those employees were affected by discrimination in promotion to salaried positions. Sylvester McClain is an example; according to the court’s perusal of the CBA,8 the position of Inspector pays as much as any other position in the Trailer division. McClain in particular has been harmed by being demoted from a salaried position, but plaintiffs’ theory of disparate impact does not allow the court to make special allowances for individual plaintiffs. The court can only include McClain in the group of employees entitled to receive some recompense for discrimination in promotions to salaried positions.
2. Numerical data The court is of the opinion that some of the disparities in hourly compensation are the result of discrimination in initial assignment, while others are the result of discrimination in promotions. The income disparities found by Dr. Drogin after controlling for EEO category, time in job, shift, full-time/part-time status, and active/non-active status represent suitable calculations for the effects of discrimination. Because there is no data on the period after 2002, the court chooses to use the 2002 numbers. This decision may be unfair to the plaintiffs, since
8The court’s reading of the CBA may be incomplete or inaccurate and is not meant as an authoritative statement.
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the trend of disparities was uniformly upwards, but the court sees no alternative given the data before it. There is also a probability that Lufkin cleaned up its act in 2003 and there is no longer any income disparity, but the court considers that conclusion unlikely.
Pre-judgment interest is included in the following numbers in the amount of 10%, compounded annually. The court chooses this number, which is somewhat higher than the comparable rate prescribed under 28 U.S.C. § 1961, to reflect Texas state law. The court is also mindful that, over the past ten years, Lufkin’s stock has averaged returns of over 11%. See http://quicktake.morningstar.com/Stock/stockperformance.asp?Country=USA&Symbol=LUFK &TimeFrame=AL#chartgrph.9 The court makes this decision in part to respect the law of the state in which it sits, in part to ensure that Lufkin does not profit from its decisions discriminating against blacks, and in part because it is unable to give precise values for the effects of discrimination in promotions to salaried positions.
The court orders that back pay is to be awarded in the following manner: Foundry workers, who constitute about a third of the class members, are entitled to back pay equal to 133% of the disparities found by Dr. Drogin, as listed below. That sum will compensate them for discrimination in both initial assignments and promotions. All other employees will receive 83 1/3% of the disparities found by Dr. Drogin. That sum will compensate them for discrimination in hourly promotions.
9The court also notes that Lufkin’s CEO Doug Smith was paid almost three times as much as the President of the United States in 2002 and had the use of Lufkin’s corporate jet and pilot as well. While Lufkin Industries does have an international presence and facilities on several continents, it is not as great as that of the President.
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The disparity in salaried promotions resulted in an absence of one such promotion per year. The average salaried workers earns more money than the average hourly worker, with greater potential for advancement and different working conditions. There is no way to say which workers should have been promoted into which positions; a promotion to secretary might be worth nothing in monetary terms, but at least one white hourly worker received a promotion to a position that paid a six-figure salary. Since the court can not value the missing promotions with any significant precision, it finds that each missing salaried promotion was worth 2 cents/hour to each class member who worked during the year that the promotion was not awarded.
Class members with salaried positions will receive $ 600 per year. Salaried class members receive a smaller percentage of the relevant income disparity and a single value for each year to reflect the lesser statistical significance of the relevant regression analysis. The court is less certain that it can gauge the effects of discrimination on salaried employees. Although the court is convinced that discrimination occurred in both the hourly and salaried ranks, that compensation disparity may result in part from independent variables other than racism such as education, training, and prior experience. In the absence of evidence that those variables are not partially responsible for the compensation disparity, the court chooses to limit the award made to salaried employees to an amount roughly comparable to that received by the hourly employees.
The court offers these numbers as its calculations of the formulas described above (these numbers do not include interest).
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For employees in the Foundry: _30_ cents per hour worked in 1994. _30_ cents per hour worked in 1995 _63_ cents per hour worked in 1996 _39_ cents per hour worked in 1997 _47_ cents per hour worked in 1998 _53_ cents per hour worked in 1999 _58_ cents per hour worked in 2000 _62_ cents per hour worked in 2001 _74_ cents per hour worked in 2002 _74_ cents per hour worked in 2003 _74_ cents per hour worked in 2004 _74_ cents per hour worked between January 1, 2005 and [date of judgment] 2005
For class members in hourly positions in all other divisions: _20_ cents per hour worked in 1994. _20_ cents per hour worked in 1995 _21_ cents per hour worked in 1996 _25_ cents per hour worked in 1997 _30_ cents per hour worked in 1998 _34_ cents per hour worked in 1999 _37_ cents per hour worked in 2000
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_40_ cents per hour worked in 2001 _47_ cents per hour worked in 2002 _47_ cents per hour worked in 2003 _47_ cents per hour worked in 2004 _47_ cents per hour worked between January 1, 2005 and January 13th, 2005
The court considered and rejected the possibility of allowing a special master to determine damages; the size of the class and the complexity of the issues weigh against “minihearings” for each class member. Any gains in precision would likely be dwarfed by the expense and difficulty of individual hearings for more than 700 plaintiffs. V. Conclusion
The factual data forms a probative symmetry with the statistical data, leaving the court convinced that Lufkin Industries discriminated against African-American employees when awarding initial assignments and promotions. That discrimination resulted in a corresponding shortfall in African-American wages and salaries. To remedy that discrimination, the court orders back pay to the groups listed above and in the amounts listed above.
The court also enjoins and orders Lufkin Industries to cease and desist all racially biased assignment and promotion practices. Specifically, the court orders Lufkin Industries to: cease and desist any and all channeling of black applicants to the Foundry and Trailer divisions; make formal training equally available to all ensure that it is not unreasonably withheld; create and implement a program to ensure that black employees receive more on-the-job training through daily work assignments which will develop the skills and abilities needed for promotions; and create and implement a program to ensure that black employees receive an equitable proportion
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of promotions in keeping with their representation in the Lufkin Industries work force. The court does not at this time order specific measures to achieve those goals, but finds that increased training in human resources and equal employment opportunity law would be a very welladvised first step. The court may also appoint a monitor to oversee Lufkin’s compliance efforts and ensure the smooth implementation of the listed requirements.
The court can enjoin racially based practices, but it realizes that an individual’s beliefs, feelings, and privately held racial animus are beyond the reach of the law. The court can therefore do no more - and no less - than to order that initial assignments, promotions, and other benefits must not be based thereon. Lufkin Industries is to take all necessary steps to remedy the effects of its past discrimination and ensure that discrimination does not taint its future decisions.
SIGNED at BEAUMONT, Texas, on this the 13 day of January, 2005.
_______________________________ HOWELL COBB UNITED STATES DISTRICT JUDGE
38

 
 Case 97-cv-00063-HC Document 319 Filed 10/31/2003 Page 1 of 18

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS LUFKIN DIVISION

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SYLVESTER McCLAIN, on His Own

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Behalf and on Behalf of A Class of §

Similarly Situated Persons, Et AI.,

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Plaintiffs

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v.

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LUFKIN INDUSTRIES,

§

§

Defendant

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Civil Action No. 9:97-CV-063 Class Action/Judge Cobb

MOTION TO INTERVENE AND MEMORANDUM BRIEF OF lAM LOCAL 1999, GMP LOCAL 429 AND BOILERMAKERS LOCAL 587

International Association ofMachinists & Aerospace Workers, Local Lodge No. 1999, AFL-

CIO/CLC, Glass, Molders, Pottery, Plastics & Allied Workers International Union, Local No. 429,

AFL-CIO/CLC, and International Association of Boilennakers, Iron Ship Builders, Blacksmiths,

Forgers & Helpers, Local No. 587 AFL-CIO/CLC, file this motion to intervene and memorandum

brief, as follows:

Introduction

1. A class of fonner and present African-American employees ("plaintiffs") of
Defendant Lufkin Industries ("Lufkin") has brought this action under Title vn ofthe Civil Rights

Act of 1964, as amended, 42 U.S.c. § 2000e et seq., to redress alleged race discrimination with

respect to certain employment practices. Movants International Association of Machinists &

Aerospace Workers, Local No. 1999, AFL-CIO/CLC ("lAM"), Glass, Molders, Pottery, Plastics &

Allied Workers International Union, Local No. 429, AFL-CIO/CLC ("GMP"), and International

Association ofBoilennakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, Local No. 587,
Unions' Motion to Intervene and Memorandum Brief - Page 1
~"Cf\

Case 97-cv-00063~C Document 319 Filed 10/31/2003 Page 2 of 18
AFL-CIO/CLC ("Boilermakers"), seek to intervene ofright as parties defendant under FED R. Crv. P. 24(a)(2) in order to protect their legal and contractual rights, and the rights oftheir members, in preserving a collectively bargained seniority system. The lAM, GMP and Boilermakers (collectively "Unions") recently became aware that the Court is considering granting injunctive and equitable remedies to plaintiffs, ifliability is established, that would have a substantial adverse impact on the seniority system. The Unions seek to participate in this litigation with full rights as parties at trial and any related proceedings in order to fulfill their legal duty to represent the interests of all members of the bargaining unit, to ensure proper application of the seniority provisions in their collective bargaining agreement with Lufkin, and to address the propriety of retroactive or constructive seniority as a remedy.
2. This is a non jury case and trial is set to commence on December 4, 2003. Intervention should not result in any delay of trial since the Unions do not seek to conduct any discovery and since they are ready, willing and able to participate at trial and related proceedings. The Unions request a total often hours at the liability stage oftrial to present evidence and conduct cross-examination of witnesses, but they will appear for all proceedings through their attorneys.
3. The Unions' attorneys have conferred with class counsel and Lufkin's counsel concerning this motion. Lufkin does not oppose the motion. Plaintiffs oppose the motion.
4. The Unions present their pleading in intervention to the Court with this motion pursuant to FED. R. Crv. P. 24(c). (Exhibit 1, Appendix pp. 1 - 13).
Grounds of Motion 5. The Unions, as bargaining representatives ofLufkin's hourly-rated employees, have an interest in the subject matter ofthis class action and disposition of the action might impair their
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Case 9:97-cv-00063-HC Document 319 Filed 10/31/2003 Page 3 of 18
ability to protect this interest since the extant parties do not adequately represent the Unions' rights. This motion is brought in a timely manner. Accordingly, the Unions are entitled to intervene ofright pursuant to Rule 24(a)(2).
Jurisdiction 6. The Unions need not assert or demonstrate any independent ground ofjurisdiction since they are seeking intervention as ofright. See Acuffv. United Papermakers and Paperworkers, AFL-CIO, 404 F.2d 169, 171 n.2 (5th Cir. 1968), cert. denied, 394 U.S. 987 (1969).
Relevant Procedural History 7. The representative plaintiffs filed their original complaint against Lufkin on February 26, 1997 and their most recent amended complaint on March 28, 2003. The Court certified this action as a disparate impact class action pursuant to Rule 23, Federal Rules of Civil Procedure, on March 31, 1999. The class certified is defined as:
All Black persons employed for any period of time by defendant Lufkin Industries on or after March 6, 1994 to date whose compensation, remuneration, benefits, job assignments, promotional opportunities, career advancement and other terms and conditions of employment have been, may have been, or may become, adversely affected by defendant Lufkin Industries' past or present systems of administering hiring, wages, salaries, job assignments, training, evaluations, promotions, demotions, terminations, layoffs, recalls and rehires. By letter dated March 31, 2003, the Court advised the parties' counsel that ifliability is established, then the Court may grant injunctive and equitable relief that would have an adverse impact on the seniority system. (Exhibit 3, App. pp.16 - 18) In that correspondence the Court expressed concern about the non transferability of seniority of represented employees between the various divisions of Lufkin and inquired whether the Court can reform the departmental seniority
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Case 97-cv-00063-HC Document 319 Filed 10/31/2003 Page 4 of 18
provisions ofthe CBA. Teresa Demchak, Darci Burrell and Tim Garrigan, class counsel, presented plaintiffs' reply by letter to the Court dated April 11, 2003. (Exhibit 4, App. pp. 19 - 33). Class counsel advised the Court that reformation of the CBA would not be appropriate in this case since the seniority system is bona fide and that plaintiffs are not seeking reformation of the departmental seniority provisions as a remedy. In seeming contradiction class counsel asserted that the Court has the power to award retroactive or constructive seniority to individual class members for promotion purposes at the remedy stage of trial and that such a remedy would be appropriate.
Salient Facts 8. Lufkin is headquartered in Lufkin, Angelina County, Texas. Lufkin designs, manufactures and markets products and services to energy, industrial and transportation markets from four divisions: Oilfield, Power Transmission, Foundry and Trailer. 9. The Oilfield Division designs, manufactures and markets the industry standard, conventional Mark II and other rod lift pumping units that are used to lift oil from wells, provides pumping unit services (used unit refurbishment and sale, installation, field service, repair, and parts) and well automation products and services, through the Lufkin Automation Division (pump-off controllers, dynamometers, fluid level analysis, consulting and training) that lower the costs of producing oil. 10. The Power Transmission Division makes gears in sizes up to 192 inches in diameter, ranging from 300 pounds to 250 tons for various industrial applications. This division also provides comprehensive service for its customers. 11. The Foundry Division designs and manufactures engineered castings for customers in machine tool, valve, construction equipment and other industrial markets.
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Case 97-cv-00063-HC Document 319 Filed 10/31/2003 Page 5 of 18
12. The Trailer Division designs and manufactures van, platform and dump trailers for the trucking segment ofthe transportation industry. Branches throughout the southern United States ensure customers' access to parts and repair services.
13. The American Federation of Labor-Congress of Industrial Organizations ("AFLCIO") has been certified as the bargaining representative of Lufkin's hourly-rated employees in Angelina County since 1951. The lAM, GMP and Boilermakers, as affiliates of the AFL-CIO, represent all unit employees on a day-to-daybasis. The lAM represents 337 employees in Lufkin's Power Transmission and Oilfield Divisions. The GMP represents 258 employees in Lufkin's Foundry Division. The Boilermakers represent 262 employees in the company's Trailer and Oilfield Divisions.
14. Each local union appoints its respective business committeemen, shop stewards and auditors. Class Representatives Sylvester McClain, Walter Butler and Leroy Garner have all served as shop stewards or committeemen. Currently there are fourteen African-American shop stewards among the three labor organizations.
15. Lufkin and the Unions negotiate a single collective bargaining agreement ("CBA") that governs wages, hours, seniority and other working conditions of all unit employees. At trial plaintiffs will introduce in evidence the initial CBA and all subsequent agreements covering the period for class certification with the possible exception of the most current CBA.
16. The CBA expressly requires that there be equal employment opportunity for all employees, and provides that Lufkin and the Unions will comply with all state and federal laws pertaining to non discrimination so as to protect the rights and opportunities of all persons to seek, obtain and hold employment without discrimination on account ofrace or any other prohibited factor
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(CBA, Art. 1, Sec. 2). 17. If a unit employee believes that he/she has been treated unfairly or contrary to the
CBA regarding an ability rating, job assignment, seniority rating, promotion or pay raise, the grievance process is available to address and remedy the employee's complaint.
18. The Unions maintain grievance files with respect to written grievances. At all relevant times the Unions processed grievances as needed. African-American employees used the grievance process, and the Unions reviewed promotions and other employment decisions affecting unit employees to ensure that the decisions complied with the CBA. The Unions continue to process written grievances for all employees who complain about a failure to receive a promotion or other employment decision.
19. The CBA objectively defines promotion rights ofunit employees. With the exception of entry level jobs, certain highly skilled positions or as otherwise excepted in the CBA, whenever there is a job or vacancy to be filled in the bargaining unit, Lufkin posts the job and the contractual job bid and posting procedures allow employees to bid on the position. Any unit employee's failure to receive a promotion to a posted or non posted unit position is subject to the CBA's grievance and arbitration procedure.
20. The procedure for awarding posted promotions is well defined. Lufkin posts vacant positions according to the procedures established in the CBA. Any unit employee may sign a job posting.
21. Between 1994 and March 2003 there were 1,519 selections for posted hourly jobs according to the actual bid sheets that Lufkin has maintained. A total of 335 African-American employees were selected for these jobs.
22. Union officials have never discouraged African-American employees from signing
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Case 97-cv-00063-IiC Document 319 Filed 10/31/20D3 Page 7 of 18
posted job bid sheets on the basis of their race or any other basis. The Unions' experience has been that class members consistently signed posted bid sheets and received job promotions.
23. The primary criterion for promotion is departmental seniority. The vast majority of promotions within the bargaining unit are awarded on the basis of departmental seniority alone. Promotions are granted to eligible bidders from the job bid list based on departmental seniority pursuant to Article 22 ofthe CBA at the end ofthe posting period. Departmental seniority within the bargaining unit governs promotions or demotions within a department, and in a reduction of force within the several departments. When work forces are increased, Lufkin recalls employees whom have been laid offin a particular department in the inverse order of their layoff, provided that such employees shall have departmental seniority status in accordance with the provisions ofArticle 22; and provided further that in the case ofpromotions, demotions, transfers, layoffs and recalls of laid off employees, their departmental seniority shall govern if their ability to perform the work is approximately equal.
24. The CBA defines "ability" as an employee's capacity to perform the work to which he/she is assigned, with efficiency equal to that of other employees under consideration, and with the same or equivalent tools and equipment which at the time are customarily available to such work.
25. Employees promoted to ajob in a higher classification are given a ten day trial under normal supervision in order to demonstrate their ability to perform the work of the job. (CBA, Art. 25, Sec.2). Employees who fail to qualify after being given a trial may return to their former job with seniority unimpaired. By the same token, employees who so desire have ten days to return to their previous positions after they have been promoted to a new job even if they qualify to perform the new job.
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26. A limited number of positions are not posted. Non posted positions consist of (1) entry level jobs and (2) jobs associated with a recognized career path or line of progression agreed to by Lufkin and the Unions. Non posted positions are subject to the CBA's grievance and arbitration procedures.
Argument and Authorities Federal courts should allow intervention as of right when no one would be prejudiced and the greater justice could be obtained. Heaton v. Monogram Credit Card Bank, 297 F.3d 416,422 (5th Cir. 2002); John Doe No.1 v. Glickman, 256 F.3d 371, 375 (5th Cir. 2001). It is well
established that intervention is proper in a Title vn action where a labor organization's ability to
protect the integrity of a collective bargaining agreement could be affected by either a litigated judgment or consent decree. See, e.g., Edwards v. City o/Houston, 78 F.3d 983,999 (5th Cir. 1996) (determining that a union's interest in preserving its members' rights in promotional system
challenged as discriminatory in a Title vn class action justified intervention); Stallworth v.
Monsanto Co., 558 F.2d 257,269 (5th Cir. 1977) (reasoning that intervention was appropriate where
applicant's interest was analogous to that ofa labor union protecting a seniority system in a Title vn
action); EEOC v. AT&T Co., 506 F.2d 735 (3rd Cir. 1974) (holding in Title VII class action that intervention by union to assert interest in preserving collective bargaining agreement was proper); Wilson v. Southwest Airlines Co., 98 F.R.D. 725 (N.D. Tex. 1983) (allowing intervention by union to preserve collectively bargained seniority provisions); CBS, Inc. v. Snyder, 789 F. Supp. 1019, 1022-23 (S.D.N.Y. 1992) (allowing union to intervene to protect interest in collective bargaining agreement). For reasons which follow, the Unions in this case are entitled to intervene as of right.
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Case 97-cv-00063-HC Document 319 Filed 10/31/2003 Page 9 of 18
I. Intervention Standards in Title VII Actions
Martin v. Wilks, 490 U.S. 755, 109 S. Ct. 2180, 104 L. Ed. 2d 835 (1989) addressed finality
ofjudgments and consent decrees in Title vn actions. In Wilks, the U.S. Supreme Court repudiated
the impermissible collateral attack doctrine and rejected an argument that several Caucasian
firefighters - whose rights were affected by two consent decrees to which they were not parties that
redressed racially discriminatory employment practices by the City ofBirmingham, Alabama against
African-American firefighters - had a duty to attempt to intervene in the original Title vn action,
reasoning that the burden to join all persons who might be affected by a decree under Rule 19's
mandatory joinder provisions should be placed on the parties.
Congress responded to Wilks by enacting Section 108 of the Civil Rights Act of 1991 (42
U.S.C. § 2000e-2(n)), a special remedial scheme that is intended to balance the rights ofnon parties
against the need for finality ofjudgments and prompt relief for discrimination. Section 2000e-2(n)
provides in relevant part:
(l)(A) Notwithstanding any other provision of law, and except as provided in paragraph (2), an employment practice that implements and is within the scope ofa litigated or consentjudgment or order that resolves a claim ofemployment discrimination under the Constitution or Federal civil rights laws may not be challenged under the circumstances described in subparagraph (8). (B) A practice described in subparagraph (A) may not be challenged in a claim under the Constitution or Federal civil rights laws - -
(i) by a person who, prior to the entry ofthe judgment or order described in subparagraph (A), had - (1) actual notice of the proposed judgment or order sufficient to apprise such person that such judgment or order might adversely affect the interests and legal rights of such person and that an opportunity was available to present objections to such judgment or order by a future date certain; and (IT) a reasonable opportunity to present objections to such judgment or order...
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97-cv-00063-HC Document 319 Filed 10/31/2Q03 Page 10 of 18
II. Intervention of Right Under Rule 24(a)(2) Edwards addressed the effect of42 U. S. C. § 2000e-2(n) on a non party's ability to intervene.
The Fifth Circuit concluded, based on the plain language of the statute, that a non party's motion to
intervene in Title vn cases must be adjudicated in accordance with the standards established under
Rule 24 for such motions in general. The standard of appellate review is de novo. 78 F.3d at 995998. See also Ozee v. American Council on Gift Annuities, 110 F.3d 1082 (5th Cir.), vacated on other grounds sub nom., American Bible Soc'y v. Richie, 522 U.S. 1011 (1997).
Rule 24(a)(2) provides that upon application anyone shall be permitted to intervene in an action when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties. In determining the Unions' motion to intervene of right pursuant to Rule 24(a)(2) in this case, the Court should consider whether they (1) filed a timely application, (2) claim an interest in the subject matter ofthe action, (3) show that disposition ofthe action might impair or impede their ability to protect that interest, and (4) their interest is not adequately represented by extant parties to the litigation. Edwards, 78 F.3d at 999. See also Sierra Clubv. Espy, 18 F.3d 1202 (5th Cir. 1994); Kneelandv. NCAA, 806F.2d 1285,1287 (5th Cir.), cert. denied, 484 U.S. 817 (1987).
A. Timeliness There is no absolute measure oftimeliness with respect to intervention. Stallworth, 558 F. 2d at 264-66; Espy, 18 F.3d at 1205. Instead, the Court must determine timeliness from all the circumstances. NAACP v. New York, 413 U.S. 345, 366, 93 S. Ct. 2591, 2603, 37 L. Ed. 2d. 648 (1973); Corley v. Jackson Police Dep 't, 755 F.2d 1207, 1209 (5th Cir. 1985).
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In Stallworth, the Fifth Circuit established four factors that a district court should consider when evaluating the timeliness of a motion to intervene. 558 F.2d at 264-66. The first factor is the length oftime during which the would-be intervenor actually knew or reasonably should have known ofhis interest in the case before he petitioned for leave to intervene. The second factor is the extent of prejudice that the existing parties to the litigation may suffer as a result of the would-be intervenor's failure to apply for intervention as soon as he actually knew or reasonably should have known of his interest in the case. The third factor is the extent of prejudice that the would-be intervenor may suffer ifhis petition for leave to intervene is denied. The fourth factor is the existence of unusual circumstances militating either for or against a timeliness determination.
The first factor focuses on the time lapse between the applicant's receipt of actual or constructive knowledge of his interest in the litigation and the filing ofhis motion for intervention. The relevant period commences either from the time the applicant knew or reasonably should have known ofhis interest, or from the time the applicant became aware that his interest would no longer be protected by the existing parties to the lawsuit. Id. at 264 (quoting United Airlines, Inc. v. McDonald, 432 U.S. 385, 394,97 S. Ct. 2464, 2469-70, 53 L. Ed. 2d 423 (1977)).
This case has been pending since February 1997. However, the Court conducted all class certification proceedings in the Unions' absence, and never issued any official notice to the Unions ofthe proceedings, despite plaintiffs' presentation ofargument and evidence in the class certification hearing relating to the seniority provisions of the CBA and the Unions' administration of the grievance procedure under the CBA. The Unions' officials were unaware of the class certification proceedings until after the Court entered the class certification order. As a result, the Unions had no meaningful opportunity to seek intervention to be heard on any matters relating to the CBA in that proceeding.
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Further, neither plaintiffs nor Lufkin have sought to join the Unions as parties under Rule 19 and no party has asserted any claims against the Unions. Plaintiffs have conceded that Lufkin and the Unions did not implement the seniority system with an intent to discriminate, that the system is bona fide, and that the Unions have adequately represented African-American unit employees, as a class, in employment disputes and all other issues covered by the CBA. Under these circumstances there was no reason for the Unions to believe that their interests may be affected by this litigation until the Court's correspondence to counsel concerning remedy issues on March 31, 2003 and class counsels' reply dated April 11,2003.1
The Unions' brief delay in filing the motion to intervene is reasonable in light of Fifth Circuit precedent. See Espy, 18 F.3d 1202 (5th Cir. 1994) (motion found timely when made within two months of applicant becoming aware that interests were affected); Association ofPro!'l Flight Attendants v. Gibbs, 804 F.2d 318 (5th Cir. 1986) (five month lapse found not unreasonable). Additionally, the filing of the motion prior to entry ofjudgment favors timeliness since most Fifth Circuit decisions rej ecting motions for intervention as untimely concern post judgment motions. See Engra, Inc. v. Gabel, 958 F.2d 643 (5th Cir. 1992); Jones v. Caddo Parish Sch. Ed., 735 F.2d 923 (5th Cir. 1984); Smith v. Missouri Pac. R.R. Co., 615 F.2d 683 (5th Cir. 1980); Hefner v. New Orleans Pub. Serv., Inc., 605 F.2d 893 (5th Cir. 1979), cert. denied, 445 U.S. 955 (1980); United States v. Marion County School Dist., 590 F.2d 146 (5th Cir. 1979); United States v. AlleghenyLudlum Indus., Inc., 553 F.2d 451 (5th Cir. 1977), cert. denied, 435 U.S. 914 (1978).
The second Stallworth factor focuses on whether any prejudice to the existing parties would result by reason ofthe Unions' failure to seek intervention as soon as possible after learning oftheir
1 Both class counsel and defense counsel provided the Unions' attorneys with a copy ofthe correspondence in April 2003. Unions' Motion to Intervene and Memorandum Brief - Page 12

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interest in the case. This factor is concerned only with the prejudice caused by the delay in filing the motion, not any alleged prejudice which may result ifintervention is granted. 558 F.2d at 265. In this case, no party will suffer any prejudice as a result of the Unions' reasonable delay in filing the motion to intervene. The Unions do not seek to conduct any discovery or take any other action that could delay trial, and all Unions are ready to participate when trial commences on December 4,2003.
The third factor focuses on whether the Unions would be prejudiced if their motion is overruled. Any argument that the Unions would suffer no prejudice ifintervention is denied would have no basis in law, policy or logic. Under federal law the Unions have a legal duty to represent the interests of all unit employees. Air Line Pilots Ass'n v. O'Neill, 499 U.S. 65,111 S. Ct. 1127,113 L. Ed. 2d 51 (1991); Vaca v. Sipes, 386 U.S. 171,87 S. Ct. 903, 17 L. Ed. 2d 842 (1967). The legal rights associated with fonnal intervention - including presentation of briefs on remedy issues, presentation of evidence, and an ability to appeal- are critically important in this analysis. See Espy, 18 F.3d at 1207. Most importantly, absent intervention the Unions would have no opportunity to establish a factual basis for any challenges to the remedial provisions of a litigated judgment or consent decree. See id.
The fourth Stallworth factor concerns special circumstances that militate either for or against timeliness of the Unions' motion. There are no special circumstances militating against timeliness. There is, however, a special circumstance that militates in favor of timeliness. The parties were involved in extensive mediation proceedings for approximately three years before that settlement process obviously failed. The Unions had a reasonable expectation that the parties would negotiate a resolution ofthe dispute (subject to the Court's approval) until September 22,2003, when defense
Unions' Motion to Intervene and Memorandum Brief - Page l3

Case 97-cv-00063-HC Document 319 Filed 10/31/20.03 Page 14 18
counsel infonned a Union attorney that mediation had failed? B. Unions' Interest in Subject Matter of Action It cannot be disputed that the Unions have a cognizable interest in the subject matter ofthis
class action. The Unions operate as the collective bargaining representative for 857 employees at Lufkin including numerous class members. In that capacity the Unions have a legally protectable interest in participating in any legal proceeding which may affect the interpretation and/or enforceability ofthe seniority provisions ofthe CBA. See Edwards, 78 F. 3d at 999 (Fifth Circuit held that a union's interest in preserving its members' rights in promotional system challenged as
discriminatory in a Title vn class action justified intervention); AT&T, 506 F.2d at 741-42 (union
should be pennitted to intervene as party defendant to protect its interest in its collective bargaining agreements with AT&T); Southwest Airlines, 98 F.R.D. at 733 (allowing union's intervention to preserve collectively bargained seniority provisions); Vulcan Society of Westchester County,79 F.R.D. at 43 9-41 (unions pennitted to intervene to protect their collective bargaining agreements and assure adequate hiring and promotion criteria).
C. Impairment of Unions' Interest The Unions' interest in administering and enforcing the CBA that they negotiated with Lufkin may be impaired by any finding ofliability against the employer. The Court has expressed an interest in refonnation ofthe CBA's departmental seniority provisions, and plaintiffs are seeking an award of retroactive or constructive seniority for numerous individual class members for promotion purposes. Such remedies would essentially abrogate the contractual rights of many
2 The Unions participated in two confidential mediation sessions that the parties conducted on April 11, 2002 and May 20-22, 2002. However, the Unions were not aware that plaintiffs intended to seek any remedies affecting the CBA until class counsels' letter to the Court dated April 11, 2003. Unions' Motion to Intervene and Memorandum Brief - Page 14

Case 97-cv-00063-HC Document 319 Filed 10/31/20_03 Page 15 18 represented employees whom are not class members and would have a severe impact on the Unions' representational and contractual rights. See CBS, 798 F. Supp. at 1023.
D. Inadequate Representation by Existing Parties Finally, the Unions' interests and rights in this case are not adequately represented by the extant parties. The Unions' burden ofmaking that showing "should be treated as minimal." Trbovich v. United Mine Workers, 404 U.S. 528,538 n.lO, 92 S. Ct. 630,30 L. Ed. 2d 686 (1972). No party has the ability or motivation necessary to represent the Unions' broad institutional interests as exclusive collective bargaining representatives responsible for administering the CBA on behalfof 857 employees. Plaintiffs' interests have become adverse to the Unions' interests by reason of the remedies that plaintiffs now seek. The bargaining relationship between Lufkin and the Unions is adversarial, and their interests and objectives are often divergent as evidenced by the Unions' strike against Lufkin when the previous CBA expired in October 2002. Moreover, federal law prohibits Lufkin from providing legal services for the Unions' benefit. See 29 U.S.C. § 186. Unless the Court permits the Unions to intervene, their interest in ensuring that the CBA is interpreted correctly and in representing the rights of all unit employees will be undermined. See and cf. AT&T, 506 F. 2d at 741-42; CBS, 798 F. Supp. at 1023-24.
Conclusion For these reasons, lAM, GMP and Boilermakers request that the Court grant the motion to intervene ofright in all respects and permit the Unions to appear and participate fully at trial and all other proceedings as parties defendant. Dated October 31,2003.
Unions' Motion to Intervene and Memorandum Brief - Page 15

Case 97-cv-00063-HC Document 319 Filed 10/31/2Q03 Page 16 18
Respectfully submitted,
2~ :1---------
Rod Tanner Texas State Bar No. 19637500 Wade A. Forsman Texas State Bar No. 07264257 Rod Tanner & Associates, P.C. 6000 Western Place, Suite 100 Fort Worth, Texas 76107 (817) 377-8833 (817) 377-1136 (telefax)
Attorneys for International Association ofMachinists and Aerospace Workers, Local Lodge No. 1999, AFLCIO/CLC
Mimi e. Satter Northern Dist. of New York Bar No. 102525 Satter & Andrews, LLP McCarthy Building 217 South Salina Street, Sixth Floor Syracuse, New York 13202 (315) 471-0405 (315) 471-7849 (telefax)
Attorney for Glass, Molders, Pottery, Plastics & Allied Workers International Union, Local No. 429, AFL-CIO/CLC
onald Carona, Jr. exas State Bar No. 03832600 Law Offices of Martin Dies, P.e. 1009 West Green Orange, Texas 77630-5619 (409) 883-4394 (409) 883-4814 (telefax)
Attorney for International Association of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, Local No. 587, AFL-CIO/CLC
Unions' Motion to Intervene and Memorandum Brief - Page 16

Case 97-cv-00063-HC Document 319 Filed 10/31/2003 Page 17 of 18

Certificate of Conference

By letter dated October 24,2003, the undersigned counsel faxed a letter to all counsel of record for conferral purposes. The letter advised the parties' counsel ofthe Unions' decision to file a motion to intervene and stated the grounds of the motion. On October 28,2003, the undersigned counsel conferred by telephone with Doug Hamel, defendant's lead counsel, regarding the Unions' motion to intervene pursuant to Local Rule 7.1(b). Mr. Hamel advised the undersigned that defendant does not oppose the motion. On October 27,2003, the undersigned counsel conferred by telephone with Tim Garrigan, one of class counsel, regarding the foregoing motion to intervene pursuant to Local Rule 7.1 (b). Mr. Garrigan advised the undersigned that plaintiffs oppose the motion. Accordingly, the contested motion is submitted to the Court for determination.
U~
Rod Tanner Attorney for lAM Local 1999

Certificate of Service

The undersigned attorney certifies that a true and correct copy ofthe Motion to Intervene and Memorandum BriefoflAM Local 1999, GMP Local 429 and Boilermakers Local 587 was served on all counsel ofrecord by U.S. Mail this 31st day of October 2003 as follows:

Timothy B. Garrigan Stockey Garrigan & Castetter P.O. Box 631902 Nagadoches. Texas 75963-1902

Certified Mail Return Receipt Requested No. 70031680000419075784

Teresa Demchak

Certified Mail Return Receipt Requested

Morris J. Baller

No. 70031680000419075791

Darci E, Burrell

Joshua G. Konecky

Goldstein, Demchak, Baller, Borgen and Dardarian

300 Lakeside Drive. Suite 1000

Oakland, California 94612-3534

Douglas E. Hamel Christopher V. Bacon Mary Michelle Mahony Allison V. Eberhart Vinson & Elkins, LLP 2300 First City Tower 1001 Fannin Street Houston, Texas 77002-6760

Certified Mail Return Receipt Requested No. 70031680000419075807

Rod Tanner
Unions' Motion to Intervene and Memorandum Brief - Page 17

97-cv-00063-HC Document 319 Filed 10/31/2003 Page 18 18

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS LUFKIN DIVISION

SYLVESTER McCLAIN, on His Own

§

Behalf and on Behalf of A Class of §

Similarly Situated Persons, Et AI.,

§

§

Plaintiffs

§

§

v.

§

§

LUFKIN INDUSTRIES,

§

§

Defendant

§

Civil Action No. 9:97-CV-063 Class Action/Judge Cobb

ORDER GRANTING UNIONS' MOTION TO INTERVENE

Upon consideration ofthe motion to intervene brought by lAM Local 1999, GMP Local 429

and Boilermakers Local 587 pursuant to FED. R. Crv. P. 24(a)(2), and the parties' responses, the

Court finds that the motion should be, and it is hereby, granted. Accordingly, intervenors shall

participate in this class action with full rights as parties at trial and all other proceedings.

It is so Ordered this __day of _ _ _ _ _ _, 2003.

U.S. District Judge Howell Cobb

 
 · '.

Case 9:97-cv-00063-RC Document 89 Filed 03/31/99 Page 1 of 23

.' IOO_A_PR_O_l_1999_'

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION

FltfO-CLERK I.S niSI FnCT COURT
99 MAR 31 PH 5: 02

McCLAIN, THOMAS, et al. Plaintiffs,
v.

§

B

§

NO. 9:97-CV-0063

LUFKIN INDUSTRIES, INC.

§

Defendant,

MEMORANDUM OPINION

INTRODUCTION

Sylvester McClain and Buford Thomas brought claims against Lufkin Industries [Lufkin] under Title VII and 42 U.S.C. § 1981 on behalf of themselves and a class of similarly situated persons. Mr. McClain filed a timely charge of employment discrimination with the EEOC and received his right to sue letter on or about December 4, 1996.1 The issue now before the court is Plaintiffs' motion for class certification.
The law on this topic is complex and convoluted, and unfortunately the parties may view this opinion in a similar light. In the interest of intelligibility, we shall begin with a map of where we are going. The analysis is divided into two major sections: (i) Plaintiffs' prima facie case of disparate impact and (ii) Plaintiffs' satisfaction of Rule 23 criteria for certification as a class action.

1 Additional class members may "piggy back" on Mr. McClain's exhaustion of administrative remedies. Albemarle Paper Co. V. Moody, 422 U.S. 405, 414, 95 S.Ct. 2362, 2370 (1975).
1

Case 9:97-cv-00063-RC Document 89 Filed 03/31/99 Page 2 of 23
i. Plaintiffs' Prima Facie Case There are two elements to establishing a prima facie case for disparate impact. First one must first identify the employment practices which have a disparate effect. Second, it must be demonstrated that the identified practice does in fact have a distinct effect one race. This is typically accomplished through statistical analysis. To support a disparate impact claim, the statistics must evaluate the pertinent sample set and they must reveal a gross disparity in how the identified practice impacts different races.
ii. Criteria for Class Certification There are five elements necessary to qualify a class for certification. The class must meet all four ofthe requirements of Rule 23(a) and one of the three possibilities under 23(b). The 23(a) requirements are as follows: Numerosity (the class must be so numerous as to make joinder of all plaintiffs impracticable); Commonality (the class must share common issues oflaw and fact); Typicality (the claims of class members must center on common legal and remedial theories); and Adequacy of Representation( the class representatives must act in the interest of the class and be free of any conflicting interests). Rule 23(b) has three parts; 23(b)(2) will be discussed here. This criterion requires that the predominant form of relief sought by the class be injunctive. Monetary relief is allowed only incidentally.
ESTABLISIDNG A PRIMA FACIE CASE OF DISPARATE IMPACT DISCRIMINATION
McClain alleges that Lufkin Industries' employment practices have a disparate impact on 2
- - - - - - - - - - ---------- -

Case 9:97-cv-00063-RC Document 89 Filed 03/31/99 Page 3 of 23
African-Americans. To support their motion for class certification, Plaintiffs seek to establish a prima facie case of employment discrimination in violation of Title VII and 42 U.S.C. 1981. The elements of both claims are identical. Anderson v. Douglas & Lomason Co., 26 F.3d 1277 (5th 1994)
While the 5th Circuit acknowledges that ''the discriminatory impact model of proof in an employment discrimination case is not ... the appropriate vehicle from which to launch a wide ranging attack on the cumulative effect of a company's employment practices." Pouncy v. Prudential Ins. Co., 668 F.2d 795,800 (5th Cir.1982), the Supreme court has since outlined the circumstance in which disparate impact analysis is appropriate to challenging pervasive discrimination in employment. See Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 990, 108 S.Ct. 2777, 2786-87, 101 L.Ed.2d 827 (1988); Wards Cove Packaging Co. v. Antonio, 490 U.S. 642,656, 109 S.Ct. 2115, 2124, 104 L.Ed.2d 733 (1989). These general standards have been further elaborated by the Fifth Circuit. Anderson v. Douglas & Lomason Co., 26 F.3d 1277 (5th 1994)
Plaintiffs may base a disparate impact claim on subjective employment procedures. Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 990, 108 S.Ct. 2777, 2786-87, 101 L.Ed.2d 827 (1988). To establish a prima facie case Plaintiffs must identify the causes of the disparate impact and demonstrate their effects. First, they must identify the employment practices which allegedly have an adverse effect on the plaintiffs. Second, they must present statistics drawn from the relevant population that demonstrate that the challenged practices have a significantly different and adverse effect on the class members.
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IDENTIFICATION OF EMPLOYMENT PRACTICES Title VII explicitly addresses the standard for identifying employment practices in disparate impact claims:
"With respect to demonstrating that a particular employment practice causes a disparate impact as described in subparagraph (A)(i), the complaining party shall demonstrate that each particular challenged employment practice causes a disparate impact, except that if the complaining party can demonstrate to the court that the elements of a respondent's decision making process are not capable of separation for analysis, the decision making process may be analyzed as one employment practice."
42 U.S.C. s 2000e-2(k)(1)(B)(i)
This clause was drafted in response to the Supreme Court's holding in Wards Cove Packaging Co. v. Antonio, 490 U.S. 642, 656, 109 S.Ct. 2115, 2124, 104 L.Ed.2d 733 (1989). It encodes the Court's requirement that employment practices be identified with specificity, while also allowing for broad-based challenges where such specificity is not possible.
Our analysis begins by noting the norm of subjective decision making in Lufkin's system of management. We then enumerate the employment practices shown to be suspect. After elaborating on the various components of Lufkin's system of administration we will discuss why this system must be treated as one employment practice.
A broad array ofLufkin employment practices rest on the subjective decision making processes. Paul Perez, the Vice-president for Human Resources, testified that Lufkin Industries exercises subjective discretion in hiring, promotion, termination, discipline and demotion decisions throughout the company. This subjective decision making occurs both in central administration and within each division ofthe company.
4

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Plaintiffs have alleged that Lufkin's subjective system ofhiring disadvantages AfricanAmericans. Discretionary authority over employment decisions without reference to objective guidelines can support a disparate impact claim. Carpenter v. Stephen F. Austin State University 706 F.2d 608,614 (5th Cir. 1983). Most Lufkin employees are hired through the human resources department after being referred to Lufkin Industries from the Texas Workforce Commission. The referred applicants generally satisfy Lufkin's objective minimum criteria for entry-level employees. The next stage of the application process requires being approved by one ofthree white male employees whose discretion is not girded by any objective standards.2 This sort of unfettered discretion is traditionally suspect.
Plaintiffs have alleged that Lufkin's subjective promotion system disadvantages AfricanAmericans. Plaintiffs have also alleged that the subjective system of assigning job classifications to employees disadvantages African -Americans. Allocating employment opportunities according to subjective traits can function as a discriminatory employment practice. Hill v. Mississippi State Employment Service, 918 F.2d 1233, 1240 (5th Cir. 1991). The human resources department at Lufkin directs each applicant to one of the several divisions within the company where the decision to hire is made. Plaintiffs assert (and their statistics support), that African-Americans are over represented in difficult and unpleasant jobs, and under represented in
2 We note here that discretion exercised by supervisors is not sufficient to infer discrimination. Plaintiffs must still proffer some statistical showing as to whether or not this system of subjective decision making has in fact disparately impacted African-Americans. We also note that while difference in race does not indicate per se discrimination, neither does commonality of race preclude discrimination. See Hill v. Mississippi State Employment Service, 918 F.2d 1233, 1240 (5th Cir. 1991)(decrying the fallacy that "blacks never discriminate against other blacks.") citing Castenada v. Partida, 430 U.S. 482, 513, 97 S.Ct. 1272, 1289,51 L.Ed.2d 498 (1977).
5

Case 9:97-cv-00063-RC Document 89 Filed 03/31/99 Page 6 of 23
less strenuous positions. This channeling process is not guided by any objective standards or procedures of reviewing them.
Unfettered discretionary authority applied to promotions also supports claims of disparate impact. Carpenter 706 F.2d 608,614. See also Payne v. Travenol Laboratories, Inc., 673 F.2d 798, (5th Cir.1982)(holding that reliance on recommendations of supervisors in making promotions had discriminatory effect). The Fifth Circuit "has recognized that promotion systems utilizing subjective evaluations by all white supervisors provide a ready mechanism for discrimination.' Fisher v. Proctor & Gamble Manufacturing Co., 613 F.2d 527, 544 (5th Cir. 1980). All promotions between hourly positions are, in form at least, supposed to be governed by the collective bargaining agreements and ought to be determined by seniority.
While the defendants produced witnesses from management who stated that all available promotions were undeniably posted in the various departments, many of plaintiffs witnesses testified to the contrary. Some witnesses even testified that the so-called postings were made after the de facto promotion decision had been subjectively made within that particular department.
From the testimony offered to the court, an exception for "skilled" applicants all but obliterates the senority rule. The seniority system is sidestepped by machine operators bringing in hand-picked successors who are trained informally and are thereby able to qualify as a "skilled" applicant. The applicant with seniority is given a two-week window to display comparable competence. There are no standards for performance or structured opportunities for aspiring applicants to practice on the machines.
When white employees already dominate the more desirable jobs, the exploitation ofthe
6

Case 9:97-cv-00063-RC Document 89 Filed 03/31/99 Page 7 of 23
ability exception is likely to discourage African-Americans from pursuing advancement.3
Training for advancement is informal, and thus the track to promotion is informal, which leaves
the CBA a mere formality. The union grievance procedure has traditionally been ineffective and
so it goes unused, leaving African-Americans effectively with no forum for their complaints.
This is only one element in an interrelated web of factors that results in an employee's race
altering his terms of employment.
The pervasive subjective decision-making process interacts with other facially neutral
employment conditions to the disadvantage of African-Americans. The lack of transportable
seniority under the CBA falls more harshly on black employees who have been channeled into
the Foundry or Trailer divisions.
"Black employees previously excluded from the higher paying departments because of their race will be denied . . . promotion opportunities in favor of those white employees in the department; Secondly, those black workers, who, although deterred because of their race, have obtained a foothold in a predominantly white department cannot compete equally on the basis of departmental seniority with white employees, who were able to gain entrance to the department earlier." Pettway v. American Cast Iron Pipe Co., 494 F.2d 211 (5th Cir. 1974)
Prior to the decision of Lufkin Industries' employees to become represented by two
3 Compare, Payne v. Travenol Laboratories, Inc., 673 F.2d 798, 827( "Even if applications were not required for certain positions, when most of the supervisors are white, failure to post job vacancies can only discourage applications by blacks to a greater degree than it discourages whites, who gamer information through the grapevine.") and Pettway v. American Cast Iron Pipe Co., 494 F.2d 211 (5th Cir. 1974)("a black employee with knowledge of the nominal number of black foremen, the Company's past discriminatory policies, and the current practice of promotion via the recommendation of an incumbent foreman, could hardly be expected to make a meaningless request indicating his willingness to be promoted.")
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Case 9:97-cv-00063-RC Document 89 Filed 03/31/99 Page 8 of 23
unions, the defendant had no portable seniority system between its various divisions. The two CBAs entered into between Lufkin's management and the two unions seem to have enshrined this practice. While this court cannot change the CBAs, it can at least consider the terms of those agreements as perpetuating this particular practice. At the most recent class certification hearing, a number of employers were asked whether they filed grievances under the CBAs when subjective decisions of management were made concerning promotions, demotions, layoffs and similar events. Some unsuccessfully filed grievances, others testified that it was useless to do so, if not detrimental to the continuation of their career goals at Lufkin Industries.
This is one example of multiple conditions of employment building on each other to result in a disparate impact. "Discrimination in hiring and advancement, even at the lower levels ofthe hierarchy, has a rippling effect upwards through that hierarchy." McCuin v. Texas Power and Light Co. 32 Fed R Serv 2d 1575, 1582 (B.D. Tex 1981). The absence of mobility, caused by subjective promotional standards, exacerbates the injury inflicted by the discriminatory channeling which results from the subjective initial job assignments. See, e.g. Carpenter v. Stephen F. Austin State University, 706 F.2d 608 (5th Cir. 1983).
This ripple effect begins with the discretionary channeling of African Americans into the most difficult jobs, but it extends throughout up to and including layoffs and rehiring.
"The process of lay-off and rehiring meant that any movement of black employees into traditional white jobs would come to an end. As lay-offs occurred, the employees with the least departmental seniority, e.g. the newly hired, promoted, or transferred black employees, would be either (1) furloughed, if newly hired, or (2) dropped back into the department from which they transferred, as they retained former departmental seniority in that department for lay-off purposes. FNII. We note that in Rowe v. G.MC., 457 F.2d 348, 357-358 (5th Cir. 1972), this court rejected this as an
8

Case 9:97-cv-00063-RC Document 89 Filed 03/31/99 Page 9 of 23
ameliorating variable justifying a seniority system which, during the 'ebb and flow' of lay-offs and rehiring, required black employees to once again 'go to the foot of the line." Pettway v. American Cast Iron Pipe Co., 494 F.2d 211 (5th Cir. 1974)
Lufkin's subjective employment practices are inextricably intertwined. The disparate impacts begin on the day one is hired and are potentially magnified each time one's career is intersects a subjective decision-making process. Channeling injob placement is reinforced by informal systems of training and promotion. The seniority structure locks employees into their divisions. Layoffs and rehires function to keep African-Americans from advancing.
The discriminatory effects of the constellation of suspect employment practices used by Lufkin Industries cannot be isolated individually. The "elements of a respondent's decisionmaking process are not capable of separation for analysis, [and thus] the decision-making process may be analyzed as one employment practice."42 U.S.C. s 2000e-2(k)(1)(B)(i) Plaintiffs have met their burden in identifying the employment practice resulting in the alleged disparate impact. We must now consider whether evidence can establish that a disparate impact in fact exists.
STATISTICAL ANALYSIS A prima facie case also requires Plaintiff to demonstrate that the challenged employment practices effect one race more harshly than the other. Plaintiffs ordinarily employ statistical analyses to make this showing. To support a claim of discrimination, statistical evidence must be based on relevant samples sets. For instance, when evaluating hiring practices, statistical evidence must analyze the qualified work force, rather than the population at large. Similarly,
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when examining promotion practices, the data must be based only on those qualified for promotion, not the workforce as a whole. Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 990, 108 S.Ct. 2777, 2786-87, 101 L.Ed.2d 827 (1988); Anderson v. Douglas & Lomason Co., 26 F.3d 1277 (5th 1994)
Plaintiffs have sought to substantiate their claims through statistical analysis conducted by Ms. Sandra McCune.4 Ms. McCune both testified before the court in the hearing on class certification and prepared a report of her conclusions which has been admitted into evidence.
The McCune report analyzed hiring, job assignment, promotion, compensation, discharge for cause, and layoffs. McCune tested for racial bias in these practices by comparing the ratio between the races in the relevant group with the ratio between the races in the group benefitted or injured by the application ofthe employment practice. The employment data which the report analyzed consisted of computer data bases and bid sheets provided by Lufkin Industries to Plaintiffs counsel. Her report was based on the best evidence and most complete set of information available.
The first issue confronting the court is whether the McCune report compares the appropriate data sets. In analyzing hiring, the report compared the ratio of blacks to whites in the applicant pool with the ratio of blacks to whites in the group offered employment. To be probative of disparate impact the comparison should be between qualified applicants and hires.
According to the testimony of Paul Perez, Lufkin requires four minimal qualifications to
4 Ms. McCune is apply qualified to perform and testify on the topic of statistical analysis. She holds a doctorate from Texas A&M University with a support field in statistics and she is a member of the American Statistical Association, the Texas Academy of Science, and the Caucus for Woment in Statistics. Furthermore, she has testified as an expert in statistics in various state and federal courts in Texas prior to her appearance before this court.
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be considered for entry-level hiring: no dismissal for cause in last 2 years, six months of continuous employment elsewhere, an employment record clear of discipline or absentee problems, and some experience in an industrial environment (broadly construed). A substantial majority of entry level applicants are referred to Lufkin Industries by the Texas Workforce Commission where prospective applicants are pre-screened for these hiring criteria.
As a result, all the applicants reflected in Lufkin's database presumably meet the minimum, objective criteria for employment at Lufkin. Whether or not an applicant is hired by Lufkin after being referred there by the TWC depends on how he fares in the subjective component of the hiring process. Thus statistical disparities between applicant rates reflected in this database and hiring rates are properly attributed to the SUbjective hiring process and are not caused by the objective job qualifications. The McCune report's analysis properly compares qualified applicants to hired individuals.
In analyzing promotion, the report compared the ratio of blacks to whites among hourly employees with the ratio of blacks to whites promoted from hourly to salaried positions. To be probative of disparate impact the comparison must be between the pool of individuals qualified for promotion and those individuals promoted.
There are no writtenjob descriptions promulgated by Lufkin for use in applying for or allocating promotions. The collective bargaining agreement governs promotions within hourly positions and makes seniority the sole criteria. Even that single objective criteria can be overridden, and often is, by a subjective assessment ofthe skill of a less senior applicant. This subjective exception is further skewed because of discriminatory informal training. Most promotions relate to specialized tasks; insofar as one individual gains higher qualifications than
11

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another it is due to discriminatorily selective, informal, on-the-job training. In the data analyzed in the McCune report, sign-up sheets indicate that employees across
the spectrum of seniority and job classification regularly applied for promotions of all sorts. There appear to be no career ladders, either in theory or practice, which require that an employ work on rung seven to be promoted to rung eight. In absence of formal criteria for promotion, Lufkin Industries itself indicates that all applicant's are minimally qualified for all positions. The McCune report in analyzing promotion rates properly compared the racial make up ofthe promotion group to the racial makeup of the hourly work force as a whole.
The McCune report also analyzed the racial composition of different divisions, the compensation of both hourly and salaried employees, rates of discharge for cause, and rates of layoffs. These analyses all compare similarly situated groups of employees and do not require a close inquiry into the relevance ofthe underlying data. The court fmds that the data underlying the McCune report was of sufficient reliability to support the report's conclusions. Having ascertained that the appropriate data sets were analyzed, we now tum to inquire whether the results of the analysis support a prima facie case of disparate impact.
There are no bright-line rules regarding what degree of statistical disparity is necessary to support a disparate impact claim. Traditionally, the statistics must show a "gross disparity" in how the different races are effected. Lopez v. Laborers International, 987 F.2d 1210, 1214 (Sth Cir. 1993); Carroll v. Sears, Roebuck & Co., 708 F.2d 183, 190 (Sth Cir.1983) (citing Hazelwood School Dist. v. United States, 433 U.S. 299,97 S.Ct. 2736, S3 L.Ed.2d 768 (1977» A deviation greater than three standard deviations is sufficient to support a prima facie case. Lopez, 987 F.2d at 1214; Williams v. New Orleans Steamship Ass'n, 673 F.2d 742, 7S0 n. 13 (Sth
12

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Cir.1982); Castaneda v. Partida, 430 U.S. 482, 496 n. 17,97 S.Ct. 1272, 1281 n. 17,51 L.Ed.2d 498 (1977).
The McCune report found that in every evaluated employment practice, the allocation of benefits and detriments deviated from what would be anticipated from random distribution among the races by discrepancies equal or exceeding three standard deviations. Each ofthese served to disproportionately disadvantage African-Americans. The report showed that with a legally cognizable statistical significance, African-Americans were less likely to be hired, more likely be fired, more likely to be laid off, more likely to be assigned to arduous positions, less likely to be promoted, and less likely to be compensated as well as white employees.
The court concludes that Plaintiffs have shown a prima facie case of disparate impact sufficient to support their motion for class action. Plaintiffs' showing is not dispositive on the issue of liability; it is merely sufficient to meet its burden to move forward with the suit certified as a class action. A more substantive showing may prove necessary to meet Plaintiffs burden at trial. At this stage of the proceedings the statistical showing is sufficient.
SATISFYING THE ELEMENTS FOR CLASS CERTIFICATION Rule 23 delineates prerequisites for proceeding with a class action. The class must first satisfy "four threshold requirements [outlined in Rule 23(a)] ... (1) numerosity (a 'class [so large] that joinder of all members is impracticable'); (2) commonality ('questions of law or fact common to the class'); (3) typicality (named parties' claims or defenses 'are typical ... of the class'); and (4) adequacy of representation (representatives 'will fairly and adequately protect the
13

Case 9:97-cv-00063-RC Document 89 Filed 03/31/99 Page 14 of 23
interest of the class')." Amchem Prods., Inc. V. Windsor, 521 U.S. 591, 138 L.Ed.2d 689, 117 S.Ct. 2231 (1997). In addition, the class must satisfy one of the three subsections of Rule 23(b). Id. The party seeking class certification bears the burden of showing all of these criteria to be met. See id. Castano v. American Tobacco Co., 84 F.3d 734 (1996)
Here Plaintiffs seek to be certified under Rule 23(b)(2). To succeed, Plaintiffs must demonstrate that in addition to the four elements required by 23(a), "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.Ev.23(b)(2). As the Court noted in Amchem, "[cJivil rights cases against parties charged with unlawful, class-based discrimination are prime examples" of suits properly brought under 23(b)(2). Amchem, 117 S.Ct. 2231, 2245
The four elements of 23(a) are threshold requirements. The numerosity analysis determines whether special procedural treatment is necessary for the case at hand. The remaining criteria ensure that the special procedures do not impair the interests of Plaintiffs not actually present in the suit. See generally, Allison at 5203 (procedural safeguards function to protect Plaintiffs interests). The purpose of the remaining criteria is to have the class represented by a named Plaintiff whose interests are consistent with those of the class. This standard does not require class and individual claims to correspond perfectly. In a suit under 23(b)(2) Plaintiffs need show neither identical claims nor the predominance of common claims over individual ones. Allison v. CITGO, 151 F.3d 402,414 (1997). Rather, representative plaintiffs must show that they share the interests of those whom they seek to represent.
While a court should not certify a class lightly, neither should courts err to the side of
14

Case 9:97-cv-00063-RC Document 89 Filed 03/31/99 Page 15 of 23
refusing certification at the early stages of litigation. The opportunity to modify the certification
or to decertify entirely provide ample opportunity to restructure the suit as discovery develops.
In this case the parties have submitted extensive documentation, offered testimony in two
evidentiary hearings, and thoroughly briefed the issues before the court. Having carefully
considered the evidence before it, the court concludes that the following class solidly satisfies all
elements of 23(a) and 23(b)(2):
All Black persons employed for any period of time by defendant Lufkin Industries on or after March 6, 1994, to date, whose compensation, remuneration, benefits, job assignments, promotional opportunities, career advancement and other terms and conditions of employment have been, may have been, or may become, adversely affected by defendant Lufkin Industries' past or present systems of administering hiring, wages, salaries, job assignments, training, evaluaJions, promotions, demotions, terminations, layoffs, recalls, and rehires.
In accordance with the requirements of General Telephone Co. o/Southwest v. Falcon, 457 U.S. 147, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982), the elements of Plaintiffs claim to class certification will be discussed in detail. Castano, 84 F.3d 734 (1996) We begin by noting that it is not appropriate at this time to examine the merits of the case. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 176-78,94 S.Ct. 2140, 2152, 40 L.Ed.2d 732 (1974). Class certification is a procedural determination and this opinion is limited to that issue. Garcia v. Gloor, 618 F.2d 264, (5th Cir. 1980) rehearing denied 625 F.2d 1016, certiorari denied 101 S.Ct. 923,449 U.S. 1113,66.
NUMEROSITY There are no mechanical rules for determining sufficient class size; instead, the analysis must consider all the circumstances of action. Watson v. Shell Oil, 979 F.2d 1014, 1022 (1992); (citing General Telephone v. EEOC, 446 U.S. 318, 100 S.Ct. 1698 (1980)). The central requirement is that the joinder of all prospective plaintiffs be impractical. FRCP 23(a)(l). In
15

Case 9:97-cv-00063-RC Document 89 Filed 03/31/99 Page 16 of 23
assessing the difficulty ofjoining all plaintiffs, the court may consider the number ofplaintiffs, the difficulty of identifying them, their geographical diversity, and the nature of the action. Bradford v. Sear, 673 F.2d 792, 795 (1982); Neffv. VIA Metropolitan Transit Authority, 179 F.R.D. 185, 193 (W.D. Tex 1998).
Employment discrimination suits seeking injunctive relief are frequently managed as class actions due to distinctive difficulties withjoinder. Prospective plaintiffs may refuse to identify themselves for fear of harassment or retaliation by the employer. See, Lindemann and Grossman, Employment Discrimination Law at 1607 (3d ed. 1996)(citing cases). The prospective nature of injunctive relief often makes it epistemiologically impossible to identify which individuals may be impacted by the conduct at issue. See, Bradford at 795.
Suits for injunctive relief also call for class treatment due to the danger of inconsistent results if the suits were tried individually. Preventing piecemeal litigation is chief among the purposes of the class action format. Baylor v. HUD 913 F.2d 223,225 (1990?).
The class defmition approved by the court today includes all African-Americans that have been employed at Lufkin Industries for any length oftime. Lufkin currently employs approximately 350 African-Americans. Lufkin has terminated in excess of250 AfricanAmericans in the time period covered by this suit. The court has not been provided with the number of African-Americans that left the employ of Lufkin voluntarily. However, the sixhundred-some readily identified potential plaintiffs argue, by their sheer numbers, against the practicability ofjoinder.
The circumstances surrounding the suit also indicate difficulties with joinder. Plaintiffs have submitted and prevailed in one motion for relief from retaliation and submitted anonymous affidavits of prospective class members who fear retaliation from being named in a lawsuit against Lufkin Industries. Even if every potential plaintiff could be identified, some would resist being named in this suit for fear of the consequences.
The nature of the action makes individual suits undesirable and joinder impracticable. The primary relief sought in this action is injunctive. Injunctive orders issued in a series of individual suits would be potential nightmare of untangling inconsistent results and res judicata. The equitable nature of the suit also makes joinder impossible. The class includes individuals
16

Case 9:97-cv-00063-RC Document 89 Filed 03/31/99 Page 17 of 23

that may be adversely affected by Lufkin's practices in the future, and as such are incapable of being identified or joined in the suit.

NEXUS REQUIREMENT The elements of typicality, commonality, and adequacy of representation required by 23(a) tend to overlap and intertwine. Amchem, 117 S.Ct. 2231, *2251 FN20. (1997). They are collectively referred to as the "nexus requirement" of similarity between individual and shared claims. Bradford v. Sears and Roebuck, 673 F.2d 792. The commonality analysis centers around the similarity of facts on which the claims rest. The typicality analysis tends to focus on the similarity of legal and remedial theories. The adequate representation criteria requires that the absent plaintiffs be represented zealously by representatives who are free of interests conflicting with those ofthe class. While we discuss each element separately, each discussion of each element is relevant to the satisfaction ofthe others. We begin our analysis of the nexus between the class and representative Plaintiffs' claims by noting that the standard for demonstrating commonality and typicality is not high, Lightbourn, 118 F.3d 421,426. And that a district court certainly may look past the pleadings to determine whether the requirements of rule 23 have been met. Castano, 84 F.3d 734 (1996)

COMMONALITY

Rule 23(a)(2) requires that there be "question of law or fact common to the class." There

must be at least one issue whose resolution will affect all or a significant number of the putative

class members. Lightbourn, 118 F.3d 421. In determining whether common issues of fact are

present, the analysis set forth in Harris v. Pan American World Airways, Inc., 74 F.R.D. 24, 41

(N.D.Ca1.1977) and approved by Bradford is illuminating:

"In the context of litigation over alleged unlawful employment practices, relevant

criteria of commonality include the following:

1.

(i) What is the nature of the unlawful employment practice charged-is it

one that peculiarly affects only one or a few employees or is it genuinely

17

Case 9:97-cv-00063-RC Document 89 Filed 03/31/99 Page 18 of 23
one having a class-wide impact [?] 11. (ii) How uniform or diverse are the relevant employment practices of the
employer, considering matters such as: size of the work force; number of plants and installations involved; extent of diversity of employment conditions, occupations and work activities; degree of geographic dispersion of the employees and of intra-company employee transfers and interchanges; degree of decentralization of administration and supervision as opposed to the degree of local autonomy [?] 111. (iii) How uniform or diverse is the membership of the class, in terms of the likelihood that the members' treatment will involve common questions[?] IV. (iv) What is the nature of the employer's management organization as it relates to the degree of centralization and uniformity of relevant employment and personnel policies and practices [?] v. (v) What is the length of the time span covered by the allegations, as it relates to the degree of probability that similar conditions prevailed throughout the period [?] (Footnote omitted.)" Bradford v. Sears, 673 F.2d 792,796.
Each criteria and how this class satisfies it will be discussed below. The first indicia of commonality is that the employment practices challenged by the suit
are by nature widespread in their impact. Here Plaintiffs have made a prima facie case of disparate impact via subjective employment practices. "Allegations of similar discriminatory employment practices, such as the use of entirely subjective personnel processes that operate to discriminate, satisfy the commonality and typicality requirements of Rule 23(a). Carpenter v. Stephens F. Austin State Univ., 706 F.2d 608,617 (5th Cir.1983)." Shipes, 987 F.2d 311,316; See also Lightbourn, 118 F.3d 421,426. While we do not here address whether Plaintiffs will prevail in their claim, their allegations and the evidence before the court outline a network of employment practices that potentially impacts every African-American employed at Lufkin
18

Case 9:97-cv-00063-RC Document 89 Filed 03/31/99 Page 19 of 23
Industries. The second indicia of commonality concerns the homogeneity ofthe employment
practices being challenged. Inquiries into the size of the workforce, number of plants, variety of employment conditions, geographic location, and the degree of local autonomy attempt to assess the likelihood of a class of employees being similarly impacted by the challenged employment practices.
Lufkin Industries total workforce in 1997 was 1,856. African-American employees numbered 289. The company has five divisions: Foundry, Oil Field, Power Transmission, Trailer, and Administration. Over ninety-five percent of employees work in the four production divisions ofthe company. All of employees except for sales and oil field maintenance workers are located in one industrial complex in Lufkin, Texas. The home office in Lufkin controlled hiring and staffmg decisions for remote sales and maintenance offices. All entry level employees at the Lufkin plant are filtered through the central Human Resources Department. Wages, salaries and divisional assignments are determined centrally. Training, evaluation, promotion, demotion, termination, layoffs, recalls and rehires are determined by a subjective decision making process.
All challenged employment practices are either centrally controlled or proceed in parallel in the various divisions. The workforce is neither so large, nor so geographically diffuse, to attenuate the influence of policies and practices made by the Human Resources office. Significant responsibility resides in departmental decision making. However, this discretion is the precise target of the disparate impact claim. Lufkin Industries is structured and administrated in such a fashion that the challenged employment practices are likely to affect all class members similarly.
The third indicia of commonality addresses the homogeneity of the class itself. Class members must be similarly situated with respect to the employment practices under review. Race-based disparate impact claims necessarily imply a class consisting of plaintiffs with common questions of fact. The class here defmed does not encompass multiple ethnicities, or address claims based on gender, age, etc. Just as the challenged policies were of general applicability, the basis of the alleged discrimination was uniformly shared by the members of the class, i.e. their race.
19

, .

Case 9:97-cv-00063-RC Document 89 Filed 03/31/99 Page 20 of 23

The fourth indicia of commonality concerns the centralization ofthe employer's management organization with respect to the challenged employment policies, As was discussed above, the suspect employment practices were either centrally controlled or proceeded along parallel tracks in the different divisions, Those divisions did not exercise their discretion by adopting dissimilar objective criteria, rather they all practice a subjective decision-making process -- precisely the employment procedure being challenged.
The fifth indicia of commonality relates to the time frame of the claimed discrimination. The issue is the likelihood of employment practices remaining consistent throughout the period of the alleged discrimination. The class here is limited to those who can show injury since March 6, 1994. The court finds that employment conditions and practices have been substantially the same over the last five years.
The court finds ample evidence indicating a commonality of question of facts and law among the members of the proposed class. Our analysis pursuant to the Pan-Am standard has illustrated a wide base of common factual questions. The typicality analysis below outlines similarly shared legal issues.
TYPICALITY The typicality prong of the nexus requirement centers on the similarity of legal and remedial theories. Lightbourn, 118 F.3d at 426. Typicality is met where"[i]n the event the class members in this case were to proceed in a parallel action, they would advance legal and remedial theories similar, ifnot identical, to those advanced by the named plaintiffs." Lightbourn, 118 F.3d at 426. Allegations of a subjective personnel process that operates in a discriminatory way generally satisfies the typicality requirement of Rule 23(a). Shipes, 987 F.2d at 316; See also Lightbourn, 118 F.3d at 426. The named Plaintiffs have alleged that they have been disadvantaged by their race in terms ofjob assignments, advancement, training, transfer, compensation, conditions of employment, lay-offs, rehires, and demotion while employed at Lufkin Industries. They have
brought claims for injunctive relief under Title vn and 42 USC §1982.
The court took almost three days of testimony from more than ten class representatives and potential class members. This testimony indicated patterns of discrimination resulting from
20

Case 9:97-cv-00063-RC Document 89 Filed 03/31/99 Page 21 of 23
subjective employment practices. Witnesses offered similar accounts ofthe discriminatory impact of Lufkin's employment practices and often set their experience in a context of similar discrimination suffered by fellow African-American employees.
The discussion concerning Plaintiffs' prima facie case elaborated at length the elements necessary to make a claim of discrimination due to the disparate impact of subjective employment procedures. Any class member bringing suit independently would have to allege the same elements for their cause of action that the representative Plaintiffs have here. The legal claims made by the representative Plaintiffs are not idiosyncratic; they are typical of the claim available to all class members.
ADEQUACY OF REPRESENTATION The adequacy of representation requirement serves two functions. Like the commonality and typicality requirements, it assures that shared interests between the representative plaintiffs and the class as a whole are present, but it also functions to insure the absence of conflicts. Amchem, 117 S.Ct. 2231. To serve as representatives, named plaintiffs must have common interests with class members, a lack of interests adverse to class members, and must vigorously prosecute the interests of the class through qualified counsel. East Texas Motor Freight System Inc. v. Rodriguez, 431 U.S. 395,403,97 S.Ct. 1891,52 L.Ed.2d 453 (1977). This standard requires similarity, not identity, of interests. Carpenter v. Stephen F. Austin State University, 706 F.2d 608 (5th Cir.1983). The requirement of common interests with the class does not preclude unique interests, only adverse interests. The testimony of proposed class representatives, both live and by affidavit, establishes an extensive core of common interests that they share with the proposed class. While the experience of each individuals will likely be unique, there is no foundation to infer adversity from diversity. The evidence offered by Plaintiffs amply demonstrates that the experience of each individual class representative takes its form from a generally applicable system of employment practices. Lufkin argues at length against the adequacy of Sylvester McClain and Buford Thomas as class representatives. The court disagrees. The differences cited by defendant do not go to
21

Case 9:97-cv-00063-RC Document 89 Filed 03/31/99 Page 22 of 23
plaintiffs suitability or capacity to manage this action. We fmd that the interests ofthe set of representative are common to and consistent with those of the class with respect to the litigation and resolution ofthis law suit.
In addition the court has on file affidavits from seven additional class members who express their willingness to serve as class representatives. In the class certification hearing multiple witnesses also agreed, if called upon, to serve in that capacity. The court is firmly convinced that adequate class representatives are both present in the suit and available to serve. The court has continuing authority and ongoing obligation to adjust the class to serve the interests of the class members. Should the appointment of additional class representatives benefit the class, the court will move to do so.
Both the representative Plaintiffs and Plaintiffs' counsel have demonstrated their willingness, capacity, and dedication to pursuing these claims. Mr. McClain and Mr. Thomas have attended each court appearance involving this suit. Multiple potential class members testified in the class action hearing testified and via affidavit to their confidence in Thomas and McClain as class representatives. Counsel for the Plaintiffs are known to this court as trial lawyers experienced in employment law, civil rights actions, and complex litigation. Counsel have documented their qualifications through documents submitted to the court recounting the breadth of their experience in these areas of the law. Finally, class counsel have pursued this suit and related issues with an unmistakable zeal.
The court fmds that representative Plaintiffs and class counsel are adequate to the task of litigating this lawsuit. The court further finds that the proposed class satisfies the requirements of numerosity, typicality, and commonality. The court is firmly persuaded from careful consideration of the evidence adduced at the class certification hearing that Plaintiffs have met their burden with respect to the elements required by Rule 23(a).
RULE 23(b)(2) Having satisfied the requirements of 23(a), Plaintiffs must also satisfy one of the three subsections of Rule 23(b) to qualify for class certification. Amchem, 117 S.Ct. 2231, 2245. In this instance, Plaintiffs seek to be certified under Rule 23(b)(2). This provision requires a
22

Case 9:97-cv-00063-RC Document 89 Filed 03/31/99 Page 23 of 23

showing that, "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate fmal injunctive relief or corresponding declaratory relief with respect to the class as a whole." Fed R.Ev.23(b)(2). Civil rights cases alleging class-based discrimination are classic examples of suits suitable for certification under 23(b)(2). Amchem, 117 S.Ct. 2231, 2245.
For a class to be certified under 23(b)(2) the claims for injunctive relief must predominate. Allison v. CITGO, 151 F.3d 402 (1997). This requirement does allow for some forms of monetary relief, so long as this is not the predominant form of relief. Allison v. CITGO, 151 F.3d 402 (1997). "Monetary relief 'predominates' under Rule 23(b)(2) ... when the monetary relief being sought is less of a group remedy and instead depends more on the varying circumstances and merits of each potential class member's case." Allison v. CITGO, 151 F.3d 402 (1997).
Allison held that class-wide claims for compensatory and punitive damages are inconsistent with the structure of23(b)(2) classes. Here, however, Plaintiffs seek compensation and punitive damages individually and not as representatives ofthe class. "The district courts, in the exercise of their discretion, are in the best position to assess whether a monetary remedy is sufficiently incidental to a claim for injunctive or declaratory reliefto be appropriate in a (b)(2) class action." Allison v. CITGO, 151 F.3d 402 (1997)
Inspired by Alexander's answer to the Gordian Knot, the court here resolves any conflict between the alternate remedies by severing plaintiffs claims for monetary relief from class claims for injunctive relief. This done, injunctive relief unquestionably predominates; this class is suitable for certification pursuant 23(b)(2).

CONCLUSION After careful review of the copious evidence presented by both sides of the dispute, the court is persuaded that the proposed class satisfies all requirements for certification. The plaintiffs motion for certification of the class is therefore granted.

Signed this 31st day of March, 1999

(/L~

Howell Cobb United States District Judge

23

 
 Case 9:97-cv-00063-RC Document 626 Filed 04/07/09 Page 1 of 2

**NOT FOR PRINTED PUBLICATION**

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION

SYLVESTER MCCLAIN, on his own and on §

behalf of a class of similarly situated persons, §

et al.,

§

§

Plaintiffs,

§

§

v.

§

§

LUFKIN INDUSTRIES,

§

§

Defendant.

Civil Action No. 9:97-CV-063 JUDGE RON CLARK

ORDER

Plaintiffs Sylvester McClain et al. and Defendant Lufkin Industries propose to appoint

Industrial Organizational Psychologist Dr. Michael Campion to review Lufkin’s promotion

policies, procedures, and practices for hourly and salaried positions to determine if those policies,

procedures, and practices address and remedy the Court’s findings of unlawful subjectivity in

promotions. The court agrees that Dr. Campion should be appointed.

IT IS THEREFORE ORDERED that Dr. Michael Campion is appointed to review Lufkin

Industries’ promotion policies, procedures, and practices for hourly and salaried positions. Dr.

Campion shall submit his findings and recommendations in the form of a report to Lufkin

Industries, counsel for both parties, and the court within 90 days of this order. The parties shall

respond within 20 days to Dr. Campion’s report.

IT IS FURTHER ORDERED that in order to conduct his review, Dr. Campion shall have

the authority to (1) obtain and review written documents related to Lufkin Industries’ promotion

1

Case 9:97-cv-00063-RC Document 626 Filed 04/07/09 Page 2 of 2 policies, procedures, and practices for hourly and salaried positions from Lufkin Industries and Plaintiff Sylvester McClain et al.; (2) review the portions of the court’s record he deems necessary; (3) interview Lufkin Industries’ managers, employees and counsel; (4) interview Plaintiffs Sylvester McClain et al. and Plaintiffs’ counsel; and (5) contact Lufkin Industries’ unions and their representatives.
IT IS FURTHER ORDERED that Dr. Campion shall limit his investigation to no more than 160 hours unless further time is approved by the court upon a motion by one of the parties. Dr. Campion’s time, and reasonable expenses, shall be paid by Lufkin Industries within foruteen days of receipt of invoice.
So ORDERED and SIGNED this 7 day of April, 2009.
___________________________________ Ron Clark, United States District Judge
2

 
 Aur-01-200S 11 :5C4amase 9Fr:o9m7-U-ScvD-IC0T0R0IC6T 3JU-DRGCE HOWDELoLcCuOmBBent 225 F+il4e09d6504288/4041/03 PageT-510Sof 3P.001/00S F-619
"
.-: ..

.~

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DlVISION

FltED - Cl ER K
U.S. DISTRICT COU'RT
fffi] AUG - J Ali 11: 13

SYLVESTER MCCLAIN, et. a1.. Plaintiffs,
vs.
LUFKIN INDUSTRIES, Defendant.

TX EASTERN-BEAUMONT

§ § §

ey ___O_~/:.......;:.._ -f _

§

Case No. 9:97-CV-63

§

Judge Howell Cobb

§

§

ORDER

Before the court is Plaintiffs' Motion for Reconsideration of the Court's Ruling and Order

of July 11,2003 Dismissing Plaintiffs' Systemic Disparate Treatment Claims (dkt #210), In this

case, originally filed February 26, 1997, this court certified a class of African-American plaintiffs

on a disparate impact claim March 31, 1999. Lufkin Industries' ("Lufkin") petition for permission

to appeal was denied by the Fifth Circuit June 23, 1999,

The Plaintiffs, through counsel, seek the inclusion of a class systemic disparate treatment

claim. This is improper for several reasons. To maintain an action for disparate treatment, the

plaintiffs must show there is intent. or deliberateness to discriminate. Munoz y, Orr, 200 F.3d 291,

299 (5th Cir. 2000). After the Civil Rights Act of 1991, plaintiffs alleging disparate treatment and

pattern or practice claims are pennitted to recover compensatory and punitive damages for unlawful

intentional discrimination. 42 U.S.C. §1981 a(a)(1). As stated in the certification opinion, a Rule

23(b)(2) class action is appropriate when the final injunctive relief or corresponding declaratory

relief may be granted with respect to the class as a whole, and clain1.Q for injunctive or equitable

relief predominate. McClain v. Lufkin Industries, 187 F.R.D. 267, 282 (B.D. Tex. 1999); Federal

Rules ofCivil Procedure, 2003. In this case, ifa disparate treatment claim were allowed, individual

claims for monetary relief would predominate and it would no longer be appropriate as a Rule

1

Au,-01-2003 11 :54Camase F9ro:9m-7U-ScvD-IC0T0RI0CT63JU-DRGECHOWDELoLcCuOmBB ent 225 F+i4le09d6504288/404 1/03 PagTe-5203of 3P.002/003 F-619

-:

.. ,

23(b)(2) class. Plaintiffs attempt to allege a claim, that should factually be a Rule 23(b)(3) claim, under Rule 23(b)(2) by only seeking equitable and injunctive relief under systemic disparate treatment. However, such a disavowal of certain damages available under a disparate treatment claim may create a problem of a lack of adequate representation of the class by the class
representatives. Zachery v. Texaco Exploration & Prod., Inc., 185 F.R.D. 230, 244 (W.n. Tex.
1999). Finally, Plaintiffs are asking the court to reconsider the order"dismissingplaintiffs7 systemic disparate treatment claims." The primary reason the court is denying the motion is that a disparate treatment claim has not been "dismissed" because a disparate treatment claim was never certified. Rather, in an effort to preserve any disparate treatment claims individuals in the class may have, the court is providing mechanisms whereby those individuals may seek to have their individual disparate treatment claims severed out ofthe present action.' Based upon the facts ofthis case, this is the most efficient use ofjudicial resources.
There is no difference in the damages currently available to the plaintiffs and those under the claim they seek to add. Admittedly, there are different elements and forms of evidence which may be submitted under the different claims. However, while some anecdotal evidence could possibly be relevant, and even admissible at trial (this is not an open invitation to such evidence), an open-ended ruling allowing a disparate treatment claim may well result in a de-certification of the present class and require hundreds ofcases to be tried separately. See Allison v. Cirgo Petroleum Corp., 151 F.3d 402 (5th Cit. 1998). Accordingly, the motion for reconsideration is DENIED and OVERRULED.

lIndeed, if a disparate treatment claim were certified by this court and only injunctive and declaratory reliefwere sought, it could preclude individuals from later bringing individual disparate treatment claims for compensatory and punitive damages.
2

Au.-01-2003 11:54Camase F9ro:m9-7US-cDvI-C0TR0I0CT63JU-DRGECHOWDELoL cCuOBmB ent 225 F+i4l0e9d65402884/401/03 PagTe-5303of P3.003/003 F-619
.. "
The Plaintiffs' attorneys have sought an interlocutory appeal ofthe court's refusal to pennit the theory of disparate treatment to the United States Court of Appeals for the Fifth Circuit. That too is DENIED. Signed this 1st day of August, 2003.
HOWELL COBB UNITED STATES DISTRICT JUDGE

 
 Case 9:97-cv-00063-RC Document 19 Filed 10/22/97 Page 1 of 3
I
/

FOR THE EASTERN DISTRICT OF TE~ Q::l 22 M1 \\: \ \
r
I
LUFKIN DIVISION

SYLVESTER MCCLAIN and BUFORD THOMAS, on behalf of themselves and on behalf of a class of similarly situated persons,
Plaintiffs
v.
LUFKIN INDUSTRIES,
Defendant

§ § § § § § § 9: 97 CV 63 (TH) § § § § §

ORDER

Defendant seeks dismissal of plaintiffs' class claims. 1 It argues that plaintiffs provide no

evidence beyond conclusory allegations in their complaint to support their class claims.

Plaintiffs respond that defendant's refusal to allow discovery on class issues should result in the

motion being denied.

Plaintiffs' position possesses merit. A plaintiff alleging employment discrimination generally

should receive an opportunity to conduct discovery of the defendant as to facts going to the

1 Defendant's motion to dismiss is construed as motion to deny class certification brought under Federal Rule of Civil Procedure 23(c)(1). Compare Def.'s Reply to PIs.' Resp. in Opp'n to Def.'s Mot. To Dismiss Class Action Chiims at 4 [hereinafter Reply] with 2 Herbert Newberg & Alba Conte, Newberg on Class Actions § 7.06 (3d ed. 1992) (reporting that a motion for initial class determination often appears in the guise of a defense request to deny the class) and 7B Charles Alan Wright et aI., Federal Practice and Procedure § 1798 (2d ed. 1986) ("a party wishing to challenge the validity of maintaining the action under Rule 23 should move for determination under Rule 23(c)(1) that a class action is unwarranted"). Although viewed as going to the original complaint, which remained plaintiffs' live pleading until this date, the motion's arguments also appear relevant as to the first supplemental complaint.
1

1~

Case 9:97-cv-00063-RC Document 19 Filed 10/22/97 Page 2 of 3
maintainability of his or her class claims when the defendant exclusively controls the information pertaining to those facts. See. e.li:.. 5 Newberg & Conte, supra § 24.80. In this case, no discovery on class claims ever has been sanctioned. Compare Docket Control Order, entered June 19, 1997 (placing this case on a discovery track 3) with E.D. Tex. R. CV-26(b) (describing the discovery available under each discovery track).2 This situation presumably explains defendant's rejection of plaintiffs' request for voluntary disclosure of information relating to class claims. See PIs.' Supplemental Resp. in Opp'n to Def.'s Mot. to Dismiss Class Action Claims (Pl.'s Ex. 2).
The character of the evidence presented provides an additional reason for rejecting defendant's motion to dismiss. See Manual for Complex Litili:ation Third § 30.11 (1995) [hereinafter Manual] ("The court's principal concern should be to develop a record adequate to enable it to decide whether the prerequisites of Rule 23 have been met."); cf. 2 Newberg & Conte, supra § 7.09 ("If the court feels that information over and above affidavits and counteraffidavits of the parties with respect to the disputed class issues would be essential or helpful for an initial class determination, it may hold an evidentiary hearing limited to facts relevant to class issues."). Only one proffering, Paul G. Perez's first affidavit, directly goes to central charge of defendant's discrimination being across-the-board.3 Cf. General Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 158 & n.15, 102 S. Ct. 2364, 2371 & n.15, 72 L. Ed. 2d 740, _ & n.l5 (1982).
2 In a separate order, this case has been reassigned to discovery track five (5). 3 The lack of evidence impedes assessment of defendant's attacks on plaintiffs' EEOC charges. For example, would a finding of evidence sufficient to support certification of a class based on the across-the-board theory of discrimination make moot any defects in the timing or substance of plaintiff Buford Thomas' EEOC charge?
2

Case 9:97-cv-00063-RC Document 19 Filed 10/22/97 Page 3 of 3

Compare Def.'s Mot. to Dismiss Class Action Claims (Ex. A) with 5 Newberg & Conte, supra

§ 24.13.

These two circumstances lead the court to DENY defendant's motion to dismiss class claims

[9]. The parties must file a discovery plan relating to the question of class certification by

November 3, 1997. The plan must specify the kinds of information that discovery will seek to

uncover. See Manual § 30.12; cf. Fed. R. Civ. P. 26(f). See ~enerally 5 Newberg & Conte, supra

§§ 24.07-.15 (discussing Fa1con and its legacy). Plaintiffs must file their motion for class

certification by November 14, 1997. Defendant must respond to the motion by November 28,

1997. A hearing on the motion will be held at 1:00 p.m. on December 15, 1997, in Beaumont,

Texas.

1 ~y Signed this

of October, 1997."

THAD HEARTFIELD UNITED STATES DISTRICT JUDGE

3

 
 Case 9:97-cv-00063-RC Document 558 Filed 09/19/05 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION

SYLVESTER MCCLAIN, on his own

§

behalf and on behalf of a class of similarly §

situated persons, et al.

§

Plaintiff,

§

§

V.

§ Case No. 9:97-CV-063

§ Judge Ron Clark

LUFKIN INDUSTRIES,

§

§

Defendant.

§

ORDER DENYING MOTION FOR ATTORNEYS’ FEES WITHOUT PREJUDICE The court having considered Plaintiffs' Corrected Motion for a Supplemental Award of
Attorneys' Fees, Costs and Expenses [dkt. #556], it is hereby ORDERED that Plaintiffs’ Motion is DENIED WITHOUT PREJUDICE. The court will direct, by separate order, a new period for filing any motion for fees after all appeals have been resolved. The court does not foresee a need for further filings by either party until the appeals have been resolved. The parties are cautioned against running up large fees by engaging in extensive “satellite” litigation over fees or other matters. So ORDERED and SIGNED this 19 day of September, 2005.

___________________________________ Ron Clark, United States District Judge

 
 Case 9:97-cv-00063-RC Document 310 Filed 10/30/03 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION

McCLAIN, THOMAS, et al.

§

Plaintiffs,

v.

§ NO.9:97-CV-0063

LUFKIN INDUSTRIES, INC.

§

Defendant,

ORDER

On this day came on to be considered defendant's motion to amend the court's,

order certifying class [265], to exclude salaried employees.

The motion to amend the court's order certifying the class is hereby DENIED and

OVERRULED.

SIGNED this

~

~
day

o

f

October,

2003.

HOWELL COBB UNITED STATES DISTRICT JUDGE

 
 Nov-18-2003 04:4C0pamse 9F:r9om7--UcSvD-0IC0TR0I6CT3-JURDCGE HODWoELcL uCmOBBent 359 Fil+e40d9615412/81448/03 PageT-169o5 f 1P3.002 F-989

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DMSION

SYLVESTER MCCLAIN, et a1., Plaintiffs,
vs.
LUFKlN INDUSTRIES, Defendant.

§

ay __

§

---f-,4--=:::::::::....

§

§

Case No. 9:97-CV-63

§

Judge Howell Cobb

§

§

MEMORANDUM OPINION Three unions move this CO\lrt, under Federal Rule ofCivil Procedure 24(a)(2), to intervene ofright as parties defendant. This motion is DENIED because it fails the timeliness requirement of Rule 24(a)(2).
I. BACKGROUND The case before the Court is a Rule 23(b)(2) class action that alleges employment discrimination under the theory ofdisparate impact. This protracted and extremely adversarial action began over six years ago, on February 26, 1997, On that date, Plaintiffs Sylvester McClain and Buford Thomas filed their original complaint on their own behalf and on behalf of a class of
similarly situated persons.l Plaintiffs brought their lawsuit under Title vn of the Civil Rights Act
ofl964 and under 42 U.S.C. § 1981 against Lufkin Industries ("Lufkin"), alleging various fonns of racial discrimination in employment by Lufkin. Plaintiffs sought relief tbat included a variety of damages and equitable relief. Because the course of this action, from its incipience to the present

lThe suit was originally assigned to the Honorable Thad Heartfield, sitting in the Lufkin Division ofthe Eastem District of Texas. The SlUit was reassigned to this Court on May I, 1998.

Nov-18-200S 04:C40apmse 9:F9ro7m--UcSv-D0IC0T0R16C3T -JRUDCGE HDOWoELcLuCm08e8nt 359 Fil+e4d09615142/81484/03 PageT2-69o5f 13P,003

F-989

day, is both lengthy in rime and extensive in filings, this Court will only recite the most salient and peninent aspects of the history of this case.
Following more than two years of discovery, two class certification hearings, and reassignment ofthe case, this Court certified a class ofcertain former and present African-American employees ofLutkin Industries as Plaintiffs on March 31, 1999. See McClain v. Lufkin Indus., Inc., 187 F.R.D. 267 (E.D. Tex. 1999). Almost one year later, on March 7, 2000, one ofthe unions that has filed the present motion appeared before the CoUrt for the first time. The Glass. Molders. Pottery, Plastics & Allied Workers Intemational Union, AFL-CIO, eLC, and its affiliate. Local No. 429 ("GMP") moved to appear as amicus curiae. The OMP so moved "to protect its interest and the interest of its membership in preserving a collectively negotiated seniority system." GMP Memorandum of Law in Support of Motion to Appear as Amiclls Curiae, at 1. This motion was denied by the Court on March 10,2000.
Followingthe filing ofmyriad motions, the disposition ofmany ofthese motions, and another hearing before the Court, a motion to stay proceedings was granted on March 8, 2001, and the case was administratively closed pending mediation. Subsequently, the case was mediated for twO years without successful resolution. As a result of the failure of mediation, this Coun ordered the case reopened on March 14.2003, with a bench trial set for April 21, 2003. On March 26,2003, both parties agreed to continue this original trial setting to a date no earlier than September I, 2003. The Court set trial for October, 2003. In retrospect, this trial date was overly optimistic.
The past eight months, as one party has accurately stated. have seen the parties engage in "hard fought, contentious discovery and trial preparations." Plaintiffs' Opposition to Intervention, at 8. Both the parties; aud the Court have expended significant resources moving the case ever closer
2

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to trial. In this period, in a final effort at conciliation, the Court ordered the parties to mediate before the Honorable Magistrate Judge Wendell Radford. On September 4,2003, a mediation conference was held before Judge Radford, again resulting in no resolution betWeen the parties. The dispositive motion deadline passed on September 5,2003. On September 30, 2003, both parties filed their Proposed Pre-Trial Findings of Fact and Conclusions of Law. Three weeks later. on October 20, 2003, in a telephone conference with the parties, the Court set trial for December 4, 2003. On October 27,2003, the Court, after several considerations of a proposed notice to the class, entered a final order that a certain notice be pu.blished and sent to the class members. On October 30,2003, the Court set a motion hearing for November 11, 2003, to hear all pending motions and to serve as a final pre-trial conference.
Finally, on Friday, October 31, 2003, a mere thirty-four days before (he final trial setting and . following the rigorous efforts by all parties that have only been panially chronicled above, three unions moved to intervene ofright as parties defendant pursuant to Federal Rule ofCivil Procedure 24(a)(2), These unions included the International Association ofMachinists & Aerospace Workers, Local Lodge No. 1999, AFL-CrO/eLC ("lAM"); the Glass, Molders, Pottery, Plastics & Allied Workers Inremational Union, Local No. 429, AFL-CIO/CLC; and the International Association of Boilennakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, Local No. 587, AFL-CIO/CLC (UBoilennakers"), These unions, affiliates of the AFL-CrO, collectively constitute the bargaining representatives ofLufkin's hourly-rated employees. Lufkin and these unions negotiate a collective bargaining agreement ("CBA") that governs certain working conditions of Lufkin's hourly-rated employees. Currently, a CBA exists between the unions and Lufkin that is in effect through October 2,2005.
3

Nov-IS-ZOOS 04:4C0pamse 9F:r9om7-U-cSvD-0IC0TR0IC6T3-JURDGCE HODWEoLcL uCmOBBent 359 Fi+le40d9S1541Z/81448/03 PageT-4695of 1P3.OOS/OI5 F-S8S
The unions seek to intervene "in order to protect their legal and contractual rights, and the rights of their members, in preserving a collectively bargained seniority system." Unions' Motion to Intervene, at 2. They contend that they only "recently became aware that the Court is considering granting injunctive and equitable remedies to the plaintiffs, ifliability is established, that would have a substantial adverse impact on the seniority system." Id. They seek ten hours of participation at the liability stage of trial 'In order to fulfill their legal duty to represent the interests of all members of the bargaining unit, to ensure proper application of the seniority provisions in their collective bargaining agreement with Lufkin, and to address the propriety of retroactive or constructive seniority as a remedy." Id.
The Plaintiffs promptly responded to the unions' motion, and they opposed intervention at this date that is so close to trial. In their opposition to intervention, the Plaintiffs assert that the unions' morion fails to meet the requirements of Federal Rule of Civil Procedure 24(a)(2). The Court set rime to hear the motion during the pre-trial hearing ofNovember 13. 2003. On this date, the Court heard both the unions' and the parties' arguments on this l:natter. For the reasons set forth below, this Court finds that the unions' motion to intervene fails the timeliness requirement ofRule 24(a)(2) and shou1d thus be DENIED.
II. THE REQUIREMENTS FOR INTERVENTION OF RIGHT A motion to intervene ofright is governed by Federal Rule of Civil Procedure 24(a). The rule States that
[u]pon timely application anyone shall be penllitted to intervene in an action ...
when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by
4

Nov-18-Z00S 04:4C0pamse 9F:ro9m7-U-ScvD-I0CT0R0IC6T3J-URDGCE HODWEoLLcuCOmBBent 359 Fi+l4e0d965141Z8/4148/03 PageT-6595of 1P3.006/015 F-989
existing panies. Fed. R. Civ. P. 24(a)(2)(emphasis addedV The Fifth Circuit has established the following requirements that an applicant must meet in order to intervene ofright: "'(1) the applicant must file a timely application, (2) the applicant must claim an ,interest in the subject matter ofthe action, (3) the applicant must show that disposition ofthe action may impair or impede the applicant's ability to protect that interest, and (4) the applicant's interest must not be adequately represented by existing parties to the litigation. '" Heaton v. Monogram Credit Card Bank ofGeor., 297 F.3d 416, 422 (5th Cir. 2002)(quoting United Stales v. Franklin Parish Sch. Bd.• 47 F.3d 755, 756 (5th Cir. 1995». Failure to satisfy anyone requirement will defeat a motion to intervene of right. Edwards, 78 F.3d at 999 (citations omitted). However, the inquiry under Rule 24(a)(2) is "'a flexible one, which focuses on the particular facts and circumstances SUlToundingeachapplication.'" Id. (quoting UniredStates v. Texas E. Transmission Corp., 923 F.2d . 410,413 (5th Cir. 1991)). The application to intervene "'mustbe measured by a practical ratherthan technical yardstick.'" Id. The Fifth Circuit has reiterated that "'[f]ederal COWlS should allow intervention where no one would be hurt and the greater justice could be attained. ,.. Hearon, 297 F.3d at 422 (quoting John Doe No. J v. Gliclanan, 256 F.3d 371.375 (5th Cir. 2001»).
Because the Court fmds that the unions have failed to meet the timeliness requirement, the Court does not reach the other three requirements for intervention of right
2Rule 24(a)(2) is the applicable rule because the unions have not suggested that "a statute of the United States confers an unconditional right to intervene." See Fed. R. Civ. P. 24(a)(l). Section (a) ofRule 24 provides for mandatory intervention, while section (b) "affords a nonpany without an interest in the litigation sufficient to mandate intervention to join the proceeding through the exercise ofthe trial court's discretioll." Edwards Y. City o/Houston, 78 F.3d 983, 999 (5th Cir. 1996). The unions have not sought permissive intervention under section (b).
s

Nov-18-2003 04:41Cpmase F9ro:9m-7U-ScvDI-C0T0RI0CT63JU-DRGECHOWDELoLcCuOmBB ent 359 F+i4le09d65142184/14 8/03 PagTe-6695of P1.3007/015 F-989
III. THE REQUIREMENT OF TIMELINESS Detennining whether an applicant for intervention ofright has met the timeliness requirement of Rule 24(a)(2) is largely within the discretion of the trial court. Kneeland v. Nat'l Collegiate Athletic Ass 'n, 806 F.2d 1285. 1289 (5th Cir. 1987). The Fifth Circuit has developed four factors to guide this detel1ninariol1 of timeliness. See Stallworth v. Monsanto Co., 558 F.2d 257,264-66 (5th Cir. 1977). The Srallworth factors include:
(1) The length of time during which the would-be intervenor actually knew or reasonably should have mown of his interest in the case before he petitioned for leave to inteIVene;
(2) The extent of the prejudice that the existing panies to the litigatiol1 may suffer as a result of the would-be intervenor's failure to apply for intervention as soon as he actually knew or reasonably should have known of his interest in the case;
(3) The extent of the prejudice that the would-be intervenor may sutTer if his petition for leave to intervene is denied; and
(4) The existence of unusual circumstances militating for or against a detenninarion that the application is timely. ld.
The Stallworth factors are not intended to establish rigid parameters; rather they "mere1y comprise a framework for the analysis of this threshold consideration." Edwards, 78 FJd at 1000 (citing Corley v. Jackson Police Dep 't, 755 F.2d 1207, 1209 (5th Cir. 1985»_ Therefore, "[t]he~e are no absolute measures of timeliness; it is to be determined from all the circumstances." Heaton, 297
F.3d at 423 (citations omitted). With the Stallworth factors at the forefront ofits analysis, this Coun has detennined that the
unions' motion to intervene fails the timeliness requirement of Rule 24(a)(2). In making this detennination, the Court is mindful that "[t]he requirment of timeliness is not a tool of retribution to punish the tardy would-be intervenor, but rather a guard against prejudicing the original panies by the failure to apply sooner_" Sierra Club v- Espy, 18 F.3d 1202, 1205 (5th Cir. 1994)(citing
6

Nov-18-Z003 04:41Cpmase 9Fr:o9m7-U-ScvD-IC0T0RI0C6T 3JU-DRGCE HOWDELoLcCuOmBBent 359 F+i4le09d6514Z18/4148/03 PagTe-6795of 1P.300B/015 F-989
McDonald v. E.J. Lavina Co., 430 F.2d 1065. 1074 (5th Cir. 1970»). IV. ANALYSIS
'I'h:e first Srallworlh factor focuses on the time lapse between when the applicant receives actUal or constructive knowledge ofhis interest in the case and when he files the motion to intervene. Edwards, 78 F.3d at 1000. Thus, the "clock" begins ticking when the applicant for intervention knew or should have known ofhis interest in the case. [d. Relevant case law suggests that no magic amount oftime lapse favors timeliness or lack of timeliness. Compare Kneeland. 806 F.2d at 1289 (district court did not abuse its discretion in finding that four month lapse of time favors untimeliness) wiTh Association ofProfessional Flighr ATtendants v. Gibbs, 804 F.2d 318,321 (lapse of five months did not result in a fmding of untimeliness). Given the facts of this case, the Court finds that dle first Stallworth factor weighs against a finding of timeliness for the unions' motion to . intervene.
The unions argue that they first became aware that their interests may be affected in this litigation in April. 2003, following a March 31, 2003 letter by the Court to the parties that inquired about the propriety of reforming the departmental seniority provisions of the CBA as a remedy, if liability were established.~ Plaintiffs' counsel responded to this letter by arguing that the Court could not reform the CBA, but could award retroactive or constructive seniority. The unions assert that these correspondences, which they received in April, 2003, first gave them notice that their interest
3For the purposes of the timeliness analysis, the Coun will assume that the unions possess an interest in the subject maner of the action. However, the Court does not reach the finding of such an interest, the second requirement of intervention of right under Rule 24(a)(2). Such a finding is not necessary, as the unions' failure of the timeliness requirement disposes their motion. As may be seen, the unions have not clearly articulated their interest in the litigation and it has appeared to shift at times. This uncertainty has made the analysis of timeliness more difficult.
7

Nov-18-200S 04:41Cpmase 9Fr:o9m7-U-ScvD-IC0T0RI0C6T 3JU-DRGECHOWDELoLcCuOmBBent 359 F+il4e09d6514218/4148/03 PagTe-6895of 1P.3009/015 F-989
might be affected. However, at the hearing on the instant motion, the Coun stated for the record that if liability were established, it could not and would not refonn the CBA or award retroactive or constructive seniority. Neveltheless, the unions still pursued intervention, suggesting that their interest in the case was much broader than anything the Coun had first suggested in its letter of March 31,2003. If their interest is broader than any attempt by the Court to reform the CBA or interfere with seniority, the unions had notice ofthat interest for a long time. Yet, even if this was the first time that the unions became aware oftheir interest, aperiod ofmore than six months elapsed between notice and their application for intervention. The Court flllds that this significant delay weighs against a finding of timeliness.
However, as indicated, the Court maintains serious doubts that April, 2003 was the first date when the unions knew or should have known of their interest in this action. The unions have admitted that they fIrst became aware of this lawsuit around the time of the class cenification proceeding, in August of 1998. See Transcript ofMotions Hearing ofNovember 13,2003, at 5-6. Ifthe unions were aware of the suit at this time, then certainly they had knowledge or consn-uctive lmowledge of the Plaintiffs' Original Complaint, filed February 26., 1997. In the Original Complaint's Prayer for Relief, Plaintiffs asked for, among other things, "retroactive seniority, promotions, [and] priority placements." Plaintiffs' Original Complaint, at 11. Based on what the unions have argued is their interest in this litigation, the Court finds that the unions should have been aware ofthis interest from their first knowledge of the case, in the late months of 1998. A delay of five years weighs against a fmding of timeliness.
Furthermore, on February 11, 2000, the GMP fil~d a motion to appear as amicus curiae "in order to protect its interest and the interest of its membership in preserving a collectively negotiated
8

Nov-18-Z00S 04:4C1pamse 9F:r9om7-U-cSvD-I0C0TR0IC6T3J-URDGCE HODWEoLLcuCOmBBent 359 Fi+le40d96154128/1448/03 PageT-9695of 1P3.OIO/015 F-989
seniority system." OMP Memorandum ofLaw in Support of Motion to Appear as Amicus Curiae, at 1. In support of its motion~ the GMP asserted that it ''has a direct and substantial interest in the interpretation and application of the CBA.'· [d. at 4. The GMP further argued that "if the plaintiff class is ultimately successful in the underlying claims, any equitable or injunctive relief could affect seniority." [d. Finally, the GMP acknowledged that "[i]ndeed based on their interest in preserving the integritY of the CBA, the GMP could likely intervene as of right ... :' Id. at 4-5, n.6. The unions' current arguments to the Court regarding what constitutes their interest in this case largely echo these statements made in Febnlary, 2000. Therefore, it appears to the Coun that the unions had knowledge oftheir interest in this case almost four years before the instant motion to intervene of right.4 A delay of four years weighs agaillst a flnding of timeliness.
While the exact interest ofthe unions in this litigation has not been made clear, whatever that ·interest is, there was substantial delay between the first knowledge ofit and the filing ofthis motion to intervene. Thus, the first Stallworth factor weighs against a finding oftimeliness based upon the facts before the Court. S
The second Stallworth factor focuses on any prejudice caused the existillg parties by the applicant's failure to move for intervention as soon as possible after learning ofits interest in the case. Edwards, 78 F.3dat 1002. "This factor is concemedonlywith the prejudice caused by the applicant's
4Ifthe lAM and the BoilelTIlakers did not have actual knowledge at this point, they certainly had constructive knowledge.
SThe Court is aware that the Fifth Circuit has suggested that a motion to intervene filed prior to judgment favors timeliness under the first Stallworth factor. Edwards, 78 F.3d at 1001. Nevertheless, the case law suppons that some pre-trial motions may be found untimely. See, e.g., Kneeland, 806 F.2d at 1289; Uniced States v. Louisiana, 669 F.2d 314,315 (5th Cir. 1982). Because ofthe excessive delay in filing this motion to intervene, the first Stallworth factor may weigh against a finding of timeliness.
9

Nov-18-2003 04C:42apsme 9:F9ro7m--cUSv-D0f0CT0R6fC3T-RJUDCGE HDOWoEcLLumCOSeSnt 359 File+4d0916514/218484/03 Page T1-609Sof 1P3.Oll/015 F-9B9
delay, not that prejudice which may result if intervention is allowed." ld. The Col:lrt is aware that this second Stal/worth factor is critical and may bear the most significance in the timeliness analysis.
See Jones v. Caddo Parish Sch. Bd., 735 F.2d 923,946 (5th err. 1984)("Consideration ofprejudice
to existing parties ifthe intervention is allowed is critical.")~McDonald, 430 F.2d at 1073 ("The most important considerati on in determi ning timeliness is whether any ex.isting party to the litigation will be hanned or prejudiced by the proposed intervenor's delay in moving to intervene."); 7C Charles Alan Wright et a1.. Federal Practice and Procedure § 1916 (2d ed. 1986).
In this case, the unions' delay in moving to intervene as soon as they knew about their interest in the case substantially prejudices the Plaintiffs. As the Plaintiffs accurately anicu~ate in their brief opposing the motion to intervene, "[d]uring the past seven months, while the Unions remained silent, the parties and the Court have been engaged in hard fought, contentious discovery and trial preparations, including submission ofa Joint Final Pre-Trial Order, resolution ofnumerous motions that further defIne the issues formal and submission ofproposed findings offact and conclusions of law." Plaintiffs' Opposition to Intervention, at 7-8. Additionally, witness and exhibit lists have been exchanged, the flnal pre-trial conference has been held, and the final order on the conditions of the bench trial has been issued by the Court. Now, at this late hour, the unions seek ten hours oftrial time and the ability to cross-examine witnesses.6 The unions have provided no indication ofwhat any of their positions will be at trial, what evidence they will introduce, or how they will defend the case. While the unions do not seek to COllduct discovery, the Plaintiffs are entitled to and most likely would need to conduct discovery. With less than twenty days before trial ofthis complex case, it would be
6tJbe Coun has ordered that in the interests of efficiency and justice that both parties will be limited to twenty total hours of time at trial.
10

Nov-18-2003 04C:42apmse 9:F9ro7m--cUSv-D0I0CT0R6IC3T-RJUDCGE HDOWoEcLLumCOBeBnt 359 File+4d09165142/18484/03 PageT1-6195of 1P3.012/015 F-989
very difficult for Plaintiffs, in the midst of final trial preparations, to conduct discovery upon the unions. The Court believes that the most likely result would either be a significant delay in the trial setting in a case that has been pending for more than six years or, alternatively, ..trial by ambush."
·s, See Narraganselt Indian Tribe v. Ribo, Inc., 868 F.2d 8 (1st Cir. 1989). Either result would be
man'ifestly unfair and prejudicial to the Plaintiffs. Had the unions moved to intervene months earlier, prejudice would not have existed.7 In such
e case, Plaintiffs would have had the opponunity to conduct discovery and prepare for the unions' presence at trial. However, the unions did not take this course of action, and at this point in the litigation their delay significantly prejudices the Plaintiffs. Therefore, the second Stallworth factor weighs heavily against a finding that the unions' motion is timely.
The third Stallworth factor focuses on the prejudice caused the appli'cants iftheir motion for intervention is denied. Edwards, 78 F.3d at 1002. In cOllsjdering this factor, the Fifth Circuit has 'emphasized "the legal rights associated with fonnal intervention, namely the briefing of issues, presentation of evidence, and ability to appeal." Sierra Club, 18 F.3d at 1207. In Stallworth, the Court noted, in recognizing this factor, that it "arose OUt of a concern that a section (a) intervenor 'maybe seriously hanned if he is not permitted to intervene.''' Stallworth, 5S8 F.2d at 266.
Nevertheless, upon this consideration, the Court is of the opinion that denying the unions' interventio11 would not cause the unions substantial prejudice. Given that the Court intends neither to reform the CBA nor to overwrite the CBA in any fashion, any interest of the unions will not be adversely affected. Indeed, the pivotal event that finally inspired the unions to intervene, though six.
7Indeed, the Court welcomed intervention at an carlier time. At a status conference on March 27,2003, the Court suggested that, because it was considering remedies that might affect seniority, the unions be notified so that they might intervene if they so desired.
11

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months later, was the suggestion that the CBA might be amended or retroactive seniority granted. The Court has stated 011 the record that it will perform neither action. In light ofthese statements of the Coun, the unions have not argued or shown any substantial prejlldice that will result if their motion is denied. Funhermore, Plaintiffs' counsel has advised the unions that they will not oppose intervention in remedial proceedings if liability is established. See Plaintiffs' Opposrion to
Intervention, at 12, n.1S. Any prejudice that might be suffered by the unions would have to be vfr!'j
substantial in order to outweigh the prejudice to the Plaintiffs that the delay has caused. The fOUlth Stallworth factor focuses on the existence of unusual circumstances militating
either for or against a detenninatioll that the application is timely. Stallworth, 558 F.2d at 266. This factor appears to be a catch-all in the balancing of interests in the timeliness evaluation. The Stallworth Court provides an example: "if a would·be intervenor who had failed to apply for intervention promptly after he became aware of his interest in the case could advance a convincing justification for his tardiness, such as that for reasons other than lack of knowledge he was unable to intervene sooner, this would militate in favor of a finding that his petition was timely." Id.
The unions have failed to demonstrate the existence ofunusual circumstances that support a
determination of timeliness. The unions argue that the extensive mediations in this case led them to
hold a reasonable expectation that the panies would negotiate a resolution of the dispute, until September 22, 2003. On this date, counsel for the unions was notified by Lufkin's counsel that mediation had failed. This Court does not fmd that the reasonable beliefthat a case will settle is the type of convincing justification for tardiness that Stallworth contemplates. See Lelsz v. Kavanagh, 710 F.2d 1040, 1044-45 (5th Cir. 1983)(rejecting a similar argument). The unions had the ability to intervene during this period and affinnatively chose not to do so. Funhennore, given the fact that the
12

Nov-IS-ZOOS 04:42Cpmase 9Fr:o9m7-U-ScvD-IC0T0R0IC6T 3JU-DRGCE HOWDELoLcCuOmBBent 359 F+il4e09d6514218/4148/03 PageT-61953 ofP.10134/015 F-9S9

parties mediated for two years without an agreement, the unions' firm belief in settlement appears more dubious.
Lastly, at the hearing before the Coun, the unions suggested that their lack of financial resources may have played a role in their delay to file a motion to intervene in tbis case. While the Court is sympathetic of the unions' dilemma, the Court does not believe that the Plaintiffs should be penalized for the unions' financial situation. The unions could have intervened at a earlier time which would have both saved them costs and avoided prejudicing the Plaintiffs.
V. CONCLUSION After careful consideration ofthe Srallworrh factors, this Court, in its discretion, finds that the unions have failed the timeliness requirement of Rule 24(a)(2) in their effort to interVene of right. Ultimately, the Coun finds that any prejudice caused to the unions in denying their motion is outweighed by the substantial prejudice to the Plaintiffs if the motion is granted. Given the length ofdelaybetween their knowledge oftheir interest and their filing oftheir motion, in addition to a lack of unusual circumstances pointing to a finding of timeliness, the Coun finds that the Stallworth factors weigh strongly against a finding of timeliness. Consequently, the Court concludes that the unions have failed the timeliness l'equirement for intervention ofright. Because failure to satisfy any of the requirements of Rule 24(a)(2) will cause a motion to intervene of right to fail, the unions' motion to intervene is hereby DENIED. Signed on this eighteenth day ofNovember. 2003.

HO~LLCOBB

.

UNITED STATES DISTRICT JUDGE

13

 
 Case 9:97-cv-00063-RC Document 309 Filed 10/30/03 Page 1 of 1

, .---,."
IN THE UNITED STATES DISTRICT COU~l \:F~_r!"?-:: -";;-:T

FOR THE EASTERN DISTRICT OF TEXAtS')· '~. '-._ t,·'. (",-7

LUFKIN DIVISION

';;i'--i r~\ jU ;,d U (y
-ex ~_';~ J
"c.;, c.
U\STEi;jl - l/V';

McCLAIN, THOMAS, et al.

§

Plaintiffs,

---

BY_-"

-

v.

§ NO.9:97-CV-0063

LUFKIN INDUSTRIES, INC.

§

Defendant,

ORDER

On this day came on to be considered defendant's motion for partial summary

judgment [263].

The defendant's motion for partial summary judgment is hereby DENIED and

OVERRULED.

IA-

n SIGNED this

day of October, 2003.

HOWELL COBB UNITED STATES DISTRICT JUDGE

 
 Jul-11-2003 04:26pmCaseFro9m:-9US7-DcIvCT-R0I0CT06JU3DG-RE CHOWELDL oCcOBuBment 205 +F40il9e65d4208474/11/03 PaTg-4e651 oPf .3002/004 F-554

FILED - CLERK
u.s. DtSTr~:CT COURT

IN THE UNITED STATES DISTRICT COURT 2m3 JUL II PH Q: 24

FOR THE EASTERN DISTRICT OF TEXAS

LUFKIN DIVISION

TXEAST~

SYLVBSTERMCCLAIN, et. at, Plaintiffs,
vs.
LUFKIN INDUSTRIES, Defendant.

§

BY ____~__~____

§

§

§

Case No. 9:97-CV-63

§

Judge Howell Cobb

§

§

ORDER

Before the court are nine motions. After review of the record and upon consideration, the

court made the following rulings at the July 11, 2003, hearing. This order is to clarify and

supplement the rulings made from the bench, is not intended as a complete summary of those

rulings, and should be read in conjunction with the hearing transcript. Accordingly, it is

ORDERED, Defendant's Motion to Dismiss Plaintiffs' Disparate Treatment Class Claims

(Dkt #117), filed July 3, 2000, is GRANTED to the extent that any disparate treatment or individual

claims, ifasserted, will be severed from this case. Any such claims will be considered to have been

part of this action until severed, thereby tolling the limitations periods. Potential damages in this

action will be limited to those available under disparate impact claims. It is further,

ORDERED, Plaintiff Class' Motion to Bifurcate Trial and for Discretionary Notice (Dkr

#144), filed October 3.2000, is DENIED as to bifurcation and GRANTED as to notice. Notice shall

be published and sent to all class members, as identified by the plaintiff representatives. It shall

inform. the individuals they are part ofa disparate impact class action against Lufkin Industries, the

action is not for disparate treatment or individual claims and class members are responsible for

pursuing those claims individually, any individual claims will be severed ifpursued, class members

can pursue certain individual claims and still be a member of the class, this action only seeks

1

Jul-ll-Z00a 04:Z6pCm aseFr9om:9-U7S-cDIvC-T0RI0C0T 6JU3D-GRE CHOWEDLLoCcOuBBment 205 +F40il9e6d54Z08744/11/03 PagT-e4652 ofP.3003/004 F-554
injunctive and equitable relief, class members may opt-out ofthe lawsuit with the court's approval if they wish to pursue a separate action or if they do not wish to be a part of any action against Lufkin Industries. The notice shall provide procedures for class members to respond. It is further,
ORDERED. Plaintiffs' Request for Relief (Dkt #191), filed June 3, 2003, has been GRANTED. It is further,
ORDERED, Plaintiffs' Motion for Protective Order to Prohibit Defendant from Seeking Discovery frorn Absent Class Members (Dkt #192), filed June 9, 2003, is GRANTED to the extent that defendant shall seek approval from the court before engaging in discovery, beyond that granted at the hearing, of absent class members. Plaintiff representatives shall furnish the names and addresses ofall class members, but defendant shall not seek additional information, including social security numbers, without showing of good cause for such discovery. It is f'UIther,
ORDERED, Defendant's Motion to Compel Answers to Interrogatories and to Expand Number of Interrogatories to SO (Dkt #187), filed May 12,2003, is DENIED. It is further,
ORDERED, Defendant's Motion for Leave to Serve Written Discovery on Class (Dkt #194), filed June 20, 2003, is DENIED, subject to Defendant obtaining approval from the court. It is further,
ORDERED, Defendant's Second Motion to Compel Responses to First Set of Interrogatories Nos. 1 and 2 (Dkt #203), filed July 3,2003, is GRANTED to the extent that plaintiffs shall be required to supplement theirresponses to the interrogatories within ten days. Plaintiffs shall answer with greater particularity. It is funher,
ORDERED, Defendant's Objection to Trial in Beaumont and Motion to Transfer Case to Lufkin for Trial (Dkt #202), filed July 3, 2003, is DENIED. This is an equitable matter to be tried before the court, and the trial will be held in Beaumont in accordance with the Docket Control
2

Jul-11-2003 04:26pCmaseF9ro:m9-U7S-cDvIC-T0R0IC0T6J3UD-RGECHOWDELLocCOuBmB ent 205 F+4il0e96d5402874/411/03 PagTe-4635 ofP3.004/004 F-554
Order, signed April 16, 2003, as submitted and agreed upon by the parties. It is further, ORDERED, Plaintiffs' Request to Discover Redacted Portions of Lufkin Industries
Affinnative Action Plans, written May 5, 2003, is GRANTED to the extent that defendant shall furnish the requested materials for in camera inspection by the coun for review of their relevance. It is further.
ORDERED, any individual who is to testify at trial shall be designated and made available for deposition. In addition, the defendant may take the depositions of up to twenty absent class members. The plaintiffmay also take up to twenty depositions. Signed this 11th day of July, 2003.
HOWELL COBB UNITED STATES DISTRICT JUDGE
J

 
 Case 9:97-cv-00063-RC Document 621 Filed 04/02/09 Page 1 of 24

**NOT FOR PRINTED PUBLICATION**

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION

SYLVESTER MCCLAIN, on his own and on §

behalf of a class of similarly situated persons, §

et al.,

§

§

Plaintiffs,

§

§

v.

§

§

LUFKIN INDUSTRIES, INC.

§

§

Defendant.

Civil Action No. 9:97-CV-063 JUDGE RON CLARK

ORDER Re: ATTORNEYS’ FEES

Plaintiffs move for an interim award of attorneys’ fees, costs and expenses. [Doc. #599].

The motion includes a request of attorneys’ fees, and the costs and expenses previously awarded

by Judge Cobb. Plaintiffs also submitted a Supplemental Bill of Taxable Costs [Doc. #600],

requesting costs accrued after Judge Cobb’s award. By applying the lodestar methodology, the

court awards attorneys’ fees totaling $4,740,195.80. The court also awards $140,562.26 in costs

and $932,603.84 in litigation related expenses.

I. BACKGROUND

February 26, 1997

Plaintiffs filed an employment discrimination suit alleging that Defendant Lufkin Industries, Inc. engaged in racial discrimination in violation of Title VII and 42 U.S.C. § 1981.

March 31, 1999

The court granted Plaintiffs’ motion for class certification.

January 13, 2005

After a bench trial, Judge Cobb entered a Memorandum and Order finding that Defendant Lufkin Industries discriminated by unlawfully making initial assignment and promotion decisions that

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Case 9:97-cv-00063-RC Document 621 Filed 04/02/09 Page 2 of 24

January 19, 2005

disparately impacted Plaintiffs. [Doc. #461]. The court ordered Lufkin Industries to pay class back pay pursuant to a formula and awarded injunctive relief. Judge Cobb entered final judgment a day later. [Doc. #462].
On Plaintiffs’ motion, Judge Cobb ordered further proceedings “to determine the specific details of non-monetary remedial measures and to enter such supplemental remedial orders as may be necessary and appropriate.” [Doc. #464].

March 10, 2005 August 29, 2005
February 29, 2008

Plaintiffs filed an initial motion for an award of attorneys’ fees and costs. [Doc. Nos. 499-502].
The court entered an Amended Final Judgment, reiterating a finding of discrimination, ordered Lufkin Industries to pay back pay, entered an injunction, and awarded attorneys’ fees and costs. [Doc. #552].
The Fifth Circuit vacated the injunctive order and remanded to this court to craft a more specific remedial order. The Fifth Circuit also reversed and remanded the portion of Judge Cobb’s order awarding damages and attorneys’ fees indicating that additional analysis was necessary. McClain v. Lufkin Industries, Inc., 519 F.3d 264 (5th Cir. 2008).

II. APPLICABLE LAW Title VII provides that a court may, in its discretion, award the “prevailing party” in any action under that subchapter “a reasonable attorney’s fee.” 42 U.S.C. § 2000e-5(k). A plaintiff may be considered a “prevailing party” if he succeeds on any significant issue in litigation that achieves some of the benefit the party sought in filing suit. Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S. Ct. 1933, 1939 (1983). Fee applicants bear the burden to show the reasonableness of the hours billed and must provide evidence in addition to their own affidavits. Blum v.

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Stenson, 465 U.S. 886, 896, 104 S.Ct. 1541, 1547 (1984); Walker v. U.S. Dept. of Housing & Urban Dev., 99 F.3d 761, 770 (5th Cir. 1996).
The determination of what is a “reasonable attorney’s fee” is left to the discretion of the trial court. Hensley, 461 U.S. at 433. To decide the appropriate attorney’s fee, the trial court must calculate a “lodestar” fee by multiplying the number of hours reasonably expended on the case by a reasonable hourly rate. Rutherford v. Harris County, 197 F.3d 173, 192 (5th Cir. 1999).
The court should exclude time that is “excessive, duplicative, or inadequately documented” from the number of hours reasonably expended. Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir. 1993) (citing Hensley, 461 U.S. at 432-34, 103 S.Ct. at 1939; Von Clark v. Butler, 916 F.2d 255, 259 (5th Cir.1990)).
A reasonable hourly rate is set by the prevailing market rate charged by local attorneys. Blum, 465 U.S. at 895, 104 S.Ct. at 1547. A rate is reasonable if it is “in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Blum, 465 U.S. at 896, 104 S.Ct. at 1547. Thus, a more experienced attorney with expertise in a particular area of law may command a higher rate. The applicant must provide evidence of the education and experience of each attorney and paralegal for whom fees are requested.
Generally, the reasonable hourly rate is established through affidavits of other attorneys practicing in the district. Tollett v. City of Kemah, 285 F.3d 357, 368-69 (5th Cir. 2002). If the court deviates from an attorney’s normal billing rate which falls within the range of market rates
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for similarly capable attorneys, the court must articulate its reasoning. Watkins v. Fordice, 7 F.3d 453, 459 (5th Cir. 1993).
To adjust for inflation, deferred payment, and unpaid interest, the court may award attorneys’ fees at the current hourly rate instead of historic hourly rates charged during the litigation process. Missouri v. Jenkin by Agyei, 491 U.S. 274, 284, 109 S.Ct. 2463, (1989) (holding that plaintiffs are entitled to “an appropriate adjustment for delay in payment-whether by the application of current rather than historic hourly rates or otherwise.”).
Where the claimed rate and number of hours are established as reasonable, the resulting product is presumed to be reasonable. Blum, 465 U.S. at 897, 104 S. Ct. at 1548. A presumption exists that the calculated lodestar is the reasonable fee and should only be modified in an exceptional case. Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir. 1993).
In determining whether to modify a lodestar, the court considers the twelve Johnson factors. Rutherford v. Harris County, Tex., 197 F.3d 173, 192 (5th Cir.1999). The Johnson factors are: (1) time and labor required; (2) novelty and complication of the issues; (3) skill required; (4) whether the attorney had to refuse other work to litigate the case; (5) attorney’s customary fee; (6) whether fee is fixed or contingent; (7) whether the client or case circumstances imposed any time constraints; (8) the amount involved and the results obtained; (9) attorney’s experience, reputation, and ability; (10) whether the case was “undesirable;” (11) nature and length of relationship with the clients; and (12) awards in similar cases. Id. at n.23; Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). “[T]he most critical factor in determining the reasonableness of a fee award in a civil rights suit is the degree of success
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obtained.” Giles v. Gen. Elec. Co., 245 F.3d 474, 491 n.31 (5th Cir. 2001) (quoting Farrar v. Hobby, 506 U.S. 103, 114, 113 S. Ct. 566 (1992)).
III. ANALYSIS A. Prevailing Party
It is uncontested that Plaintiffs are the prevailing party. Judge Cobb previously found for Plaintiffs and the Fifth Circuit affirmed most of the District Court’s findings, including the finding of unlawful disparate impact resulting from Lufkin’s subjective decision making. Plaintiffs will obtain class back pay and an injunction. Plaintiffs sought this relief and are the prevailing party. B. Number of Hours
Plaintiffs assert that the hours billed are reasonable because new legal theories of “classwide discrimination arising from subjective decision making” were involved for which “no blueprint” was available. Doc. #599 at 12. Plaintiffs further contend that business judgment was exercised by deleting over 3,000 hours from time actually billed. Id. at 13. They provide detailed billing records for the attorneys and staff who worked at the law firm Goldstein, Demchak, Baller, Borgen & Dardarian (“the Demchak Firm”) (Doc. #599, Ex. 24 to the Declaration of Teresa Demchak) and those who worked at the law firm of Stucky, Garrigan & Castetter (“the Garrigan Firm”) (Doc. #599, Ex. 1 to Declaration of Timothy B. Garrigan).
Defendant objects to certain time billed on the basis that certain entries are duplicative or excessive time billed, the Demchak Firm overstaffed, the partners participated in work that lower paying attorneys could handle, the Garrigan Firm’s records are alleged inadequate, and individuals billed non-working travel time at their full hourly rate. Id. at 15-19.
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1. Allegedly Excessive, Duplicative, or Overstaffed Time Excessive or duplicative time should be excluded. Watkins v. Fordice, 7 F.3d 453, 457
(5th Cir. 1993). The court also excludes hours that are overstaffed, being mindful that “the skill and experience of lawyers vary widely.” Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 1939-40 (1983). a. June 28, 2000 to November 30, 2000
Defendants assert that the Demchak Firm charged excessive fees before being appointed counsel for Plaintiffs as they charged approximately 422 hours to review papers, research and confer to decide if they wanted to be involved in the case during the time period between June 28, 2000 and November 30, 2000.1 Reviewing the detailed records kept by the Demchak Firm, the court does not find excessive or duplicative time entries. Attorneys for the Demchak Firm reviewed the case documents during this time period. A review of the case is necessary to understand the legal and factual issues involved in the litigation. The attorneys also performed more substantive work on issues, such as (1) who would be an appropriate mediator; (2) potential bifurcation of the trial; and (3) providing notice to possible class members, including preparing for meetings with union representatives. All of these hours should be included in the lodestar calculation.
1Defendants assert that approximately 422 hours were billed between June 28, 2000 and October 2, 2000 by the Demchak Firm, citing the Declaration of Carolyn Wood. The declaration indicates that 422.4 hours were performed by the Demchak Firm between June 28, 2000 and November 30, 2008. The court assumes this is the appropriate time frame Defendant intended to indicate in its response.
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b. December 2000 to May 2003 Defendant objects to the amount billed between December 2000 and May 2003 when the
parties were mediating the case. Defendant insinuates that the amount charged is excessive because on a per day of mediation, the amount charged is large. However, Defendant billed for a number of activities over the two and a half year period and there were 22 days of mediation over that time frame. Dividing the total amount billed of the entire period by the number of mediations does not provide an accurate reflection of all of the work that occurred. Rather it is simply an attempt to skew the numbers to appear more favorable to Defendant’s position.
Defendant further objects to the number of attorneys present at the mediations, with as many as four attorneys present at some of them. Defendant does not object to any specific entries or discuss why all attorneys were not needed at the mediations. For example, Defendant does not assert that it had only one attorney present. The court does not find any excessive or duplicative entries that must be removed. c. The number of hours billed during depositions
Defendant criticizes the number of hours Plaintiffs’ counsel spent taking depositions. Defendant objects to the number of attorneys present during five depositions in which at least two and once three attorneys were present. Usually, this court would find it excessive for more than two attorneys to attend a deposition in a complex case — one deposing the witness and another aiding the deposing attorney. Defendant has not asserted that a second attorney was not necessary, or at least helpful, at any deposition. Given the issues in this particular case, the fact that Ms. Demchak, a lead partner, was also present at one, or even a few, depositions is not
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Case 9:97-cv-00063-RC Document 621 Filed 04/02/09 Page 8 of 24

excessive. The court finds that the time billed for depositions is reasonable and will not be excluded. d. The number of lawyers present at trial
Defendants indicate that Plaintiffs had five lawyers at counsel table during the first phase of trial then three lawyers present during the second phase of trial. Defendants do not provide the number of attorneys present at their table and do not indicate that they only had one attorney present. The court does not find the number of Plaintiffs’ attorneys present at trial to be an excessive number given the complexity of the case. Multiple attorneys are often needed in complex cases. The court does not find this to be duplicative or excessive. e. The number of hours spent reviewing documents
Defendants object to the 782.4 hours that the Demchak Firm spent analyzing and reviewing bid sheets. It is uncontested that Plaintiffs’ own expert considered the bid sheets unreadable and not worthy of analysis. It may be reasonable for senior attorneys to review the bid sheets and the expert’s opinions, but once an expert determined that the bid sheets were not worthy of analysis, additional time spent by paralegals and younger attorneys was unnecessary. The Demchak Firm makes no showing that the timed billed was prior to the expert’s determination. The following time for review of bid sheets will be excluded.

Reviewer Konecky Dungan Rafanan Gurtner

Number of Hours Spent 7.60 363.90 134.40 216.50

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Case 9:97-cv-00063-RC Document 621 Filed 04/02/09 Page 9 of 24

Stern

167.50

2. Litigation Activities of Partners Defendant objects to certain activities to which partners Ms.Demchak and Mr. Baller
billed their time. Specifically, Defendants assert that Ms. Demchak should not have billed such excessive hours to draft Findings of Fact and Conclusions of Law; prepare for and attend depositions; discovery; or spend so much time drafting Plaintiffs’ First Motion for Attorneys Fees; and that Mr. Baller should not have billed such excessive hours to draft Findings of Fact and Conclusions of Law.
The court recognizes that good attorneys litigate in their own manner and does not require an attorney to practice in a certain way. While Ms. Demchak engaged in tasks often associated with attorneys more junior than herself, it is possible that she completed these tasks more quickly, with less need for subsequent review and revision by another attorney. League of United Latin American Citizens No. 4552 (LULAC) v. Roscoe Independent School Dist., 119 F.3d 1228, 1233, n.3 (5th Cir. 1997). It is also understandable that she wished to take part in the drafting of the Motion for Attorney Fees due to the large amount owed to Plaintiffs’ counsel. The court does not find that any of these activities in which Ms. Demchak and Mr. Baller participated were unnecessary and should be excluded. 3. The Garrigan Firm’s Records
Defendant contends that the Garrigan Firm’s Records are inadequate because they lack detail. Doc. #610 at 18. Defendant does not cite specific examples, rather asserting that the Garrigan Firm’s records “consist almost entirely” of non-detailed entries. While inadequate documentation may reduce the award of attorneys’ fees, the court finds the Garrigan Firm’s

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records sufficiently detained to determine (1) the activity; (2) the participants; and (3) the work

product. See Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir. 1993). While not verbose, the

Garrigan Firm’s records provide sufficient detail to understand the nature of the work. A

representative entry, the time entry on September 4, 2003, states:

travel: Nac-Beaumont-Nac mediation post-mediation mtg w/ Atty Demchak & clients

5 hr 7 hr 30 min
30 min

Doc. #599, Ex. 1 to Declaration of Timothy Garrigan at p. 92.

The court is easily able to determine that Mr. Garrigan traveled from Nacogdoches, TX to

Beaumont, TX then drove back to Nacogdoches. He also attended a mediation between the

parties and then had a meeting with his clients and Ms. Demchak.

Moreover, because Mr. Garrigan interacted with his co-counsel from the Demchak Firm,

many cross-references exist in each firm’s billing records. These provide the additional

clarification desired and the court sees no reason to reduce the hours billed by the Garrigan Firm.

4. Travel Billed at the Full Rate

Defendant contends that Plaintiffs’ counsel are not entitled to the full billing rate for

travel time. The Demchak Firm billed 545 hours of travel time, in addition to the 153 hours of

working travel time, while the Garrigan Firm billed 301 hours of travel time. An attorney’s stock

in trade consists of knowledge, the ability to communicate and time. The court finds it

reasonable to travel to a deposition, mediation, or trial and bill the time at an attorneys’ full rate.

Working while traveling is often difficult and is unsafe if the attorney is driving a car. It might

be unreasonable for an attorney to bill large amounts of travel time for a short event of relatively

minor importance that could be handled telephonically or by local counsel, but there is no

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indication that this occurred. When attorneys from the Demchak Firm traveled to the Eastern District they performed multiple functions, such as a deposition coupled with a number of days of mediation. The court does not find that either the Garrigan Firm or the Demchak Firm has excessively billed travel time. The court will not make reductions for any travel time. 5. Summary of Excluded Hours
The total number of hours the court will exclude for all unreasonable entries, objected to by Defendant or found by the court, is as follows:

Attorney Konecky Dungan Rafanan Gurtner Stern

Total Hours Excluded 7.6 363.9 134.4 216.5 167.5

C. Appropriate Rate 1. Mr. Garrigan of the Garrigan Firm
Mr. Garrigan bills his time at $400/hr. To support his billing rate he offers affidavits of partners who engage in complex litigation in the Eastern District of Texas, namely Clayton Dark, Claude Welch, and Otis Carroll.2 These attorneys practice regularly in this court, and the court is familiar with their qualifications and the quality of their work. They state that Mr. Garrigan’s rate of $400/hr is reasonable.

2Stephen D. Susman also provided his billing rate, but he practices nationally and is located in Houston, which is located in the Southern District of Texas, not the Eastern District. The court does not find his affidavit probative of the rates charged in the Eastern District of Texas.
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Mr. Garrigan’s comparison to those who participate in complex litigation is appropriate. This class action was complex. See Amchem Prods. v. Windsor, 521 U.S. 591, 614, 117 S. Ct. 2231, 2245 (1997); Gates v. Cook, 234 F.3d 221, 227 (5th Cir. 2000) (“It is a well-established principle that district courts enjoy wide latitude in managing complex litigation in general and class actions in particular.”); Fed. R. Civ. P. 23 (g)(1)(A)(ii); see also Manual for Complex Litigation § 21 (4th ed. 2004).
Depending on the circumstances, a “normal” employment law case may also qualify as complex litigation. Manual for Complex Litigation § 32.1 (4th ed. 2004) (“complexity can be introduced into employment discrimination suits by class action allegations, questions regarding the scope of discovery, the technical nature of expert testimony, and issues relating to the granting of relief, whether by way of judgment or consent decree.”). When the class was certified, Judge Cobb approved Mr. Garrigan as class counsel because he was experienced both in employment law and complex litigation. McClain v. Lufkin Indus., Inc., 187 F.R.D. 267, 282 (E.D. Tex. 1999). The class action and the nature of the case which involved discrimination in the hiring and promotion procedures at Lufkin Industries and the asserted legal theories makes this case a complex case.
Attorneys experienced in employment law from the Eastern District of Texas agree that the case needed to be handled by attorneys experienced in complex litigation and find the rates charged by Mr. Garrigan are reasonable. See e.g. Declaration of Joe C. Tooley at ¶1 (stating that Mr. Garrigan’s request of $400/hr is within the range of fees charged by those in the Eastern
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District of Texas who handle complex litigation matters);3 Declaration of Franklin Jones, Jr. at 2 (stating that Mr. Garrigan’s rate of $400/hr is within the range of fees paid to attorneys in the Eastern District of Texas).4 The court will therefore apply a $400/hr rate for the work performed by Mr. Garrigan. 2. Partners at the Goldstein Demchak Law Firm
Plaintiffs contend that the court should disregard the local rates for the Goldstein Demchak Law Firm (“Demchak Firm”) and apply a rate commensurate with attorneys from the northern California area where the Demchak Firm is located because of its unique experience dealing with employment discrimination class action cases.
When the Demchak Firm entered the case in 2000, Mr. Garrigan had already certified the case and Lufkin’s appeal had been rejected. While it was still necessary to mediate the case, complete discovery, and try the case, Mr. Garrigan participated to a greater extent than any other attorney. He certified the class, was lead counsel throughout the entirety of the case, and examined 11 out of 22 witnesses at trial. The Demchak Firm possessed experience settling class action employment cases, but there is no evidence to suggest that they were experienced at trying such cases.
Plaintiffs have firmly established that in calculating the fee for Mr. Garrigan the appropriate community for rate comparison purposes are those who participate in complex litigation in the Eastern District of Texas. It would be difficult to justify assigning a higher
3 The court will take notice that Mr. Tooley practices in the field of civil rights in the district.
4 The court is familiar with Mr. Jones’ experience in the district. 13

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hourly rate to second-chair attorneys, no matter how skilled in employment law. No unusual circumstances exist to suggest that those in the Eastern District who have experience with complex litigation were unavailable and could not have effectively participated. The court is aware of many attorneys in the Eastern District experienced in employment law and complex litigation. Two who would not be likely to have a conflict with Lufkin Industries are Clyde Siebman and John Werner. Absent sufficient evidence that experienced, qualified local counsel were unwilling to participate, the court will not assume counsel from distant states were necessary. Counsel at the Demchak Firm are located in Oakland, California, but it was their choice to participate on this case. Mr. Garrigan brought the suit, certified the class and carried the yeoman’s burden at depositions and trial. Based on the affidavits, Mr. Garrigan was the attorney with extensive experience as first chair in actual trials. The Demchak Firm’s attorneys undoubtedly provided valuable support but they cannot expect to receive rates fifty percent higher than Mr. Garrigan’s, especially when the court has approved the time they spent in traveling from California.
Hourly rates should be computed according to the prevailing market rates in the relevant legal market. Van Ooteghem v. Gray, 774 F.2d 1332, 1338 (5th Cir. 1985). This court will apply local rates for the Demchak Firm. Hopwood v. State of Texas, 236 F.3d 256, (5th Cir. 2000) (affirming the district court’s reduction in the hourly rate of Theodore Olson, an appellate litigator of note whose rate had been upheld as reasonable by the D.C. Circuit in an unrelated case, because the relevant market was Austin, TX, not the District of Columbia).
However, the rates should not be less than $250/hr, as Defendant contends. Doc. #610 at 14. Partners from the Demchak Firm actively participated in discovery, conducted a number of
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depositions and examined 11 witnesses at trial. Their contributions provided valuable secondchair assistance to Mr. Garrigan. The court will apply the hourly market rate for all partners at the Demchak Firm at $400/hr, the same market rate charged by Mr. Garrigan. This includes Teresa K. Demchak, Morris J. Baller, David A. Borgen, and Linda M. Dardarian. 3. Associates, Law Clerks, Paralegals and Case Clerks
The Garrigan Firm billed time for a paralegal, and the Demchak Firm billed time for associates, a law clerk, senior paralegals, paralegals, and case clerks. The individuals billed between $110/hr and $465/hr. Plaintiffs fail to provide any affidavits from attorneys practicing in the Eastern District of Texas setting out reasonable ranges for associates, law clerks, paralegals, or case clerks. The court is left with the representations made by Defendant and the attorneys who provided affidavits to Defendant.
Defendants provide specific rate information from three different attorneys located in the Eastern District of Texas — Curtis Fenley, Larry Germer, and Richard Alderman. The maximum rates charged by the attorneys for associates is $125 at Mr. Fenley’s firm and $160 at Mr. Germer’s firm. Defendants’ associates are qualified and the court will use the $160/hr fee set by Mr. Germer’s firm as the appropriate market rate for associates.
The Garrigan Firm billed its paralegal at $125/hr. As discussed above, the Garrigan Firm billed its partner’s time at the market rate. The court likewise finds that the Garrigan Firm billed its paralegal, Ms. Davis, at the appropriate market rate for this complex case, given her extensive experience, and will use this $125/hr fee as the market rate for the hours billed by The Demchak Firm’s “Senior Paralegals.” The other paralegals and case clerks will be billed at the rate requested, as these lower rates appear commensurate with their experience and responsibilities.
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In sum, the court determines the rate to be applied in the lodestar calculation for each individual’s time as follows5: For the Garrigan Firm:

Individual Timothy Garrigan (Partner) Anne Davis (Paralegal)
For the Demchak Firm:

Rate ($/hr) 400 125

Individual Teresa K. Demchak (Partner) Morris J. Baller (Partner) David A. Borgen (Partner) Linda M. Dardarian (Partner) Darci E. Burrell(Associate) Joshua G. Konecky (Associate) Meetali Jain (Associate) Nina Rabin (Associate) James Kan (Associate) Jennifer A. Stalzer (Law Clerk) Lisa M. Dungan (Senior Paralegal) Scott G. Grimes (Senior Paralegal) Lynn E. Sagramoso (Senior Paralegal) Damon Valdez (Senior Paralegal) Wendy E. Whitt (Senior Paralegal)

Rate ($/hr) 400 400 400 400 160 160 160 160 160 125 125 125 125 125 125

5Plaintiffs’ counsel provided a billing record as Appendix 1 to its motion. Doc. #599-2. 16

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May G. Rafanan (Paralegal)

100

Mark Thurston-Baller (Paralegal)

100

Natasha Gurtner (Paralegal)

100

Charlotte Manapat-Nguyen (Paralegal)

100

Lena Borgen (Case Clerk)

73

Rebekah Stern (Case Clerk)

73

D, Lodestar Calculation The Lodestar is calculated by multiplying the rate for each individual by the number of
hours worked by that individual.

Individual Timothy Garrigan Anne Davis

Rate ($/hr) 400 125

Net Hours 3213 407

Billable Amount $1,285,200.00 $50,875.00

Teresa K. Demchak 400

Morris J. Baller

400

David A. Borgen

400

Linda M. Dardarian 400

Darci E. Burrell

160

Joshua G. Konecky 160

Meetali Jain

160

Nina Rabin

160

James Kan

160

Jennifer A. Stalzer

125

Lisa M. Dungan

125

Scott G. Grimes

125

Lynn E. Sagramoso 125

4,625 1,066.4 29.8 325.4 2,317.1 882.4 67.8 308.9 129.6 27.6 1,203.5 584.4 31

$1,850,000.00 $426,560.00 $11,920.00 $130,160.00 $370,736.00 $141,184.00 $10,848.00 $49,424.00 $20,736.00 $3,450.00 $150,437.50 $73,050.00 $3,875.00

17

Case 9:97-cv-00063-RC Document 621 Filed 04/02/09 Page 18 of 24

Damon Valdez

125

Wendy E. Whitt

125

May G. Rafanan

100

Mark Thurston-Baller 100

Natasha Gurtner

100

Charlotte

100

Manapat-Nguyen

Lena Borgen

73

Rebekah Stern

73

30 159.2 272.9 64.3 656.9 50.2
41.6 419.5

$3,750.00 $19,900.00 $27,290.00 $6,430.00 $65,690.00 $5,020.00
$3,036.80 $30,623.50

Total

$4,740,195.80

E. Adjustment Due to the Johnson Factors Once a claimed hourly rate and the claimed number of hours has been found to be

reasonable, the product is presumed to be a reasonable fee. Blum, 465 U.S. at 897, 104 S. Ct. at

1548. Plaintiff has the burden of proving that the case is exceptional and consideration of the Johnson factors warrants an upward adjustment. Watkins, 7 F.3d at 457; Rutherford, 197 F.3d at 192-93.

Exceptional results are generally reflected in the lodestar. Blum, 465 U.S. at 899, 104

S.Ct. at 1549. It is rare that an applicant can show results that transcend what can be expected given the hourly rates and hours expended. See Delaware Valley 478 U.S. 546, 567, 106 S.Ct.

3088, 3099 (1986); Shipes v. Trinity Industries, 987 F.2d 311, 322 (5th Cir. 1993). In this case

counsel charged high hourly rates, commensurate with their experience, and spent a great deal of time on the case. They did not prevail on every issue but did achieve a significant benefit. They have provided insufficient specific evidence of startling or exceptional results or adverse

circumstances that would overshadow or dwarf the presumptively correct lodestar. 18

Case 9:97-cv-00063-RC Document 621 Filed 04/02/09 Page 19 of 24
1. The Degree of Success Obtained Plaintiffs were not successful on all of their claims. Plaintiffs did not succeed on an
initial assignment claim, which was factually distinct from the promotion claim, or the disparate treatment claims that Plaintiffs advanced in the district court and on appeal. Nevertheless, Plaintiffs obtained significant relief. Plaintiffs will obtain both monetary and injunctive relief.
While the specific monetary and injunctive relief has not yet been crafted, the amount of monetary award does not impose a presumptive limit on Plaintiffs’ recovery of attorneys’ fees. See, e.g., Volk v. Gonzalez, 262 F.3d 528, 535 (5th Cir. 2001); see also, City of Riverside v. Rivera, 477 U.S. 561, 574 (1986); Green, 284 F.3d at 663 (applying Riverside’s holding in Title VII case).
Plaintiffs were ultimately successful on some, but not all, of their initially asserted claims, achieving significant results. This factor is neutral and does not suggest an upward or a downward adjustment. 2. The Other Johnson Factors
Defendant argues that none of the other factors suggest an upward adjustment. Plaintiffs likewise do not contend that any of the other factors support an increase in the award, merely maintenance of the award. The court agrees with the parties and similarly finds that none of the other factors suggest either an upward or a downward departure as this is not an exceptional case. The lodestar’s strong presumption of reasonableness holds and the court will not adjust the lodestar. Watkins, 7 F.3d at 457. For completeness, the court will briefly discuss the other factors.
19

Case 9:97-cv-00063-RC Document 621 Filed 04/02/09 Page 20 of 24
a. Time and labor required This case involved significant time and labor expended over more than a decade.
Attorneys’ hours and labor were included in the lodestar calculation. No additional adjustment is required to fully compensate the attorneys for the work performed. b. Novelty and complication of the issues, skill required, attorney’s customary fee.
These factors are all reflected in the number of hours billed and the reasonable hourly fee. City of Burlington v. Dague, 505 U.S. 557, 562-63, 112 S.Ct. 2638, 2641 (1992). Any adjustment to this factor would constitute double counting. Similarly, no enhancement due to this case being taken on a contingent fee is required. Id. at 566-67, 2643. This factor supports awarding the lodestar, without adjustment. c. Whether the attorney had to refuse other work to litigate the case
This case involved over 10,000 attorney and paralegal hours. This case likely prevented the attorneys from pursuing other work. On the other hand, this case also provided the opportunity to bill many more hours than most other cases. These issues are reflected in the lodestar calculation in the number of hours billed and the hourly rate. There is no evidence that either firm lost clients because of a conflict or because the case was viewed undesirable. These factors support awarding the lodestar, without adjustment. d. Whether the client or case circumstances imposed any time constraints
This case did not present any particular time constraints besides the large amount of time and labor required as discussed above. This factor supports awarding the lodestar, without adjustment.
20

Case 9:97-cv-00063-RC Document 621 Filed 04/02/09 Page 21 of 24
e. Attorney’s experience, reputation, and ability Attorneys from the Garrigan Firm and the Demchak Firm are comparable to those
practicing employment and complex litigation in the Eastern District of Texas. The court set rates for attorneys commensurate with this finding. This factor supports awarding the lodestar, without adjustment. f. Whether the case was “undesirable”
This case was taken on a contingency fee basis. Declaration of Timothy Gerrigan at ¶ 7. From the beginning named Plaintiffs desired to pursue a class action. Id. Although these may present difficulties, the case is no more or less desirable than any other employment case in which an attorney is paid a contingent fee. Any additional complexity from the pursuit of a class action is reflected in a larger number of hours being billed compared to non-class action employment cases. This factor supports awarding the lodestar, without adjustment. g. Nature and length of relationship with the clients
There is no evidence that counsel knew Plaintiffs prior to the litigation of this case or have represented any Plaintiff in another matter. The decision to represent Plaintiffs was an isolated decision and this factor does support deviation from the lodestar. h. Awards in similar cases
The parties do not present any comparable case and the court does not find any. However, the calculated lodestar, $4,737,714.30, is comparable to the amount billed by Defendants’ counsel in this case, $4,864,923.37. Counsel for both sides dealt with the same set of facts and legal issues, and it would not be unusual if similar attorneys’ fees were generated. The court finds the comparison a useful method of cross-checking the amount requested by
21

Case 9:97-cv-00063-RC Document 621 Filed 04/02/09 Page 22 of 24
Plaintiffs’ counsel. See Alan Hirsch & Diane Sheehey, Awarding Attorneys’ Fees and Managing Fee Litigation 108 (Federal Judicial Center 2d ed. 2005). This factor supports award of the lodestar, without enhancement. G. Other Costs 1. Prior to January 15, 2005
Judge Cobb awarded Plaintiffs’ counsel $127,658.60 in taxable costs and $840,129.72 in litigation related expenses. Defendant now objects to a portion of this amount — the litigation costs for work done by Richard Drogin. Doc. #610 at 22. No claim of error in this regard was made in Defendant’s Notice of Appeal [Doc. #557], and the Circuit Court did not indicate that this was one of the issues to be considered on remand. The court finds that this point has been waived. Alternatively, Defendant’s only argument — that Dr. Drogin spent time analyzing data pertaining to issues on which Plaintiff did not ultimately prevail — is not well taken. Plaintiff achieved significant results including a substantial monetary award. Defendant is liable for the full amount of litigation related expenses previously awarded. 2. Costs from January 15, 2005 through December 31, 2008
Plaintiffs filed a Supplemental Bill of Taxable Costs requesting $12,903.66 in costs. [Doc. #600]. They also requested $92,474.12 in other litigation related costs and expenses. Doc. #599 at 1. Defendant did not respond to Plaintiffs’ Supplemental Bill of Taxable Costs or Plaintiffs’ request for additional litigation related expenses and is assumed not to oppose either. L.R. CV-7(d). The court finds these costs and expenses reasonable and awards Plaintiffs the additional amount of $12,903.66 in taxable costs and $92,474.12 in other litigation related costs and expenses.
22

Case 9:97-cv-00063-RC Document 621 Filed 04/02/09 Page 23 of 24
IV. Conclusion This case was tried before Judge Cobb who found that Lufkin Industries has engaged in discriminatory practices; entered an injunction; and awarded monetary damages, attorneys’ fees, and litigation expenses. The Circuit Court upheld the liability findings as to promotions and remanded not with instruction to eliminate the injunction, but to word it more clearly. The awards of monetary damages and attorneys’ fees were not to be canceled but were to be recalculated. No point of error raised by Defendant concerning the calculation of litigation expenses or costs was mentioned in the Circuit Court’s opinion, and that part of Judge Cobb’s order was not reversed. Therefore this court finds that even though a final judgment on the merits has not been entered, Plaintiffs are the prevailing party. See Texas State Teachers Ass'n v. Garland Independent School Dist., 489 U.S. 782, 791-93, 109 S.Ct. 1486, 1493-94 (1989); Walker v. City of Mesquite, TX, 313 F.3d 246, 249-50 (5th Cir. 2002). They have achieved significant results in terms of injunctive relief and a monetary award regardless of the precise wording of the final injunction or the exact amount eventually awarded. The fees, expenses and costs set out in this order “represents compensation for work that is compensable no matter what the course of subsequent events.” See Shipes v. Trinity Industries, Inc., 883 F.2d 339, 344 (5th Cir. 1989). In accordance with Fed. R. Civ. P. 54 (b), the court determines there is no just reason for further delay in the entry of this order,6 and the
6This case has been pending for twelve years. Counsel for Defendants have been paid in accordance with whatever schedule they chose to agree upon, while counsel for Plaintiffs have been uncompensated and have advanced substantial sums of their own money. It appears to the court that Defendants have had little interest in correcting their discriminatory practices before, and even after, the Circuit Court affirmed Judge Cobb’s finding of liability. Further delay would
23

Case 9:97-cv-00063-RC Document 621 Filed 04/02/09 Page 24 of 24
accompanying judgment shall be a final appealable judgment as to these fees, expenses, and costs.
IT IS THEREFORE ORDERED that Plaintiffs’ Motion for an Interim Award of Reasonable Attorneys’ Fees, Costs, and Expenses [Doc. #599] is GRANTED IN PART, and Defendant Lufkin Industries, Inc. shall pay Plaintiffs $4,740,195.80 for attorneys’ fees and $932,603.84 in litigation related expenses. (This amount includes the $840,129.72 previously awarded by Judge Cobb.)
IT IS FURTHER ORDERED that Plaintiffs’ Supplemental Bill of Taxable Costs [Doc. #600] is APPROVED, and Defendant Lufkin Industries, Inc. shall pay Plaintiffs $140,562.26 in taxable costs. (This amount includes the $127,658.60 in taxable costs previously awarded by Judge Cobb.)
So ORDERED and SIGNED this 2 day of April, 2009.
___________________________________ Ron Clark, United States District Judge
neither advance justice nor further Congressional intent in encouraging qualified counsel to take on such complicated and time consuming cases.
24

 
 Case 9:97-cv-00063-RC Document 647 Filed 06/19/09 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION

SYLVESTER MCCLAIN, on his own and on §

behalf of a class of similarly situated persons, §

et al.,

§

§

Plaintiffs,

§

§

v.

§

§

LUFKIN INDUSTRIES, INC.

§

§

Defendant.

Civil Action No. 9:97-CV-063 JUDGE RON CLARK

ORDER Re: DAMAGES

In this lengthy employment discrimination case, the late Honorable Howell Cobb, United

States District Judge, found that Defendant Lufkin Industries, Inc. discriminated against Plaintiffs

in promotions to both salaried and hourly positions. The Circuit Court affirmed these findings,

and on remand directed this court to calculate damages for 127 lost hourly promotions and 9 lost

salaried promotions. McClain v. Lufkin Indus., Inc., 519 F.3d 264, 281 (5th Cir. 2008).

The parties agree that damages should be awarded for the time period between 1996-2002

for lost hourly promotions in the amounts of $1,901,417 for hourly employees and $128,055 for

salaried employees. Defendant contends that damages should not be awarded for: (1) lost hourly

promotions from 1994-1995 and 2003-2007; or (2) salaried positions. Defendant also asserts

that this court can, and should, reexamine Judge Cobb’s assessment of pre-judgment interest at a

rate of 5%, compounded annually.

None of the exceptions to the doctrine of the law of the case permit this court to

reconsider whether discrimination occurred in the 1994-1995 period or whether damages should

1

Case 9:97-cv-00063-RC Document 647 Filed 06/19/09 Page 2 of 12

be awarded for that time period. Judge Cobb previously found discrimination existed through

2004. Damages must therefore be awarded for the time period from 2003-2004. However, as

Judge Cobb’s ruling did not cover the time period between 2005 and 2007, this court must

consider additional evidence before it determines whether damages for this time period are

appropriate.

Finally, this court finds that Defendant waived its right to challenge the pre-judgment interest

rate.

I. Background

February 26, 1997

Plaintiffs filed an employment discrimination suit alleging that Defendant Lufkin Industries, Inc. engaged in racial discrimination in violation of Title VII and 42 U.S.C. § 1981.

March 31, 1999

The court granted Plaintiffs’ motion for class certification.

January 13, 2005

After a bench trial, Judge Cobb entered a Memorandum and Order finding that Defendant Lufkin Industries discriminated by unlawfully making initial assignment and promotion decisions that disparately impacted Plaintiffs. [Doc. #461]. The court ordered Lufkin Industries to pay class back pay pursuant to a formula and awarded injunctive relief. Judge Cobb entered final judgment a day later. [Doc. #462].

January 19, 2005

On Plaintiffs’ motion, Judge Cobb ordered further proceedings “to determine the specific details of non-monetary remedial measures and to enter such supplemental remedial orders as may be necessary and appropriate.” [Doc. #464].

August 29, 2005

The court entered an Amended Final Judgment, reiterating a finding of discrimination, ordered Lufkin Industries to pay back pay, entered an injunction, and awarded attorneys’ fees and costs. [Doc. #552].

February 29, 2008

The Fifth Circuit vacated the injunctive order and remanded to this court to craft a more specific remedial order. The Fifth Circuit also reversed and remanded the portion of Judge Cobb’s order awarding

2

Case 9:97-cv-00063-RC Document 647 Filed 06/19/09 Page 3 of 12
damages and attorneys’ fees indicating that additional analysis was necessary. McClain v. Lufkin Industries, Inc., 519 F.3d 264 (5th Cir. 2008).
II. Applicable Law The law of the case doctrine generally provides that a prior decision of the Circuit Court will not be reexamined either by the district court on remand, or by the appellate court on a subsequent appeal, “unless (I) the evidence on a subsequent trial was substantially different, (ii) controlling authority has since made a contrary decision of the law applicable to such issues, or (iii) the decision was clearly erroneous and would work a manifest injustice.” N. Miss. Commc'ns, Inc. v. Jones, 951 F.2d 652, 656 (5th Cir.1992)). The law of the case “applies not only to issues decided explicitly, but also to everything decided ‘by necessary implication.’” In re Felt, 255 F.3d 220, 225 (5th Cir. 2001). The doctrine, applicable to criminal and civil cases, is not an inexorable command, but is “premised on the salutary and sound public policy that litigation should come to an end.” Pondexter v. Quarterman, 537 F.3d 511, 523 (5th Cir. 2008) (quoting Alpha/Omega Ins. Servs., Inc. v. Prudential Ins. Co. Of Am., 272 F.3d 276, 279 (5th Cir. 2001)) The same principles apply to the mandate rule, which is a specific application of the doctrine of law of the case. United States v. Lee, 358 F.3d 315, 321 (5th Cir. 2004). “Absent exceptional circumstances the mandate rule compels compliance on remand with the dictates of a superior court and forecloses relitigation of issues expressly or impliedly decided by the appellate court.” Id.
3

Case 9:97-cv-00063-RC Document 647 Filed 06/19/09 Page 4 of 12
III. Analysis A. Hourly Promotions 1. 1994-95
Defendant objects to the inclusion of any damages during the time period from 1994-95 (Doc. #633 at p. 2) and filed a Motion for Partial Summary Judgment [Doc. #632] which further sets forth its argument. The parties stipulate that if damages are to be awarded for the 1994-95 time period that they are $483,340 in back pay for hourly employees and $109, 868 in back pay for salaried employees, totaling $593, 208.
For the reasons stated in the court’s contemporaneously entered Order Re: Motion for Partial Summary Judgment, which are incorporated herein, no exception to the law of the case doctrine justifies reexamination of this issue. The Circuit Court considered Lufkin’s arguments regarding the 1994-95 time period. The Court concluded that EEOC exhaustion was sufficient, rejected Lufkin’s arguments concerning insufficient evidence on damages, and then clearly instructed this court to calculate damages for 127 lost hourly promotions and 9 lost salaried promotions. 519 F.3d at 275, 279-81. Lufkin points to no new evidence or evidence that it was precluded from offering previously. Defendant does not indicate, and the court is not aware of, any changes in controlling authority. Neither the decision of Judge Cobb nor the opinion and judgment of the Circuit Court were clearly erroneous or resulted in manifest injustice — there was ample evidence, in the form of both statistical and non-statistical evidence, for Judge Cobb to find unlawful discrimination had existed over a long period of time and for the Fifth Circuit to affirm the finding. Damages will be awarded for the 1994-1995 time period.
4

Case 9:97-cv-00063-RC Document 647 Filed 06/19/09 Page 5 of 12
2. 2003-2004 Plaintiffs contend that Judge Cobb found discrimination through the end of trial in
October 2004. Defendant alleges that Plaintiffs offered no statistical or anecdotal evidence of promotion discrimination after 2002, citing Payne v. Travenol Laboratories, Inc., 673 F.2d 798, 824 (5th Cir. 1982) for the proposition that it is not proper to award damages for the period after 2002 because statistical evidence is lacking. However, in Payne, the Fifth Circuit held that the district court made no finding at all that discrimination occurred after the period covered by statistical evidence. Id. at 823.
Discrimination need not be proved using direct statistical evidence. See Segar v. Smith, 738 F.2d 1249, 1264 (D.C. Cir. 1984) (upholding the district court’s finding of discrimination in promotions above the GS-12 level “even though the court did not credit plaintiffs’ statistical evidence of discrimination at that level because the statistics had not achieved acceptable levels of statistical significance.”). Judge Cobb based his finding of discrimination partially upon nonstatistical evidence. [See Doc. #552, p. 5-7, 21-24].
In this case there was a good reason for Judge Cobb to examine non-statistical evidence. Lufkin only provided promotion data through March 9, 2003 and Dr. Drogin, Plaintiffs’ expert, performed full-year analyses for comparison purposes, ending his analysis at the end of 2002. After completing the trial of this case in October 2004, Judge Cobb issued a Memorandum and Order on January 13, 2005 [Doc. #461] and an Amended Final Judgment [Doc. #552] on August 29, 2005, both finding discrimination by Lufkin against Plaintiffs. Specifically, Judge Cobb found: (1) Lufkin Industries maintained a subjective decision making system when promoting hourly and salaried employees and (2) Blacks were discouraged from applying for promotions
5

Case 9:97-cv-00063-RC Document 647 Filed 06/19/09 Page 6 of 12
and denied equal training opportunities. Id. at 21-24. These findings were not limited to the time period in which statistical data was available.
Judge Cobb certainly did not find that Lufkin had ceased its discriminatory practices or remedied the effects of past discrimination by the time he issued his Amended Final Judgment on August 29, 2005. In fact, as part of that judgment he found it necessary to enjoin Lufkin from continuing in its illegal practices. The Circuit Court evidently did not disagree when the mandate was issued on April 14, 2008, because the injunctive relief was not vacated as moot or unnecessary. Rather, this court was ordered to “craft an adequate remedial order that will eliminate discrimination . . . .” 519 F.3d at 284 (emphasis added)
While the doctrine of the law of the case makes it improper to reexamine the finding that discrimination existed through the time of trial, this court may award damages for the time period between 2003 and 2004 because substantially different evidence now exists upon which damages may be quantified — specifically, statistical data or that time period upon which a monetary award can be based. See N. Miss. Commc’ns, Inc. v. Jones, 951 F.2d 652, 656 (5th Cir. 1992) (the law of the case does not control if the evidence at a subsequent trial is substantially different than evidence previously presented). The parties agree that if damages are awarded for the time period from 2003-2004 and the statistical data is used, then the appropriate amount is $487,756. Doc. #633 at p.2.
Defendant contends that it must be allowed to place additional evidence in the record if the court decides to award additional damages. Specifically, Defendant would like any damage analysis to include actual applicant flow date, which, Defendant asserts, was not previously used because Judge Cobb found many of the bid sheets prior to 2003 were illegible. Doc. #633 at p. 9.
6

Case 9:97-cv-00063-RC Document 647 Filed 06/19/09 Page 7 of 12
While actual applicant flow data is preferred in some cases, as in Anderson v. Douglas & Lomanson Co., Inc., 26 F.3d 1277, 1286-87 (5th Cir. 1994), it is not the most illustrative data of any discrimination by Defendant in this case. Judge Cobb found that Defendant discriminated against Black employees, in part, because Defendant discouraged Black employees from applying for promotions. Doc. #552 at p. 23. Actual applicant flow data would therefore underrepresent the number of qualified Black employees and not be indicative of the full amount of discrimination that occurred. Thus, additional evidence of actual applicants would not aid this court in determining damages. 3. 2005-2007
Plaintiffs seek additional damages for the period after Judge Cobb entered his initial order. Plaintiffs allege that additional promotional shortfalls occurred during the period from 2005-2007 and that “additional proceedings are required, at a minimum, to entertain Plaintiffs’ claims with respect to this period.” Doc. #629 at p. 10.
The Supreme Court has stated that an award of back pay serves two purposes: (1) to create an incentive to shun discriminatory practices and (2) make persons whole for the injuries they have suffered. Albemarle Paper Co. v. Moody, 422 U.S. 405, 417-18, 95 S.Ct. 2362 (1975). No injunction has been in effect as the Fifth Circuit remanded this case and directed this court to craft a more specific injunction. It is possible that discrimination was still occurring between 2005 and 2007, after Judge Cobb issued his judgment. The parties even agree that if damages are calculated using statistical data, the amount of damages for the time period from 2005 to 2007 is $159,412. Thus, it is appropriate to consider additional evidence offered by the parties
7

Case 9:97-cv-00063-RC Document 647 Filed 06/19/09 Page 8 of 12
on whether discrimination occurred in hourly promotions during, and damages should be awarded for, the time period from 2005-2007. B. Salaried Promotions
The only dispute between the parties concerning the promotions to salaried positions is whether the 1994-95 time period should be included for liability purposes. As discussed above, the law of the case doctrine bars this court from reexamining the issue as the Fifth Circuit already implicitly adjudicated the issue when it directed this court to calculate damages for nine lost salaried promotions. See In re Felt, 255 F.3d 220, 225 (5th Cir. 2001) (“The law of the case doctrine applies not only to issues decided explicitly, but also to everything decided ‘by necessary implication.’”). C. Pre-judgment Interest
Lufkin asserts that this court should reconsider Judge Cobb’s award of prejudgment interest because the Fifth Circuit remanded this case for a redetermination of damages. Initially Judge Cobb stated that prejudgment interest of 10% per annum would be appropriate, explaining the basis for his conclusion in his Memorandum and Order of January 13, 2005. [Doc. # 461, p. 34]. In the Amended Final Judgment of August 29, 2005, this rate was lowered to 5%, compounded annually. [Doc. #552 p. 34.] Lufkin neither disputed the analysis underlying the original 10% rate, nor assigned as a point of error the lower 5% rate in the final judgment.
Although precedent is sparse, there seems little reason not to apply the law of the case doctrine to Lufkin’s failure to challenge the prejudgment interest rate. See Laffey v. Northwest Airlines, Inc., 740 F.2d 1071, 1102-03 (D.C. Cir. 1983) (applying the law of the case doctrine
8

Case 9:97-cv-00063-RC Document 647 Filed 06/19/09 Page 9 of 12
and affirming the district court’s holding that plaintiffs were entitled to prejudgment interest at six percent).
Alternatively, assuming that review of prejudgment interest is appropriate, the court starts from the proposition that prejudgment interest “is an item that should be included in back pay.” Sellers v. Delgado Comty. Coll., 839 F.2d 1132, 1140 (5th Cir. 1988) (quoting Pettway v. Am. Cast Iron Pipe Co., 494 F.2d 211, 263(5th Cir. 1974), cert. denied, 467 U.S. 1243, 104 S.Ct. 3515(1984)) (emphasis in original). The purpose of the prejudgment interest award is to make the injured worker whole. Sellers, 839 F.2d at 1140. While the postjudgment rate is set by 28 U.S.C. § 1961, the prejudgment interest rate is generally within the discretion of the trial court. See Williams v. Trader Pub. Co., 218 F.3d 481, 488 (5th Cir. 2000). In setting the prejudgment rate, it is appropriate to consider other rates, including a composite rate over the time period in question. Transcontinental Gas Pipe Line Corp. v. Societe D'Exploitation Du Solitaire SA, 299 Fed. App’x. 347, 353 (5th Cir. 2008) (holding that the district court did not abuse its discretion when it used the average interest rate between date of accident and date of judgment, rather than interest rate on date of accident to calculate prejudgment interest); see also Odom v. Frank, 782 F. Supp. 50, 52 (N.D. Tex. 1991) (calculating interest in yearly increments because of the varying interest rate).
This is not a diversity case in which Texas law controls, but the court finds it instructive to examine prejudgment rates in Texas, where Lufkin operates and the discrimination occurred. In Texas, as in the federal system, prejudgment interest is intended to make the injured party whole — to compensate the injured party for the “lost use of his money.” Int’l Turbine Serv., Inc., 278 F.3d at 499.
9

Case 9:97-cv-00063-RC Document 647 Filed 06/19/09 Page 10 of 12
Under Texas law, where prejudgment interest is not governed by a specific statute, general principles of equity and the common law permit application of the postjudgment rate. Int’l Turbine Serv., Inc. v. VASP Brazilian Airlines, 278 F.3d 494, 499-500 (5th Cir. 2002). At the present time the rate would be 5%. Tex. Fin. Code §304.003 (c)(2) (Vernon 2006). Lufkin Industries has been profiting for years from its policy of unlawful discrimination. At the same time, as Judge Cobb found, Lufkin’s CEO was indulged with a corporate jet and pilot and, in 2002, a paycheck three times that of the President of the United States. Between 1995 and 2005 Lufkin Industries stock averaged returns of more than 11%. See http://quicktake.morningstar.com/Stock/stockperformance.asp?Country=USA& Symbol=LUFK&TimeFrame=AL#chartgrph. Yet Lufkin argues that it would be equitable for this court to exercise its discretion by deciding that the workers should be denied a modest rate of interest on the pay Lufkin illegally denied them for more than a decade.
Lufkin deprived these plaintiffs of lawful wages in Texas, where the statutory rate would have been 5%. This occurred during a time when interest rates frequently ranged above 5%, with a high of 7.24%. See http://www.federalreserve.gov/releases/h15/data.htm. In balancing the equities and determining which side should bear the burden of delay caused by lengthy litigation, the court notes that being “made whole” — compensated for lost use of money — can include more than the arithmetic time value of the money. The ability to use that money when Plaintiffs and their families were young may have been of benefit to them, which does not support an argument that a low interest rate based on the current economic downturn should be applied. Nothing in Title VII or its legislative history indicates that Congress intended that victims of discrimination should bear the lost time value of wages denied, caused by lengthy delays that
10

Case 9:97-cv-00063-RC Document 647 Filed 06/19/09 Page 11 of 12
were not their fault. This court concludes that a prejudgment interest rate of 5% per annum is reasonable and fair under all of the circumstances of the case.
IT IS THEREFORE ORDERED that Plaintiffs Sylvester McClain et al. shall recover of, and from, Defendant Lufkin Industries, Inc. the following amounts: (1) for lost hourly promotions, during the following time periods: 1994-95: $483,340; 1996-2002: $1,901,417; and 2003-2004: $487,756; (2) and for lost salaried promotions, during the following time periods: 1994-95: $109,868; and 1996-2002: $128,055.
Prejudgment interest shall be calculated at the rate of 5% per annum. Prejudgment interest shall accrue, as agreed to by the parties, as follows: (1) for damages attributable to discrimination occurring in 1994, interest shall begin to accrue on August 3, 1994; and (2) for damages attributable to discrimination in 1995 and for each subsequent year, prejudgment interest shall begin to accrue on July 1st of that year.
IT IS FURTHER ORDERED that Plaintiffs Sylvester McClain et al. shall file, by July 9, 2009, a motion or brief, (limited to twenty pages) outlining its claim that Defendant Lufkin Industries, Inc. is liable to Plaintiffs for hourly promotion discrimination for the period from 2005-2007, with pinpoint citations to documents supporting that claim. (If a document is already electronically filed in the record, or already admitted as a numbered exhibit, it does not need to
11

Case 9:97-cv-00063-RC Document 647 Filed 06/19/09 Page 12 of 12 be electronically filed again, but a copy should be attached to the paper courtesy copy provided to the court.) Defendant may then respond in kind by July 17, 2009. Counsel should notify the court if they believe a hearing will be necessary or helpful in making this determination.
So ORDERED and SIGNED this 19 day of June, 2009. ___________________________________ Ron Clark, United States District Judge
12

 
 o3 eoD Case 9:97-cv-00063-RC Document 297 Filed 10/27/03 Page 1 of 2
, /o-f).1-

IN THE UNITED STATES DISTRICT COURTU.:CI:.'\I[Ir' \S:r- j-~:" .... \,-C- : LI El~,H''.)KU1n-\ j

FOR THE EASTERN DISTRICT OF TEXAS

'; '. f::l 7~ ~.H 7:7Q9

U Sr U \' i)~

~ ~ ....... 1 _

!""'. l'~

LUFKIN DIVISION

Sylvester McClain, et at Plaintiffs,
v. Lufkin Industries, Inc.
Defendant.

S'I-·-
§ Civil Action No. 9:97 CV 063 (COBB) § § § § § § § §

STIPULATION REGARDING GEOGRAPHIC SCOPE OF THE CLASS
Plaintiffs and, subject to its objections to class certification, Defendant Lufkin Industries,
Inc., by and through their respective counsel, hereby agree and stipulate that the geographic
scope of the plaintiff class, as certified by the Court in its March 31, 1999 class certification
Order reported at McClain v. Lufkin Industries, Inc., 187 F.RD. 267 (E.D. Tex. 1999), may and
shall be modified as follows:
All African American persons employed by Lufkin Industries in its facilities located in Angelina County, Texas, on or after March 6, 1994, whose compensation, remuneration, benefits, job assignments, promotional opportunities, career advancement, and other terms and conditions of employment have been, may have been, or may become, adversely affected by defendant Lufkin Industries' past or present systems of administering hiring, wages, salaries, job assignments, training, evaluations, promotions, demotions, terminations, layoffs, recalls, and rehires.
Defendant Lufkin Industries Inc., makes this stipulation without prejudice to or waiver of
its objections to the Court's class certification Order, including whether persons employed in its

Case 9:97-cv-00063-RC Document 297 Filed 10/27/03 Page 2 of 2
;
facilities outside Angelina County were properly included in the original class certification Order.

Dougl Christo her V. Bacon Mary Michelle Mahony Vinson & Elkins 2300 First City Tower 1001 Fannin Street Houston, TX 77002-6760 (713) 758-2222 (713) 615-5388
Counsel for Defendant, Lufkin Industries

Teresa Demchak Morris J. Baller Darci E. Burrell Joshua G. Konecky Goldstein, Demchak, Baller, Borgen &
Dardarian 300 Lakeside Drive, Suite 1000 Oakland, CA 94612-3534 (510) 763-9800 (510) 835-1417
Timothy Garrigan Stuckey, Garrigan & Castetter Law Offices 2803 North Street Nacogdoches, TX 75963-1902 (936) 560-6020 (936) 560-9578
Counsel for Plaintiffs and the Class

IT IS SO ORDERED

~ Dated:

Z, ,2003

2

 
 Case 9:97-cv-00063-RC Document 684 Filed 12/22/09 Page 1 of 20

**NOT FOR PRINTED PUBLICATION**

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION

SYLVESTER MCCLAIN, on his own behalf §

and on behalf of a class of similarly situated §

persons, ET AL.,

§

§

Plaintiffs,

§

§

v.

§

§

LUFKIN INDUSTRIES INC.,

§

§

Defendant.

§

§

CIVIL ACTION No. 9:97CV63 JUDGE RON CLARK

ORDER Re: MONETARY RELIEF

The Fifth Circuit has upheld and approved of Judge Cobb’s conclusion that “the size of

the class and the inherent uncertainty of the individual claims contraindicates the use of an

individualized approach” to the award of back pay and that a formula-driven approach is

appropriate. McClain v. Lufkin Industries, Inc., 519 F.3d 264, 281 (5th Cir. 2008). This Court’s

obligation on remand is “to compute the total additional wages attributable each year to each

promotion and divide the value among the class members . . . with whatever modifications will

both expediently and fairly apportion the lost wages among class members.” Id.

In carrying out the Fifth Circuit’s mandate, the Court has previously entered several

orders on various issues related to the determination of the class monetary relief to be awarded to

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Case 9:97-cv-00063-RC Document 684 Filed 12/22/09 Page 2 of 20
Plaintiffs pursuant to the Fifth Circuit’s decision on back pay.1 In addition, the parties have reached agreements, which have been incorporated into stipulations, on certain other issues related to the determination of monetary relief.2 In this order, the Court (1) incorporates and combines its prior orders and the parties’ stipulations, so that all issues previously resolved or determined are set forth in this order, (2) provides for the amount of class back pay and prejudgment interest to be awarded to Plaintiffs and the Class, and (3) provides for the procedures and methods by which the awards to individual Plaintiffs, Class Representatives, and Class Members shall be determined and paid.
I. Total Amount of Back Pay (Damages) Awarded to the Class The Court awards a total of $3,269,845 (the “Back Pay Award”), plus pre-judgment interest (see Section II below), in back pay to Plaintiffs for themselves and members of the Class. The Back Pay Award includes the back pay amounts for different groups within the Class (i.e., hourly and salaried) and parts of the liability period determined by stipulations and agreements of the parties and/or prior Orders.3 The Back Pay Award, along with pre-judgment interest, is to be distributed to individual Class Members as specified in parts III.C-K of this Order.
1 [See Doc. #647, Order Re: Damages; Doc. #650, Order Re: Damages (2005-2007); Doc. #662, Order (clarifying that pre-judgment interest is to be compounded annually, and directing Plaintiffs to submit a plan for distribution of class back pay award).]
2 [See Doc. #620, Joint Status Report on Back Pay Issues; Doc. #648, Def.’s Stipulation Re: Damages; Doc. #660, Pls.’ Status Report on Monetary Relief.]
3 The determinations of these amounts are reflected in the orders and other filings referred to in footnotes 2 and 3, supra.
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Case 9:97-cv-00063-RC Document 684 Filed 12/22/09 Page 3 of 20

II. Pre-Judgment Interest on Award of Back Pay

The Court awards pre-judgment interest on the Back Pay Award, as specified in this

paragraph, to and including the date a final judgment is entered based on this order. Interest shall

be calculated at the rate of 5% per annum, compounded annually. For the purpose of calculating

pre-judgment interest, the amounts of back pay determined for each of the various parts of the

liability period will be annualized and attributed to each calendar year within each period, and for

hourly and salaried positions separately, as follows:

Year

Hourly Positions Salaried Positions

March-December 1994 $217,503.00

$49,440.60

1995

$265,837.00

$60,427.40

1996

$271,631.00

$18,293.57

1997

$271,631.00

$18,293.57

1998

$271,631.00

$18,293.57

1999

$271,631.00

$18,293.57

2000

$271,631.00

$18,293.57

2001

$271,631.00

$18,293.57

2002

$271,631.00

$18,293.57

2003

$243,878.00

0

2004

$243,878.00

0

2005

$53,137.00

0

2006

$53,137.00

0

2007

$53,137.00

0

3

Case 9:97-cv-00063-RC Document 684 Filed 12/22/09 Page 4 of 20
Total Back Pay Award (Hourly & Salaried), without interest $3,269.845.00 Interest shall accrue on the amount of back pay damages attributed to each year from July 1 of such year, except that for 1994, the start date of interest accrual shall be August 1, 1994.4
III. Class Monetary Award and Allocation Procedures A. Third Party Administrator
1. The Court appoints Rosenthal & Co. of Novato, California to serve as the Third Party Administrator.5 The Third Party Administrator shall be responsible for: (a) receiving funds from Lufkin and administering those funds to be distributed pursuant to the Court’s Order; (b) tracing all Class Member addresses for current addresses; (c) calculating the awards for individual Class Members; (d) preparing and mailing the individual Notices of Judgment Distribution Calculation to Class Members; (e) maintaining a toll-free number designed to provide information to, and communication with, Class Members; (f) responding to questions from Class Members; (g) determining challenges submitted by Class Members to the accuracy of individual Notices of Judgment Distribution Calculation; (h) seeking additional information from Class Members, Class Counsel, or Lufkin when appropriate or necessary to determine eligibility or calculate distribution amounts; (i) implementing the Class Monetary Award and Allocation Procedures; (j)
4 The class back pay period commences in March, rather than January, of 1994, and includes the full years 1995-2007. Selecting August 1 as the date on which pre-judgment interest on the amount of damages accruing for 1994 shall commence to accrue is the half-way point between March and December 1994. Similarly, for each of the other years in the class liability period, interest shall commence to accrue on July 1, or the half-way point between January and December of the year.
5 The Court notes that Rosenthal & Co. was retained by Class Counsel to prepare and mail the Notice to the Class ordered by Judge Cobb in October 2003. [See Doc. #299.] Rosenthal & Co. thus has some familiarity with Lufkin's personnel databases and address information for class members.
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Case 9:97-cv-00063-RC Document 684 Filed 12/22/09 Page 5 of 20
determining amounts due for taxes and other withholdings; (k) sending payments to Class members and tracking delivery and receipt of payments; (l) providing the final Class Member Distribution List and accounting for all class funds to the Court and parties; and (m) performing any other duties reasonable and necessary to carry out its responsibilities as set forth in this order.
2. Within seven (7) days of the date a final judgment is entered based on this order, Lufkin will direct the wire transfer of Fifty Thousand Dollars ($50,000) to the Class Monetary Relief Account. This amount is intended as an advance to cover costs and expenses associated with the Class Monetary Award and Allocation Procedures, as set forth below in Section III.B.
3. All fees, costs, and expenses, if any, of the Third Party Administrator in excess of the Fifty Thousand Dollars ($50,000) advanced by Lufkin to the Third Party Administrator as provided for in Section III.A.2 above shall be paid from the Class Monetary Relief Account, including the interest earned on the Class Monetary Relief Account. All such payments in excess of Fifty Thousand Dollars ($50,000) to the Third Party Administrator from the Class Monetary Relief Account shall be approved in advance by Class Counsel with notice to Lufkin. B. Establishment of the Class Monetary Relief Account
1. Within three (3) business days of the date a final judgment is entered based on this order, the Third Party Administrator will open an interest-bearing account (the “Class Monetary Relief Account”) with a unique Taxpayer Identification Number.
2. Within three (3) business days of the date a final judgment is entered based on this order, the Third Party Administrator will calculate the total amount of pre-judgment interest that is due on the Back Pay Award pursuant to Section II above (the “Class Pre-Judgment Interest
5

Case 9:97-cv-00063-RC Document 684 Filed 12/22/09 Page 6 of 20
Award”), and advise the parties and the Court of that amount and the total of the Class PreJudgment Interest Award plus the Back Pay Award (“the Class Monetary Relief Fund”).
3. Within ten (10) days of the date a final judgment is entered based on this order, Lufkin will direct the wire transfer of the Class Monetary Relief Fund, as calculated by the Third Party Administrator, to the Class Monetary Relief Account. C. Identification of Class Members and Determination of Time Worked
1. Within ten (10) days from the date a final judgment is entered based on this order, Lufkin shall provide the Third Party Administrator, in computer readable format, a final list of all Class Members, defined as all African-American employees who were employed by Lufkin Industries, Inc. in its Angelina County, Texas facilities, in any position, at any time during the liability period of March 6, 1994 to December 31, 2007 (the “Class List”). The Class List shall include, for each employee: his/her full name, current or last known address, telephone or other contact numbers, and social security number. All parties shall treat the social security numbers as strictly confidential and to be used by them only to carry out the procedures specified in this order. The Class List shall be used by the Third Party Administrator in sending notices and payments to Class Members as specified herein. By the same date, Lufkin shall also produce to the Third Party Administrator, in computer readable format, personnel and payroll data for all Class Members necessary for the Third Party Administrator to determine the proportionate monetary shares of all Class Members. Such data shall include, at a minimum, for each Class Member: (1) his or her dates of employment by Lufkin in its Angelina County, Texas facilities during the period March 6, 1994 to December 31, 2007; (2) the dates he or she worked in hourly and salaried positions (each category separately); and (3) the number of paid weeks worked in
6

Case 9:97-cv-00063-RC Document 684 Filed 12/22/09 Page 7 of 20
hourly and salaried positions (each category separately) in any of Lufkin’s Angelina County, Texas facilities by year for the period March 6, 1994 to December 31, 2007. Lufkin shall also provide an identical copy of the Class List and such personnel and payroll data to Class Counsel.
2. Within ten (10) days from the date it receives the Class List from Lufkin, the Third Party Administrator shall update the Class List using the National Change of Address or other comparable publicly available databases and information provided by Class Counsel, and shall provide the updated Class List to the parties. D. Allocation of Back Pay Amounts and Pre-Judgment Interest
Back pay and pre-judgment interest shall be divided among Plaintiffs, Class Representatives, and Class Members according to the methods and procedures specified in this section. The parties estimate that this division will result in approximately 84% of the Class Monetary Relief Fund being allocated on the basis of time worked by Class Members who satisfy a minimum period of employment requirement (roughly equating time worked with the possibility of lost promotions), with the remaining approximately 16% being allocated in minimum Per-Capita Awards to all Class Members regardless of time worked, and Participation Awards to twenty-two (22) named Plaintiffs, Class Representatives, and actively participating Class Members whose efforts benefitted the Class and contributed to the successful result for the Class in this case. 1. Per Capita Awards to all Class Members
Each Class Member who worked less than ninety (90) days in hourly and salaried positions during the class period shall be entitled to receive $375 as a Class Member Per Capita Award, and each Class Member who worked ninety (90) or more days in hourly and salaried
7

Case 9:97-cv-00063-RC Document 684 Filed 12/22/09 Page 8 of 20
positions during the class period shall be entitled to receive $750 as a Class Member Per Capita Award.6 Per Capita Awards will be deducted from the Back Pay Award prior to the pro-rata distribution described in Section III.D.3 below. 2. Participation Awards to Named Plaintiffs, Class Representatives, and Participating Class
Members The Court recognizes that the named Plaintiffs, Class Representatives, and other Class
Members who spent time assisting Class Counsel in the prosecution of the case, including sitting for depositions, attending mediation sessions, testifying at court hearings and at trial, and devoting other time and providing other assistance, represented the Class and made possible the relief obtained by this litigation and undertook the personal burdens and perceived risks of retaliation. These named Plaintiffs, Class Representatives, and Class Members may and should be awarded individual Participation Awards in addition to their proportionate share recoveries from the Class Monetary Relief Fund. The Court awards a total of $134,000, approximately 2.4% of that Fund, to twenty-two individuals.
“[C]ourts routinely approve incentive awards to compensate named plaintiffs for the services they provided and the risks they incurred during the course of the class action litigation.” In re Lorazepam v. Clorazepate Antitrust Litig., 205 F.R.D. 369, 400 (D.D.C. 2002) (quoting In re S. Ohio Correctional Facility, 175 F.R.D. 270, 272 (S.D. Ohio 1997)); see also In re Dun & Bradstreet Credit Servs. Customer Litig., 130 F.R.D. 366, 373 (S.D. Ohio 1990) (“Numerous courts have not hesitated to grant incentive awards to representative plaintiffs who have been able to effect substantial relief for classes they represent.”); In re Revco Sec. Litig., Nos., 851,
6 Based on information currently available, these Class Member Per Capita Awards will amount in the aggregate to $749,250, or approximately 14% of the Class Monetary Relief Fund.
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Case 9:97-cv-00063-RC Document 684 Filed 12/22/09 Page 9 of 20
89CV593, 1992 WL 118800, at *7 (N.D. Ohio May 6, 1992) (“Numerous courts, recognizing that serving as a class representative involves a substantial time commitment to the litigation, have permitted such awards.”); Van Vranken v. Atl. Richfield, 901 F. Supp. 294, 300 (N.D. Cal. 1995). Other courts have noted that, particularly in discrimination litigation, named plaintiffs should be compensated for running the risk of retaliation in the workplace:
In discrimination-based litigation, the plaintiff is frequently a present or past employee whose present position or employment credentials or recommendation may be at risk by reason of having prosecuted the suit, who therefore lends his or her name and efforts to the prosecution of litigation at some personal peril. Roberts v. Texaco, 979 F. Supp. 185, 201 (S.D.N.Y. 1997). Courts also have approved incentive awards to active class members who are not named plaintiffs, but who provided assistance in the prosecution of the class action. E.g., Huguley v. Gen. Motors Corp., 128 F.R.D. 81, 85 (E.D. Mich. 1989); Bryan v. Pittsburgh Plate Class Co., 59 F.R.D. 616, 617 (W.D. Pa. 1973). The total amount of the Participation Awards and the individual amounts awarded here are reasonable and consistent with awards in other cases in the Fifth Circuit. See In re Catfish Antitrust Litig., 939 F. Supp. 493, 504 (N.D. Miss. 1996) (approving incentive awards of $10,000 to each of the four named plaintiffs); Shaw v. Toshiba Am. Info. Sys., Inc., 91 F. Supp. 2d 942, 973 (E.D. Tex. 2000) (approving incentive awards of $25,000 to each of two named plaintiffs). The Court notes that particularly in this case, where the named Plaintiffs, Class Representatives, and Class Members to be awarded Participation Awards have had to expend time and effort on the case in order to represent the class, keeping it engaged and encouraging it to remain patient for over a decade, and to incur actual or perceived risk of retaliation by their employer, such Participation Awards are especially appropriate. The Court further notes that the Participation
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Awards, individually and in the aggregate, are modest in proportion to the Class Back Pay Relief Fund, and under the formula-driven approach used in this case, it is unlikely that these awards could fairly be said to diminish significantly any absent Class Member’s particular award in relation to his or her actual loss.
The Court awards such Participation Awards to the named Plaintiffs, Class Representatives, and Class Members named in Exhibit A to this order, in the amount specified for each in Exhibit A.7 These amounts were determined based on a point system, in which points were assigned to several objectively verifiable tasks and roles, including: service as a named Plaintiff, filing of an EEOC charge on which class claims were based, attendance at mediation sessions, service as a Class Representative, testifying at trial, incurring the perceived risk of possible retaliation as a result of continuing to work at Lufkin after being designated as a Plaintiff or Class Representative, giving deposition testimony, testifying at class certification hearings, and testifying by declaration. See Dun & Bradstreet, 130 F.R.D. at 374 (“[A] differentiation among class representatives based upon the role each played may be proper in given circumstances.”). Participation Awards will be deducted from the Back Pay Award prior to the pro-rata distribution as described in Section III.D.3 below. 3. Back Pay Awards Based on Time Worked
The balance of the Class Monetary Relief Fund, consisting of the remaining Back Pay Award and all of the pre-judgment interest, will be distributed pro rata, with the Back Pay Award
7 Based on the information currently available, the amount of the Participation Awards, in the aggregate, is $134,000, or approximately 2.4% of the Class Monetary Relief Fund. The largest single individual Participation Award, for named Plaintiff McClain, is $18,000, or approximately 0.3% of the Class Monetary Relief Fund.
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Case 9:97-cv-00063-RC Document 684 Filed 12/22/09 Page 11 of 20
distribution on the basis of the time worked during the entire liability period, and the interest distribution based on the time worked during each calendar year. The time worked calculations and the amounts due based on such time worked shall be done for hourly and salaried categories of workers, and for the time periods 1994-1995, 1996-2002, 2003-2004, and 2005-2007 separately, based on the annual back pay numbers by category as set forth in section II above. a. Distribution of Back Pay Principal Based on Time Worked
The balance of the Class Monetary Relief Fund (“Eligible Class Member Award”), approximately $4,594,000 (or approximately 83.9% of the Class Monetary Relief Fund), shall be allocated among and paid to individual Class Members who worked a minimum of at least one consecutive ninety (90) day period for Lufkin in its Angelina County, Texas facilities during the liability period (“Eligible Class Members”). The Eligible Class Member Award will be distributed pro rata based on the number of “Eligible Class Weeks” worked by each Eligible Class Member in each job category (hourly or salaried) and each time period (1994-1995, 19962002, 2003-2004, and 2005-2007). Any class member who worked in both job categories and/or in more than one time period shall receive his or her pro rata distribution from each of the categories and/or periods in which he/she worked. “Eligible Class Weeks” is defined as all paid weeks worked by Eligible Class Members for Lufkin in its Angelina County, Texas facilities during the back pay liability period. The Third Party Administrator shall be responsible for identifying all Eligible Class Members and calculating their pro rata shares of the Back Pay Award based on the employment records and data produced by Lufkin pursuant to Section III.C.1 above.
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b. Distribution of the Class Pre-Judgment Interest Award The Class Pre-Judgment Interest Award, calculated pursuant to Section II above, shall be
distributed among Eligible Class Members as specified in this section. For each year in the liability period, the interest for that year shall be distributed to Eligible Class Members pro rata based on the number of Eligible Class Weeks worked in that job category and during that year by each Eligible Class Member. The Third Party Administrator shall be responsible for identifying all Eligible Class Members and calculating their pro rata shares based on the employment records and data produced by Lufkin pursuant to Section III.C.1 above. E. Notice of Estimated Awards to Class Members
1. The Third Party Administrator shall provide a list of all Class Members’ estimated awards to the Court, Lufkin, and Class Counsel within twenty-one (21) days after Lufkin provides it with the records specified in Section III.C.1 above.
2. At the same time, the Third Party Administrator will prepare and mail a “Notice of Judgment Distribution Calculation” for each Class Member. The Notice shall contain a brief description of the lawsuit (to be agreed upon by the parties), the Court’s final judgment regarding back pay and interest, a concise description of the distribution formula, and the data used to calculate the Class Member’s estimated individual award. The Notice also shall advise Class Members that they do not have a right to challenge the distribution formula, but they do have a right to challenge the accuracy of the data (dates of employment, time worked, and job category) used to calculate the Class Member’s individual award. The Notice also shall advise Class Members that the Class Member’s estimated individual award may change depending on the resolution of Class Member Challenges.
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3. The Third Party Administer will trace all mailed Notices of Judgment Distribution Calculation that are returned as undeliverable and re-mail notices where updated addresses may be obtained with reasonable effort and expense. F. Class Member Challenges
1. Class Members receiving “Notice of Judgment Distribution Calculation” shall not be required to respond or take any action with respect to the Notices in order to receive their estimated individual awards, or any adjustment to the awards that may be necessary due to the Third Party Administrator’s resolution of Challenges or otherwise, as provided for herein.
2. Class Members wishing to challenge the accuracy of the data used to calculate their estimated individual awards must submit such challenge and request for correction of errors in information used to calculate their estimated share of the Class Monetary Relief Fund (“Challenge”) in writing to the Third Party Administrator in a timely manner as specified herein. Class Members shall not have the right to raise any other claims or contentions in Challenges.
3. The Third Party Administrator will mail Notices of Judgment Distribution Calculation upon request. If an individual requesting such Notice is not on the Class List, the portion of the Notice which would otherwise state the individual data used to calculate estimate award will state that Lufkin’s records indicate that the person is not African-American and/or was not employed by Lufkin in its Angelina County facilities during the liability period. Such individuals may challenge the accuracy of that information through the procedures set forth in this Section and as described on the Notice of Judgment Distribution Calculation.
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4. Class Members must send their written Challenges to their estimated individual awards as well as any applicable documentation, to the Third Party Administrator, postmarked by no later than forty-five (45) days after the date of the Notice (“Challenge Filing Deadline”).
5. The Third Party Administrator shall retain all of the job history information or other electronic data pertaining to Class Members that it receives from Lufkin from which the Third Party Administrator determined the Class Members’ estimated individual awards, as specified above. Lufkin shall respond to a request by the Third Party Administrator for additional information the Third Party Administrator determines to be necessary to respond to a Class Member’s Challenge, within fourteen (14) days of such request.
6. The Third Party Administrator shall attempt to expeditiously resolve each such Challenge within thirty (30) days after its receipt of such Challenge. Challenges to the computation of Class Members’ estimated individual awards will be resolved without hearing by the Third Party Administrator. The Third Party Administrator’s decision shall be communicated to the Class Member in writing and shall be final, binding and non-appealable.
7. The Third Party Administrator shall be available through the toll-free line to respond to Challenges and questions from Class Members. G. Distribution of the Monetary Awards
1. As soon as practicable after making the calculations required by Section III.D. above, and resolution of all Challenges pursuant to Section III.F above, but in any event no more than one hundred twenty (120) days from the date of the initial mailing of Notices of Judgment Distribution Calculation, the Third Party Administrator shall recalculate the Class Members’ individual distributions and provide a Final Distribution List to the parties and file a copy with
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the Court. The parties may submit any comments on the Final Distribution List in writing within ten (10) days after the date the Third Party Administer files the Final Distribution List with the Court.
2. Within fourteen (14) days of the Court’s entry of an order directing distributions based on the Final Distribution List and any comments filed by the parties, the Third Party Administrator shall distribute the monetary awards to Class Members via UPS Ground delivery service (with delivery tracking).
3. The Third Party Administrator shall only issue checks in the names of Class Members, unless Section III.J below is applicable.
4. The Third Party Administrator will include with the check(s) due to the Class Member a statement showing the gross amount of the payment(s) for both back pay and interest awards and an itemized statement of all deductions made. Appropriate deductions from gross amounts that are determined to be wage payments will be made for federal income taxes, the employee’s share of social security and Medicare taxes, and any state or local income or payroll taxes that may apply. Any amounts designated as interest shall not be subject to withholdings and shall be reported, if required, to the IRS on Form 1099-INT. Any amounts designated as lost wages or payments in lieu of wages shall be subject to payroll tax withholding deductions and shall be reported to the IRS on Form W-2. The statement will advise Class Members that, regardless of withholding, all or part of the amount received may be taxable, that the Court, Lufkin, Plaintiffs’ counsel and the Third Party Administrator are not providing tax advice, and that it is the responsibility of the Class Member to determine and pay any applicable taxes.
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5. All checks issued by the Administrator pursuant to this order shall be payable within ninety (90) days of the date the check was issued, and shall be made non-payable and void thereafter. H. Tax Withholdings and Reporting
The Third Party Administrator will inform Lufkin of the employer’s share of all taxes or contributions (i.e., matching social security, Medicare, or other required withholding or payroll taxes) required to be paid by Lufkin, and Lufkin shall timely remit all such payments to the Third Party Administrator for payment to appropriate taxing authorities. The Third Party Administrator will be responsible for preparing and filing all appropriate tax filings and reports (except for any unemployment compensation taxes that may be due, which will be the sole responsibility of Lufkin to calculate and pay), including, but not limited to, W-2 and 1099 forms for all Plaintiffs, Class Representatives, and Class Members for their payments from the Class Monetary Relief Fund, as well as any required for the Class Monetary Relief Account. The Third Party Administrator will be responsible for reporting and remitting to the appropriate taxing authorities both the employee taxes withheld on amounts paid from the Class Monetary Relief Fund, and the employer’s share of taxes or contributions required to be paid by Lufkin in a timely manner after receipt of the amount due for those payments from Lufkin. I. Tracking and Procedures for Undeliverable Checks
1. The Administrator shall track the delivery of all checks mailed to Class Members and make all reasonable and customary efforts, including follow-up mailings and further searches, and/or reissuance of checks, to ensure their actual delivery.
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2. Any checks that remain undeliverable after the Administrator’s efforts to accomplish delivery shall be voided. Returned checks for which no updated address is available shall be included in the funds re-distributed pursuant to Section III.K below.
3. Sixty (60) days after the initial mailing of checks, the Administrator will provide an accounting to Class Counsel of all checks returned undeliverable for which no updated address is available, and of all uncashed checks. J. Deceased Settlement Class Members
Any allocation payable to a deceased Class Member shall be made payable to the estate or legal successor of the deceased Class Member upon timely receipt by the Third Party Administrator of proper written proof of the estate’s or legal successor’s entitlement to receive the deceased Class Member’s assets. K. Distribution of Remaining Funds
In the event that Class Members entitled to participate in the Class Monetary Relief Fund cannot be located by the Third Party Administrator, mailed checks are returned as undeliverable, delivered checks are not cashed within ninety (90) days of their mailing, and/or that the Class Monetary Relief Fund is not completely distributed for any other reason, the remaining undistributed sum shall be re-distributed in the following order: (1) to make any additional payments to Class Members occasioned by mistakes in the calculations of their tenure for Lufkin in its Angelina County, Texas facilities during the liability period, or other errors or omissions of Lufkin or the Third Party Administrator; (2) if the amount remaining after such additional payments have been made is $100,000 or more, to make a supplemental pro-rata distribution to Eligible Class Members, in proportion to the amounts allocated to them on the Final Distribution
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List. Any amounts remaining in the Class Monetary Relief Fund after the completion of the foregoing payments and distributions shall be designated as a Cy Pres Fund to be distributed to one or more cy pres recipients who shall be designated by Plaintiffs subject to the Court’s approval of the designation(s). Such designation(s) shall be submitted to the Court within two hundred forty (240) days after the entry of the judgment based on this order. L. Report from Third Party Administrator
Within thirty (30) days of the final distribution of the monies from the Class Monetary Relief Fund, the Third Party Administrator shall furnish an accounting of all distributions from the Class Monetary Relief Fund to the Court, with copies to Class Counsel and Lufkin.
IV. Implementation of This Order The parties shall expeditiously and cooperatively, insofar as possible, carry out this order, including the making and implementation of any further agreements, processes, and mechanisms necessary to carry out its terms and intent, other than those specified in this order. In the event the parties encounter any disputes necessary to resolve in order to implement the provisions of this order efficiently, fairly, and expeditiously, they shall bring such disputes to the Court’s attention for prompt resolution.
V. Attorneys’ Fees and Costs Any award of attorneys’ fees and costs to Plaintiffs for their counsel’s advances or work on the monetary and injunctive relief issues in this case since December 31, 2008, is expressly reserved for further proceedings and orders of the Court. Payments made to the Class or individual Class Members as specified in this order are without prejudice to the right of Plaintiffs
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Case 9:97-cv-00063-RC Document 684 Filed 12/22/09 Page 19 of 20 to seek further payments by Lufkin for costs and attorneys’ fees incurred in obtaining this order at a time and in a manner to be prescribed by the Court.
VI. Entry of Final Judgment The Court intends to enter Final Judgment in this case on January 15, 2010. Based on this anticipated judgment date, the parties are hereby ORDERED to submit, by January 12, 2010], a joint report that includes (1) a list of Class Members and amounts to be awarded, and (2) proposals for the specific language or form appropriate for the judgment.
So ORDERED and SIGNED this 22 day of December, 2009. ___________________________________ Ron Clark, United States District Judge
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Exhibit A

Name
Walter Butler Vivian Crain Calvin Deason Clifford Duirden Leroy Garner Roald Mark Eddie Mask Sylvester McClain Rickey Menefee Clarence Owens Kelvin Pope
Earl Potts Patrick Ross Kenneth Singleton Sherry Swint Buford Thomas Curtis Thomas Shirley Thomas Florine Thompson Benny Townsend James White Mary Williams
Total

Participation Award
$7,000.00 $4,000.00 $3,000.00 $8,000.00 $6,000.00 $6,000.00 $8,000.00 $18,000.00 $1,000.00 $8,000.00 $5,000.00 $8,000.00 $6,000.00 $2,000.00 $5,000.00 $14,000.00 $1,000.00 $1,000.00 $12,000.00 $1,000.00 $2,000.00 $8,000.00 $134,000.00

 
 Case 9:97-cv-00063-RC Document 475 Filed 02/14/05 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION

SYLVESTER MCCLAIN, on his own

§

behalf and on behalf of a class of similarly §

situated persons, et al.

§

Plaintiff

§

§

5.

§ Case No. 9:97-CV-063

§ Judge Howell Cobb

LUFKIN INDUSTRIES,

§

§

Defendant

§

ORDER GRANTING IN PART AND DENYING IN PART LUFKIN INDUSTRIES, INC.’S MOTION TO AMEND AND MAKE ADDITIONAL FINDINGS OF FACT

Lufkin Industries, Inc.’s Motion to Amend and Make Additional Findings of Fact is

GRANTED IN PART and DENIED IN PART. The court finds that Paul Perez, a person of

Hispanic descent, has been the corporate employee or officer in charge of Lufkin’s Human

Resources and Law Departments. Mr. Perez testified during the class certification hearing. The

court also amends its judgment to delete the award of pre-judgment interest at the rate of 10%

compounded annually. Pre-judgment interest is instead to be awarded at the rate of 5%

compounded annually, in accord with the Texas Finance Code section 304.003. The court denies

the remainder of Lufkin’s Amendments and Additional Findings of Fact as unnecessary and/or

unsupported by the evidence presented before this court. SIGNED at BEAUMONT, Texas, on this the 14 day of February, 2005.

_______________________________ HOWELL COBB UNITED STATES DISTRICT JUDGE

 
 Case 9:97-cv-00063-RC Document 646 Filed 06/19/09 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION

SYLVESTER MCCLAIN, on his own and on §

behalf of a class of similarly situated persons, §

et al.,

§

§

Plaintiffs,

§

§

v.

§

§

LUFKIN INDUSTRIES, INC.,

§

§

Defendant.

Civil Action No. 9:97-CV-063 JUDGE RON CLARK

ORDER Re: MOTION FOR PARTIAL SUMMARY JUDGMENT

Defendant Lufkin Industries, Inc. moves for summary judgment on Plaintiffs’ claims of

discrimination in promoting employees from hourly positions to salaried positions and promoting

employees within salaried positions [Doc. Nos. 630, 632]. Plaintiffs contend that Defendant’s

motion should be denied because the Fifth Circuit already ruled on this issue or, alternatively, the

evidence supports a finding of discrimination [Doc. #637].

The late Honorable Howell Cobb, United States District Judge, found that Defendant

discriminated against Black employees when deciding on promotions for salaried positions. On

appeal the Circuit Court rejected Lufkin’s arguments in this regard, and, on partial remand,

specifically directed this court to consider damages attributable to 127 lost promotions in hourly

pay grades and nine lost promotions to salaried positions. McClain v. Lufkin Indus., Inc., 519

F.3d 264, 281 (5th Cir. 2008). No exception to the doctrine of the law of the case applies. This

court is not now going to find that Defendant did not discriminate when promoting employees to,

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Case 9:97-cv-00063-RC Document 646 Filed 06/19/09 Page 2 of 8

and within, salaried positions or that damages and injunctive relief are barred. Therefore,

Defendant’s motion, and amended motion, for partial summary judgment are denied.

I. Background

February 26, 1997

Plaintiffs filed an employment discrimination suit alleging that Defendant Lufkin Industries, Inc. engaged in racial discrimination in violation of Title VII and 42 U.S.C. § 1981.

March 31, 1999

The court granted Plaintiffs’ motion for class certification.

January 13, 2005

After a bench trial, Judge Cobb entered a Memorandum and Order finding that Defendant Lufkin Industries discriminated by unlawfully making initial assignment and promotion decisions that disparately impacted Plaintiffs. [Doc. #461]. The court ordered Lufkin Industries to pay class back pay pursuant to a formula and awarded injunctive relief. Judge Cobb entered final judgment a day later. [Doc. #462].

January 19, 2005

On Plaintiffs’ motion, Judge Cobb ordered further proceedings “to determine the specific details of non-monetary remedial measures and to enter such supplemental remedial orders as may be necessary and appropriate.” [Doc. #464].

August 29, 2005

The court entered an Amended Final Judgment, reiterating a finding of discrimination, ordered Lufkin Industries to pay back pay, entered an injunction, and awarded attorneys’ fees and costs. [Doc. #552].

February 29, 2008

The Fifth Circuit vacated the injunctive order and remanded to this court to craft a more specific remedial order. The Fifth Circuit also reversed and remanded the portion of Judge Cobb’s order awarding damages and attorneys’ fees indicating that additional analysis was necessary. McClain v. Lufkin Industries, Inc., 519 F.3d 264 (5th Cir. 2008).

II. Standard of Review for Summary Judgment

The party moving for summary judgment under Fed. R. Civ. P. 56 has the initial burden

of demonstrating that there is no genuine issue as to any material fact and that it is entitled to

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Case 9:97-cv-00063-RC Document 646 Filed 06/19/09 Page 3 of 8
judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S. Ct. 2505, 2514 (1986). Movant may show that the undisputed material facts affirmatively establish a right to judgment. Alternatively, movant may establish that the other party has the burden of proof at trial, and has failed to “make a showing sufficient to establish the existence of an element essential to [its] case.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2522 (1986).
In order to avoid summary judgment, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S. Ct. 1348, 1335 (1986); Anderson, 477 U.S. at 257, 106 S. Ct. at 2514. The nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586, 106 S. Ct. at 1356. Fed. R. Civ. P. 56 requires the nonmoving party to set forth specific facts showing that there is a genuine issue for trial. Anderson, 477 U.S. at 256, 106 S. Ct. at 2514.
Only a genuine dispute over a material fact (a fact which might affect the outcome of the suit under the governing substantive law) will preclude summary judgment. Anderson, 477 U.S. at 248, 106 S. Ct. at 2510. The dispute in this case is genuine if the evidence is such that a reasonable jury, properly instructed on the correct evidentiary standard, could return a verdict of non-infringement. Anderson, 477 U.S. at 255, 106 S. Ct. at 2514 (“determination of whether a given factual dispute requires submission to a jury must be guided by the substantive evidentiary standards that apply to the case.”). If the factual context renders a claim implausible (for example if the claim simply makes no economic sense) nonmovants “must come forward with
3

Case 9:97-cv-00063-RC Document 646 Filed 06/19/09 Page 4 of 8
more persuasive evidence to support their claim than would otherwise be necessary.” Matsushita, 475 U.S. at 587, 106 S. Ct. at 1356.
Fed. R. Civ. P. 56(c) requires the court to look at the full record, including the pleadings, depositions, answers to interrogatories, admissions, and affidavits. All reasonable inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion, and any doubt must be resolved in its favor. Matsushita, 475 U.S. at 587, 106 S. Ct. at 1356. The Supreme Court has stressed that the inferences be reasonable. Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 468, 112 S. Ct. 2072, 2083 (1992).
III. Analysis A. Defendant’s Claim is Barred as the Fifth Circuit’s Opinion Adjudicated the Issue of Disparate Impact Discrimination in Salaried Promotions 1. Applicable Law
The law of the case doctrine generally provides that a prior decision of the Circuit Court will not be reexamined either by the district court on remand, or by the appellate court on a subsequent appeal, “unless (i) the evidence on a subsequent trial was substantially different, (ii) controlling authority has since made a contrary decision of the law applicable to such issues, or (iii) the decision was clearly erroneous and would work a manifest injustice.” N. Miss. Commc'ns, Inc. v. Jones, 951 F.2d 652, 656 (5th Cir.1992). The law of the case “applies not only to issues decided explicitly, but also to everything decided ‘by necessary implication.’” In re Felt, 255 F.3d 220, 225 (5th Cir. 2001). The doctrine, applicable to criminal and civil cases, is not an inexorable command, but is “premised on the salutary and sound public policy that litigation should come to an end.” Pondexter v. Quarterman, 537 F.3d 511, 523 (5th Cir. 2008)
4

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(quoting Alpha/Omega Ins. Servs., Inc. v. Prudential Ins. Co. Of Am., 272 F.3d 276, 279 (5th Cir. 2001))
The same principles apply to the mandate rule, which is nothing more than a specific application of the doctrine of law of the case. United States v. Lee, 358 F.3d 315, 321 (5th Cir. 2004). “Absent exceptional circumstances the mandate rule compels compliance on remand with the dictates of a superior court and forecloses relitigation of issues expressly or impliedly decided by the appellate court.” Id. 2. Discussion
Defendant has moved for summary judgment on Plaintiff’s claims of disparate impact discrimination in promoting Black employees to, and within, salaried positions. Defendant contends that the Thomas charge is the operative charge and any promotion claims occurring before April 2, 1996 — 300 days before the Thomas charge was filed — are barred pursuant to 42 U.S.C. § 2000e-5(e)(I).
The Circuit Court gave considerable attention to the issue of EEOC exhaustion and the 1994-95 salaried-promotion shortfall, finally stating: “We conclude however that exhaustion was sufficient. Significantly, Lufkin did not contend otherwise in the trial court.” 519 F.3d at 275. The Court went on to direct this court to deal on remand with “127 lost promotions in hourly pay grades and nine lost salaried employment promotions.” 519 F.3d at 264. The Judgment, issued as mandate on April 14, 2008, remanded the case “for further proceedings in accordance with the opinion of this Court.” Doc. # 579 at p. 2. It would be arrogant of this court to ignore such clear direction without a strong showing that one of the exceptions to the law of the case doctrine applies.
5

Case 9:97-cv-00063-RC Document 646 Filed 06/19/09 Page 6 of 8
Defendant’s contentions do not fall into the first exception — new or different evidence. Ample evidence, in the form of both statistical and non-statistical evidence, existed for Judge Cobb to find discrimination. On appeal, Defendant argued that Plaintiffs “offered no evidence of disparate impact against blacks in the time period associated with Thomas’ charge . . . [and] even if Thomas’ charge would support the class promotions claim, it fails for want of proof.”1 McClain et al. v. Lufkin Industries, Inc., No. 05-41417 (5th Cir. filed July 24, 2006). Lufkin does not point to new or different evidence it would now offer.
Thus, the Circuit Court has already considered all relevant evidence and arguments that this court could now consider, and adjudicated the issue of discrimination in salaried promotions for the time period up to 2002. This court is not going to revisit the issue pursuant to the first exception.
The other two exceptions also do not apply. Defendant does not indicate, and the court is not aware of, any changes in controlling authority. Further, the decision was not clearly erroneous and did not result in a manifest injustice. Defendant’s claim is therefore barred. B. Evidence Exists to Support a Finding of Discrimination In Promotions
Assuming arguendo that data from 1994-95 should have been excluded, statistical and other non-statistical evidence still supports a finding of discrimination in salaried promotions. For the period from 1996-2002, which excludes the 1994-95 time period which Defendant argues
1Plaintiffs quote this statement in their brief and provide the citation — “Br. of PlaintiffsAppellant Lufkin Industries, Inc. at 23 n. 8.” Plaintiffs neither attached the document as an exhibit, nor directed the court to an entry docketed by the Fifth Circuit. Luckily, the court was able to locate this quotation cited by Plaintiffs, in one of the numerous filings with the Circuit Court. The court verified that the quotation, as cited by Plaintiffs, was correct except for a typographical error. In the future, the court expects Plaintiffs to provide the court with a copy of such references or provide a pinpoint citation.
6

Case 9:97-cv-00063-RC Document 646 Filed 06/19/09 Page 7 of 8
is barred by 42 U.S.C. § 2000e-5(e)(I), Dr. Mary Baker, Defendant’s expert, found that black employees received 6.14 fewer promotions from hourly to salaried jobs for a disparity of -1.95 standard deviations. Second Declaration of Mary Baker, Ph.D., Ex C to Doc. #632. This is -0.01 standard deviations — a de minimus amount — from the -1.96 standard deviations that Defendant asserts is statistically significant. Thus, even excluding the 1994-1995 data, statistical evidence still supports a finding that Defendant discriminated against blacks when promoting employees to salaried promotions.
Evidence also supports a finding of discrimination for salaried promotions when viewing the 1996-2002 data for all salaried promotions — those promotions from hourly to salaried positions and promotions within salaried positions. Analyzing the data between 1996-2002 for all salaried promotions produces a -1.62 standard deviation between the promotion of blacks and the promotion of other employees. Doc. #632 at p. 4. This standard deviation is indicative of a 1 in 9 chance that the difference in promotions for salaried positions between blacks and all other salaried employees is pure chance. Thus, the statistical analysis indicates that there is an 89% probability that Defendant intentionally discriminated against black employees when determining promotions to, and within, salaried positions when analyzing only the data from 1996-2002. As Judge Cobb observed, “[t]he statistical significance [for salaried promotions] is not as robust [as for hourly promotions], but that is in part an artifact of the smaller sample size.” Doc. #552 at p. 29. Further, Judge Cobb rejected the use of a -1.96 standard deviation threshold as indicative of statistical significance. Doc. #552 at p. 14. He found it to be an arbitrary standard that has been rejected by most courts. Id.
7

Case 9:97-cv-00063-RC Document 646 Filed 06/19/09 Page 8 of 8 Judge Cobb based his finding partially on non-statistical evidence of discrimination in salaried promotions, which itself is sufficient to support a finding of discrimination also exists. See Segar v. Smith, 738 F.2d 1249, 1264 (D.C. Cir. 1984) (affirming the district court’s Title VII liability finding even though plaintiffs did not offer statistical evidence that had achieved “acceptable levels of statistical significance.”). Judge Cobb noted that anecdotal evidence, which brought the statistics to life, supported the finding of discrimination. Doc. #552 at p. 14. He also found that Defendant employed a subjective decision making system for promotions which allowed Defendant to discriminate. Doc. #552 at p. 5-7, 21-24. IT IS THEREFORE ORDERED that Defendant Lufkin Industries, Inc.’s motion and amended motion for partial summary judgment [Doc. Nos. 630 and 632] are DENIED.
So ORDERED and SIGNED this 19 day of June, 2009.
___________________________________ Ron Clark, United States District Judge
8

 
 Case 9:97-cv-00063-RC Document 629 Filed 04/17/2009 Page 1 of 21

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

LUFKIN DIVISION

Sylvester McClain, et al. Plaintiffs,
v. Lufkin Industries, Inc.
Defendant.

§ Civil Action No. 9:97 CV 063 (CLARK) § § Hearing Date: None scheduled § § § § § §

PLAINTIFFS’ BRIEF ON DISPUTED CLASS BACK PAY ISSUES

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Case 9:97-cv-00063-RC Document 629 Filed 04/17/2009 Page 2 of 21
TABLE OF CONTENTS TABLE OF AUTHORITIES ......................................................................................................ii STATEMENT OF QUESTIONS PRESENTED........................................................................ 1 STATEMENT OF RELEVANT FACTS AND RULINGS IN THE CASE.............................. 2 ARGUMENT.............................................................................................................................. 4 I. GENERAL PRINCIPLES OF LAW APPLICABLE TO RESOLUTION OF THE
QUESTIONS PRESENTED REQUIRE AN AMPLE MONETARY REMEDY AS ORDERED BY JUDGE COBB. .............................................................................. 4 A. The Back Pay Remedy........................................................................................ 4 B. Law of the Case. ................................................................................................. 5 II. HOURLY PROMOTIONS............................................................................................. 6 A. 1994-1995. .......................................................................................................... 6 B. 2003-2004. .......................................................................................................... 8 C. 2005-2007. .......................................................................................................... 9 D. Plaintiffs’ Response to Defendant’s Anticipated Arguments Regarding
Numbers of Lost Promotions. ........................................................................... 10 III. SALARIED POSITIONS. ............................................................................................ 12
A. Law of the Case. ............................................................................................... 12 B. Other Reasons to Award Back Pay for Salaried Promotions............................ 13 IV. PRE-JUDGMENT INTEREST RATE ISSUES........................................................... 14 A. The Annual Rate of Interest.............................................................................. 14 B. Compounding of Interest. ................................................................................. 15 CONCLUSION......................................................................................................................... 16
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Case 9:97-cv-00063-RC Document 629 Filed 04/17/2009 Page 3 of 21
TABLE OF AUTHORITIES
FEDERAL CASES
Adams v. Lindblad Travel, Inc., 730 F.2d 89 (2nd Cir. 1984).........................................................................................15
Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975).................................................................................................4, 10
Allison v. Citgo Petroleum Corp., 151 F.3d 151 (5th Cir. 1998) .........................................................................................4
Browning v. Navarro, 887 F.2d 553 (5th Cir. 1989) .........................................................................................5
Conway v. Chemical Leaman Tank Lines, Inc., 644 F.2d 1059 (5th Cir. 1981) .......................................................................................5
Cooper Tire & Rubber Co. v. Farese, 248 F. App'x. 555 (5th Cir. 2007)..................................................................................5
Estate of Pitre v. W. Elec. Co. Inc., 975 F.2d 700 (10th Cir. 1992) .......................................................................................7
FSLIC v. Texas Real Estate Counselors, Inc., 955 F.2d 261 (5th Cir. 1992) .......................................................................................15
Goodman v. Heublein, Inc., 682 F.2d 44 (2nd Cir. 1982).........................................................................................14
Goodwin v. Gen. Motors Corp., 273 F.3d 1005 (10th Cir. 2002) .....................................................................................8
In re Dep’t of Energy Stripper Well Exemption Litigation, 821 F. Supp. 1432 (D. Kan. 1993)...............................................................................15
Laffey v. Northwest Airlines, Inc., 740 F.2d 1071 (D.C. Cir. 1983) ...................................................................................14
Lyons v. Fisher, 888 F.2d 1071 (5th Cir. 1989) .......................................................................................5
McClain, et al. v. Lufkin Industries, Inc., 519 F.3d 264 (5th Cir. 2008) .........................................................................................2
Newburger, Loeb & Co., Inc. v. Gross, 611 F.2d 423 (2nd Cir. 1979).......................................................................................14
Office of Thrift Supervision v. Felt, 255 F.3d 220 (5th Cir. 2001) .....................................................................................5, 6

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Case 9:97-cv-00063-RC Document 629 Filed 04/17/2009 Page 4 of 21
Palmer v. Barry, 794 F. Supp. 5 (D.D.C. 1991) ......................................................................................14
Paul v. United States, 734 F.2d 1064 (5th Cir. 1984) .......................................................................................6
Pettway v. Am. Cast Iron Pipe Co., 494 F.2d 211 (5th Cir. 1974) .....................................................................................4, 5
Quest Medical Inc. v. Apprill, 90 F.3d 1080 (5th Cir. 1996) ...............................................................................5, 6, 15
Sellers v. Delgado Cmty. College, 839 F.2d 1132 (5th Cir. 1988) .......................................................................................5
Shipes v. Trinity Inds., 987 F.2d 311 (5th Cir. 1993) ...................................................................................5, 11
Stewart v. Gen. Motors Corp., 542 F.2d 445 (7th Cir. 1976) .........................................................................................5
White v. Murtha, 377 F.2d 428 (5th Cir. 1967) .........................................................................................6
STATE CASES
Johnson and Higgins of Texas, Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507 (Tex. 1988)........................................................................................15
FEDERAL STATUTES
28 U.S.C. § 1961(b)......................................................................................................................15
42 U.S.C. § 2000e-5(g)(1) ..............................................................................................................7 § 706(d)(1) ...................................................................................................................14
STATE STATUTES Texas Finance Code
§ 304.003......................................................................................................................15

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Plaintiffs submit this Memorandum on the back pay (or damages) issues that have not been resolved by the parties, which are submitted to the Court.
STATEMENT OF QUESTIONS PRESENTED Before turning to the submitted issues, Plaintiffs note their understanding of the back pay-related issues that do not have to be decided by the Court, because the parties have either agreed on their resolution, or agreed on methods for implementing the rulings that the Court is requested to make on disputed issues. The matters on which the Court need not rule are: 1. Whether class back pay should be awarded for promotions to hourly positions during the period 1996-2002.1 The parties agree that it must be awarded. 2. The amount of class back pay that will be awarded for whatever liability periods the Court determines. The parties have largely agreed on appropriate methods for calculating back pay for each of the liability periods at issue. Once the Court has decided what the liability periods are, the parties believe they can submit to the Court amounts of class back pay to be incorporated into a judgment, which would be entered after such submissions. 3. A method for distributing class back pay among eligible class members. The parties believe they will be able to agree on a recommended plan for distribution of any back pay award once the liability periods and amounts of class back pay have been determined. The Court should now resolve three questions: I. For promotions to hourly positions, should the liability period include the following years: (A) 1994-1995; (B) 2003-2004; and (C) 2005-2007? II. For promotions to salaried positions, should the liability period include 19942002, 1996-2002, or no period at all? III. What rate of pre-judgment interest should apply to the class back pay award(s)?
1 Plaintiffs understand the period included in these years to be January 1, 1996 to December 31, 2002. It is not feasible to open the period on any later date in 1996 because calculations based on the available data and analyses of it by the parties’ experts have focused on full-year data only. We do not believe defendant’s position is otherwise; but if it is, we reserve the right to dispute that position.

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We address each of these issues below. STATEMENT OF RELEVANT FACTS AND RULINGS IN THE CASE
In his Amended Final Judgment entered August 29, 2005 (Dkt. 552), Judge Cobb found that defendant Lufkin Industries, Inc. (“Lufkin”) had committed actionable discrimination against the class with respect to both initial assignments and promotions. (Id. at 19-30.) In the course of reaching this decision, Judge Cobb carefully considered the testimony and statistical analyses offered by the parties’ expert witnesses – Dr. Richard Drogin for the plaintiffs, and Dr. Mary Baker for Lufkin – and on every significant disputed matter found that Dr. Drogin’s analyses were more accurate and/or more persuasive. (Id. at 24-30.) Based on these findings, Judge Cobb ordered that back pay be awarded to the class for both initial assignment discrimination and promotion discrimination, and that the award should be made on a formula basis because more individualized determinations of entitlement would be impracticable or impossible. (Id. at 31-33.) Judge Cobb then specified some of the elements of a formula to be used in calculating the class back pay award, based on average hourly pay rates of similarly situated African American and white employees as determined by Dr. Drogin (id. at 33-36), held that “Pre-judgment interest is to be awarded in the amount of 5%, compounded annually” (id. at 34), and using these input factors (and relying on calculations provided to the court by plaintiffs in the form of a declaration of Dr. Drogin) awarded $3,400,139 (plus interest) in class back pay (id. at 38).
Lufkin appealed to the Fifth Circuit from the district court’s liability determinations. Lufkin successfully argued to the Fifth Circuit that no relief could be awarded based on plaintiffs’ initial assignment discrimination claim because no timely filed charge of discrimination raised the initial assignment issue on an adverse impact theory. McClain, et al. v. Lufkin Industries, Inc., 519 F.3d 264 (5th Cir. 2008), Slip Op. filed in this Court as Dkt. 579, at 4-9. However, the Court of Appeals affirmed Judge Cobb’s findings of classwide discrimination in promotions to hourly and salaried positions, and his determination that Lufkin must be held liable for damages for such discrimination. (Id. at 10-18.) The Court specifically affirmed Judge

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Cobb’s determinations that Dr. Drogin and his findings were correct, and were more credible than Dr. Baker and hers. (Id. at 16-18.)
Lufkin also appealed from Judge Cobb’s judgment insofar as it used a formula in awarding class back pay and directed that a “formula-driven approach” could properly be used. (Id. at 20.) The Fifth Circuit rejected Lufkin’s contentions. (Id. at 18-20.) However, the Court found that the district court’s “lost wages calculations” based on hourly salary differentials was not a correct approach, and vacated and remanded the back pay determination for implementation of a different approach to the damages calculation, which it outlined in general terms. (Id. at 20-21.)2 The Court directed, “On remand, the district court will be dealing solely with damages attributable to approximately 127 lost promotions in hourly pay grades and nine lost salaried promotions.” (Id. at 20.) That is the number of promotions that Dr. Drogin had calculated, and Judge Cobb had found, as the shortfall resulting from Lufkin’s promotion discrimination from March 6, 1994 through the end of 2002, by the methods Dr. Drogin used in testifying on liability issues at trial. (See, Drogin, Statistical Analysis of Racial Patterns in Lufkin Workforce (October 27, 2003), admitted into evidence as Plaintiffs’ Exhibit 1 at trial (“Drogin Report”), ¶¶ 43 and 53; and Am. Final J. (Dkt. 552) at 27, 29.)
Lufkin did not appeal from the district court’s ruling that the award should carry interest at a rate of 5% compounded annually.
Lufkin filed a petition for rehearing of the panel decision. In that petition, it specifically raised the issue that, because the Court had found the 1995 McClain EEOC charge did not support the promotion discrimination claims, and those claims could only be properly founded on the 1997 Thomas charge, it was erroneous to uphold liability and grant relief for the years 1994 and 1995, which are outside the 300 day period prior to the filing of Thomas’s charge. The
2 The parties have followed that prescription in their calculations and exchanges during the remand phase. Because the Fifth Circuit’s prescription was general and left certain detailed method questions unanswered, several disputes over calculation method developed. However, the parties have reached agreement on how to resolve them, once the Court decides the liability period issues that have not been resolved.

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Fifth Circuit denied that petition. Lufkin then filed a petition for writ of certiorari to the United States Supreme Court raising that same issue. The Supreme Court denied certiorari in October 2008. The present remand followed.
Since the December 5, 2008 Scheduling Conference on remand, the parties have exchanged calculations and proposals regarding back pay. As stated above, the parties have reached agreement on how to resolve many of the issues. Pursuant to an agreement of the parties, they exchanged expert witness’ declarations containing their respective proposals for how to calculate class back pay, and commenting on the other side’s proposed methods, on April 14, 2009. Although some of the issues disputed in those declarations have in the last few days been resolved, plaintiffs submit the Declaration of their expert, Dr. Richard Drogin, as an attachment to this Memorandum. Dr. Drogin’s Declaration sets out how plaintiffs believe the back pay calculations should be done most correctly (not taking into account compromises recently reached by the parties), as well as the amounts of class back pay that would be awarded for each disputed period, for hourly and salaried positions, under those calculation methods.
ARGUMENT I. General Principles of Law Applicable to Resolution of the Questions Presented
Require an Ample Monetary Remedy as Ordered by Judge Cobb. A. The Back Pay Remedy. Title VII’s strong remedial and make-whole purposes require that courts of equity3 employ back pay awards (and the prospect thereof) both to induce employer compliance with the Act and to fully compensate victims of employer non-compliance. Albemarle Paper Co. v. Moody, 422 U.S. 405, 417-18 (1975). Thus, where a court has found discriminatory practices in a class action, there is a strong presumption in favor of class back pay. Pettway v. Am. Cast Iron

3 Back pay is an equitable remedy under Title VII. Allison v. Citgo Petroleum Corp., 151 F.3d 151 F.3d 402, 415-16 (5th Cir. 1998); Pettway v. Am. Cast Iron Pipe Co., 494 F.2d 211 (5th Cir. 1974)

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Pipe Co., 494 F.2d 211, 259 (5th Cir. 1974);4 Sellers v. Delgado Cmty. Coll., 839 F.2d 1132,
1136 (5th Cir. 1988). In a class action where discrimination has been found, “Two general
premises apply to the computation of a back pay award: (1) unrealistic exactitude is not
required, and (2) uncertainties in determining what an employee would have earned but for the
discrimination should be resolved against the discriminating employer.” Shipes v. Trinity Inds.,
987 F.2d 311, 317 (5th Cir. 1993). Moreover, where a defendant’s “argument [that back pay
should not be awarded] is nothing but an attempt to relitigate whether discrimination occurred at
all,” the court “must reject it.” Stewart v. Gen. Motors Corp., 542 F.2d 445, 452 (7th Cir. 1976).
B. Law of the Case.
Where an appellate court has already decided “a factual or legal issue,” that decision is
“the law of the case and must be followed in all subsequent proceedings in the same case in the
trial court.” Cooper Tire & Rubber Co. v. Farese, 248 F. App’x. 555, 558 (5th Cir. 2007)
(quoting Lyons v. Fisher, 888 F.2d 1071, 1074 (5th Cir. 1989)); Quest Med. Inc. v. Apprill, 90
F.3d 1080, 1094 (5th Cir. 1996) (“The law of the case doctrine precludes reexamination of issues
decided on appeal . . .”, citing Conway v. Chemical Leaman Tank Lines, Inc., 644 F.2d 1059,
1061 (5th Cir. 1981)). “Subject to a few narrow exceptions, the law of the case controls legal
claims which were fully litigated and decided in the first appeal, even if parties seek to introduce new legal or factual evidence on remand.”5 Cooper Tire & Rubber Co., 248 F. App’x. at 558
(citing Office of Thrift Supervision v. Felt, 255 F.3d 220, 225 (5th Cir. 2001)).
[This] rule is based on the salutary and sound public policy that litigation should come to an end. It is predicated on the premise that “there would be no end to a suit if every obstinate litigant could, by repeated appeals, compel a court to listen to criticisms on their opinions or speculate on chances from changes in its
4 The Fifth Circuit cited and relied principally on Pettway in the back pay portion of its decision in this case. (Slip Op. at 18-19.) 5 The “narrow exceptions” under which courts have discretion to ignore the law of the case occur “if substantially different evidence has been presented, there has been an intervening change in the law, or the prior decision was clearly erroneous and it would work a manifest injustice.” Cooper Tire & Rubber Co., 248 F. App’x at 558 (quoting Browning v. Navarro, 887 F.2d 553, 556 (5th Cir. 1989)).

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members,” and that it would be impossible for an appellate court “to perform its duties satisfactorily and efficiently” and expeditiously “if a question, once considered and decided by if were to be litigated anew in the same case upon any and every subsequent appeal” thereof.
Paul v. United States, 734 F.2d 1064, 1065-66 (5th Cir. 1984) (quoting White v. Murtha, 377 F.2d 428, 431-32 (5th Cir. 1967)). The policy rationale behind law of the case doctrine is even more compelling in this case, where litigation has spanned the course of twelve years. “The law of the case doctrine applies not only to issues decided explicitly, but also to everything decided ‘by necessary implication.’” Felt, 255 F.3d at 225 (quoting Browning v. Navarro, 887 F.2d 553, 556 (5th Cir. 1989)); Quest Med., Inc., 90 F.3d at 1094 (same). Thus, where issues have been fully briefed and were “necessary predicates” to an appellate decision, law of the case applies whether the decision was made “tacitly or implicitly.” Felt, 255 F.3d at 225. II. Hourly Promotions.
The Court should award back pay for all three of the disputed periods – 1994-1995, 20032004, and 2005-2007. However, the rationale, and the required proceedings, differ to some extent for the different periods. For that reason, we treat them separately.
A. 1994-1995. The Fifth Circuit affirmed Judge Cobb’s determination that back pay must be awarded to the class for discrimination in promotions during the entire period 1994-2002, including the years 1994 and 1995. Lufkin specifically sought rehearing on that decision insofar as it included the years 1994 and 1995, on the grounds that the Fifth Circuit’s holding that the McClain charge could not support the claims of promotion discrimination required the liability period (or scope of class covered by the remedies) to be reduced to that which was supported by the Thomas charge.6 When the Fifth Circuit denied Lufkin’s petition for rehearing, it sought review on
6 Lufkin’s Petition for Panel Rehearing filed March 20, 2008 argued, at pages 3-4: “Because the district court’s findings were predicated on the erroneous conclusion that Lufkin was liable for acts back to March 6, 1994, remand for new fact finding is necessary and appropriate. . . . This Court should also remand this case for additional fact finding on the hourly promotions during the correct liability period.”

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certiorari by the Supreme Court, which also denied Lufkin’s petition.7 Because this issue has
been raised three times in two appellate courts, and the original decision requiring back pay
based on the number of promotions that Dr. Drogin found had been lost in 1994-1995 (as well as
1996-2002) for purposes of his liability analysis at trial has been upheld at every stage, Lufkin’s
argument is now foreclosed. A district court is not free to reverse a decision of the Court of
Appeals in the same case, absent an intervening change of law under the general law of the case
principles and authorities summarized in Section I.B. above. Yet such a reversal is essentially
what Lufkin seeks here. Its argument should receive short shrift, as the Court indicated it was inclined to do at the telephonic status conference on April 6, 2009.8
In addition, even if the Court were to reconsider the matter, which it should not, there is
good authority for extending the back pay period back two years prior the Thomas charge,
which– as a practical matter, for reasons mentioned in footnote 1 above, all of – would include
almost all of 1995. Section 706(g)(1) of Title VII, 42 U.S.C. §2000e-5(g)(1), provides that
“Back pay liability shall not accrue from a date more than two years prior to the filing of a
charge with the Commission.” This provision has been interpreted to require a back pay period
of two years prior to the charge filing date, here February 26, 1995. See, Estate of Pitre v.
Western Elec. Co. Inc., 975 F.2d 700, 705-06 (10th Cir. 1992) (noting that 180-day charge filing
7 The second question presented for review in Lufkin’s Petition for Writ of Certiorari filed July 2, 2008 was:
Whether the Fifth Circuit’s decision imposing a liability period for a Title VII class claim beginning almost three years before the charge that the Court of Appeals found exhausted the administrative remedies for the class was filed conflicts with this Court’s decisions negating liability for acts outside the Title VII limitations period. Lufkin’s argument on this issue started by stating: “The Court should also review the Fifth Circuit’s clear misapplication of Title VII and established Supreme Court precedent in allowing liability to be determined and back pay awarded on promotion decisions not challenged in a timely charges” (emphasis added). 8 In response to Lufkin counsel’s argument that this Court should reconsider the 1994-1995 period’s inclusion because “the Fifth Circuit simply did not understand the implication of using that number [127 hourly and 9 salaried promotions],” the Court cautioned the parties about the consequences, “if I was so bold as to write an opinion that the Fifth Circuit didn’t understand something.” (Tr. of April 7, 2009 Conf. at 35-36.)

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period and the two year back pay limitations in the Title VII “serve different functions in the Title VII process,” process, court held it was error not to award class back pay for entire two year period); Goodwin v. Gen. Motors Corp., 273 F.3d 1005, 1011-1012 (10th Cir. 2002), cert denied. 537 U.S. 941 (2002).
B. 2003-2004. This case was tried in December 2003 and October 2004. After post-trial submissions, Judge Cobb entered his original decision (Dkt. 461) on January 13, 2005. The record before him included evidence of practices at Lufkin through the time of trial, and nothing in the Amended Final Judgment (Dkt. 552) limits his findings of discrimination to any shorter or earlier time period. However, the statistical analyses placed in evidence by the parties at trial covered only the time period from March 6, 1994 to the end of 2002. The reason for this is that at the time of trial Lufkin had produced employee data only for March 6, 1994 through March 9, 2003, and in the interest of coherent full-year analyses, Dr. Drogin ended his analysis at year-end 2002. (See, Drogin Report at ¶¶ 7, 11-12, 43, 52-53.) Neither Judge Cobb’s findings of discrimination in promotions nor the Fifth Circuit’s affirmance of those findings was based on statistical evidence alone. The Amended Final Judgment contains a lengthy recitation of non-statistical evidence on which Judge Cobb based his findings of promotion discrimination as a result of subjective decision-making, at pages 2124, before it even mentions the statistical evidence in the case. The Fifth Circuit’s decision specifically reviews those findings of discrimination and holds them not clearly erroneous. (Slip Op. at 13.) Thus, it is the law of this case that Lufkin practiced employment discrimination in promotions until at least the period through trial – as a practical matter, nearly to the end of 2004. It is true that Dr. Drogin did not quantify the number of promotions lost by African American employees due to discrimination in promotions during the years 2003 and 2004; and for that reason, Judge Cobb’s findings of discrimination continuing to the time of trial did not include a shortfall number for the last two years of that period. Dr. Drogin could not have done so, since Lufkin had not, at the time of trial, provided the data necessary to perform a statistical

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analysis. There can be no question, however, that the discriminatory practices found by Judge Cobb to have continued would have continued to cause losses in promotions to African Americans. In fact, using additional data obtained by plaintiffs from Lufkin on remand, Dr. Drogin has (as Lufkin recognizes9) subsequently determined that there was an additional shortfall in African American promotions of some 33 positions in 2003 and 2004 Lufkin has not had a chance to examine these calculations on the record nor has the Court made findings on them; but at most, it is only the number of promotions lost by African Americans, not whether promotions were lost due to discrimination, that could be disputed.
The Court should therefore rule that the years 2003 and 2004 are to be included in the liability period, and class back pay is to be determined and awarded for those years. In keeping with the procedures followed by the parties and the court with respect to other disputed issues of monetary relief, plaintiffs suggest that the Court allow the parties an opportunity to narrow or resolve the disputed issues necessary to the determination of the amount of back pay before entering its judgment with respect to this time period.10
C. 2005-2007. There is neither record evidence from trial nor judicial findings for the post-trial period. However, there is record evidence – which the Court has acknowledged in certain comments – showing that Lufkin has continued to discriminate in promotions since the trial; and the additional employee data obtained by plaintiffs in 2008, covering the period through the end of 2007, shows continuing promotional shortfalls for African Americans in hourly promotions.

9 See, Declaration of Dr. Baker, provided by defense counsel to plaintiffs’ counsel on April 14, 2009, and to be filed with defendant’s briefing of these issues, page 5, Table 1.
10 While the lack of complete evidence for the post-2002 period raises the possible need for additional evidentiary proceedings, the cost of such proceedings – and cost is a consideration that the parties have kept squarely in mind in the current proceedings, resulting in a number of compromises on originally disputed issues that would have been expensive to litigate – is likely to motivate the parties to make serious attempts to stipulate to the relevant evidence, shortfall and/or damages numbers for the more recent periods.

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Thus, in the absence of stipulations to the relevant evidence, additional proceedings are required, at a minimum, to entertain plaintiffs’ claims with respect to this period.11
The limited post-remand discovery permitted by this Court reveals that, at least until plaintiffs specifically brought the issue to the Court’s attention in the latter half of 2008, Lufkin made no significant changes in the practices that Judge Cobb found to have caused discrimination in promotions – not even those few and limited steps that defendant inaccurately represented to Judge Cobb it had made or was making in 2005. (See, Pls.’ Resp. in Opp. to Def.’s Mot. to Quash filed Aug. 15, 2008 (Dkt. 583), at 5-7, fns 9 & 10 and exhibits referenced therein; Pls’ Remedial Proposals filed Oct. 15, 2008 (Dkt. 586) at 3-4 and fns 6-10.) The Court is taking the current situation, and Lufkin’s practices in recent years, into account in its entry of injunctive relief orders, as is proper. But backpay is an necessary and integral part of the remedy to which plaintiffs are entitled for the continuing discrimination practiced by Lufkin in those years. Albemarle, 422 U.S. at 417-18. The Court cannot, therefore, simply deny or dismiss plaintiffs’ claims for back pay because the record is not complete. Instead, it must – unless the parties can resolve the issue once the Court holds that back pay will be awarded for this period – provide for appropriate further proceedings.
D. Plaintiffs’ Response to Defendant’s Anticipated Arguments Regarding Numbers of Lost Promotions.
Plaintiffs anticipate that defendant will base its argument as to the years 2003-2004 and 2005-2007 – and possibly as to 1994-1995 – at least in part on quibbles about the varying numbers of lost promotions identified by Dr. Drogin at different times for different purposes. Dr. Drogin determined the figure of 127 hourly positions (as well as that of 9 salaried positions) in 2003, using only the 1994-2002 information then available, by an analysis designed to test
11 In an abundance of caution, plaintiffs do not seek monetary relief here for 2008 or the early months of 2009 since they have not reviewed any employee data and cannot therefore determine whether Lufkin’s promotional practices continued to have adverse impact on African American employees during that period.

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whether there were statistical disparities indicative of promotion discrimination at the liability
phase of trial. He never, at that time or later, proposed that figure to be used in determining the proper measure of damages.12 In fact, the analysis Dr. Drogin now deems appropriate for
determination of damages based on the available data uses a slightly different method of
calculations and produces slightly different results.
There is no requirement in the law that merits liability determinations and back pay or
damages determinations be made using the same methods. In fact, the differing standards
applicable to merits liability and damages stages of Title VII litigation provide a solid rationale
for use of differing methods. At the liability stage, the burden of persuasion is on the plaintiff to
show by a preponderance of the evidence that the defendant discriminated unlawfully; however,
once discrimination has been established in a class action, the class members are entitled to a
presumption in favor of relief, and in the case of monetary relief if the amount cannot be
determined with exactitude, doubts should be resolved in favor of the plaintiff and
approximations may be used. Shipes, 987 F.2d at 317-318. Thus, defendant’s anticipated
arguments that Dr. Drogin’s 2003 liability calculations identify different overall promotional
shortfall numbers than do his present damages calculations, mix apples and oranges rather than pointing up any true inconsistency.13 In any further proceedings required by the Court to
12 The method Dr. Drogin used to compute damages when Judge Cobb unexpectedly required plaintiffs to combine their liability and damages presentations at trial (plaintiffs had anticipated bifurcated proceedings, as is usual in Title VII class actions), was based on hourly wage differentials and projected those damages for 2003-2004 using 2002 wage differential figures. (Drogin Decl. dated October 27, 2003, Pls.’s Trial Ex. 2, ¶ 7.) Judge Cobb adopted that method in his Amended Final Judgment (Dkt. 552 at 33-34), erroneously as it turned out. Now that actual data is available for 2003-2004, it is possible to calculate the number of promotions lost by African Americans during those years, and Dr. Drogin has done so. 13 These principles have particular application to one of the methodological issues initially disputed (but now resolved) by the parties: how to treat promotion comparisons of similarly situated African American and white employees when, for particular job-year pairings there is a “longfall” rather than a shortfall of African American promotions. For liability purposes, Dr. Drogin offset the longfall numbers against the shortfall numbers, resulting in a net figure of 127 lost hourly promotions. For damages purposes, however, Dr. Drogin simply does not figure in the “longfall” comparisons in his calculations, on the rationale that in particular instances where discrimination does not affect the promotional results it simply warrants not awarding any back pay for those instances, but does not warrant reducing the back pay attributable to other

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determine the amount of back pay due for 2003-2004 and/or 2005-2007, Dr. Drogin will be able
to testify or explain the small differences in his approach and the resulting differences in his
shortfall numbers, and why they are fully appropriate.
III. Salaried Positions.
The category referred to by the parties as “salaried positions” includes promotions from
hourly to salaried jobs, as well as promotions within salaried jobs. There is no dispute between
the parties over the number of positions for which back pay is to be awarded if plaintiffs prevail
on the issue as to inclusion of 1994-1995 in the liability period (9) or the amount of back pay.
However, Lufkin is requesting the Court to revisit the question whether back pay is to be
awarded for salaried positions at all.
If the 1994-1995 time period is excluded, Lufkin contends that there is no longer a
statistically significant disparity in salaried promotions for the remainder of the period 1996-
2002 alone, and therefore, no liability should be found or damages awarded. Plaintiffs submit
that this argument is barred both by the law of the case doctrine, and other applicable principles
of Title VII law.
A. Law of the Case.
All of the law of the case arguments set forth above with regard to hourly promotions in
the 1994-1995 period apply with equal force to the issue of salaried promotions. Lufkin
specifically sought rehearing by the Fifth Circuit as to salaried positions, based on its objection to the inclusion of 1994-95 in the liability period.14 If the Court concludes that the issue cannot
be reopened, it need go no farther in its analysis and must hold that defendant is liable for
(continued …) instances where adverse impact is found. (See, attached Drogin Decl. at ¶ 7.) This is the source of the difference in numbers he finds at the two different stages, and both are correct, for their separate purposes. 14 Lufkin’s petition for Panel Rehearing argued, at page 8: “There is no record evidence, and no finding by the district court, that the shortfall in salaried promotions was statistically significant . . . . Plaintiffs must prove that there was a statistically significant disparate effect after April 2, 1996. Thus, on the current record, Plaintiffs’ case with respect to salaried promotion fails.”

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salaried promotions in 1994-2002. We note here only that the Fifth Circuit specifically directed that back pay be awarded for the 9 shortfall salaried positions. (Slip Op. at 20.)
B. Other Reasons to Award Back Pay for Salaried Promotions. Even without inclusion of the shortfall for both 1994 and 1995, there remains an aggregate shortfall of African American promotions for 1996-2002. Although Lufkin contends that the statistical significance of the shortfall for 1995-2002 alone would be less than 2.00, it has never contended that all of the “lost promotions” occurred in 1994 or 1995, or that if one “took away” the 1994-1995 shortfalls, there would not be a shortfall for 1996-2002. In fact, there would be: Dr. Baker’s recently exchanged Declaration indicates that the majority of the 19942002 shortfalls occurred after 1995. (Baker Decl., p. 5 Table 2.) There is no bright-line rule requiring that statistical disparities resulting from promotion discrimination reach the level of statistical significance before they can be remedied. In fact, to apply such a limitation would frustrate Title VII’s broad remedial purpose, see Section I.A above, and in cases like this one where the total number of promotions available for analysis is relatively small this would erect an unnecessary barrier to victims of discrimination who seek a monetary remedy. The Fifth Circuit’s opinion also casts doubt on whether it was necessary or appropriate to apply any particular cutoff number of standard deviations to determine whether discrimination had occurred in salaried promotions. (See, Slip Op. at 18.) In any event, Judge Cobb’s findings of discrimination in promotions to salaried positions were not based on statistical evidence alone; on the contrary, he cited and credited testimony of plaintiff McClain and another witness at trial that they have been the victims of discrimination in salaried positions. (Am. Final J. at 23-24.) And the Fifth Circuit specifically upheld Judge Cobb’s findings; it wrote: “The evidence also supported that Lufkin engaged in subjective decision making when awarding promotions in the salaried ranks. [After summarizing that evidence, the court held] “[i]n light of this evidence, we are not left with the definite and firm conviction that the district court erred in finding subjective decision making in Lufkin’s

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promotion system.” (Slip Op. at 12-13.) Nothing in the Fifth Circuit’s conclusion limits it to hourly promotions.
Finally, as stated above in section II.A, almost all of 1995 may be included in the back pay determination under the two-year rule of Section 706(d)(1) of Title VII. Application of that period would add to the shortfall number for 1996-2002, and increase the level of statistical significance of that number. IV. Pre-Judgment Interest Rate Issues.15
A. The Annual Rate of Interest. Judge Cobb awarded pre-judgment interest at a rate of 5% per year. (Am. Final J. at 34.) Defendant did not appeal the interest award to the Fifth Circuit. Accordingly, that decision is law of the case and cannot be reconsidered now. In addition to general law of the case principles set out above, specific case authority commands this result. In Laffey v. Northwest Airlines, Inc., 740 F.2d 1071, 1102-03 (D.C. Cir. 1983), the D.C. Circuit rejected a challenge to a district court’s award of prejudgment interest because it had not been initially appealed and any objection to it was therefore waived. “[A]lthough the [prior] judgment was ultimately declared non-final, [the appellate court] entertained [in the prior appeal] all objections to dispositive rulings that the parties placed before us …. The law of the case must be followed in all subsequent proceedings in the same case in the trial court or on a later appeal in the appellate court.” Id. (internal citations omitted). See also, Goodman v. Heublein, Inc., 682 F.2d 44, 45 (2nd Cir. 1982) (holding defendant waived challenge to prejudgment interest award by not challenging it at an earlier stage; “[T]his court recognized that Rule 59(e) generally applies to motions for prejudgment interest; otherwise, the finality and repose of judgments would be unduly undermined.”); Palmer v. Barry, 794 F.Supp. 5 (D.D.C. 1991).16
15 The Amended Final Judgment awarded post-judgment interest at the statutorily required rate for the post-judgment period. (Am. Final J. at 38.) However, since the Amended Final Judgment was appealed and vacated, and has not been paid, the case remains in a pre-judgment posture for purposes of determining the interest rate. 16 In two cases where a failure to award prejudgment interest was permitted to be raised

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Moreover, Judge Cobb’s choice of the applicable pre-judgment interest rate was correct,
or at least within his discretion. Federal law does not prescribe a particular rate or reference
scale for pre-judgment interest, and it permits resort to applicable state law in making that
choice. See, Quest Med. Inc. v. Aprill, 90 F.3d at 1095 (affirming award of 10% prejudgment
interest, compounded daily, after holding that “State law governs the award of prejudgment
interest); FSLIC v. Texas Real Estate Counselors, Inc., 955 F.2d 261, 270 (5th Cir. 1992)). That
is what Judge Cobb did, in selecting the rate specified in Texas Finance Code § 304.003,
supported by Johnson and Higgins of Texas, Inc. v. Kenneco Energy, Inc., 962 S.W. 2d 507, 530-533 (Tex. 1988).17
Furthermore, the same rate of pre-judgment interest must be awarded until the date this
Court’s back pay judgment is entered. That will be the first effective judgment awarding back
pay in the case, since the Fifth Circuit disapproved Judge Cobb’s award.
B. Compounding of Interest.
Interest must also be compounded annually, as Judge Cobb ordered. (Am. Final J. at 34),
and as this Court has suggested (Tr. of Dec. 5, 2008 Status Conf. at 8). In addition 28 U.S.C.
§1961(b), specifying rates of post-judgment interest, provides that interest “shall be compounded
(continued …) belatedly, the purpose was to allow – not to reduce or deny – an award because allowing such interest was necessary to provide full relief and to comply with underlying (in those cases, New York state) law. Newburger, Loeb & Co., Inc. v. Gross, 611 F.2d 423, 433 (2nd Cir. 1979); Adams v. Lindblad Travel, Inc., 730 F.2d 89, 93 (2nd Cir. 1984). In one case found by defense counsel, In re Dept. of Energy Stripper Well Exemption Litigation, 821 F.Supp. 1432 (D. Kan. 1993), a court allowed a party to raise the issue of the proper prejudgment interest rate in a subsequent appeal; however, that court allowed the issue only because the district court had applied a legally incorrect interest rate which the appellate court felt bound to correct. Id. at 1435-1436. In this case, as shown in the text, Judge Cobb committed no error in awarding 5% pre-judgment interest. 17 Kenneco holds that the rate of post-judgment interest specified in Section 304.003 also governs pre-judgment interest awards under Texas law. A literal reading of Kenneco would support an award of prejudgment interest at the minimum statutory rate of 10% (simple interest); however, in keeping with plaintiffs’ view that all prejudgment interest rate issues have been determined and are now settled as law of the case, plaintiffs hold to the position that 5% interest, compounded annually, must be awarded.

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annually.” While not applicable by its terms to prejudgment interest, this provision confirms that the usual and default method of calculating interest on a judgment is to compound the amount on an annual basis.
CONCLUSION The Court should rule that class back pay is to be awarded for the period 1994-2007. It should permit the parties to submit further agreements or proposals either jointly proposing the amount and terms of a judgment to be entered herein, or suggesting efficient methods of proceeding to determine any remaining disputed issues. Unless the parties agree to resolve all issues, the further proceedings will include quantification of damages for the 2003-2004 period, and quantification of both lost promotions and damages from such lost promotions for the 20052007 period. The Court should, in addition, order that any judgment shall include pre-judgment interest at a rate of 5%, compounded annually.

Dated: April 17, 2009

Respectfully submitted,

By: /S/ Teresa Demchak
Teresa Demchak, CA Bar No. 123989 tdemchak@gdblegal.com Morris J. Baller, CA Bar No. 048928 mballer@gdblegal.com Goldstein, Demchak, Baller, Borgen & Dardarian 300 Lakeside Drive, Suite 1000 Oakland, CA 94612-3534 (510) 763-9800
Timothy Garrigan, TX Bar No. 07703600 tim@sgclaw.org Stuckey, Garrigan & Castetter Law Offices 2803 North Street Nacogdoches, TX 75963-1902 (936) 560-6020
Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE

I hereby certify that I have served all counsel of record in this case, including the

following, with a true and correct copy of the foregoing and attachment thereto by sending same

via electronic filing to:

Douglas Hamel Christopher V. Bacon Vinson & Elkins 2806 First City Tower 1001 Fannin Street Houston, TX 77002-6760
on this 17th day of April, 2009.

/S/ Teresa Demchak Teresa Demchak

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 Case 9:97-cv-00063-RC Document 656 Filed 08/14/2009 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

LUFKIN DIVISION

Sylvester McClain, et al. Plaintiffs,
v. Lufkin Industries, Inc.
Defendant.

§ Civil Action No. 9:97 CV 063 (CLARK) § § § § § § § §

PLAINTIFFS’ COMMENTS ON THE REPORT OF THE COURT APPOINTED CONSULTANT MICHAEL CAMPION, Ph.D.

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The Court, upon the joint recommendation of the parties, appointed Michael Campion, Ph.D., an industrial organizational psychologist, to “review Lufkin’s promotion policies, procedures, and practices for hourly and salaried positions to determine if those policies, procedures, and practices address and remedy the Court’s findings of unlawful subjectivity in promotions.” Order entered Apr. 7, 2009 (Dkt. 626) at 1. The Court further directed that Dr. Campion submit a report of “his findings and recommendations” to the Court and the parties, and for the parties to provide their written comments on the report within twenty (20) days thereafter. Dr. Campion submitted his Report to the parties on July 23, 2009.1 Plaintiffs provide their comments on Dr. Campion’s Report below.
1. Preliminary Comments Before turning to the substantive provisions of Dr. Campion’s report, Plaintiffs make the following preliminary comments and observations.
a. Adequacy of Lufkin’s Remedial Efforts to Date Dr. Campion notes at the outset of his Report that since the Court issued its liability findings, Lufkin has taken “some actions” to address the “issues in the case.” Report, Dkt. 654, at 6. He characterizes those actions as “fairly few and narrow in scope.” Id. Although Dr. Campion declined to comment on “whether [Lufkin’s] minor improvements are sufficient to address the subjectivity in promotions,” the Court cannot avoid that obligation and it must conclude that they are not sufficient given the comprehensive extent of Dr. Campion’s review of Lufkin’s current practices, see id. at 8-11, the content of Dr. Campion's report and the extensive
1 Dr. Campion’s report (hereinafter “Report”) was filed on July 27, 2009. Dkt. 654.
1
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scope of recommendations for improvements in Lufkin’s practices,2 as well as the strong
evidence in the record of continuing discrimination and the lack of meaningful voluntary or past remedial actions by Lufkin.3 See Plaintiffs’ Response in Opposition to Defendant's Motion to
Quash, Dkt. 583, at 6-7.
b. Overall Assessment of Dr. Campion’s Recommendations
Plaintiffs provide specific comments on each of Dr. Campion’s recommendations below.
Overall, Plaintiffs find the recommendations are thorough, comprehensive and, for the most part, address the Court’s liability findings. In Plaintiffs’ view, Recommendations 1, 4,4 5, 75, 13, 14,
15, 17 and 18 are the most important recommendations to be adopted, as remedies for the
2 Dr. Campion finds multiple sources of subjectivity in Lufkin’s current promotion processes. See e.g., Report at 14-15. (“The complexity [in the promotion process in terms of ‘career paths, promote pools, necessary training and experience, eligibility rules, and so on’] creates opportunities for subjectivity [and] it also results in a lack of full understanding, which leads to mistrust when the outcomes are discrepant between groups.” “Although there may be a general understanding of the requirements for most jobs, there are no written or agreed-upon lists. Without such explicit information, there is a considerable opportunity for subjectivity not only in defining the KSAO [knowledge, skill, ability, and other] requirements of jobs, but also in evaluating the KSAOs of employees.”) Dr. Campion also found that Lufkin does not have in place procedures to insure manager accountability or a means to monitor the promotion process and outcomes. See e.g., Report at 57 (“The company’s yearly affirmative action plan will reflect changes in the racial diversity of each job group, but may not explicitly examine the results of the promotions in the last year in terms of potential adverse impact.”); 61 (“[M]ost organizations conduct yearly updates for executives on EEO topics. The author’s understanding is that such briefings are not currently conducted [by Lufkin].”). 3 In light of the limitation on the length of time and number of hours in which Dr. Campion was to have completed his report and recommendations, it would not have been a good use of his time to substantiate that conclusion in any detail. Dkt. 626 at 2. Dr. Campion’s main focus was to make recommendations for future practices, not to analyze mechanisms of discrimination that the Court has already found. The same limitations may have resulted in Dr. Campion not fully appreciating Lufkin’s recalcitrance during this case which, in turn, underscore the need for the additional measures proposed by Plaintiffs to strengthen Dr. Campion’s recommendations and assure that they will assist in eliminating ongoing discrimination. 4 Plaintiffs consider the second prong of this recommendation to be critical. See 9-10, infra. 5 This recommendation does not go far enough to adequately address the problem of discretionary allocation of training opportunities found by Judge Cobb. See 11-12, infra.
2
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discrimination found by this Court and the Fifth Circuit. These recommendations include
professionally accepted and tested, and effective means to reduce unnecessary subjectivity and decision making based on implicit bias and stereotypes in the workplace.6 The other
recommendations made by Dr. Campion offer suggestions regarding human resources “best
practices,” which Lufkin would be wise to consider implementing to improve its personnel
processes and which could, if properly implemented, contribute to the reduction or elimination of
discriminatory decision-making.
c. Feasibility of the Recommendations
Dr. Campion cautions that “not all the recommendations may be feasible or practical”
and “[i]mportant considerations are the need for management flexibility and the amount of
administrative burden created. Also important is the acceptance of the union and not violating
the collective bargaining agreement.” Report, Dkt. 654, at 14. While these are relevant
considerations, they cannot excuse the Court from carrying out the mandate of the Fifth Circuit
6 Attached hereto as Exhibit 1 is a report by the Diversity Task Force that was created under the consent decree that settled a race discrimination class action lawsuit against the Coca Cola Company in 2001. Abdallah v. The Coca-Cola Company, Case No. 1-98-CV-3679 (N.D. Ga.). The Task Force was charged with making recommendations regarding and monitoring the company’s promotions, compensation, performance evaluations and other employment practices. The attached report is the Task Force’s assessment of the most effective remedial measures implemented by the company. The Task Force’s findings are consistent with the most critical of Dr. Campion’s recommendations. For example, the Task Force found the following practices to be most effective in remedying the alleged discriminatory promotion and compensation practices in the Abdallah case: (1) collecting accurate information and analyzing it for adverse impact, see Exh. 1 at 4-5, Campion Recommendation 14; (2) job analysis, see Exh. 1 at 6-7, Campion Recommendations 1 and 13; (3) creating management incentives to promote diversity goals, see Exh. 1 at 10-11, Campion Recommendation 15; (4) mentoring and career development programs, see Exh. 1 at 12-17, Campion Recommendation 5; (5) communication and corporate commitment to diversity goals, see Exh. 1 at 20-22, Campion Recommendation 17. Additionally, the Task Force found that a “comprehensive problem resolution program” is critical. Exh. 1 at 18-19. This Court also has recognized the importance of such a program in its statement of intent to appoint an ombudsperson to receive and respond to complaints from class members. Transcript of Apr. 6, 2009 Status Conference at 10:21-11:15. The parties also jointly have agreed that “Development of a Complaint Mechanism” is an appropriate component of the Court’s ultimate injunction. See Joint Report on Injunctive Relief, Dkt. 606 at 3.
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to remedy the discrimination found by Judge Cobb and affirmed by the Court of Appeals, unless those considerations rise to the level of “business necessity” – which Plaintiffs submit they clearly do not. Likewise, the Court cannot allow Lufkin to hide behind those considerations as excuses to reject an important recommendation. Instead, Lufkin should bear a substantial burden of demonstrating why any particular recommendation is neither practical nor feasible to implement , particularly Recommendations 1, 4, 5, 7, 13, 14, 15, 17 and 18.
The Court’s obligation to remedy discrimination must be discharged subject to what is feasible, of course, but that does not mean just what is inexpensive, convenient or easy or agreeable to Lufkin. Additionally, while Plaintiffs have been consistent in their representation that they seek no modification of the CBA, that is not the same as saying the unions get a veto over any proposed changes to Lufkin’s personnel practices.7 Lufkin’s management retains considerable discretion under the CBA; it should not be necessary for Lufkin to have to modify the CBA to make the necessary changes to its promotion practices to address the Court’s findings. Finally, in the past Lufkin has demonstrated a willingness to work with the unions to make certain changes to its human resources practices.8 Now, Lufkin should demonstrate the same willingness to work with the unions in implementing other remedies ordered by the Court.
d. Proposed Procedure Regarding Dr. Campion’s Recommendations As the Court is aware, the parties have been able to reach agreement on other aspects of injunctive relief, including the appointment of Dr. Campion, Dkt. 593; the identification of a proposed candidate for the ombudsperson position, Dkt. 634; and a number of other matters. See Joint Report on Injunctive Relief, Dkt. 606. By meeting and conferring on the terms of
7 There is no reason to presume that the unions would oppose any remedial action that promotes fairness. 8 See Appendix D to Dr. Campion’s Report, an undated letter from Lufkin’s Human Resources Manager John Havard to Dr. Campion stating that Lufkin implemented changes to its bid documentation process “in conformance with the collective bargaining agreement and/or with the approval of Lufkin’s unions.”
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injunctive relief, the parties have been able to narrow the disputed issues, and to frame and present their respective positions on the disputed issues to assist the Court in its ultimate decision making on injunctive remedies. See Plaintiffs’ Separate Report on Injunctive Relief, Dkt. 607, Lufkin’s Status Report on Points of Disagreement on Injunctive Relief, Dkt. 609.9
Plaintiffs suggest that a similar procedure could lead to a similar result with respect to Dr. Campion’s recommendations. Accordingly, Plaintiffs suggest that the Court direct the parties to meet and confer to determine whether they are able to reach agreement on which of Dr. Campion’s recommendations Lufkin will implement and to submit a joint report identifying such recommendations on or before August 31, 2009. Plaintiffs propose that the parties also be permitted to simultaneously submit separate reports advising the Court of the recommendations on which they were not able to reach agreement and briefly summarize that party’s position on the dispute (or a joint report in the event of full agreement).
2. Recommendation 1: Conduct a Job Analysis of the Hourly Jobs (Report, Dkt. 654, at 14-17)
This recommendation for a job analysis is a critical component of a remedy to address the Court’s findings.10 Together with Recommendation 13, for standardized job-related assessment
9 The parties have followed a similar approach regarding the back pay calculations, and were able to resolve almost all issues leaving only a very few narrow questions for decision by the Court. See Dkts. 587, 605, 608, 617, 619, 620, 629, 631, and 633. 10 Significantly, both Plaintiffs’ and Lufkin’s industrial organizational psychologist experts retained in this case agreed that a job analysis is a fundamental HR practice and plays “a key role in developing sound personnel policies, practices and procedures for making promotion decisions.” See Sept. 9, 2003 Deposition of Richard Jeanneret, Ph.D. (Lufkin’s industrial organizational psychologist expert) at 66:11-17 (attached hereto as Ex. 2) (Q: “Would you agree that research in human resource management and industrial and organizational psychology indicate that a job analysis would play a key role in developing sound personnel policies, practices and procedures for making promotional decisions?” A: “Yes.”). Plaintiffs’ industrial organizational psychologist and stereotyping expert Richard Martell, Ph.D. testified about the importance of job analysis in assuring objective, unbiased decision-making. Tr. Day 5 at 108:24-109:3 (attached hereto as Ex. 3) Additionally, the experience in other cases raising issues similar to those in this case has demonstrated that job analysis is an effective tool to remedy racial discrimination in promotions. See Ex. 1 at 7 (“Work analysis provides a knowledge base
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procedures, these recommendations form necessary steps to minimize discretionary selections based on non-job-related criteria.11
Lufkin’s managers have substantial opportunity to exercise subjective decision making in selection of employees for promotions within hourly positions. According to Appendix G of Dr. Campion’s report, of the 169 hourly jobs in Lufkin’s five seniority departments, 55 are not posted and 52 others are posted, but require the successful bidder to demonstrate proficiency and/or satisfactorily complete a training program before being awarded the job. Thus, 107 of the 169 hourly positions, or 63%, are filled in ways that allow managers to exercise discretion and subjectivity.12 Therefore, the collection of accurate information regarding the KSAOs of the hourly positions is essential.
Dr. Campion notes that Lufkin has never conducted a job analysis of its hourly jobs and his “interviews with employees revealed that there was considerable ambiguity as to the KSAOs [knowledge, skill, ability, and other requirements] necessary for promotion into many jobs.” Report, Dkt. 654, at 15. Dr. Campion does not recommend a job analysis for salaried jobs even though he does not find that there is any less ambiguity among employees regarding the KSAO’s
(continued …) that the company and its employees can use to support efficient, fair and equitable employment decision-making.”). In the face of the unanimous opinions of the HR experts in the case, there is no basis for Lufkin to continue to resist – or the Court to fail to order – comprehensive job analyses for hourly and salaried positions. 11 Dr. Campion found that “[a]lthough there may be a general understanding of the requirements for most jobs, there are no written or agreed-upon lists. Without such explicit information, there is a considerable opportunity for subjectivity not only in defining the KSAO requirements of jobs, but also in evaluating the KSAOs of employees.” Report at 15. 12 Moreover, Judge Cobb found that “[e]ven positions awarded to the senior bidder regardless of qualification can be influenced when supervisors are discouraging blacks from applying. It is thus not surprising that blacks are hesitant to bid and may choose to withdraw their bids even if selected.” Final Amended Judgment, Dkt. 552, at 23. Accordingly, Dr. Campion’s statement that “most hourly promotions are made based on seniority solely without any considerations of the past job assignments or skills of employees,” Report at 33, is contrary to the factual findings of this Court which were affirmed by the Fifth Circuit.
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for salaried positions. Rather, Dr. Campion declines to recommend a job analysis for salaried jobs “because the job descriptions for the salaried jobs were recently updated.” Id. at 15. Plaintiffs disagree with Dr. Campion’s assessment. Plaintiffs recommend that Lufkin be directed to conduct job analyses for both its hourly and salaried jobs.
In declining to recommend job analyses for salaried positions, Dr. Campion may not have been aware of the July 2008 deposition testimony on this subject of Lufkin’s Human Resources Manager John Havard.13 Mr. Havard testified that: (1) Lufkin did not consult with any HR professionals in updating job descriptions for salaried jobs;14 (2) it did not conduct a job analysis in updating the job descriptions15; (3) it did not conduct any validation studies of any of the updated job descriptions with internal sources;16 and the only validation it did in conjunction with the job descriptions was with the managers responsible for the positions.17 Dr. Campion proposes that in conducting the validation surveys for performing the job analysis for hourly jobs “[b]oth incumbents and supervisors should be surveyed to gain both perspectives, Report, Dkt. 654, at 17, something Lufkin did not do in updating its salaried job descriptions. Plaintiffs’ expert Dr. Martell found no evidence that any of the employees within Lufkin’s HR Department – the same employees who recently updated the salaried job descriptions – have the requisite skills, training and education to perform a formal job analysis. Ex. 3, Tr. Day 5 at 111:9-13. Dr. Campion’s recommendations that Lufkin add another staff person to its HR Department who
13 Dr. Campion did not identify this deposition transcript as one of the documents he reviewed in connection with his review of Lufkin’s personnel practices. See Report at 8-10. 14 July 9, 2008 Deposition of John Havard (attached hereto as Ex. 4) at 95:19-22. 15 Id. at 95: 12-18. 16 Id. at 95:23-96:2. 17 Id. at 96:3-6. It is significant that those are the same managers whose exercise of discretion resulted in discriminatory impact.
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“should be professionally trained in HR,” Report, Dkt. 654, at 62, demonstrate his agreement with Dr. Martell’s assessment.18
It is also critical that the job analysis be done properly. Dr. Campion suggests that a professional consultant be used to conduct the job analyses, but that Lufkin HR staff and supervisors might be used “to save costs.” Id. at 17. Lufkin’s current HR staff does not have the requisite skills, training and education to perform a formal job analysis. Lufkin should not be permitted to cut corners on this critical and essential task. Lufkin should be required to retain a qualified expert to conduct the job analyses. As a pragmatic suggestion, retaining Dr. Campion for this project would make sense and reduce costs in light of his recently acquired knowledge of the company’s operations and jobs.
3. Recommendation 2: Audit and Continuously Improve the Revised Bidding Documentation Process (Report, Dkt. 654, at 17-24)
Adoption of this recommendation might be helpful but it will not alone solve the problem of bias in decision-making. This recommendation must be viewed in context and implemented together with other recommendations Dr. Campion makes that directly address the reduction of subjectivity in the promotion process.
Both in the past and with its recent “improved” bid documentation practices, Lufkin has resorted to documentation of results for defensive purposes (i.e., to create a paper trail)19 rather than as a means to collect accurate and reliable information to analyze to ensure fair and
18 Dr. Campion explains “The field of HR has a great number of technical methodologies and scientific findings that are typically not known by employees who have learned HR on the job. Formal education and professional experience are necessary to develop and implement innovative improvements in the HR systems.” Id. at 62. 19 Dr. Campion notes that “employees must also sign a form indicating the reasons for the turndown to document their decisions.” Report, Dkt. 654, at 19. Given Judge Cobb’s findings of manager discouragement of African Americans from bidding on or accepting promotions and the unequal relationship between employees and their managers, this practice is suspect and appears to be aimed at providing protection for the company and not preventing bias in the promotion process.
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unbiased promotion practices. 20 Dr. Campion appears at least tacitly to share Plaintiffs’ concerns. He identifies a number of additional steps he recommends Lufkin implement to further improve the bid documentation process. For example, Dr. Campion proposes that “[t]he reasons for turning down postings should be recorded.” Report, Dkt. 654, at 23-24. He explains that “[c]ollecting information on reasons for turndowns may yield insight into the inhibitors (i.e., subjectivity, unconscious or conscious biases) of promotion opportunities and career development satisfaction. Report, Dkt. 654, at 23.
4. Recommendation 3: Create Career Development Guides for Both Hourly and Salaried Jobs (Report, Dkt. 654, at 24-26)
Ostensibly, the CBA should provide this information to hourly employees. Dr. Campion reviewed the CBA, id. at 8, and talked with employees and union representatives. Id. at 10-11. His inclusion of this recommendation suggests that the CBA does not include the necessary information, is not understood by employees, and/or does not accurately describe the actual hourly promotion process. Career development guides for both hourly and salaried employees
20 As an example, Plaintiffs are concerned that the codes and form Lufkin has developed to record reasons for selections/non-selections of hourly employees for promotions could be used as a menu of facially “objective” reasons from which managers could select to justify their “subjective” selections or non-selections. See Report, Dkt. 654, at Exhibit H. Additionally, many of the codes are vague, ambiguous and subject to different interpretations (e.g. “safety issues,” “physical limitations,” “communication barrier,” “reading and/or writing skills”). Id. Additionally, several disposition codes allow manager discretion in removing a successful bidder from the position (i.e., “removed per the 10 day trial (company request),” “removed per the 30 day trial (company request),” “removed per the 90 probation/crane op. Foundry (company request)”). Id. Another disposition code “declined the position,” also can be misleading. Other disposition codes may disguise managers’ discouragement of employees remaining in their current positions and failing to progress to promoted positions for which they were the successful bidders (e.g. “removed per the 10 day trial (employee request),” “removed per the 30 day trial (employee request)”), “removed per the 90 probation/crane op. Foundry (employee request)”). Id. Thus, Lufkin’s “bid documentation process” does little to address Judge Cobb’s finding that “African-Americans are systematically discouraged from bidding on jobs, are discouraged from taking promotions awarded through the bid process,” Amended Final Judgment, Dkt. 552, at 28.
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could be very helpful if properly implemented in overcoming African American employees’ reluctance to seek promotion or to accept offers (or to be dissuaded from accepting offers).21
5. Recommendation 4: Reexamine Pay Consequences of Hourly Promotions (Report, Dkt. 654, at 26-28)
This recommendation is two-fold. First, Dr. Campion recommends that Lufkin “revisit” its current policy of temporarily reducing an employee’s pay after he or she is promoted into a trainee position because it “discourages career exploration and interest in development.”22 Report, Dkt. 654, at 26-28. This recommendation might implicate the CBA, although Dr. Campion surmises, probably correctly, that “a positive decision would likely be met with acceptance by the union.” Id. at 28. This prong of the recommendation makes sense as a “best practice” but it does not particularly address the subjectivity in the promotion process.
The second prong of this recommendation, however, warrants consideration and further study as Dr. Campion proposes. Dr. Campion reports that “some employees asserted that management uses discretion to give pay increases to some promoted employees more quickly than the union contract requires. They felt this was a form of favoritism and potential discrimination.” Report, Dkt. 654, at 26. While Dr. Campion cautions that this might be “a misperception” or justified by legitimate business reasons, he rightly believes the issue warrants study to determine the truth of the matter. Given this recommendation and in light of the Court’s findings regarding the excessive subjectivity Lufkin’s managers exercise, the impact of these pay
21 See Final Amended Judgment, Dkt. 552, at 28(“African-Americans are systematically discouraged from bidding on jobs, are discouraged from taking promotions awarded through the bid process, and have difficulty getting assignments that will help them acquire the skills needed for further promotions.”). 22 Dr. Campion advises that “[r]eductions in pay following promotions are not common in other companies.” Report at 26.
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practices should be analyzed by Class Counsel or the ombudsperson to determine if injunctive remedies to address the pay practices are necessary.23
6. Recommendation 5: Provide Feedback to Employees on Unsuccessful Bids (Report, Dkt. 654, at 28-31)
Providing feedback to rejected bidders is important not only as a way of helping class
members successfully compete for promotions over time, but also as a control on the unfettered
exercise of supervisory discretion and resulting bias; when supervisors are required to articulate
reasons for their decision, this may guide them to using objective and plausibly justifiable factors
in their decision-making.. It also is logical and consistent next step to Lufkin’s practice of documenting the reasons for non-selection of bidders.24
7. Recommendation 6: Develop a Procedure for Asking Questions About Promotions and Career Opportunity Fairness Issues (Report, Dkt. 654, at 3133)
Dr. Campion’s findings with regard to this and several other recommendations reveal a lack of communication between Lufkin’s employees and management.25 The question asking
procedure Dr. Campion proposes is a good idea but the procedure as written is vague and needs
to be fleshed out in more detail to be effective. The requirement for an explanation should be
mandatory; in this form if could channel decision making toward objective and job-related
23 See Final Amended Judgment, Dkt. 552, at 29-30 (“Lufkin’s discrimination in … promotions has concentrated blacks in lower-paying jobs.” “ The net result of Lufkin’s discriminatory practices is a significant shortfall in income for black employees.”) 24 However, as noted earlier, Plaintiffs disagree with Lufkin’s practice of requiring employees to sign a form acknowledging that they agree with the stated reason for their non-selection. See n. 18. 25 See Report, Dkt. 654, at 15 (“the interviews with employees revealed that there was considerable ambiguity as to the KSAOs necessary for promotion into many jobs”); 21 (unsuccessful salaried promotion applicants are not notified in person that they did not get the position but by “an announcement in the company newsletter” that they did not get the job); 2324 (employees are not asked the reason(s) why they turn down promotions); 24 (“the hourly promotion process is very complicated and is not fully understood by many employees”); 29 (“there is no process in place for getting feedback on unsuccessful bids”); 49 (“managers often find it uncomfortable to give feedback to employees”).
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factors and help reduce subjectivity and bias. The ombudsperson could play a role in the procedure by ensuring that questions are answered fully, fairly, and accurately, and thus also help reduce subjectivity and encourage unbiased advancement of employees.
8. Recommendation 7: Develop a Process for Making Job Assignment and Training Decisions to Reduce Opportunities for Discretion (Report, Dkt. 654, at 33-35)
It is critical that Lufkin develop a process for making job assignment and training decisions to reduce opportunities for unguided and unreviewed exercises of discretion. While Dr. Campion refers to “perceptions of unfairness,” Report, Dkt. 654, at 33, Judge Cobb made specific findings that African American employees received less training opportunities than white employees.26 Dr. Campion’s recommended action plan to “study the problem” is inadequate given the Court’s findings. Moreover, Dr. Campion’s assertion that “most hourly promotions are made based on seniority solely without any considerations of the past job assignments or skills of employees,” Report, Dkt. 654, at 33, is contrary to the Court’s findings and is contradicted by Appendix G to his report which reveals that 63% of all hourly are filled in ways that allow managers to exercise subjectivity.27 Lufkin should be directed to develop and
26 See Final Amended Judgment, Dkt. 552, at 21 (“[W]hite employees have a significant advantage in gaining the skills and abilities needed to qualify them for promotion. Because workers’ day-to-day assignments are not governed by the CBA, supervisors have broad latitude to schedule workers as they see fit. No one checks or oversees that process and there is no right in the CBA to a specific position within a job classification. White employees can be, and are, selected and groomed for further advancement and managerial roles. Black employees are more likely to be placed in dead-end positions and left to seek training on their own, outside of regular work hours.). 27 Judge Cobb also found that “Salaried jobs … can be filled by anyone deemed suitable by Lufkin management.” Final Amended Judgment, Dkt. 552, at 6.
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implement a fair and mandatory process for allocation of training opportunities with explicit components, including documentation, monitoring and analysis for adverse impact.28
9. Recommendation 8: Develop a Skills Inventory (Matrix) for Hourly Employees (Report, Dkt. 654, at 35-36)
The listing proposed by Dr. Campion could be used to track the allocation of training opportunities to help ensure that such training is provided fairly and equally. Additionally, once the matrix or listing is created, managers’ reference to it in making promotion decisions could encourage unbiased decision making. However, the “skill determinations” made in creating the matrix must be objective and accurate, and not done on the basis of managers’ uninformed and subjective perceptions.
10. Recommendation 9: Develop a Cross-Training Program (Report, Dkt. 654, at 35-40)
While this is an admirable “best practice,” it is not necessarily remedial. However, in light of Judge Cobb’s findings regarding Lufkin’s unequal allocation of training to African American employees, Lufkin should be required to document any cross-training it provides to employees (including, but not limited to, temporary transfers of employees permitted under the CBA) so that such training can be monitored for adverse impact.
11. Recommendation 10: Consider a Pay-for-Skills Program Need and Potential Benefits (Report, Dkt. 654, at 40-44) and Recommendation 11: Institute a Technical Education Program With a Local College (Report, Dkt. 654, at 4448)
These also are “best practices” but they are not necessarily remedial.
28 As Plaintiffs earlier reported to the Court, Lufkin represented to Judge Cobb that it, in fact, had developed and implemented an on-the-job training program and procedure to address Judge Cobb’s findings and initial injunctive order. Plaintiffs subsequently discovered that Lufkin never implemented the program. See Plaintiffs' Response in Opposition to Defendant's Motion to Quash, Dkt. 583, at 6-7.
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12. Recommendation 12: Conduct Hourly Performance Reviews, Including Career Counseling (Report, Dkt. 654, at 48-50)
Performance reviews for hourly employees are a good idea for the reasons Dr. Campion discusses; however they are not directly remedial. It is more important for Lufkin to develop objective, job related selection criteria and procedures.
13. Recommendation 13: Develop Standardized and Job-Related Procedures for Assessments (Report, Dkt. 654, at 51-56)
This is a critical recommendation. It is directly related to the Court’s findings regarding excessive subjectivity in the promotion process. This recommendation must be implemented in tandem with Recommendation 1, i.e., job analyses. Plaintiffs’ comments regarding Recommendation 1 are equally applicable with regard to this recommendation. Lufkin will need qualified and experienced professional assistance in implementing this recommendation. Additionally, as Dr. Campion notes, once standardized and job-related assessment procedures are developed, Lufkin managers will have to be trained on the new procedures. Report, Dkt. 654, at 55-56. That training should be provided by an expert in the field. For reasons discussed in Plaintiffs’ comments regarding Recommendation 1, it would make sense for Lufkin to retain Dr. Campion to assist it in the development and implementation of, and training on, standardized and job-related assessment procedures.
14. Recommendation 14: Conduct Yearly Adverse Impact analysis and Monitoring of Promotions (Report, Dkt. 654, at 56-57)
This is a critical and usual component in an injunctive remedy in a case such as this one. Lufkin already has agreed to undertake periodic analyses of promotion data. See Joint Report on Proposal for Injunctive Relief, Dkt. 606 at 4-5. Plaintiffs believe that initially, Lufkin should be required to conduct such analyses more frequently than annually (i.e., semi-annually) so that if the analyses show adverse patterns (as has continued with hourly promotions), the source(s) of the disparities can be identified and corrective action taken. In addition to promotions, Lufkin should also analyze other related personnel decisions – such as allocation of training opportunities. It is critical that Lufkin not just conduct adverse impact analyses, but that it also
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take into account the results of the analyses in its evaluation of the performance, and in making decisions regarding the compensation, of its managers. The results of the analyses should be made available to the ombudsperson, Class Counsel, and the Court. Finally, Lufkin’s implementation of this recommendation should not preclude the ombudsperson and Class Counsel from obtaining the underlying data and conducting their own analyses.
15. Recommendation 15: Include Employee Development and Equal Employment Opportunity in the Management Performance Reviews (Report, Dkt. 654,t at 57-59)
This also is a critical and usual component in an injunctive remedy in a case such as this one. The decision makers also need to be held accountable – in terms of compensation and their own career advancement – for the achievement of diversity goals.29
16. Recommendation 16: Conduct Management Training (Report, Dkt. 654, at 5961)
Lufkin already has agreed that “training for all supervisors and managers on issues raised in the lawsuit is appropriate” and that the parties will “jointly attempt to select a consultant that Lufkin will retain to assist it in the development of the training.” See Joint Report on Proposal for Injunctive Relief, Dkt. 606 at 4. The training consultant that is retained should review this recommendation, particularly with an eye toward making sure that the training includes training for managers on how to make decisions in an objective, unbiased manner based on job-related criteria.
17. Recommendation 17: Conduct Yearly Executive Updates on Equal Employment Opportunity (Report, Dkt. 654, at 61-62)
Dr. Campion found that such briefings are not occurring at Lufkin. Report at 61. It is both telling and disturbing that, having been found liable for unlawful racial discrimination by
29 See Exh. 1 at 11 (“The Coca-Cola Company developed an incentive program that encouraged managers not only to be accountable for their own diversity goals, but also to be accountable for those of their peers and those of the organization overall. Collective incentives can be especially effective in helping to transform the organization.”).
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this Court and the Fifth Circuit, Lufkin’s upper management would not periodically review such data. Not only should Lufkin implement this recommendation, but the review should be rigorous and focus on Lufkin’s progress toward eliminating discriminatory practices and outcomes. The participants in the review should include the CEO, senior management, and the person Lufkin designates as its internal monitor. See Joint Report on Proposal for Injunctive Relief, Dkt. 606 at 4-5.
18. Recommendation 18: Add Staff to the Human Resources Department (Report, Dkt. 654, at 62)
This is a critical and necessary recommendation. The person selected should not only be “professionally trained in HR,” Report, Dkt. 654, at 62, he or she must have some expertise and successful experience in diversity programs and the elimination of bias in decision making. Lufkin’s current HR staff lacks any such competency.

Dated: August 14, 2009

Respectfully submitted,

By: /S/
Teresa Demchak, CA Bar No. 123989 tdemchak@gdblegal.com Morris J. Baller, CA Bar No. 048928 mballer@gdblegal.com Goldstein, Demchak, Baller, Borgen & Dardarian 300 Lakeside Drive, Suite 1000 Oakland, CA 94612-3534 (510) 763-9800
Timothy Garrigan, TX Bar No. 07703600 tim@sgclaw.org Stuckey, Garrigan & Castetter Law Offices 2803 North Street Nacogdoches, TX 75963-1902 (936) 560-6020
Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE I hereby certify that I have served all counsel of record in this case, including the following, with a true and correct copy of the foregoing by sending same via electronic filing to:

Douglas Hamel Christopher V. Bacon Vinson & Elkins 2806 First City Tower 1001 Fannin Street Houston, TX 77002-6760
on this 14th day of August, 2009.

/S/ Teresa Demchak

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 Case 9:97-cv-00063-RC Document 623 Filed 04/03/2009 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

LUFKIN DIVISION

Sylvester McClain, et al. Plaintiffs,
v. Lufkin Industries, Inc.
Defendant.

§ Civil Action No. 9:97 CV 063 (CLARK) § § § § § § § §

PLAINTIFFS’ COMMENTS ON DEFENDANT LUFKIN’S PROPOSED OMBUDSPERSON CANDIDATES
A. INTRODUCTION Defendant Lufkin Industries, Inc. (“Defendant” or “Lufkin”) has submitted the names
and other information regarding three individuals it proposes as candidates for the Court’s consideration to serve as a Court-appointed ombudsperson in this case. Specifically, Lufkin has recommended Retired Major General Michael Taylor, Vicki Birenbaum and Joe M. Deason. See Dkt. 615 and 618. Pursuant to the Parties’ Joint Report on Proposal for Injunctive Relief, Dkt. 606, Plaintiffs rank Lufkin’s three candidates and offer the following comments regarding each of them. Plaintiffs view the responsibilities of the ombudsperson to be potentially critical to the Court-ordered relief in this long and hard fought discrimination case. An ombudsperson who does not fulfill the responsibilities because of inexperience or a lack of independence could undermine the Court-ordered relief. Finally, Plaintiffs offer additional comments regarding Plaintiffs’ ombudsperson candidates. B. PLAINTIFFS’ RANKING OF LUFKIN’S CANDIDATES
Plaintiffs’ counsel have conferred with each of Lufkin’s candidates and reviewed the written materials Lufkin provided with regard to each of them. Based on this and other information Plaintiffs have gathered as well as the parties’ description of the duties and

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responsibilities of the ombudsperson as set forth in the Joint Report on Proposal for Injunctive Relief, Plaintiffs rank Lufkin’s three candidates in order of preference, from least to most preferred, as follows:
• Mr. Deason and Ret. Maj. Gen. Taylor (tie) • Ms. Birenbaum 1. Mr. Deason Mr. Deason is a resident of Lufkin, Texas and currently is employed as Director of Recruitment and Retention for the Lufkin Independent School District (“LISD”). Dkt. 618, Ex. A. Although his resume does not reflect it, Mr. Deason reported to Plaintiffs’ counsel that he currently has a two-year contract with Lufkin Independent School District, requiring him to work about 20 hours a week recruiting and retaining employees. Declaration of Timothy B. Garrigan (“Garrigan Decl.”) ¶ 3. With the exception of a six-year period during which Mr. Deason was a Division Manager for World Book-Childcraft International, Inc., Mr. Deason’s entire 41-year professional career has been in public education. Dkt. 618, Exh. A. There is no indication on Mr. Deason’s resume that he has any experience working in the field of corporate human resources or overseeing the implementation of court-ordered injunctive relief in either a private or public employment setting. Id. Mr. Deason advised Plaintiffs’ counsel that during the first approximately 10 years of his career with LISD (until the “early nineties”), the school district remained under an injunction dating back to the early seventies from a desegregation case. Garrigan Decl. ¶ 4. Mr. Deason was not directly responsible for implementing the injunction, but did report to the Superintendent on issues of increasing diversity among the teaching staff. Id. Mr. Deason knows Lufkin’s Vice President for Human Resources Paul Perez and its Human Resources Manager John Havard socially and professionally. Id. ¶ 5. He has served on community boards of directors with Mr. Perez. Id. He also describes former Lufkin CEO and current Lufkin board chairman, Douglas Smith, as an “acquaintance.” Id.

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Several of the class representatives know and respect Mr. Deason but expressed reservations about his appointment as the ombudsperson. Id. ¶ 6. They and Plaintiffs’ counsel concur that someone with more independence and relevant experience is required for the position.
2. Ret. Maj. Gen. Taylor Ret. Maj. Gen. Taylor had a 36 year career in the military and a simultaneous 31 year career in human resources roles in three different companies in Lufkin, Texas. Dkt. 615, Ex. B. He retired in 2005. Id. He is a resident of Lufkin, Texas. Id. In an interview with Plaintiffs’ counsel, Ret. Maj. Gen. Taylor acknowledged that he knows Mr. Perez and Mr. Havard and other Lufkin managers from spending most of his life in Lufkin, Texas. Garrigan Decl. ¶ 7. Ret. Maj. Gen. Taylor considered Mr. Havard one of his peers at various meetings involving human resources in the community when Ret. Maj. Gen. Taylor was working at St. Regis Paper Company, Republic Bank and Memorial Health System. Id. Ret. Maj. Gen. Taylor continues to have contact with Mr. Perez, Mr. Havard and other Lufkin managers at community social events, and library, museum and Chamber of Commerce events. Id. Ret. Maj. Gen. Taylor currently serves on the Board of the Stubblefield Learning Center; of which Mr. Perez also has been a member but with which Mr. Perez now works in an advisory capacity. Id. Ret. Maj. Gen. Taylor has not been responsible for implementing new EEO/diversity policies and practices. Id. ¶ 8. He has never been involved in any class action litigation. Id. He also has no current access to an office environment or support staff that would help him process or prepare documents he would be required to prepare as the ombudsperson. Id. While Ret. Maj. Gen. Taylor has a number of years of corporate human resources experience, like Mr. Deason, his social ties to and peer level relationship with Lufkin’s HR personnel and other management raise concern about his independence in the ombudsperson position. Moreover, Ret. Maj. Gen. Taylor’s lack of experience or familiarity with class action litigation or the implementation of new EEO/diversity remedial measures also raises concern.

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3. Ms. Birenbaum Ms. Birenbaum is a retired labor and employment litigator from a large Houston law firm. Dkt. 615, Ex. A. A review of the docket of the U.S. District Court for the Southern District of Texas revealed that Ms. Birenbaum has appeared in approximately 80 cases in that court, of which many were individual employment discrimination cases. Declaration of Teresa Demchak (“Demchak Decl.”) ¶ 3. Ms. Birenbaum appeared in several class actions, including several ERISA and FLSA cases, but no employment discrimination class actions. Id. In one of the ERISA cases, Ms. Birenbaum represented one defendant and Lufkin’s counsel Douglas Hamel represented a second defendant; in another ERISA case, Ms. Birenbaum represented one defendant and Lufkin’s counsel Mr. Hamel and Christopher V. Bacon represented a second defendant. Id. For the last three years, Ms. Birenbaum has done pro bono work for a non-profit organization in Houston, the Neighborhood Center, Inc. According to Ms. Birenbuam, she and Mr. Bacon are the organization’s “HR Committee” and meet once a month. Id. ¶ 6. Ms. Birenbaum appears to possess the some of the knowledge and experience Plaintiffs believe are necessary for the ombudsperson. However, Ms. Birenbaum’s lack of employment discrimination class action litigation experience and experience in working with a client to implement injunctive relief under such circumstances are drawbacks. Additionally, her ties to Lufkin’s outside counsel, who it appears will have a continuing role in representing Lufkin in this litigation and whose advice the ombudsperson may be called upon to question or disagree with, also raise concern about her independence. 4. Overall Assessment of Lufkin’s Nominees. While each of Lufkin’s nominees for the ombudsperson position has aspects of his or her background, experience, and relationships that make them, in Plaintiffs’ view, less suitable than any of Plaintiffs’ nominees (see below), only Ms. Birenbaum has any of the knowledge and experience necessary to be considered seriously for the position. Although Ms. Birenbaum may have some independence from “home town” pressures of critically considering Lufkin Industries’ employment practices while working in the community in which Lufkin is the largest

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private employer, her connections with Lufkin’s outside counsel raise concern regarding her independence.
Significantly, when Plaintiffs’ counsel contacted each of Lufkin’s candidates about the ombudsperson position for which they had been nominated, none of them knew anything about the history or procedural posture of this case or what their duties and responsibilities in the ombudsperson position might be, even though the parties had filed a report with the Court in which they set forth their agreement regarding the role of the ombudsperson. Garrigan Decl. at ¶ 9; Demchak Decl. at ¶ 4. None of Lufkin’s nominees had been given or had reviewed the Final Amended Judgment, the Fifth Circuit’s Order or the Parties’ Joint Report on Proposal for Injunctive Relief, the latter of which, as noted, set forth the parties’ agreement regarding the role and responsibilities of the ombudsperson. Garrigan Decl. at ¶ 9; Demchak Decl. at ¶ 4. This apparent lack of curiosity about a position for which they agreed to be nominated raises, in Plaintiffs’ view, additional concerns about each of the candidates. C. PLAINTIFFS’ PROPOSED OMBUDSPERSON CANDIDATES
For reasons discussed in their Report on Plaintiffs’ Proposed Ombudsperson Candidates, Dkt. 614, Plaintiffs reiterate their belief that each of the three candidates they have proposed is ideally suited for the ombudsperson role in this case. All have the independence, skill and, importantly, actual experience in overseeing implementation of and compliance with injunctive relief in employment discrimination class action litigation. Lufkin’s only objections to date to Plaintiffs’ proposed candidates: that they are “high priced” lawyers from “out-of-state,” see Dkt. 615 at 2, do not address their qualifications for the position. Moreover, Lufkin’s concern with the cost to implement injunctive relief is ironic in view of the rates it has paid its attorneys and the total litigation costs it has amassed to defend itself in this case. Demchak Decl. Ex. 1. Moreover, Lufkin’s candidate Ms. Birenbaum’s billing rate of $450 an hour is not appreciably less than the rates Plaintiffs’ candidates – each of whom has directly relevant experience – would bill for their work on this assignment. As for the fact that all of Plaintiffs’ proposed candidates are from out of state, Plaintiffs suggest that Lufkin could benefit greatly from having someone

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not immediately connected to the Lufkin community or with ties to Lufkin’s management personnel or its the defense counsel, who have represented Lufkin throughout this litigation, to review its performance with a fresh, independent and experienced eye. Moreover, because of the substantial and directly relevant experience Plaintiffs’ proposed candidates have, each could hit the ground running; their experience would bring efficiencies, whereas there would be a steep learning curve for each of Lufkin’s candidates, and especially so for Mr. Deason and Ret. Maj. Gen. Taylor.
Lufkin’s request that the Court consider someone in close proximity to Lufkin, Texas, see Dkt. 615 at 2, decreases the chances that the individual will be independent of Lufkin Industries or its counsel. Moreover, in this day and age of electronic communications, it is not necessary that the ombudsperson be physically located in close proximity to Lufkin, Texas to be able to effectively receive and resolve complaints from class members, particularly if, as the parties contemplate, the ombudsperson will be working with Lufkin to develop and implement an effective internal employee complaint mechanism and procedures. See Joint Report on Proposal for Injunctive Relief at 3-4. What is more critically important is that the person who is appointed has the necessary background, skills, experience, stature and independence to serve in the capacity. Plaintiffs’ proposed candidates unquestionably have these qualifications.

Dated: April 3, 2009

Respectfully submitted,

By: /S/
Teresa Demchak, CA Bar No. 123989 tdemchak@gdblegal.com Morris J. Baller, CA Bar No. 048928 mballer@gdblegal.com Goldstein, Demchak, Baller, Borgen & Dardarian 300 Lakeside Drive, Suite 1000 Oakland, CA 94612-3534 (510) 763-9800

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Timothy Garrigan, TX Bar No. 07703600 tim@sgclaw.org Stuckey, Garrigan & Castetter Law Offices 2803 North Street Nacogdoches, TX 75963-1902 (936) 560-6020
Attorneys for Plaintiffs

CERTIFICATE OF SERVICE I hereby certify that I have served all counsel of record in this case, including the following, with a true and correct copy of the foregoing by sending same via electronic filing to:

Douglas Hamel Christopher V. Bacon Vinson & Elkins 2806 First City Tower 1001 Fannin Street Houston, TX 77002-6760
on this 3rd day of April, 2009.

/S/ Teresa Demchak

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 Case 9:97-cv-00063-RC Document 674 Filed 10/02/2009 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

LUFKIN DIVISION

Sylvester McClain, et al. Plaintiffs,
v. Lufkin Industries, Inc.
Defendant.

§ Civil Action No. 9:97 CV 063 (CLARK) § § § § § § § §

PLAINTIFFS’ MEMORANDUM IN SUPPORT OF AMENDED PROPOSED FURTHER ORDER FOR MONETARY RELIEF

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Pursuant to the Court’s Order entered August 25, 2009 (Dkt. 662), Plaintiffs, Sylvester McClain, Buford Thomas, et al., submit this Memorandum in Support of their proposed Further Order for Monetary Relief, submitted to the Court on September 9, 2009 (Dkt. 669), as slightly revised in the Amended Proposed Further Order submitted herewith.

I.

PROCEEDINGS AND COMMUNICATIONS AMONG THE

PARTIES SINCE ENTRY OF THE COURT’S AUGUST 25, 2009 ORDER

As Plaintiffs informed the Court in their August 21, 2009 Status Report on Monetary Relief Proceedings (Dkt. 660), Lufkin had not by that time responded to Plaintiffs’ proposed plan, in outline form, for award and distribution of class back pay, which Plaintiffs had sent to Lufkin on August 3, 2009. See, Status Report (Dkt. 660 at 5 and n.5). In that Status Report, Plaintiffs requested that the Court set a schedule requiring Lufkin to respond to Plaintiffs’ proposed plan and for the parties to meet and confer in an attempt to resolve any differences or narrow the issues for resolution by the Court. (Id. at 7) The Court did so in its August 25 Order, adopting a schedule slightly different from – and more expedited than – the schedule proposed by Plaintiffs.
In response to that Order, Plaintiffs submitted a fully fleshed-out proposal for the award and distribution of class back pay, in the form of the previously mentioned proposed Further Order, on September 9, 2009 (Dkt. 669). Under the Court’s August 25 Order, the next step in the required process was for “the parties [to] meet and confer in good faith regarding the plan.” (Id. at 2) The parties have now done so, beginning with an initial conference call on September 18, and continuing with a series of conference calls and exchanges of data and information relevant to the discussion of monetary relief issues.
In the course of these discussions, it developed that the willingness and ability of the parties to resolve differences relating to the content and form of a judgment for monetary relief depended to some extent on the resolution of certain outstanding injunctive relief issues. For this

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reason, the parties have continued discussions of the monetary and injunctive relief issues concurrently and, at times, in the same meetings.1 The discussions concerning injunctive relief issues have resulted in agreement of the parties on all issues, which is to be incorporated into a proposed injunction to be considered by the Court.2 In addition, these discussions resulted in agreement on many aspects of the proposed class back pay distribution plan.
Based on these proceedings, Plaintiffs now respond to the Court’s inquiry whether “any good faith objections or points of disagreement remain” to Plaintiffs’ September 9 proposed Order (Dkt. 662 at 2) (as revised in the amended proposal submitted herewith), and set out their positions on those points in Section III of this Memorandum. There remain only two points in dispute, as described in Section III. But before addressing those points, it is necessary for Plaintiffs to summarize and explain the several minor amendments in their previously proposed Order, which resulted from the further communications with Lufkin and the proposed Third Party Administrator to be appointed under Plaintiffs’ proposed plan.
II. SUMMARY AND EXPLANATION OF AMENDMENTS TO PROPOSED ORDER
A. Minimum per-capita payments to all class members.
As a result of the further discussions, the amount of the minimum payment to each class member, without regard to whether the class member satisfies the minimum time worked requirement (Exh. A at 6 [§III.D.1]), has been increased from $250 to $375. The total amount of money required for this payment is approximately $484,500, based on the current estimate of 1,292 class members; this represents approximately 9% of the total back pay award including interest. The parties believe that this is an appropriate, still modest amount to distribute among
1 The Court’s granting of an extension of time for the submission of the parties’ positions on monetary relief issues to October 2, 2009 – the same date that their submissions on injunctive relief are due – facilitated this broader discussion. 2 The parties’ agreement is not, however, a settlement of all issues. Lufkin has agreed to the form of the judgment incorporating the injunctive relief order, reserving Lufkin’s right to appeal from that judgment.
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all class members in light of the impossibility of saying that, but for the discriminatory practices found by the courts, any particular class member could not have received a promotion. B. Participation payments (Exh. A at 7-9 [§III.D.2])
Plaintiffs have slightly modified their schedule of proposed Participation Payments by increasing the award to one Class Representative, Florine Thompson, from $9,026 to $13,526. The initial amount proposed for Ms. Thompson was based on Class Counsel’s inaccurate application of the enhancement factors to her, which has now been corrected. Other than that, the amounts proposed by Plaintiffs remain the same, as do the percentages of the total back pay fund that they represent.
The parties have discussed Lufkin’s position with respect to the proposed Participation Payments on several occasions. As this submission was being finalized, Lufkin’s attorneys informed Plaintiffs’ counsel that Lufkin does not agree with the proposed Participation Awards. C. Payments to and functions of Administrator (Exh. A at 3-4 [§III.A])
The Amended Proposed Further Order contains relatively minor revisions to the provisions defining the functions to be carried out by the Third Party Administrator. These revisions resulted from Plaintiffs’ counsel’s discussion of the proposed assignment with the nominated administration company, and advice given by that company based on its extensive experience with notice, mailing, and claim procedures similar to those proposed for this case. In particular, the proposed Administrator counseled Class Counsel not to propose communications from class members by email rather than telephone (harder for Administrator to log, manage, and control), to provide for delivery of payment checks by UPS Ground service with confirmation service rather than USPS registered mail (UPS provides a less expensive and time consuming process), and not to provide for a website dedicated to class members (unnecessary and expensive to build and maintain).
It is possible that administrative costs will slightly reduce the amount available for distributions to the class. The Administrator has estimated that the proposed services can be
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provided for slightly less than the $50,000 that Plaintiffs propose should be advanced by Lufkin. However, the actual costs will depend on factors that cannot be predicted with certainty (the number of address traces required, the volume of calls and questions from class members, the number of employment date challenges by class members, etc.), and the range of costs considered possible by the Administrator reaches $61,500 at the high end; if the actual costs exceed $50,000, they are to be paid from interest earned on the Class Monetary Relief Account or unclaimed funds from that Account.
III. PLAINTIFFS’ PROPOSED ALLOCATION AND DISTRIBUTION PLANS ARE APPROPRIATE AND NECESSARY TO ASSURE A
COMPLETE AND FAIR DISTRIBUTION OF BACK PAY TO CLASS MEMBERS.
A. The Amount of Back Pay and Interest to be Awarded There are no remaining disputed issues between the parties relating to the total amount of
back pay and interest, other than those the Court has decided by its previous Orders. See, Plaintiffs’ Proposed Further Order re Monetary Relief (Dkt. 669) at 1. Thus, there is no further need for Plaintiffs to brief those matters and the Court should adopt the provisions of the Amended [Proposed] Order specifying amounts of back pay and interest (Exh. A at 1-3 [§ I]).3 B. The Form of the Judgment for Monetary Relief
There is an outstanding issue with regard to whether the award of back pay and interest should be divided into a number of parts - one division between the amounts for salaried promotions (which the Court held payable over Lufkin’s argument to the contrary) and hourly promotions, and the other division between amounts payable for different time periods, most notably the period up to the end of 1995 (for which the Court held Lufkin liable over its
3 The total amount of back pay to be awarded is $3,269,845 plus interest. If the date of entry of judgment were December 31, 2009, the total with interest would amount to $5,477,320.10. This is the number that Plaintiffs use to estimate the percentages of the total award allocated to various categories of payments. See, Plaintiffs’[Proposed] Further Order re Monetary Relief, filed September 9, 2009 (Dkt. 669).
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argument to the contrary) and the period beginning with 1996 (as to which there was ultimately no dispute, at least for hourly positions). See, Order Denying Partial Summary Judgment entered June 22, 2009 (Dkt. 646) and Order re Damages entered June 22, 2009 (Dkt. 647).4 As Plaintiffs now understand Lufkin’s position,5 it seeks to divide the award into as many as six parts, one or several of which – constituting the amount of damages due for hourly promotions during the period 1996-2007 - it contends can be paid out prior to the adjudication of the appeal that Lufkin may take on the 1994-1995 time period and salaried promotions issues.
Plaintiffs oppose such a division, and their proposed Order does not provide for a division of the judgment into different parts. While recognizing the benefit of immediate payment of the undisputed portion of the judgment to class members entitled to share in it, even if and while Lufkin pursues an appeal that could potentially change the payments due on other portions of the judgment, on closer examination of how that would be implemented, Plaintiffs do not think this cannot be done fairly and efficiently. It is neither practicable nor advisable to divide the money award into portions, with one part to be paid out before any decision on Lufkin’s possible appeal to the Fifth Circuit and the remaining portions to be paid out after the appellate court has ruled (and this Court completes any necessary proceedings on remand).
It would be practicable and desirable to make such a partial payment if the amounts to be paid to individual class members entitled to payment from the undisputed portion of the award, and the total amount to be paid on that portion of the award as opposed to the portions subject to
4 Although Lufkin has stated that it may appeal the Court’s rulings that Lufkin is liable for back pay due to lost hourly promotions in 1994-95 and due to any salaried promotions, it recognizes that, in light of the Court’s rulings, the judgment should include amounts for the 1994-1995 period and salaried promotions. Plaintiffs are confident that the Court’s rulings will be upheld on any appeal but recognize that Lufkin has the right to appeal on either or both of the two rulings. 5 Plaintiffs have been informed in conversations of counsel within the past few hours that Lufkin may urge that the judgment be divided into as many as six portions; however, at the time of completion of this Memorandum, Plaintiffs’ counsel are not sure exactly what divisions Lufkin will propose.
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Case 9:97-cv-00063-RC Document 674 Filed 10/02/2009 Page 7 of 11
appeal, did not depend on which portions of the judgment Lufkin may appeal and the outcome of such an appeal. But, unfortunately, that is not the case. Both the division of the overall classwide award between the amounts attributable to hourly promotions in 1996-2007 and the amounts attributable to hourly promotions in 1994-1995, and the division of the award between the amounts attributable to hourly promotions and salaried promotions, will affect the amounts to be distributed to Class Members from the undisputed portion of the award in a number of complicated ways that are summarized below.
The proposed formula for calculation of the time-worked payments agreed to by the parties equalizes the value of each week worked by class members (i.e. does not make the value depend on when the weeks were worked), yet permits interest to be awarded separately (i.e., based on the years in which the time was worked) to add appropriate value for the delay in payment. Over 85% of the Monetary Relief Fund is proposed – and this is not disputed by the parties - to be distributed by this formula that is the product of extensive discussions with Class Representatives and that is relatively easy to understand and explain. It will not be possible to equalize the value of weeks worked if there are separate partial payments based on different contested liability periods or portions of the class. Also, hundreds of individual class members would receive different values for weeks they worked in the different time periods or while they were in different classifications as hourly or salaried employees, and it will be hard for them to understand or Class Counsel to explain why this proper and how it works.
Under a divided award, the amount of damages that will be awarded for time worked in 1996-2007 will be greater, on a per-week basis, if the 1994-1995 time period is included in the liability period than if it is not (i.e. Lufkin appeals and wins on this issue on appeal). If the incremental amount payable for time worked in 1996-2007 is withheld from an initial distribution to class members based on hourly promotions only in those years, and that amount is then paid out to class members employed in 1994-1995 after Lufkin loses on its appeal, the amount withheld from class members who worked in 1996-2007 will effectively have been transferred to those employed in 1994-1995 – not the same group of individuals. Likewise, if the
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Case 9:97-cv-00063-RC Document 674 Filed 10/02/2009 Page 8 of 11
amount of damages attributable to salaried promotions is withheld from an initial payment to class members who worked in 1996-2007 and later paid out to class members employed in salaried positions, that amount will effectively have been transferred from 1996-2007 employees (most of whom held hourly positions) to the much smaller number of class members who held salaried positions. This skewing effect is especially pronounced in favor of those class members who held salaried positions in 1994-1995, when the damages calculated for salaried promotions were especially large.
If, in order to avoid the intra-class transfers described above, the incremental amounts withheld pending the outcome of an appeal and payable to 1996-2007 class members were instead paid out to class members after the appeal (assuming Lufkin loses its appeal), this would result in greatly increased administrative and accounting expenses for two separate distributions, and – more importantly – would cause great confusion and require time-consuming explanations by Class Counsel (and perhaps Lufkin) to class members. It would also engender another set of back pay proceedings before the Court when the outcome of the appeal is known.
The class definition and the number of class members would change, if Lufkin succeeds on either issue on appeal. Class members who worked only in 1994-1995, and/or those who worked in salaried positions, would be excluded from the class recovery in that event. Moreover, the class membership status of employees whose 90 consecutive days of employment (necessary to have been eligible for a time-worked award) straddled the calendar years 1995 and 1996, but who did not work the requisite 90 days after 1995, would remain indeterminable until after the outcome of the appeal. These factors would occasion a recalculation of the per-capita and time-worked portions of the class payments after an appeal. At a minimum, such a recalculation would be time-consuming and inefficient.
The number of weeks worked by some class members – those who were employed in both the 1994-1995 and the 1996-2007 time periods – will change based on whether Lufkin succeeds on its appeal of the liability period issue. This would affect the calculation of payments
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based on weeks worked, requiring a second round of determinations and administrative procedures if the judgment is paid out in stages.
Finally, if only a portion of the judgment is to be paid out pre-appeal, and the remainder paid out based on the outcome of the appeal, the question arises of how to charge or allocate the per-capita payments and individual Participation Award payments: should they be charged entirely against the amount paid out in damages for 1996-2007 hourly promotions, or should they be allocated pro-rata to the 1996-2007 hour promotions damages and the other categories of damages; and if the latter, in the event Lufkin wins its appeal on either or both issues, how would the amounts initially allocated to the other categories of damages then be recovered from the amounts already paid to class members based on 1996-2007 hourly promotions?
Because of the complications and uncertainties that inevitably arise from the division of the judgment into separate categories so that one category of damages can be provisionally calculated and paid out while Lufkin appeals from the award of the other categories of damages, Plaintiffs urge the Court to decline to divide the award and instead to enter an order specifying that it will enter a unitary judgment for a single amount. Should Lufkin appeal from that judgment, the parties and the Court can then proceed in light of the rules applicable to stays of judgment pending appeal, bond requirements, etc.6
Lufkin may, of course, also maintain its position that simple, not compound, interest should be awarded, and could even appeal to the Fifth Circuit on that point (although Plaintiffs’ counsel have received no indication that Lufkin will do this). Plaintiffs’ proposed Order is based on compound interest as ordered by the Court. If Lufkin does not accept the Court’s ruling on this point (Order entered August 25, 2009, Dkt. 662), that position might also impact the form of the Court’s ultimate judgment for interest. However, as with the issues of the 1994-1995 time
6 Should Lufkin file such an appeal on monetary relief orders, the Court should not stay the injunctive relief portion of its judgment. Moreover, we do not understand Lufkin to intend to appeal from any aspect of the injunctive relief, nor to seek a stay of the injunction while other issues are pending on appeal.
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Case 9:97-cv-00063-RC Document 674 Filed 10/02/2009 Page 10 of 11
period and salaried promotions, Plaintiffs’ proposal does not try to anticipate complications that may not arise, or a decision to divide the award in ways that Plaintiffs consider impracticable and inadvisable; and in any event whatever changes the Court may deem necessary can be made before entry of a final judgment. All that the Court need do here is enter its Order setting out the terms that it intends to incorporate into that judgment.
Finally, we comment – although it is not a matter that the Court has required the parties to address here or needs to address at this stage - on how the monetary relief order will enter into entry of a final judgment on other issues in the case. We do so in order to assist the Court in planning schedules and procedures leading to entry of such a judgment. Given the Fifth Circuit’s order of dismissal of the prior appeal from the Court’s interim award of attorneys’ fees as premature and the Court of Appeals’ reasoning, Plaintiffs would urge the Court to delay entry of a final judgment until it is prepared to include all three forms of relief – an injunction, monetary relief, and (interim) attorneys’ fees – in its judgment. As to the injunctive and monetary relief provisions, the Court has, as of this date, received all of the parties’ submissions on those issues and will be in a position to rule on all remaining issues and combine all of its rulings into a final decree. As to attorneys’ fees, Plaintiffs respectfully suggest that the Court might incorporate its previously-entered interim award of attorneys’ fees and costs (Dkt. 621 and 622), which the Court of Appeals ruled was not an appealable order, into the final judgment, reserving any further award for time and expenses incurred since January 1, 2009 for later proceedings. C. Participation Awards.
As noted above, Lufkin takes the position that Plaintiffs’ proposed Participation Awards for certain named plaintiffs and class representatives are not appropriate. Because the issue is contested and may be subject to appellate review, the Court’s Order should cite the basis for whatever awards it may order; for that reason, Plaintiffs have included the legal reasons and authorities supporting the proposed Participation Awards in the Amended Proposed Order submitted with this Memorandum (at 7-9). The factual basis for the individual awards and the
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total amount of the proposed awards is set forth in the Declaration of Timothy B. Garrigan, submitted herewith. Since the reasons and authorities are fully set out in the Amended Proposed Order , we will not repeat them here but instead incorporate them by reference.

Dated: October 2, 2009

Respectfully submitted,

By: /S/ Morris J. Baller
Teresa Demchak, CA Bar No. 123989 tdemchak@gdblegal.com Morris J. Baller, CA Bar No. 048928 mballer@gdblegal.com Goldstein, Demchak, Baller, Borgen & Dardarian 300 Lakeside Drive, Suite 1000 Oakland, CA 94612-3534 (510) 763-9800
Timothy Garrigan, TX Bar No. 07703600 tim@sgclaw.org Stuckey, Garrigan & Castetter Law Offices 2803 North Street Nacogdoches, TX 75963-1902 (936) 560-6020
Attorneys for Plaintiffs

CERTIFICATE OF SERVICE I hereby certify that I have served all counsel of record in this case, including the following, with a true and correct copy of the foregoing by sending same via electronic filing to:

Douglas Hamel Christopher V. Bacon Vinson & Elkins 2806 First City Tower 1001 Fannin Street Houston, TX 77002-6760
on this 2nd day of October, 2009.

/S/ Morris J. Baller

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 Case 9:97-cv-00063-HC Document 269 Filed 10103/2003 Page 1 of 25

O.~:r~lNAL IN

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LUFKINDNISION

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Sylvester McClain, et al. Plaintiffs,
v.
Lufkin Industries, Inc. Defendant.

§ Civil Action No. 9:97 CtyOOT(COB § § § § § § § §

PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT

Case 97-cv-00063-J:-IC Document 269 Filed 10103/2003 Page 2 of 25

I.

INTRODUCTION

On September 23, 2003, Lufkin Industries, Inc. ("Lufkin") filed a motion for partial summary judgment on plaintiffs' initial assignment claims. Amazingly, Lufkin does not mention or refer to the standard for summary judgment in its motion even once, I and, not surprisingly, it fails to demonstrate that there is no genuine dispute of material fact and that it is entitled to judgment as a matter oflaw. For this reason, as well as those discussed below, Lufkin's motion for partial summary judgment should be denied.
II. LEGAL STANDARD

Summary judgment is appropriate if the record discloses "that there is no genuine issue as to any material fact and that the moving party is entitled to ajudgment as a matter of law." Fed. R. Civ. P. 56(c). The pleadings, depositions, admissions, and answers to interrogatories, together with affidavits, must demonstrate that no genuine issue of material fact remains. See id.; Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Amoco Prod. Co. v. Horwell Energy, Inc., 969 F.2d 146, 148 (5th Cir. 1992). When considering a motion for summary judgment, the district court "must 'review the facts drawing all inferences most favorable to the party opposing the motion. '" Amoco, 969 F.2d at 148 (quoting Reid v. State Farm Mut. Auto Ins. Co., 784 F.2d 577, 578 (5th Cir. 1986)); Hertz v. Treasure Chest Casino, L.L.C., No. Civ.A.03-73, 2003 WL 21748686, *2 (E.D. La. July 25, 2003). A court that is ruling on a summary judgment motion may not resolve factual disputes or make credibility determinations. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Leonard v. Dixie Well Servo & Supply, Inc., 828 F.2d 291, 294 (5th Cir. 1987).
"If the moving party meets the initial burden of showing that there is no genuine issue of material fact, the burden shifts to the non-moving party to produce evidence or designate specific

I Nor did Lufkin mention the standard for summary judgment in its September 5, 2003 motion, which was rejected by the Court on September 11,2003.

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Case 97-cv-00063-HC Document 269 Filed 10103/2003 Page 3 of 25
facts showing the existence of a genuine issue for trial." Engstrom v. First Nat'! Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995). However, "[u]ntil the movant has met its burden, the opponent of a summary judgment motion is under no obligation to present any evidence." Gray v. Greyhound Lines, East, 545 F.2d 169, 174 (D.C. Cir. 1976). Further, before summary judgment can be granted on the basis of an affirmative defense, the defendant must meet its ultimate burden of persuasion on its affirmative defense. See Crescent Towing & Salvage Co., Inc. v. MN Anax, 40 F.3d 741, 744 (5th Cir. 1994); Rosales v. City of San Antonio, No.
CIV.ASA-00-CA-0144NN, 2001 WL 674201, *2 (w.n. Tex. March 7, 2001); see also Liberty
Lobby, 477 U.S. at 252 (holding that party bearing burden of persuasion must set forth sufficient factual material to support determination that burden of persuasion has been satisfied). "Merely invoking [an] affirmative defense[] is not enough." Rosales, 2001 WL 674201, at *2.
A court must find a '''[a] factual dispute ... [to be] 'genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party ... [and a] fact ... [to be] 'material' if it might affect the outcome of the suit under the governing substantive law.,,, Hertz, 2003 WL 21748686, at *2 (quoting Beck v. Somerset Techs., Inc., 882 F.2d 993,996 (5th Cir. 1989). In other words, a factual dispute is genuine if it requires a trial to resolve competing reasonable factual contentions. See James WM. Moore, Moore's Federal Practice § 56.11 [3] (3d ed. 2003) ("Moore's Federal Practice"); Amoco, 969 F.2d at 148. Judgment as a matter oflaw is permitted only if the facts and law will reasonably support only one conclusion. See Bricklayers, Masons and Plasterers InrI Union of Am., Local Union No. 15 v. Stuart Plastering Co., Inc., 512 F.2d 1017, 1024 (5th Cir. 1975); Moore's Federal Practice §56.11 [3].
III. ARGUMENT A. Sylvester McClain's January 29, 1995 Memorandum Is The Relevant Document For
Determining The Scope Of Mr. McClain's Claims As Submitted To The Equal Employment Opportunity Commission.
In arguing in its motion for partial summary judgment that plaintiffs' initial assignment claim falls outside the scope of the named plaintiffs' charges of discrimination ("EEOC charge")
2

Case 97-cv-00063-HC Document 269 Filed 10103/2003 Page 4 of 25
filed with the Equal Employment Opportunity Commission ("EEOC"), Lufkin refers exclusively to the August 12, 1996 EEOC charge filed by named plaintiff Sylvester McClain and the February 24, 1997 EEOC charge filed by named plaintiff Buford Thomas. See Lufkin's Motion at 1-2. However, it is beyond dispute that this Court has already detennined that Mr. McClain's January 29, 1995 memorandum, which was sent to the EEOC, constitutes his EEOC charge for purposes of this lawsuit? Lufkin concedes this fact in its reply to plaintiffs' opposition to its motion for leave to file its partial summary judgment motion. See Lufkin's Reply at 1. Yet Lufkin never addresses the contents of the memorandum in its summary judgment motion.
On this basis alone, Lufkin's summary judgment motion should be denied. It is well settled that failure to exhaust administrative remedies is not jurisdictional but is in the nature of an affinnative defense. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982); Orloffv. Willoughby, 345 U.S. 83,85 (1953). As such, in order to establish that there is no genuine issue of fact, Lufkin must meet its ultimate burden of persuasion on this affinnative defense. Query how Lufkin can meet its ultimate burden and demonstrate that there is no genuine issue with respect to the coverage of Mr. McClain's EEOC charge when it fails to even discuss the contents ofthe document that has been recognized by the Court as constituting that charge. In any event, Mr. McClain's January 29, 1995 is the proper document to consider when evaluating the appropriateness of the claims asserted in this lawsuit. B. Lufkin's Contention That Plaintiffs Have Not Stated A Timely Initial Assignment
Claim Has Either Already Been Rejected By The Court Or Is Untimely.
Lufkin places itself in a difficult position by basing its motion for partial summary judgment on its claim that plaintiffs have failed to exhaust their administrative remedies. On the one hand, Lufkin has argued repeatedly that neither Mr. McClain's nor Mr. Thomas' EEOC
2 A copy of this memorandum is attached hereto as Exhibit A to the Declaration ofDarci E. Burrell. While the Court has obviously seen the attached document, plaintiffs provide it here for the Court's convenience.
3

Case 97-cv-00063-blC Document 269 Filed 10103/2003 Page 5 of 25
charge can support the class claims. See Defendant's Motion to Dismiss Class Action Claims, filed June 6, 1997, at 16 ("The complaints in [Mr. McClain's] EEOC charge fail to track the principal claims of the putative class, namely that Lufkin Industries discriminated in hiring and promoting black employees."); Defendant's Response to Plaintiffs' Motion for Class Certification, filed November 26, 1997, at 23 ("The complaints in [Mr. McClain's] EEOC charge fail to track the principal claims of the putative class, namely that Lufkin Industries discriminated in hiring, terminating and promoting black employees."); Defendant's Petition For Permission to Appeal Order Granting Class Certification, filed April 13, 1999, at 25 ("McClain's. complaint [to the EEOC] focuses on one thing: the decision to eliminate the single quality assurance manager position in the trailer division. Hence, Mr. McClain's charge will not support the class which has been certified.")
This argument was implicitly, ifnot explicitly, rejected when the Court certified the class in this case. Consequently, because the Court's ruling with respect to these issues arises in the context of a single, on-going action, the Court's determination is subject to the "law of the case" doctrine. Under the "law of the case" doctrine, a decision on an issue of law made at one stage of a case becomes a binding precedent to be followed in successive stages of the same litigation. See Knotts v. U.S., 893 F.2d 758, 761 (5th Cir. 1990); Thyssen Steel Co. v. MN Kavo Yerakas, 911 F. Supp. 263, 268 (S.D. Tex. 1996). Issues decided either explicitly or by necessary inference constitute the law of the case. See Knotts, 893 F.2d at 761; Thyssen, 911 F. Supp. at 268. Under this doctrine, a previous decision on a factual or legal issue must be followed in all subsequent proceedings in the trial court unless the court is presented with substantially additional or different evidence, controlling authority has since made a contrary decision of the law applicable to the particular issue, or the prior decision was clearly erroneous and would work a manifest injustice. See Paul v. U.S., 734 F.2d 1064, 1065 (5th Cir. 1984). Since none of these factors are present in the instant matter, law of the case should prevent Lufkin from once again arguing that Mr. McClain's EEOC charge does not support the class claims.
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Case 97-cv-00063-HC Document 269 Filed 10103/2003 Page 6 of 25
On the other hand, if Lufkin chooses to argue that it has not previously raised its exhaustion argument, it should be prevented from doing so because to raise this argument now, for the first time in the approximately six years that this case has been filed and the four years since the class was certified, would be untimely.3 The Fifth Circuit has adopted a rule that "[a]n affirmative defense may be raised on a motion for summary judgment only if that motion is the first pleading responsive to the substance of the allegations." United States v. Burzynski Cancer Research Inst., 819 F.2d 1301, 1307 (5th Cir. 1987); see also Funding Sys. Leasing Corp. v. ~,530 F.2d 91,96 (5th Cir. 1976). If Lufkin's contention that plaintiffs have not stated a timely initial assignment claim has not been previously raised and resolved, than Lufkin should not be permitted to raise, years after this case was first filed and the class certified, this particular affirmative defense. Compare Berry v. Pierce, 98 F.R.D. 237, 239 (E.D. Tex. 1983) ("Defendant has never argued at any point during the past four and a half years oflitigation that Berry or Winker failed to timely exhaust their administrative remedies. At this stage, such an affirmative defense has been waived."). Under either of the above scenarios, Lufkin's summary judgment motion must fail. C. Lufkin Has Not Demonstrated That There Is No Genuine Issue With Respect To
Plaintiffs' Initial Assignment Claim.
Lufkin makes essentially two arguments in support of its motion for partial summary judgment on plaintiffs' initial assignment claim: (1) the scope of Mr. McClain's and Mr. Thomas' EEOC charges do not cover plaintiffs' initial assignment claim and (2) neither Mr. McClain or Mr. Thomas could have asserted a timely initial assignment claim at the time their charges were filed. As noted earlier, because exhaustion of administrative remedies is an
3 Lufkin's attempt to raise this issue now is very similar to its attempt in 2000 to limit the temporal scope of the class. Just as Lufkin's motion was untimely in that instance, see the Court's July 31,2002 Order denying Lufkin's motion to amend the temporal scope of the class, its present attempt to challenge plaintiffs' initial assignment claim on exhaustion grounds should similarly be found to be untimely.
5

Case 97-cv-00063-HC Document 269 Filed 10103/2003 Page 7 of 25
affirmative defense, Lufkin must "adduce competent summary judgment evidence to support each element of its defense[] and demonstrate the lack of any genuine issue of material fact with regard to [it]." Rosales,2001 WL 674201, at *2. It is not enough for Lufkin to simply invoke its affirmative defense by arguing the evidence; it must demonstrate that it is entitled to judgment as a matter of law. Notwithstanding this requirement, as discussed further below, Lufkin simply argues that its interpretation of the facts surrounding this issue is correct. It does not demonstrate that there is no genuine issue. As such, its motion for partial summary judgment should be denied.
1. The Scope of Mr. McClain's EEOC Charge is not an Appropriate Issue for Summary Judgment, and, in any Event, Plaintiffs' Initial Assignment Claims are Reasonably Related to the Claims in Mr. McClain's January 29,1995 Memorandum.
Under Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970), the scope ofa Title VII complaint is not limited by the charge of discrimination filed with the EEOC but by "the 'scope' of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination." Id. at 466. Consequently, the allegations in a judicial complaint "'may encompass any kind of discrimination like or related to allegations contained in the charge ....'" Id. (quoting King v. Georgia Power Co., 295 F. Supp. 943, 947 (N.D. Ga. 1968)); see also Danner v. Phillips Petroleum Co., 447 F.2d 159, 162 (5th Cir. 1971) (complaint may properly encompass any discrimination "like or reasonably related to" the allegations of the charge).4 This holding is based on the general proposition that '''the scope of an EEOC complaint should not be strictly interpreted.,,, Sanchez, 431 F.2d at 465, (quoting Baxter v.
4 Lufkin's reference in its motion to the "single filing rule" is apropos of nothing in this case. As noted in Allen v. United States Steel Corp., 665 F.2d 689 (5th Cir. 1982), and as quoted by Lufkin, "[I] n a multiple-plaintiff, non-class action suit, if one plaintiff has filed a timely EEOC complaint as to that plaintiffs individual claim, then co-plaintiffs with individual claims arising out of similar discriminatory treatment in the same time frame need not have satisfied the filing requirement." [emphasis added] Id. at 695. As this is a class action, the single-filing rule has no application here.
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Case 97-cv-00063-HC Document 269 Filed 10103/2003 Page 8 of 25
Savannah Sugar Refining Corp., 46 F.R.D. 56, 59 (S.D. Ga. 1968). This is so because "[i]t would falsify the [Civil Rights] Act's hopes and ambitions to require verbal precision and finesse from those to be protected, for we know that these endowments are often not theirs to employ." Id.; see also Fellows v. Universal Restaurants, Inc., 701 F.2d 447,450-51 (5th Cir. 1983).
The reason behind the requirement that the allegations in ajudicial complaint pursuant to Title VII fall within the scope of the complainant's EEOC charge is to give the EEOC "'an opportunity to settle disputes through conference, conciliation, and persuasion ....'" Taylor v. Western & Southern Life Ins. Co., 966 F.2d 1188, 1195 (7th Cir. 1992) (guoting Babrocky v. Jewel Food Co., 773 F.2d 857, 863 (7th Cir. 1985). However, the purpose ofthe charge under section 706 is only to initiate the EEOC investigation and to trigger the investigatory and conciliatory procedures of the EEOC, not to restrict the resulting investigation. See EEOC v. Optical Cable Corp., 169 F. Supp. 2d 539, (W.D. Va. 2001). Thus, "'[a] single charge may 'launch a full scale inquiry' into racial discrimination.'" Taylor, 966 F.2d at 1195 (quoting Motorola, Inc. v. McLain, 484 F.2d 1339, 1346 (7th Cir. 1973)). Further, it is well settled that an effort by the EEOC to conciliate is not required before a complainant may file a federal lawsuit. See Danner, 447 F.2d at 161.
Thus, the proper scope of Mr. McClain's January 29, 1995 memorandum "is determined by the allegations in the charge one would reasonably expect the agency to investigate." Rangel v. Ashcroft, No. 3:00-CV-2741-X, 2001 WL 1597858, *3 (N.D. Tex. December 11, 2001). Mr. McClain's memorandum, in addition to stating the facts surrounding his individual claim, also provides that, with respect to the discrimination he experienced at Lufkin, "It is a cultural problem that must be addressed to prevent discriminatory practices in Lufkin Trailer Division or any other part of Lufkin Industries, especially by those in supervision who are entrusted as leaders to carry out the policies of Lufkin Industries and to be good examples for all the men and women they have the responsibility to lead." Exhibit A at 3.
The question, therefore, is whether this statement is reasonably related to allegations of channeling in the Foundry division. It is apparent from this statement that Mr. McClain's
7

Case 97-cv-00063-blC Document 269 Filed 10103/2003 Page 9 of 25
complaints were not limited to his personal situation or to the practices in the Trailer division. Despite Lufkin's contention that it is "beyond cavil" that Mr. McClain's charge would not reasonably be expected to initiate an investigation ofhiring and initial assignment in the Foundry,5 see Lufkin's Motion at 4, plaintiffs contend that this result would have been very likely, particularly in light of the fact that, around this same time, the Office of Federal Contract Compliance Programs ("OFCCP"), with which the EEOC shares overlapping enforcement activities, see 64 Fed. Reg. 17664 (1999), had determined that Lufkin had channeled African American entry-level hires into the Foundry. See January 31, 1995 letter from L. Jimmerson to D. Smith, attached as Exhibit C to Plaintiffs' Reply to Lufkin's Response to Plaintiffs' Motion to Compel the Production of Documents, filed on June 2, 2003. Moreover, courts have held that allegations of discrimination with respect to promotion, demotion and compensation would reasonably lead to an investigation of a defendant's hiring practices. See Arey v. Providence Rosp., 55 F.R.D. 62,67 (D.D.C. 1972); Roston v. United States Gypsum Co., 67 F.R.D. 650, 656 (E.D. La. 1975).
Equally as, if not more, important to the instant motion is the fact that this determination - whether plaintiffs' initial assignment claim is within the scope of Mr. McClain's EEOC charge - cannot be decided as a matter oflaw. It certainly cannot be said that the facts and law with respect to this issue will reasonably support only one conclusion. Moreover, Lufkin has not demonstrated that this is the case. Lufkin cannot achieve summary judgment on this issue by simply stating that it is "beyond cavil" that Mr. McClain's EEOC charge would not reasonably be expected to initiate an investigation ofhiring and initial assignment in the Foundry. Rather, it is incumbent upon Lufkin to demonstrate that there are no genuine issues with respect to this issue. This Lufkin has not done. Furthermore, the existence of Mr. McClain's January 29, 1995
5 Lufkin's contention, again, refers not to the contentions contained in Mr. McClain's January 29, 1995 memorandum but to the charge form, later written by someone at the EEOC, that Mr. McClain signed under protest due to the lack of detail it contained. See August 12, 1995 letter from S. McClain to T. Jackson, attached as Burrell Declaration Exhibit B.
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97-cv-00063-HC Document 269 Filed 10103/2003 Page 10 25
memorandum and the OFCCP investigation and finding of discrimination against Lufkin create a genuine issue of material fact that must be decided at trial.
2. Both Mr. McClain and Mr. Thomas Had Standing to Assert an Initial Assignment Claim.
. In arguing that neither Mr. McClain nor Mr. Thomas could have asserted a timely initial assignment claim, Lufkin also appears to be arguing that neither named plaintiff had standing to assert such a claim on their own behalf, and their charges therefore could not support a lawsuit alleging that claim. For the reasons discussed above, there is a genuine dispute, to the extent this issue has not already been resolved by the Court's class certification order, with respect to whether the allegations in Mr. McClain's January 29, 1995 letter were broad enough to lead to an investigation of Lufkin's hiring and initial assignment practices. Further, at best, it is clear that Mr. McClain and Mr. Thomas had standing to assert an initial assignment claim on behalf of the class, notwithstanding their ability to raise that claim individually. At worst, the issue of Mr. McClain's and Mr. Thomas' standing is a disputed issue that must be determined at trial.
A charge of discrimination may be filed with the EEOC by any person claiming to be aggrieved. See 42 U.S.C. § 2000e-5(b). "The requirements of being an 'aggrieved' person for the purpose of filing a charge have been liberally construed." Lex K. Larson Employment Discrimination § 70.02[1] (2d ed. 2003); see also Anjelino v. New York Times Co., 200 F.3d 73, 91 (3d Cir. 2000). For purposes of Title VII, "Congress has itself determined that standing should be granted to anyone who satisfies the constitutional requirements" for standing. Gray, 545 F.2d at 176. Article ITI standing rules require that a plaintiff must show an injury in factthat an injury to him or herself is likely to be redressed by a favorable decision. See Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38 (1976). Injuries to intangible interests, as well as those to economic interests, fulfill the constitutional requirement. See Sierra Club v. Morton, 405 U.S. 727, 734 (1972).
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97-cv-00063-HC Document 269 Filed 10103/2003 Page 11 25
Courts have repeatedly found that an individual has standing to assert claims based on discrimination to another individual or group as long as that discrimination results in some injury in fact to the complaining individual. An individual has a right to work in an environment that is free from racism and may assert an injury to that right, even when the discrimination is directed towards someone else. See EEOC v. Mississippi College, 626 F.2d 477,483 (5th Cir. 1980). Thus, a white female had standing to file a charge asserting discrimination against blacks on the basis of race in recruitment and hiring by charging a violation of her own personal right to work in an environment unaffected by racial discrimination. See id. Similarly, an African American employee had standing to pursue discriminatory hiring claims, despite having suffered no injury from the challenged hiring practices, because he claimed that the improper restriction on the number of African American hired rendered African Americans who were employed vulnerable to arbitrary discipline, discriminatory treatment in assignment of routes and equipment, and inadequate representation by the union, and that he felt isolated as a result ofbeing one ofthe favored blacks who had slipped through the allegedly discriminatory. See Gray, 545 F.2d at 173-75; see also EEOC v. T.I.M.E.-D.C. Freight, Inc., 659 F.2d 690,692 n.2 (5th Cir. 1981) (white plaintiffs were "persons aggrieved" where, in part, each could claim a violation of his personal right to work in an environment unaffected by racial discrimination); Stewart v. Hannon, 675 F.2d 846, 850 (7th Cir. 1982) (white female was "person aggrieved" by racially discriminatory assistant principal examination because the exclusion of minority persons from a work environment can lead to the loss of important benefits from interracial associations).
Standing based on discrimination that is directed at others is particularly applicable where the individual alleges that the employer operates under a general policy of discrimination.6 See
Shipes v. Trinity Industries, No. TY-80-462-CA, 1981 WL 65, * 7 (E.D. Tex. October 10, 1985)
6 The term "general policy of discrimination" is used here to refer to both disparate impact and
disparate treatment cases. See, ~ Shipes, 1981 WL 65, at *1 [emphasis added] ("The
complaint charges defendant with maintaining and enforcing employment policies and practices which have the effect of discriminating on the basis of race.").
10

97-cv-00063-HC Document 269 Filed 10103/2003 Page 12 25
(A class repres~ntative has standing7 "to represent a class including those who had suffered
injuries different from his own, if the same 'entirely subjective decision-making processes' infected both types of claimed injuries."); Jackson v. Fort Worth Nat'l Bank, No. 4-77-276-K, 1983 WL 30332 (N.D. Tex. June 8, 1983) (plaintiffs could not make claims in their own behalf that exceed their EEOC charges and related investigations but had standing to make claims on behalf of other class members that they themselves could not make because plaintiffs alleged a concrete injury from an alleged general policy of discrimination); Karan v. Nabisco. Inc., 78 F.R.D. 388, 398-99 (W.D. Pa. 1978) (plaintiffs had standing to represent employees allegedly suffering from other practices which plaintiffs had not timely experienced and in facilities where they had not worked because plaintiffs alleged that they had suffered from a single penneating corporate policy of sex discrimination).
As noted above, Mr. McClain alleged in his January 29, 1995 memorandum that the discrimination from which he had suffered was part of a "cultural problem" at Lufkin that needed to be addressed to prevent discriminatory practices in every division of Lufkin. Mr. McClain's charge can reasonably be read as suggesting that the discrimination he experienced was part of a general policy of discrimination at Lufkin. Further, Mr. McClain testified during the class certification hearing that he did in fact intend to complain, not just about what had happened to him, but about the discriminatory environment at Lufkin. See Excerpt of Transcript of February 18, 1999 Class Certification Hearing at 215:3-18, attached as Burrell Declaration Exhibit C. In other words, Mr. McClain was alleging a specific and concrete injury resulting fonn Lufkin's general policy of discrimination, a policy which also led to the channeling of African Americans to the Foundry. Under theses circumstances, it is clear that
7 Article III standing should be distinguished from Federal Rule of Civil Procedure 23's requirements for class actions. Whether an individual has standing to bring class claims is a separate question from whether those claims satisfy Rule 23's requirements. In other words, the discussion herein is limited to the threshold question of standing and is not an invitation to Lufkin to once again argue that Mr. McClain's and Mr. Thomas' claims are not typical of or common to the rest of the class.
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97-cv-00063-HC Document 269 Filed 10103/2003 Page 13 25

Mr. McClain and Mr. Buford have standing to file a charge of discrimination alleging discriminatory initial assignment.
Based on the foregoing, plaintiffs contend that there is no question that Mr. McClain and Mr. Thomas had standing to assert an initial assignment claim on behalf of the class, assuming, of course, that this issue was not already resolved by the Court's class certification order. Nonetheless, it seems clear that, at worst, there are genuine issues of material fact with respect to this issue, and that Lufkin is not required to judgment as a matter oflaw. Mr. McClain's January 29, 1995 memorandum and his testimony during the class certification hearing create a genuine issue as to whether he and Mr. Thomas have standing to assert an initial assignment claim on behalf ofthe class. As such, Lufkin is not entitled to summary judgment on the initial assignment claim.
IV. CONCLUSION

Lufkin bears the burden of establishing that there are no genuine issues of material fact and that it is entitled to judgment as a matter oflaw. While Lufkin attempts to argue the evidence, it fails entirely to demonstrate that there is no genuine dispute. Therefore, plaintiffs respectfully request that Lufkin's partial motion for summary judgment be denied.

Dated: October 2, 2003

Respectfully Submitted,

By: 1Ja~~.~

~

}

Teresa Demchak

Morris J. Baller

Darci E. Burrell

Joshua G. Konecky

Goldstein, Demchak, Baller, Borgen & Dardarian

300 Lakeside Drive, Suite 1000

Oakland, CA 94612-3534

(510) 763-9800

Timothy Garrigan Stuckey, Garrigan & Castetter Law Offices 2803 North Street Nacogdoches, TX 75963-1902 (936) 560-6020

12

97-cv-00063-HC Document 269 Filed 10/03/2_003 Page 14 25

IN THE UNITED STATES DISTRICT COURT

ORIGINAL

FOR THE EASTERN DISTRICT OF TEXAS

Sylvester McClain, et al. Plaintiffs,
v. Lufkin Industries, Inc.
Defendant.

LUFKIN DIVISION
§ Civil Action No. 9:97 CV 063 (COBB) § § § § § § § §

DECLARATION OF DARCI E. BURRELL IN SUPPORT OF PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT
I, Darci E. Burrell, declare and state as follows: 1. The statements set forth in this declaration are made of my own personal knowledge and if called as a witness, I could and would testify competently to the matters stated below. 2. I am an attorney and a member of the Bar ofthe state of California. I am an associate with the law firm of Goldstein, Demchak, Baller, Borgen & Dardarian in Oakland, California, co-counsel for the named plaintiffs and the class in this action. I have been admitted pro hac vice to the United States District Court for the Eastern District of Texas for the purpose of appearing in this action. 3. Attached hereto as Exhibit A is a true and correct copy of a January 29, 1995 memorandum written by named plaintiff Sylvester McClain. 4. Attached hereto as Exhibit B is a true and correct copy of an August 12, 1995 letter written from Sylvester McClain to Tommie Jackson ofthe Equal Employment Opportunity Commission ("EEOC") protesting the lack of detail in the Charge of Discrimination authored by the EEOC on Mr. McClain's behalf.

Case 97-cv-00063-HC Document 269 Filed 10103/2003 Page 15 25 5. Attached hereto as Exhibit C is a true and correct copy of an excerpt from the
transcript of the February 18, 1998 Class Certification Hearing in this matter. I declare under penalty ofperjury under the laws of the United States that the foregoing is
true and correct.
Executed this J.., day of October, 2003 at Oakland, California.
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Cfllitrfl.€"!lt! a(Jvt?rt!~;!!lg.. or s·~·!i(:it2.til:-.n for €-mploym~!lt; t!lring, placer!l.:?!lt, up-

grading. transfer and promotjon.: sel€'\:tion for and types of training; rates of

pay, benefits and other forms of r,;ompensatir)n. Sin<:e .Arden Jinldns t~(:ame

r'-;-''"" ':' 'llan-;-""''''- m ·Je., .C...-, T...1...·.!,'"",..£c....Y-v..;...,...:..."..~,.·.r1 uw".,..t. hvl",J:,."'....'..A~. .&

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ruth1ess alld vicf.,)ij:; att.a,:f:s UP··)fi my Inti'gfitY and prl.:.f~s;;ion.illsm that·r

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irrs?!!ts. [·,IlL )ri!lki!!~3 ~:3 m~,r bO~3::; in 198·3 r"A·k-.[ to tbo? Chi>?!." !n·::l)Ai·:t.or J'()!:::. r\fv:;t-

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ing. after I had filled in aud p€'rforine-::! Ute job sa tisfactof;.7' for SF.YF.FtI mon-

tbs U'led (1) deny me e-r::mal oDDO!tunitv' when the 10b ~--las D():3red and I aD-

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. plied. It took tile- interventhm of 1vu- Fra.lik Stevensen. lb.e President aIld CEO

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r i!!sT.)w~tO[S that! sllf.:·erY1s>?-, (If ,!,:,'t.!.!r:'h h-ad !i.e-, kno1Ati;:.'I':;:' r)f :~.r!rj T~,•.lht'!l ! did I

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took appropiarF. correen':!e action t.o prev'ent it from happening 3gain. I ha'{e

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It bas b€-€-n c:)n.!, my fajL~ ;:)11~:! tr~lst in Cc).:j that h:~.!3 :;L13!-;31nc;c a.n(! c::u:-ried. ffii7

llir .... /1 of sllff,;?rin2" I madfa- to ()U <'J 6n!.h..i. •+h.-:, .....L.L;.....,. p~i f ~.-\..J...o..J.J. l~ 'l '~:J......L.~ ...... --J:.>.6(T..,,('.1''''Jz• ';~ ,..o ,rr or;.'}~a1

\ J h~v'~- tl::?0"'_··

Of) t~r(\u((h 0"'" !...l..l.i.'J b-..&.·

and - Since I ha~1'e t,%'n in this posWon I bave continually as.ked for more training e;J....uiD.. ment(comD. .ui.:.e.r./·orinter) for recording of statistkal a.ua.lit.v d.at3... a
ya1uabl~ t.ool that w:)wd help me :md others in &;)lving problems. All a.round

meI 5€-e Oth€'TS P'€'trlnP' a111!.ind (jf fie':'! comput€-rs, print-s-rs and ()W1€'f €-'.:{liip-

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Which c0ntrit·'-~t.e to the deni3.l of e(p.~21 oppoft!J!litj. ![!e uss-d ('01Y!Pl.~t.-S-!" ::uld

pri!:lter ! re(i.:-ved se~?er:::'l y€-~s :ig!) ~Ar::~'3 c)b:;I)h:te- tn..s-!! :i[!.(! n€-VH !!.~J:! tho?

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EXHIBIT 'A

L 17953

97-cv-00063-HC Document 269 Filed 10103/2003 Page 18 25

fE'f!!. '~'f!i~e t:-y USf ')f ~:::-r, ~.-'!!e!"~ ! !l~~(J f1!~ U~:9 ·::-f tIl€- ~::':.-.py !!J.::!(:!lins-:=: t.llat
.~l;'i.-.;.r>? tbA. s('Irtlng r:(l.p~!.r-.!!ity ~'clr .rrmltipi!o:? t;(Ipf>?s Cit re-pl)rts th::"!.f. r (1!strIt-.l.!te tc)

personnel in th~ front oHlce and the Shop 3$ ~Npll ~vas for btas intf?ntjons p.sper:;ially· die note left for tile gate gllards by <)IJ1' saf~ty r.;oordinal))!" -stalin;!

Ulat if Sy-ivo&ste-r i\/kC!ain <;'arne- out .:Juring wI€- p.m. Ofl."i*kend ii·:)urs t.ha~t

..·-1·· ...... ·r·- g-,.j. -'n - ... ....1 ~ 1"rJ~...J"U"I". ".Jl.1 .j.'..•,,•~ '..-.J1>'.-.'JI...J .~ -4·rt-"t·::·l·~· l.U~ '.."....-E.A.-."f.'jJ "i..".l 1d·-.'"" 'l•l•~ ~"t1---d:.:•) 11V··I..., "i.l.J 'V. ~- ".rot:: 1 dtJ.......=:;-SS ~ W"l.h ..l €-

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ffi8.n.:'i.ger \"1dS trnstv.[orthy. W1iJ.·:-h ~/*.IS abso!nt€'!y ridiculous ~-n(J a bias and

ster()typ~ attack upon my char3der and intEgrity as a man of god(minister).

as a resDonsfble black man Wll0 has worked for this r,:omDanv ior 22 years

and d I';;-~:i<.iet" ill wo;; ';;OlllIIiUnity dt larg~ wll!J fUr" th~ last t·wei~'~ y~ar::/uiis·

st.:ood and .;oven risk..-a-d his Ufe fClr right. All til€- ·)ther ~rsc.nnel in L'1e fr:)nt

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'Has n{jt tfll~:t''''orthy to b'S- ~;l'S-a.rly based UP~)!l [2.·:ial ;:L.1!d st2-foLy.v-e- [e-a8('118,

a!! b€'C8.HS€' of thE" pr~jucJkial f€'E"!fng 3.nrJ Vi':;'~iJS ti)~Ar.;i.rd !"rl€- as a Nack mim.

Jnst prior t.o all this t:Llcing .place .Mr. Jin1-;:ins bought to my ati.ention a memo

Q;:t ted back in 199 1 that expressed COll(~ern about thefts in the front <.)ffice

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box during this tim.;. aIld of v-."11icll I qU..;;.:;th)lNd him, ",.'lhat did t.ills ha"y".,;. t.)

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fer t.·!lhich he di;:i not h2..v:~ an ans":A·T~r. Tl'"!e increas·~(! t.:·lorldc:a(:! aSsiQ11rn:s-rlt

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.lI.)n- t•:€'!1tia! fa1.1.!t or HE·r that i::: !lot fi?("'llJ.ir;::.(i of anv, other :;l..a.!1)H~riSI)r or m:3Jl-

!!€'r re-nresentl2d 3 deliberate attempt to creat€' impossibl€' condiijons that

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to titis would Dre;{tS'nt me from bdn2" able t.o 2"Bt tll~ iol) clone coned!v. Wilen I

resp.:>n;jed

challenge by W<)fkiIlg 12u) ··15 !lOllr days (111(1 6 to 7 da~lS a

w.=".'"-;'k~t. o l i!'!- 1Dl-y

that

til.;.

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a

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..... ,. Nmply· "' ... aH-·..,-".,p" at a t"'"' Y·Y';J...;:}::toJ.

1 .. ",..

~ r......v:,ltl ..... to .,. U-.J.l:>·V"."J~rt.+..&-, 'on . .,~,~l-..J.....- J"."C~:+;;J'.Jt'.-"-:>"o":u tI..)".~ 0!:11""T"ric~;" 1mJ~.~ '.-,,~1 _c;~;t.'.A4J.-t." l.\.~.JL- :.J...1'C

d0diC3.tion I hav~ for getting th~ job done, se-ei11g that I do not ret.i,?v~ over

c. \..1._, nr,t rnA .w.i...l...l......:...,

r~\.\..~AIu _

.T.... ~.:::t

but V'

vV'.al...c,.>a'~" t'J' I tVrIv." ·c..~;.r..,,...,·ucv-.p;

ha"l..'j-n(o:l' :;!ttihlrtA l.l1hc>l'l V'

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~ tiAfAn~l;rA

:....L ... ..,.

..,. ...... _ . . . . . . . . _ . . . , . . " " . ...". """" .........

I·...... .., ......

I 3.!'n just r€-Slx·nding rightfully so to gr.)ss mistr€'atment for rad::ll reasons is

jllst an attempt to try to CO"v"er up tbe discriminat.ory treatment that I have

been redeving for some time.

Tberef(;.re after IDu<::l1 mind and soul S€-afching I ha'9"o& d€'citjed that eniJugh is

enough and that mor~ effort must b~ mad:;. to corr~ct tll<7S~ unjust and unfair"

,-l."'........' ............ ':let,. me b nd at"'<"l"1,. a(T?i... ......1...),'\...4.L..L..i....l..

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and v.litl! t()ta.1ljisr;:.g~l.rd fc·r CC·m p8.EY pr..lky Mid (\11;::' prc)I::ess '.l{hidJ ! p.ntitl€-cl

L 17954

97-cv-00063-HC Document 269 Filed 10103/2003 Page 19 25

t.o b~1 th-s- !2."=;",13..!!:.:! ·:~Ct!l~.ti~l.~i":··!!. ! \/ii!.! ~(:k.!J.·:;·\~A;"l~I:!g-s- tll::!.t !!!y' !!e~.·'I :::1}~r:9r~;-i;::'::::;r~

;- t~-

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st:lnc.lS for and f !00}~ t"or;'·/3rd to ::.lS ::.l quality and "'A·'rlrlr.!.uty team ':ATork;ng t.f)-

gether for the !I()t:xi or all. Yet. I must :33...., that Ule damage to me per":30na11v

~d

nr()fession;~~v
l:'..

has

b~-S-!l

done-

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TIMB-.ARBER l VICE PRESlDRNT-TR...6..ILER Df"VISION

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97-cv-00063-HC Document 269 Filed 10103/2003 Page

25

Case 97-cv-00063-HC 0 acument 269 Filed 10103/2003 Page 21 af 25
';~uC'\ l ,:!,ljJlo.vlllp.nt GpiJOrtUill t'" GO'.I/-!ission ',:,!·,I":i_8 • . Iac· g.)Jl / _Cllv~sti',ative Assistant
~Jear "1r. J ac.:·~s 011 :
Phis is to acknowle~ge late receipt of the Charge of Discri~inatio~ papers nee1 in ::' fI'.',' signature of ·....hich ~ am now gi vine as pro;npt a ttention as tine would allow as well as the extreme stressful concH tions under which I am working. This is also to inform you that there is much more depth 0':' Lac tR an(~. in1'orma tiOl1 to he ,! isclosed and investi-
nted cO~lce,'('d;~ i:he dpflinl or eqqal oDportuni t_y, pa'! and treatment to
1'10. bv I,ui'kin 'Prailer Division / Lu[ltln rndustries [ncorpol'ated .. I'he ~ iscl'lmination complaint that I subJlli ttecl to you Jan. 8, 199·:';
consisted of cliscr.iminator.v actions a f unequal pay, opportuni t.v and treatment throu~h viciou~ slanderous attacks upon my ability and inte~rityhased upon untruth~ with the deliberate intent to sterotype me as a black ~e~. The Charge of Discrimination papers that I signed do address some of issues of employment discrimination practices by .the mana,genent of l .•ufldnrrailer Division that :::: have suffered from as well as Coporate ,nanagement of Gul"kin Industries through their condonin6 and support of th&se discriminatory actions committed against me.
I am as~(ing :for a thorough investi:3;ation into these immoral, unjust and illegal conditions of employment discrimination that I have suffer- r'ough as 'Nell as my family. which has caused irreoarable har;-;; to me _~ my 'family. Al thouGh many might would have give up because 01' the m'r~uish ann mental .fatL~ue of dealing .d th the unfair and unjust discriminatory practice:=; and racial sterotypin5 in the work place daily, I- ref'use to even entertain the thought of giving up and I am determined to stand up f.or justice and equality and for all that are oppressed also.
If you have any questions or I can be of any further help please let me know.

EXHIBIT R

PTFS 00014

97-cv-00063-HC Document 269 Filed 10103/2003 Page

25

Case 97-cv-00063-HC Document 269 Filed 10/03/2003, Page 23 of 25

/

TRANS .......<.IPT OF HEARING ON CLASS Cb...",CIFICATI N

1

1

UNITED STATES DISTRICTTECXASOURT®]E©JllW~'

2

EASTERN DISTRICT OF

~~

VI

3

LUFKIN DIVISION

JUN 2 9 1998

4 ----------------------------------------Stuckey-& Garrigan

5 SYLVESTER MCCLAIN, ET AL

Docket No. 9:97CV63

6 v.

] 10 AM, February 18, 1998

7 LUFKIN INDUSTRIES, INC.

Beaumont, Texas

8 ------------------------------------------------------

9

VOLUME 1 OF 1, PAGES 1 THROUGH 263

10

TABLE OF CONTENTS - SEE PAGE 262

11

TRANSCRIPT OF HEARING ON CLASS CERTIFICATION

12
,. ;"
13

BEFORE THE HONORABLE THAD HEARTFIELD UNITED STATES DISTRICT JUDGE

14 APPEARANCES:

15 For the Plaintiff:

Timothy Borne Garrigan

16

Attorney' at Law

17

Stuckey & Garrigan

18

Post Office Box 631902

19

Nacogdoches, Texas 75963

20 For the Defendant:

John H. Smither

21

Christopher V. Bacon

22

Attorneys at Law

23

Vinson & Elkins

24

1001 Fannin, Suite 2300

25

Houston, Texas 77002

JERRY KELLEY, OFFICIAL COURT REPORTER UNITED STATES DISTRICT COURT 409-654-2862

EXHIBIT C

/
I

97 -cv-00063-HC

Document 269 MCCLAIN

Filed 10103/2003 DIRECT

Page 24
....

25
215

1 and women that have the responsibility to lead ll ?

04:54

2 A.

Yes.

04:54

3 Q. When you made that complaint, were you

04:54

4 addressing just the discrimination that occurred

04:54

5 to you?

04:54

6 A.

No. I was addressing the discrimination that I 04:54

7 had been standing up against all the way back to the 04:54

8 early'80s. It is widespread, it. has consistently

04:54

9 happened, it's still happening, and this is the only 04:54

10 remedy. I'd like to address a grievance filed with

04:55

11 the union. I'm in the union. It's a farce. It's a 04:55

12 farce because if the stewards are white and if they

04:55

13 do not want to push the grievance, it's not going

04:55

14 anywhere. The only time that I know that a grievance 04:55

15 went anywhere without a steward signing off, I wrote 04:55

16 the grievance and filed it myself because I read the 04:55

17 contract book and I knew that I had the right to file 04:55

18 that grievance.

04:55

19 Q.

Okay. So the union is not real cooperative on

04:55

20 discrimination issues?

04:55

21 A.

No.

04: 55

22 Q. After you sent that letter to the EEOC, did they 04:55

23 eventually send you a charge-of-discrimination form? 04:55

24 A.

Yes.

04:55

25 Q. A two-paragraph form?

04:55

JERRY KELLEY, OFFICIAL COURT REPORTER UNITED STATES DISTRICT COURT 409-654-2862

Case 97-cv-00063-HC Document 269 Filed 10103/2003 Page 25 of 25

Case:

PROOF OF SERVICE
Sylvester McClain, et at. v. Lufkin Industries, Inc. Civil Action No. 9:97CV063

ORIGINAL

STATE OF CALIFORNIA ) ) SS
COUNTY OF ALAMEDA )

I have an office in the county aforesaid. I am over the age of eighteen years and not a party to the within entitled action. My business address is 300 Lakeside Drive, Suite 1000, Oakland, California 94612.

I declare that on the date hereof! served a copy of
PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT
DECLARATION OF DARCI E. BURRELL IN SUPPORT OF PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT
by causing a true copy thereof to be transmitted via facsimile and mailed by depositing the same in a sealed envelope in the U.S. mail with postage prepaid addressed to:

Douglas Hamel Christopher V. Bacon Michelle Mahony Vinson & Elkins 2806 First City Tower 1001 Fannin Street Houston, TX 77002-6760
I declare under penalty of perjury under the laws of the State of California that the above is true and correct.
Executed at Oakland, California on October 2, 2003.

Printed Name

45

 
 Case 9:97-cv-00063-HC Document 452 Filed 11/30/2004 Page 1 of 31

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

LUFKIN DIVISION

Sylvester McClain, et al. Plaintiffs,
v. Lufkin Industries, Inc.
Defendant.

§ Civil Action No. 9:97 CV 063 (COBB) § § § § § § § §

PLAINTIFFS’ OPPOSITION TO DEFENDANT LUFKIN INDUSTRIES’ MOTION FOR JUDGMENT ON PARTIAL PROPOSED FINDINGS

Case 9:97-cv-00063-HC Document 452 Filed 11/30/2004 Page 2 of 31

I.

INTRODUCTION

On October 11, 2004, ten months after Plaintiffs rested and the day before Defendant Lufkin Industries, Inc. (“Lufkin”) was to begin its case in chief, it filed a Motion for Judgment on Partial Proposed Findings pursuant to Federal Rule of Civil Procedure 54(c),1 seeking to dismiss all of Plaintiffs’ claims on various grounds and attacking the sufficiency of the evidence Plaintiffs presented in their case in chief, specifically whether Plaintiffs established a prima facie case on their disparate impact claims. The Court declined to render any judgment until after the close of all evidence. The Court, now having heard all of the evidence, should enter findings of facts and conclusions of law on Plaintiffs’ claims pursuant to Rule 54(a) and find that Plaintiffs have sustained their burden in establishing a violation of Title VII under a disparate impact theory of discrimination with respect to subjective decision making practices affecting initial assignments, promotions of hourly and salaried employees and compensation. In considering Lufkin’s motion, the Court should review the record in its entirety. See Lindsey v. Prive Corp., 987 F.2d 324, 327 n.13 (5th Cir. 1993) (“After a trial on the merits, disputes about the prima facie case fall away and we need only resolve the question whether there was sufficient evidence of unlawful discrimination.”) Accordingly, the Court should consider this Opposition together with the more detailed Proposed Findings of Fact and Conclusions of Law that Plaintiffs are filing simultaneously with this Opposition.

1 Federal Rule of Civil Procedure 52(c) provides that:
If during a trial without a jury a party has been fully heard on an issue and the court finds against the party on that issue, the court may enter judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue, or the court may decline to render any judgment until the close of all the evidence. Such a judgment shall be supported by Proposed Findings of fact and conclusions of law as required by subdivision (a) of this rule.
(Emphasis added)

1

Case 9:97-cv-00063-HC Document 452 Filed 11/30/2004 Page 3 of 31
II. LEGAL STANDARD In a disparate impact case, plaintiffs must show that an employment practice which appears fair in form is discriminatory in practice. See Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971). “[T]he necessary premise of the disparate impact approach is that some employment practice, adopted without a deliberately discriminatory motive, may in operation be functionally equivalent to intentional discrimination.” Watson v. Fort Worth Bank & Trust Co., 487 U.S. 977, 987 (1985). Plaintiffs establish a prima facie case of disparate impact by (1) identifying the specific employment practices being challenged, (2) establishing the disparate impact of the practices on the protected group, and (3) demonstrating that the disparity is the result of one or more of the employment practices identified. See Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642, 656-57 (1989); Stender v. Lucky Stores, Inc., 803 F. Supp. at 320; see also 42 U.S.C. § 2000e2(k)(l)(A)(i). Although plaintiffs are required to show that each challenged employment practice “causes” a disparate impact, where plaintiffs demonstrate that the elements of an employer’s decision making process are not capable of separation for analysis, the entire decision making process may be analyzed as a single employment practice. 42 U.S.C. § 2000e-2(k)(l)(B)(i); McClain v. Lufkin Industries, Inc., 187 F.R.D. 267, 273 (E.D. Tex. 1999); see Munoz v. Orr, 200 F.3d 291, 304 (5th Cir. 2000) (“where a promotion system uses tightly integrated and overlapping criteria, it may be difficult as a practical matter for plaintiffs to isolate the particular step responsible for observed discrimination.”); Malave v. Potter, 320 F.3d 321, 327 (2d Cir. 2003) (same); Bannister v. Dal-Tile Int’l, Inc., 2003 WL 21145739, *2 (N.D. Tex. 2003) (same); Stender, 803 F. Supp. at 335 (same). Subjective practices are properly challenged under the disparate impact theory. See Watson, 487 U.S. at 990 (recognizing a subjective decision making system in promotion as the specific employment practice challenged under disparate impact theory); McClain, 187 F.R.D. at 272 (stating that plaintiffs may base a disparate impact claim on subjective employment
2

Case 9:97-cv-00063-HC Document 452 Filed 11/30/2004 Page 4 of 31
procedures); Richardson v. Byrd, 709 F.2d 1016, 1022 (5th Cir. 1983) (finding the allegation that “promotions and transfers were determined by the supervisors, almost all of whom were male, based largely on subjective factors” was not an overly broad discrimination claim, but rather, a specific employment practice.); Stender, 803 F. Supp. at 335 (finding defendant’s “ambiguous and subjective” decision making in promotion, placement and training the specific employment practice challenged under disparate impact theory).
Where a selection system combines both “subjective” and “objective” criteria, the system is “considered subjective in nature.” Watson, 487 U.S. at 989; accord Bacon v. Honda of Am. Mfg., Inc., 370 F.3d 565, 572 (6th Cir. 2004)
Courts have found that the causal element is satisfied with respect to discretionary and subjective employment decision making practices where an employer lacks objective criteria or guidelines for making those decisions, and leaves the decision making to the discretion of members of the majority group. See Stender, 803 F. Supp. at 320-21 (gathering cases). While such a practice does not, by itself, necessarily raise an inference of discrimination, the Supreme Court has found that where evidence of such discretionary and subjective decision making is supplemented by evidence that subconscious stereotypes and prejudice operate in a vacuum created by the absence of objective, validated criteria, causation can be found. Watson, 497 U.S. at 990; Stender, 803 F. Supp. at 321; Butler v. Home Depot, Inc., 1997 U.S. Dist. LEXIS 16296, *49 (N.D. Cal. 1997).
Once Plaintiffs establish a prima facie case of disparate impact, the burden shifts to the employer to show that the challenged employment practice is job related for the position(s) in question and consistent with business necessity. 42 U.S.C. § 2000e-2(k)(1)(A)(i); see EEOC v. Premier Operator Services, Inc., 113 F. Supp. 2d 1066, 1075 (N.D. Tex. 2000). Under Griggs, in order to prove business necessity, an employer must show that its selection criteria bears “a manifest relationship to the employment in question.” Griggs, 401 U.S. at 432; Stender, 803 F. Supp. at 321 & n. 20.
3

Case 9:97-cv-00063-HC Document 452 Filed 11/30/2004 Page 5 of 31
If an employer successfully mounts a business necessity defense, a plaintiff may overcome that defense by demonstrating the existence of an alternative employment practice which serves the employer’s business necessity without causing the adverse impact, and which the employer had refused to adopt, 42 U.S.C. § 2000(e)(k)(1)(B)(ii); see also, Premier, 113 F. Supp. 2d at 1075; Stender, 803 F. Supp. 322.
III. ARGUMENT A. Lufkin’s Request for Judgment on Claims Not Raised in the Pre-Trial Order is Not
Necessary and, as to Plaintiffs’ Training Claim Should be Denied. As a threshold matter, Lufkin argues that the Court should dismiss all claims of discrimination alleged in the Second Amended Complaint for which Plaintiffs presented no statistical or anecdotal evidence at trial. See Motion for Judgment at 2-3. Lufkin’s reference to claims raised in the Second Amended Complaint is misplaced. Federal Rule of Civil Procedure 16(e) provides that the Pretrial Order “shall control the subsequent course of the action unless modified by a subsequent order.” The Joint Pretrial Order, filed on September 30, 2003, states that Plaintiffs “allege that Lufkin discriminates based on race with respect to initial job assignments; training; promotions; compensation, and other terms and conditions of employment.” Joint Final Pretrial Order at ¶ C. Accordingly, those claims Plaintiffs alleged in the Second Amended Complaint that were not identified in the Pretrial Order nor litigated at trial (i.e., hiring, evaluations, demotions, discipline, layoffs, recalls and terminations) are moot and have been eliminated from the proceedings, Hullman v. Board of Trustees of Pratt Community College, 950 F.2d 665, 668 (10th Cir.1991)(“issues not preserved in the pretrial order ... [are] eliminated from the action.”), and Lufkin’s motion for “judgment” on these claims is unnecessary. With regard to the claims alleged in the Pretrial Order, Plaintiffs presented statistical evidence demonstrating significant disparities in initial job assignments, promotions of hourly and salaried employees and compensation, together with evidence of Lufkin’s subjective decision making system. See Plaintiffs’ Proposed Findings of Fact and Conclusions of Law
4

Case 9:97-cv-00063-HC Document 452 Filed 11/30/2004 Page 6 of 31
(“Proposed Findings” or “Proposed Conclusions”) 64-202.2 Plaintiffs’ inability to present statistical evidence of the impact of Lufkin’s training decisions on African American employees was due to Lufkin’s failure to maintain records regarding employee training, (see Proposed Findings 140), and because most training at Lufkin is informal and “on-the-job.” See Proposed Findings 137. Plaintiffs did, however, present evidence regarding the subjective manner in which Lufkin managers, the overwhelming majority of whom are white, select employees for training, the lack of written guidelines governing managers’ allocation of training, the lack of oversight to ensure that managers allocate training on a non-discriminatory basis and the interrelationship between training and promotions. See Proposed Findings at 138-144. This evidence is relevant to the Court’s determination of whether Lufkin exercises subjective decision making with regard to promotions, because as the Court found in its Order certifying the class, “[m]ost promotions relate to specialized tasks; insofar as one individual gains higher qualifications than another it is due to discriminatorily selective, informal, on-the-job training.” McClain, 187 F.R.D. at 276.
Accordingly, Plaintiffs request that the Court reject as unnecessary Lufkin’s Motion for Judgment on claims not alleged in the Pretrial Order. As to the training issue, the adverse effects on African Americans of Lufkin's discrimination in providing training opportunities is reflected in the statistical disparities in promotions, since training is used (in a discretionary and discriminatory fashion) by managers to qualify or groom favored employees for promotion, see Proposed Findings 137-144. Lufkin’s Motion for Judgment on Plaintiffs’ training claim therefore, is both unnecessary and inappropriate, and it should be denied.
2 Plaintiffs’ Proposed Findings and Conclusions exhaustively detail the evidence presented at trial and legal authorities which supports Plaintiffs’ disparate impact claims and further refutes Lufkin’s Motion for Judgment. Accordingly, in responding to Lufkin’s Motion for Judgment, Plaintiffs refer to, and such references incorporate, Plaintiffs’ Proposed Findings and Conclusions and the record evidence and legal authorities cited therein, as if fully re-written herein.
5

Case 9:97-cv-00063-HC Document 452 Filed 11/30/2004 Page 7 of 31
B. Plaintiffs Have Presented Ample Evidence to Support their Disparate Impact Claim with Regard to Initial Assignments and Lufkin Has Failed to Rebut this Evidence. Lufkin argues that Plaintiffs’ initial assignment claim should be dismissed on four
grounds: (1) “no class member testified that he has been ‘channeled’ into the Foundry;” (2) “there is no evidence that any of the class representatives filed an EEOC charge complaining about their initial assignment;” (3) “Plaintiffs have failed to identify or isolate a specific employment practice that results in Blacks being ‘channeled’ into the Foundry;” and (4) “Dr. Drogin’s initial assignment model is fatally flawed because he fails to analyze the actual applicant pools for each job.” Each of these contentions is without merit and is fully rebutted by the trial record and applicable law.
1. Plaintiffs Have Met Their Burden Of Identifying The Employment Practices Being Challenged.
In arguing that Plaintiffs have not proven their claim of disparate impact with regard to initial assignments because “no class member testified that he has been ‘channeled’ into the Foundry,” Lufkin misconstrues the nature of the disparate impact theory of liability and Plaintiffs’ prima facie burden. As discussed above, to establish a prima facie case Plaintiffs must identify the causes of the disparate impact and demonstrate their effects. McClain, 187 F.R.D. at 272.
Plaintiffs demonstrated that a broad array of Lufkin’s employment practices rest on subjective decision making and these practices are inextricably intertwined so as to be incapable of separation for analyses. With respect to Lufkin’s initial assignment of entry level new hirees, the evidence established that Viron Barbay, Lufkin’s Human Resources (HR) Representative, by his own estimate, has been responsible for “approximately 95%” of all hiring of entry level employees through the Texas Workforce Commission (TWC) during the class period. Mr. Barbay lacks any formal education or professional training in HR practices. Lufkin affords Mr. Barbay considerable discretion in making hiring and assignment decisions affecting entry level
6

Case 9:97-cv-00063-HC Document 452 Filed 11/30/2004 Page 8 of 31
employees. He is unguided by written objective criteria or procedures. His decisions are not subject to oversight or analysis. See Proposed Findings 72-73.
Plaintiffs presented uncontroverted testimony that Mr. Barbay has made remarks during the period covered by this case that evidence subconscious racial stereotypes. See Proposed Findings 47, 61(a), 216-217. Plaintiffs also introduced expert testimony that in the absence of a formal system to assure that personnel selections, evaluations and decisions are based on objective, job-related criteria and measurements, decision makers are likely to judge individual African American employees on the basis of their stereotypical beliefs of African Americans as a group. See Proposed Findings 385-387.
The evidence also demonstrates that during the period covered by this lawsuit, the United States Office of Federal Contract Compliance Programs (“OFCCP”) on two separate occasions, made specific and detailed findings that Lufkin’s hiring and placement practices resulted in minorities being channeled into less desirable work locations at Lufkin, notably its Foundry, and underrepresented in the Machinist Helper position in Lufkin’s Oilfield and Power Transmission Division,3 and that Lufkin did not materially change its hiring and placement practices after these discrimination findings. See Proposed Findings 208-209. The evidence further shows that Lufkin does not routinely analyze the results of its hiring and initial assignment practices despite its legal obligation to do so under the Uniform Guidelines on Employee Selection Procedures
3 These administrative agency findings are admissible and probative. See Proposed Conclusions 458-460.
7

Case 9:97-cv-00063-HC Document 452 Filed 11/30/2004 Page 9 of 31
(“Uniform Guidelines”). 29 C.F.R. § 1607.3.A (1985).4 See Proposed Finding 66; Conclusions 468-469.
Plaintiffs’ statistical expert Dr. Richard Drogin, testified that he found that 51.8% of all African Americans (as well as 73.3% of Hispanics), compared to 24.3% of all whites hired by Lufkin into entry level jobs were initially assigned to (e.g., hired into) the Foundry Division for a highly statistically statistical disparity of 8.94 standard deviations, reflecting a result that would occur by random fluctuation alone one time in 100 trillion.5 See Proposed Finding 277.
Moreover, Lufkin’s own applicant tracking data – which was produced to Plaintiffs only after the Court order Lufkin to produce it for the third time, see Proposed Finding 245 -- shows that African Americans are under-assigned to entry level jobs in non-Foundry divisions at a rate that would occur by chance less than one time in a million. See Proposed Findings 286-287.
The evidence presented at trial directly contradicts Lufkin’s contention, made in its Motion for Judgment and at trial, that it only hires applicants for the job for which that individual was referred by the TWC.6 This evidence includes summaries of TWC work orders showing scores of “crossovers,” i.e., individuals referred by the TWC to Lufkin for entry level jobs in one
4 The Uniform Guidelines prohibit “[t]he use of any selection procedure which has an adverse impact on … members of any race … unless the procedure has been validated in accordance with these guidelines” and require an employer to make “a reasonable effort to become aware of . . . alternative procedures” with less adverse impact, and that where the use “is shown an alternative selection procedure with evidence of less adverse impact and substantial evidence of validity for the same job in similar circumstances, the user should investigate it to determine the appropriateness of using or validating it. …” Id. at 1607.3.B.). “Selection procedures” are broadly defined to include “informal or casual interviews, probationary periods, and work experience requirements.” Id. at § 1607.16(Q). 5 This evidence was not credibly refuted by Lufkin whose own expert did not perform an initial assignment analysis, but instead, a hiring analysis, irrelevant to this case in which there is no claim of hiring discrimination. See Joint Pretrial Order at ¶ C 6 Lufkin’s attempt to characterize Tami Poulan’s testimony as supporting its assertion that before 2000, the TWC might have mixed applicants for more than one entry level position on the same work order, Motion for Judgment at 6, is disingenuous; Ms. Poulan’s ultimate testimony on this point was just the opposition. See Proposed Finding 81.
8

Case 9:97-cv-00063-HC Document 452 Filed 11/30/2004 Page 10 of 31
department and hired and assigned by Lufkin to another department,7 and the admission of Lufkin’s own counsel that hires for specific entry-level jobs are often made from requisitions for some other entry-level job. See Proposed Findings 108-114, 129-132.
The evidence also refutes Lufkin’s assertion that its “minimum criteria” for entry level jobs are “clear,” and “objective” see Motion for Judgment at 3, 12, are consistently applied or explain the racial disparities in initial assignments, since there is there is no showing that African Americans hired by Lufkin have less education than whites hired. See Proposed Finding 107.
In its Motion for Judgment, Lufkin, citing the trial testimony of class member Calvin Deason, claims that no class member testified that he was channeled to the Foundry, thus implying that Plaintiffs are required to establish that Lufkin intentionally channeled African Americans to the Foundry. However, proving discriminatory intent is not an element of Plaintiffs’ disparate impact case. Stender, 803 F. Supp. at 320 (“A disparate impact plaintiff, unlike a plaintiff proceeding under the disparate treatment theory, may prevail without proof of
7 Lufkin states that “it bears noting” that Plaintiffs’ statistical expert “did not analyze TWC’s records to see if they revealed a statistically significant impact on blacks as to where they ended up at Lufkin.” Motion for Judgment at 6. However, Lufkin misses the point, which is that the significance of the discrepancies found between the TWC work orders and actual job assignment information in Lufkin’s personnel database discredits the reliability of (1) Lufkin’s claim that it exercises no discretion in the hiring process and only hires applicants for the specific jobs for which they are referred by the TWC, (2) Lufkin’s applicant tracking data, which Lufkin’s statistical expert Dr. Baker, used for her analysis, and (3) Lufkin’s requisition forms, which Lufkin claims record the job for which an applicant was referred by the TWC, but, instead appear only to document the job for which an applicant was actually hired, and not necessarily the job for which he applied or was referred. See Proposed Findings 118-132. Moreover, Dr. Drogin testified that he restricted his analyses of the TWC work orders only to applicants who appeared on one TWC work order to insure that the individuals were, in fact, hired for a job that was different than the job for which they were referred by TWC. Because some applicants appear on more than one TWC work order, and it is not possible to determine for which jobs they were considered by Lufkin, analysis of the TWC work orders would not be probative. As Lufkin’s counsel advised the OFCCP, “hires cannot be related directly to the applicant flow with respect to any specific entry-level job simply because the number of applicants truly considered is not known.” See Proposed Finding 299.
9

Case 9:97-cv-00063-HC Document 452 Filed 11/30/2004 Page 11 of 31
intentional discrimination by proving that employment practices that are fair in form are discriminatory in practice.”), citing Griggs, 401 U.S. at 431.8
Likewise, Lufkin argues that Plaintiffs introduced no evidence “that Lufkin’s own
requisition records were inaccurate or had been tampered with,” Motion for Judgment at 6,
further suggesting an erroneously belief that Plaintiffs must present evidence of intentional
discrimination. While Plaintiffs have no such burden, the evidence presented at trial
nevertheless includes facts from which the Court can draw inferences about the credibility of
Lufkin’s witnesses who testified about how Lufkin’s requisition records were prepared and
maintained and how information from these documents was entered into Lufkin’s applicant
tracking system. See Proposed Findings 117-132. Specifically, Plaintiffs introduced evidence of
discrepancies between Lufkin’s requisition forms and other documents pertaining to the same
individuals whose names appear on the forms that show that applicants who were referred by the
TWC for one job and whose application forms confirmed that they applied for that job were
8 Lufkin’s contention that Mr. Deason’s testimony supports the “objectivity” of its hiring and placement practices is flawed. To the contrary, Mr. Deason’s experience illustrates the inherently subjective nature of the practices. Even on the basis of the inconclusive “minimum requirements” Lufkin contends that it has, Mr. Deason was well qualified for work in any Lufkin Division, yet was assigned to the Foundry. See Proposed Finding 46. In interviewing Mr. Deason, Mr. Barbay, who has no written procedures and no formal training, failed to obtain information about Mr. Deason’s prior work experience and education that was not on the application form, but should have been obtained in a competent job applicant interview. Although Mr. Deason wrote “Chipper/Grinder” on his application form, Plaintiffs presented evidence showing that Lufkin often hires applicants for jobs other than those listed on their application forms and that Mr. Barbay exercises discretion in advising applicants of what job to write to list on the application form, including suggesting that applicants change the job originally written on the form. See Proposed Finding 112. Lufkin’s contention that Mr. Deason’s prior foundry work experience “explain[s] why the TWC computer would have identified [Mr.] Deason as a candidate for a Foundry job at Lufkin,” Motion for Judgment at 4, cannot be squared with other evidence regarding class member Jerry Mullins, a high school graduate, like Mr. Deason, whose last employment before applying to Lufkin was as a grinder in a foundry. Mr. Mullins’ name appears on a TWC work order for “assembler work” in the Trailer Division and his application form states that he applied for the position of “Trailer Helper.” Nevertheless, Lufkin assigned Mr. Mullins to the Foundry Division as a General Foundryman. See Proposed Finding 111.
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listed on Lufkin requisition forms records for another job. Id. At a minimum this evidence confirms that Lufkin often hires and assigns applicants for one job to another job. Id.
Therefore, based on the evidence summarized above and in the more detailed Proposed Findings and Conclusions, the Court should reject Lufkin’s motion and find for Plaintiffs on their initial assignment claim. As this Court Has Previously Found, the EEOC Charge Filed by Plaintiff Sylvester McClain Supports the Class’ Initial Assignment Claim.
2. As this Court has Previously Found, the EEOC Charge Filed by Plaintiff Sylvester McClain Supports the Class’ Initial Assignment Claim.
Lufkin also seeks judgment on Plaintiffs’ initial assignment claim on the ground that there “is no evidence that any of the Class Representatives filed an EEOC charge complaining about their initial assignment” and that Plaintiff Sylvester McClain’s EEOC charge is inadequate to support Plaintiffs’ initial assignment claim. See Motion for Judgment at 6. Lufkin made this identical argument in its Motion for Partial Summary Judgment, which it filed on September 29, 2003 (see Dkt. #263), and the Court denied on October 30, 2003. See Dkt. #309. In that motion, Lufkin argued that Plaintiffs’ initial assignment claim falls outside the scope of the Named Plaintiffs’ charges of discrimination (“EEOC charge”) filed with the Equal Employment Opportunity Commission (“EEOC”). Furthermore, Lufkin has repeatedly raised similar arguments regarding the sufficiency of Mr. McClain’s charge to support the class claims, in addition to its Motion for Partial Summary Judgment.9
9 See Defendant’s Motion to Dismiss Class Action Claims, filed June 6, 1997, ( Dkt. #9) at 16 (“The complaints in [Mr. McClain’s] EEOC charge fail to track the principal claims of the putative class, namely that Lufkin Industries discriminated in hiring and promoting black employees.”); Defendant’s Response to Plaintiffs’ Motion for Class Certification, filed December 1, 1997, (Dkt. #32) at 23 (“The complaints in [Mr. McClain’s] EEOC charge fail to track the principal claims of the putative class, namely that Lufkin Industries discriminated in hiring, terminating and promoting black employees.”); Defendant’s Petition For Permission to Appeal Order Granting Class Certification, filed April 13, 1999, at 25 (“McClain’s complaint [to the EEOC] focuses on one thing: the decision to eliminate the single quality assurance manager position in the trailer division. Hence, Mr. McClain’s charge will not support the class which has been certified.”)
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Lufkin’s argument was implicitly, if not explicitly, rejected when the Court certified the class in this case and again most recently, when the Court denied Lufkin’s Motion for Partial Summary Judgment. The doctrine of law of the case bars Lufkin from relitigating the issue before this Court.
Under the “law of the case” doctrine, a decision on an issue of law made at one stage of a case becomes a binding precedent to be followed in successive stages of the same litigation. Knotts v. U.S., 893 F.2d 758, 761 (5th Cir. 1990); Thyssen Steel Co. v. M/V Kavo Yerakas, 911 F. Supp. 263, 268 (S.D. Tex. 1996). Issues decided either explicitly or by necessary inference constitute the law of the case. See Knotts, 893 F.2d at 761; Thyssen, 911 F. Supp. at 268. Accordingly, the Court’s prior determination on the same issue which Lufkin now raises again is subject to the law of the case doctrine and must be followed unless the court is presented with substantially additional or different evidence, controlling authority has since made a contrary decision of the law applicable to the particular issue, or the prior decision was clearly erroneous and would work a manifest injustice. See Paul v. U.S., 734 F.2d 1064, 1065 (5th Cir. 1984).
Lufkin’s Motion for Judgment satisfies none of these requirements. In fact, Lufkin’s arguments in its Motion for Judgment are identical to those in its Motion for Partial Summary Judgment; Lufkin does not even attempt to explain why the Court should reconsider its earlier rulings. Accordingly, law of the case should prevent Lufkin from again arguing that Mr. McClain’s EEOC charge does not support the class claims.10
10 Rule 11 states in pertinent part: By presenting to the court ... a pleading ... an attorney ... is certifying that to the best of [his] knowledge, information and belief, formed after an inquiry reasonable under the circumstances, ... it is not being presented for any improper purpose such as to harass or to cause unnecessary delay or needless increase in the cost of litigation [and] the claims ... are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law. ....” Additionally, 28 U.S.C. § 1927, recognizes that “[a]ny attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.” Browning v. Kramer, 931 F.2d 340, 344 (5th Cir. 1991) citing In re Hunt, 754 F.2d 1290, 1294 (5th Cir.1985).
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In any event, Plaintiffs have thoroughly briefed the factual and legal arguments Lufkin raises regarding the sufficiency of Mr. McClain’s Charge to support the class’ initial assignment claim and Mr. McClain’s standing to raise discrimination claims on behalf of others in their Opposition and Sur-Reply to Defendant’s Motion for Partial Summary Judgment, see Dkt.# 269 and Dkt. # 276, which Plaintiffs incorporate fully herein by reference. For all of the reasons stated therein the Court should deny Lufkin’s motion to dismiss the initial assignment claim on the ground that it is beyond the scope of Mr. McClain’s EEOC Charge.
3. Plaintiffs Have Established that Lufkin’s Channeling of African Americans into the Foundry is a Result of Lufkin’s System of Subjective Decision Making that is Incapable of Separation for Analysis.
Lufkin claims that Plaintiffs have not shown why Lufkin’s initial assignment practices cannot be separately analyzed.11 Id. at 12. Specifically, Lufkin contends that the TWCdeveloped applicant pools, Lufkin’s minimum criteria and “completion of an application form” are identifiable components that can be separately analyzed. However, Plaintiffs do not challenge these specific components, but rather Lufkin’s subjective decision making system, in which these components are interwoven.12
(continued …) There can be little question that in filing its Motion for Partial Summary Judgment, which was rejected by the Court, and now its Motion for Judgment seeking dismissal of Plaintiff’s initial assignment claim on the same ground raised in the earlier motion and without benefit of any new factual or legal support for the present motion, Lufkin and its counsel have increased the costs of this litigation, by requiring the time and resources of Plaintiffs’ counsel and the Court to respond to the motions. 11 As Lufkin concedes, where plaintiffs demonstrate that the elements of an employer’s decision making process are not capable of separation for analysis, the entire decision making process may be analyzed as a single employment practice. 42 U.S.C. § 2000e-2(k)(l)(B)(i); see McClain, 187 F.R.D. 267, 272-73; Bannister v. Dal-Tile Int’l, Inc., 2003 WL 21145739, *2 (N.D. Tex. 2003); Stender, 803 F. Supp. at 335; Butler v. Home Depot, Inc., 984 F. Supp. 1257, 1264 (N.D. Cal. 1997). 12 Lufkin’s reliance on Stout v. Potter, 276 F.3d 1118 (9th Cir. 2002) is misplaced. In that case, unlike here, the plaintiffs did “not argue that the various elements of the screening process cannot be isolated for analysis.” Id. at 1124.
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As discussed above, there is substantial evidence demonstrating that Lufkin often hires entry level applicants for jobs other than those jobs for which they apply or are referred by the TWC. Therefore, the TWC applicant pools are unreliable indicators of the applicants Lufkin actually considers for specific entry level positions. Moreover, limiting analysis to the Foundry “applicant pools” – as Lufkin’s expert Dr. Baker did – fails to account for the fact that African Americans are significantly under-assigned to entry level jobs in non-Foundry divisions, and accordingly, not Lufkin's argument is neither responsive nor probative on the initial assignment issue in this case. See McClain, 187 F.R.D. at 273 (“Plaintiffs assert (and their statistics support), that African-Americans are over represented in difficult and unpleasant jobs, and under represented in less strenuous positions. This channeling process is not guided by any objective standards or procedures of reviewing them.”) (emphasis added). See Proposed Conclusions 288289.
Similarly, with respect to Lufkin’s assertion that its minimum requirements should be separately analyzed, while there was some dispute about the minimum requirements for Lufkin entry level positions, particularly educational requirements,13 the deposition testimony of Lufkin’s original Rule 30(b)(6) designee, Mr. Perez, documentary evidence introduced at trial, and the education levels of those actually hired and assigned into Lufkin entry level positions combine to establish that the minimum qualifications for these positions are the same, regardless of division, and do not explain the disparities in African American assignments to the Foundry.14
13 The historical and current evidence, taken as a whole refutes Lufkin’s contention that it “requires” a “GED or better” for entry level positions in its Oilfield and Power Transmission Divisions, and shows only that the “GED or better” requirements has been, at times, a preferred but not mandatory requirement for entry level positions in Lufkin’s Oilfield and Power Transmission Divisions. See Proposed Findings 95-103. 14 Evidence was culled from TWC work orders reveals that there is no difference in the education levels among applicants hired for any of Lufkin’s divisions. There is no way to measure the impact on African Americans of Lufkin’s educational requirement from Lufkin’s personnel databases because information about an employee’s education is only randomly entered into the database. See Proposed Finding 280.
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See Proposed Findings 105-107. This was confirmed by Lufkin’s counsel Mr. Smither, who admitted to the OFCCP that “applicants for the Machinist Helper, Laborer and Helper jobs were placed in the same common applicant pool regardless of job preference. … Because the jobs in question were entry-level jobs requiring little education, and no experience or training. It was impossible to determine differences between the qualifications of protected versus non-protected group applicants.” See Proposed Finding 302, see also n. 14. The evidence also shows that application of Lufkin’s educational requirement did not explain the disparities in African American assignments to the Foundry. See Proposed Finding 107. Indeed, Lufkin conceded that it knows of no objective minimum requirements that have an adverse impact on African Americans and thus, any disparities are a function of the subjective components of Lufkin’s hiring and initial assignment process.15 See Proposed Finding 90.
In any event, analysis of any of Lufkin’s alleged minimum requirements, including educational requirements, is not possible since Lufkin acknowledges that it does not collect that information in any format by which it could be analyzed and admits that it does not analyze its minimum requirements for adverse impact despite its legal obligation to do so under the Uniform. See Proposed Finding 105; Proposed Conclusions 468-469.
Lastly, Lufkin’s assertion that its “requirement that each employee complete an application” is capable of separate analysis, while not entirely clear, appears to suggest a comparison between applicants and those who are actually hired, which if so, would be comparable to the TWC pool analysis, Lufkin also suggests that is as explained above, irrelevant in a case challenging initial job assignment, not hiring. See Proposed Findings 288-289; Proposed Conclusion 479.
15 Where a selection system combines both “subjective” and “objective” criteria, the system is “considered subjective in nature.” Watson, 487 U.S. at 989.
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For all of the reasons discussed above and in the detailed Proposed Findings and Conclusions, the Court should reject Lufkin’s argument that the challenged subjective decision making practice is capable of separation for analysis.
4. Dr. Drogin’s Initial Assignment Model is Appropriate Where, as Here, there is Substantial Evidence that the “Applicant Pool” Data is Unreliable
Lufkin argues that Dr. Drogin’s model for analyzing initial assignments has three major flaws: (1) he does not account for the actual pool for each entry-level position, (2) his principal analysis does not control for time; and (3) he does not distinguish between qualified and nonqualified applicants. Dr. Drogin more than adequately addressed and refuted these points in his written reports and testimony.
In order to determine if African American entry level hires are disproportionately placed in the Foundry department Dr. Drogin analyzed the initial departmental assignment of all individuals hired by Lufkin for entry level production jobs during the liability period, comparing African American versus white, and African American versus non-African American, entry level hires into each production. See Proposed Finding 275. Dr. Drogin did not use actual applicant pool data for his initial assignment analysis because of the substantial evidence that the purported pools were not an accurate or reliable reflection of the applicants considered for the positions in question.16 See Proposed Findings 298-304. Moreover, because the issue Dr. Drogin was studying was initial assignments, not hiring, it was important to compare the assignments of all entry level employees to all divisions and not just the Foundry.17 See Proposed Finding 291. Accordingly, under the circumstances of this case, Dr. Drogin’s analysis was proper.
16 EEOC v. Chicago Miniature Lamp Works, 947 F.2d 292 (7th Cir. 1991), which Lufkin cites, is irrelevant to the issues in this case since that case challenged the employer’s hiring practices, and not as here, initial assignments of applicants actually hired. 17 Trevino v. Holly Sugar Corp., 811 F.2d 896 (5th Cir. 1987) is inapposite; there the court noted that ““Plaintiffs do not claim that defendants have discriminated in their application of the bidding process itself, which is based primarily on seniority.” Id. (emphasis added). Here, Plaintiffs claim that Lufkin’s subjective decision making system infects the bidding process, which is not governed solely by seniority but multiple discretionary criteria and procedures.
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Lufkin’s criticism that Dr. Drogin did not control for “time” disregards the evidence Plaintiffs presented regarding further refined analyses Dr. Drogin conducted comparing new hires with the same start date, and the same week of hire, specifically to test the theoretically possible – although highly improbable – hypothesis that an explanation for the racial assignment patterns he found was that TWC disproportionately referred African American candidates to Lufkin on days or during weeks when only Foundry department jobs were available. See Proposed Findings 281-283. The analyses, even with these restrictions, still yielded statistically significant disparities in the assignment of African Americans to the Foundry of 5.65 and 5.94 standard deviations, respectively. See Proposed Findings 281-282. Thus, Lufkin’s criticism is groundless.
Likewise, Lufkin’s criticism that Dr Drogin did not control for qualifications is unwarranted and also was addressed at trial. While Dr. Baker initially asserted that differences in educational levels among applicants might provide a non-racial explanation, and criticized Dr. Drogin for not considering such qualification factors, she ultimately admitted that she had no data suggesting that African American hirees had a lower educational level. See Proposed
(continued …) Julien v. Scott, 1998 U.S. Distr. LEXIS 11043 (C.D. Cal. July 17, 1998), aff’d, 189 F.3d 473 (9th Cir. 1999) likewise is not helpful to Lufkin’s position. In that case, the court noted, in granting the employer’s motion for summary judgment, that the exam in question was given to everyone and there was evidence that the test did not exclude applicants because of race. Here, Lufkin’s alleged “eligibility” criteria are discretionarily administered and there are no records of the results of application of any of the many criteria by race. Similarly, in Williams v. Am. St. Gobain Corp., 447 F. 26 561 (10th Cir. 1971) (the court’s holding was premised on its finding that not withstandings its employment practice a disparate impact on African American workers, the employer had sufficiently demonstrated a legitimate business justification for the practice. Here, Lufkin has not proffered any credible and non-pretextual business necessity justification for its subjective decision making system and in fact, the evidence demonstrates jus the opposite. See Proposed Conclusions 506-509. Finally, in E.E.O.C. v. Joe's Stone Crab, Inc., 220 F.3d 1263, 1277 n. 13 (11th Cir. 2000), the court noted that “[b]ecause we conclude infra that the district court erred in finding that the EEOC established disparate impact discrimination, even if we accept the alternative labor pool data, we need not address whether the alternative labor pool selected by the district court was comprised of “qualified” potential applicants. Thus, the court never addressed the point for which Lufkin cites the case.
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Findings 280, 304-306. Dr. Baker’s hypothetical explanation was further refuted by evidence showing that on average, African Americans hired by Lufkin during the liability period had as high an educational attainment level as whites hired.18
Consequently, Lufkin’s criticisms of Dr. Drogin’s model are without merit and, in any event insufficient, since Lufkin has not shown that any further refinements of the statistical analyses controlling for time or qualifications would change the result. Where a party challenges statistical data as flawed, that party bears the burden of showing that the errors or omissions in the data are likely to change the result. Vuyanich v. Republic Nat. Bank of Dallas, 505 F. Supp. 224, 255 (N.D. Tex. 1980), judgment vacated on other grounds, 723 F.2d 1195 (5th Cir. 1984); B. Lindemann & P. Grossman, Employment Discrimination Law at 103-106 (3d ed. 1996) (“Employment Discrimination Law”) (collecting cases).
For all of the reasons discussed above and in the Proposed Findings and Conclusions, the Court should reject Lufkin’s argument that Dr. Drogin’s initial assignment analysis is flawed and credit Dr. Drogin’s statistical findings. C. Plaintiffs Have Presented Ample Evidence to Support their Disparate Impact Claim
with Regard to Promotions of Hourly Employees, Which Lufkin has not Credibly Rebutted. Lufkin argues that Plaintiffs’ hourly promotion claim should be dismissed, because: (1) “no class member testified that he has was denied a promotion because of his race; (2) “Plaintiffs have failed to identify or isolate a specific employment practice that results in Blacks receiving fewer hourly promotions;” and (3) “Dr. Drogin’s promotion analysis is fatally flawed because he fails to analyze the actual applicant bid sheet documents and relies instead on an artificially constructed pool that does not reflect Lufkin’s practices.” Each of these contentions is without merit and fully rebutted by the record evidence and applicable law.
18 Specifically, 91% of African American hirees to all departments, and 90.3% of African Americans hired into the Foundry, had a GED, were high school graduates, or had post-high school education, compared to 90% and 85.3%, respectively, of whites in the same categories. See Proposed Finding 306.
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a. Plaintiffs Met Their Burden of Identifying the Challenged Employment Practice.
Lufkin claims that Plaintiffs did not identify through the testimony of any class member the challenged hourly promotion practices. Evidence of the challenged practice does not have to be introduced through the testimony of class members, particularly in a case alleging disparate impact. Additionally, however, the specific employment practice Plaintiffs challenge as discriminatory is Lufkin’s policy of delegating personnel decision making to managers who make such decisions based on arbitrary, subjective, ambiguous and unvalidated criteria. One of the areas Plaintiffs challenge application of this practice is with respect to promotions. Plaintiffs presented substantial evidence of the subjective nature of Lufkin’s hourly promotion process, which included the discretionary provisions of the Collective Bargaining Agreement, such as the ability clause, ten day rule, and unrestricted authority of managers to fill positions from sources other than the bid lists, all of which combine to obliterate the seniority provision. See Proposed Findings 41, 65, 145-168. Additionally, the evidence shows that the seniority provision is further undermined by Lufkin’s purported unwritten “eligibility criteria,” which are not expressly authorized by the CBA, have not been validated nor analyzed for adverse impact, and are implemented and enforced at the discretion of managers, unguided by written procedures. See Proposed Findings 169-179. Testimony from Lufkin managers demonstrated that they retain discretion to interview bidders who bid on jobs and in this way, influence their decisions to accept or decline a job. See Proposed Finding 155. Additionally, it is undisputed that Lufkin does not post numerous hourly jobs, but fills these jobs through manager selections that are unguided by written objective criteria or procedures and not subject to review or assessment for adverse impact. See Proposed Findings 186-190.
For all of the reasons discussed above and in the more detailed Proposed Findings and Conclusions, the Court reject should reject Lufkin’s contention that Plaintiffs have not adequately or specifically identified the challenged practice supporting their hourly employee promotion claim.
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b. Plaintiffs Have Established that Lufkin’s Discriminatory Promotion of Hourly Employees is a Result of Lufkin’s System of Subjective Decision Making that is Incapable of Separation for Analysis.
Lufkin contends that components of its hourly promotion process can and should be separately analyzed, and it maintains that Plaintiffs failure to do so is fatal to their disparate impact claim. Specifically, Lufkin asserts that Plaintiffs should have analyzed the bid databases which were created by Lufkin’s counsel for this litigation. See Motion for Judgment at 18-19. This assertion, of course, ignores the considerable evidence that these databases are incomplete, unreliable and the underlying paper records used to create them suspect because they include non-contemporaneous handwritten notations on them for which there is conflicting or no racially neutral explanation. See Proposed Findings 244,-253, 312-320.
Lufkin additionally identifies eight “components” of its hourly promotion process that it claims are capable of separate analysis. See Motion for Judgment at 19.19 However, the evidence shows these components are interwoven with and part and parcel of Lufkin’s subjective decision making system. These components do not operate separately nor uninfluenced by Lufkin’s subjective decision making.
An example that illustrates the interaction of these components and Lufkin’s subjective decision making was presented by the testimony of class member Calvin Deason and documents pertaining to his bid for a storekeeper position. At the time of the bid, Mr. Deason was in a Chipper Grinder/Finisher position in the Foundry. Mr. Deason had prior storekeeper experience. Lufkin, however, awarded the job to a white employee, Jeremy Brister, who had not bid on the job and, in fact, was ineligible to bid on the job because he was a new employee and had not yet completed the 90-day probationary period required before an employee could bid on a higher
19 These components are Lufkin’s so-called “rules” regarding demotions, lateral moves, plant rule violations, shift preference and attendance, the fact that one has to bid and can decline a posted job, and the paper and pencil and other tests Lufkin administers.
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level job. Mr. Brister, however, was a friend of the manager who selected him for the storekeeper position. See Proposed Finding 70.
In response to Mr. Deason’s grievance challenging the award of the job to Mr. Brister, Lufkin responded by claiming that Mr. Deason was ineligible for the storekeeper position because it represented a “demotion” for him, and thus was contrary to Lufkin’s alleged “rule” regarding demotion, despite the fact that contemporaneous documentation noted that “[i]t has been [Lufkin’s] practice to review these requests [i.e. bids on jobs paying a lower rate] on an individual basis,” and, according to the trial testimony of Lufkin manager Steve Reynolds, managers retain the discretion to award jobs with lower rates of pay to employees.
Lufkin also justified its selection of the less senior, ineligible and non-bidder Mr. Brister on the ground that under the CBA, Lufkin “retains the right to promote from sources other than the bid list,” and further claimed that none of the applicants who bid for the storekeeper job met the “minimum desired criteria” for the job – despite the fact that there was no job description or written minimum criteria for the position and Mr. Deason had prior storekeeper experience.20
Thus, separate analysis of the “components” Lufkin identifies is not possible and would not be probative because they are not independent factors and are inextricably linked to Lufkin’s
20 In Mr. Deason’s case, Lufkin refused to award Mr. Deason the Storekeeper position awarded to Mr. Brister, but eventually agreed to award the next available Storekeeper position to Mr. Deason. Lufkin also agreed to pay Mr. Deason the top rate of the Storekeeper classification. Pursuant to that agreement, two years after Mr. Deason filed his grievance, Lufkin awarded him a Storekeeper position. However, four months later, Lufkin arbitrarily and unilaterally reduced his rate of pay by more than $2.00 an hour, well below the top rate for the Storekeeper position. Because he could not afford the reduction in pay, Mr. Deason was forced to return to the Chipper/Grinder/Finisher job, where he remains currently. See Proposed Findings 46, 70(d).
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subjective decision making.21 See Proposed Findings 137-190; Proposed Conclusions 489-494. In any event, even if separate analysis of one or more of these components was probative or appropriate, it would not be possible since Lufkin does not collect data on the results of the application of any of these factors, notwithstanding its legal obligation to do so under the Uniform Guidelines. Thus, there is no or incomplete data regarding these “components” to analyze. See Proposed Findings 66, 140, 157, 162, 168, 173, 178, 183-184.
Lufkin also contends that Plaintiffs could have analyzed “the use of seniority.” Plaintiffs did analyze the use of seniority and the analysis showed that seniority is not regularly followed at all, in fact the senior bidder is bypassed as frequently as selected. This showing that managers routinely find ways to overrule seniority confirms that promotional decision-making is subjective and discretionary, not the result of application of objective standards. See Proposed Findings 137-190. As already discussed, a myriad of subjective practices and criteria, including discretionary provisions of the CBA and the so-called “eligibility” criteria that operate without regard to seniority, have compromised the effect of “seniority” in the promotion process for
21 Specifically, Lufkin’s so-called “rules” on demotions, lateral moves, plant rule violations, and attendance, are all unwritten and subject to manager discretion. See Proposed Findings 171-177. Likewise, analysis of “bidders,” that is only those individuals who actually bid on jobs, as Lufkin suggests in its motion, fails to account for the deterring effect of other components of Lufkin’s subjective decision making system, such as discriminatory training, use of the ability clause, and as illustrated above, managers’ selection of individuals from sources other than the bid list. See Proposed Findings 137, 152-168. Similarly, the paper and pencil and other tests Lufkin administers have not been professionally designed or validated and are subjectively administered and scored. See Proposed Findings 180-185. Analysis of which employees “declined” positions would not be either probative or reliable, because of manager discretion to influence the outcome through encouragement or discouragement of the bidder. See Proposed Finding 164. Additionally, none of these “rules” are authorized by the CBA, and there is evidence that the unions disagree with the company’s interpretation of the CBA as reflected in these “rules,” because they undermine the seniority provision. See Proposed Finding 174.
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Lufkin’s hourly employees.22 Furthermore, because the bid sheets are incomplete and suspect, there is no reliable source of information to analyze promotions by “seniority.23
For all of the reasons discussed above, and in the detailed Proposed Findings and
conclusions, Plaintiffs request that the Court reject Lufkin’s argument that the challenged
employment practice is capable of separation for analysis.
c. Dr. Drogin’s Promotion Model is Appropriate Where, as Here, there is Substantial Evidence that the “Applicant Pool” Data is Unreliable.
Lufkin criticizes Dr. Drogin’s hourly promotion analysis on two grounds: (1) he did not
use actual bid data, but instead, used proxy feeder pools (which Lufkin mischaracterizes as
“artificial,” even though its own expert Dr. Baker, acknowledged that proxy pools are
appropriate in situations where applicant pool data are unavailable or unreliable and used the same methodology to analyze promotion for which no bid sheets were available)24 and (2) Dr.
Drogin did not control for Lufkin’s so-called “eligibility’ criteria.
22 Lufkin’s reference to the “Congressional immunity afforded bona fide seniority systems insulates such systems, even though they may have a disparate impact,” is of no moment here, because Plaintiffs do not challenge Lufkin’s seniority system, but rather Lufkin’s exercise of the substantial discretion the CBA yields to management. Moreover, Lufkin’s attempt to defend the seniority rights of its workers is ironic when the multiple ways Lufkin has diluted the effect of seniority in its decision making are considered. In fact, the bid database Lufkin’s counsel created for the litigation revealed that bids were awarded to the senior bidder only half the time. See Proposed Finding 329. 23 Dr. Drogin’s promotion analysis did control for seniority. See Proposed Finding 309. Conversely, Dr. Baker’s bid sheet analysis is analysis failed to take seniority into account. However, the data Dr. Baker relied on showed that in roughly only half the time was the position awarded to the senior bidder, further supporting Plaintiffs’ contention that hourly promotion decisions are in fact, not guided by objective criteria, but by the subjective components of the promotion process. See McClain, 187 F.R.D. at 276. 24 The availability pools determined by Dr. Drogin were based on the number of African American and white employees who were similarly situated to the successful bidders. Dr. Drogin determined which individuals were similarly situated to persons actually promoted by considering the job and department promotees were in prior to their promotion and their level of seniority, and then identified other employees in the work force who had also held that same job and were in the same department.
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Dr. Drogin determined that use of the bid data was inappropriate for several reasons: (1) his observation that a large number of the postings were missing from the bid databases that Lufkin’s counsel created for Dr. Baker’s analysis; (2) “unexplained discrepancies between different paper records purportedly documenting the same posting, bid and selection events;” (3) the reliability and credibility of the bid databases used by Dr. Baker which had been created by defense counsel and not checked by Lufkin’s outside expert; (4) class members’ allegations that they are discouraged from entering their names on bid lists, even when they are qualified, and that they are sometimes discouraged from actually accepting promotions they have been awarded; (5) and this Court finding that Lufkin’s bidding system is not administered in a nondiscriminatory way. McClain, 187 F.R.D. at 273-74.25 See Proposed Findings 311-322.
It is well recognized that where actual applicant flow data is inadequate or unavailable, other measures of applicant flow--including but not limited to "feeder pools"--are deemed acceptable so long as they are used in a reliable manner. See R. Paetzold and S. Willborn, The Statistics of Discrimination Using Statistical Evidence in Discrimination Cases, §§ 4.02--4.04 (Oct. 2002) (“Statistics of Discrimination”), quoted in Dukes v. Wal-Mart Stores, 222 F.R.D. 137, 163 (N.D. Cal. 2004) (where the court accepted proxy feeder pools based on historical movement patterns where limited actual applicant flow data exists); see Stender, 803 F. Supp. at 295-96, 333-34 (accepting same methodology where defendant's bid data was incomplete).26
25 It is impossible to accurately identify who was on the bid lists and to determine the availability pool of bidders for promotions by the bid list method, where no bid list corresponding to the promotions is retained. Therefore, it is not possible to know whether inclusion of the bid sheets and availability pool data from those promotions would have changed the results or conclusion of an analysis based on bid sheets. Accordingly, the applicant flow (or bid) method of analysis could not properly be used to analyze all of Lufkin’s promotions. 26 The proxy pools approved by the courts in Dukes and Stender were developed using the same methodology Dr. Drogin used in this case, and were, in fact, developed by Dr. Drogin who was retained as plaintiffs’ expert in both of these cases. In both Dukes and Stender, the employers’ statistical experts criticized Dr. Drogin’s use of proxy pools. In both cases, the employers’ experts were employed by the same firm as Dr. Baker, Lufkin’s statistical expert. See Dukes, 222 F.R.D. at 155, 163 n. 37.
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Dr. Drogin’s use of proxy feeder pools for his hourly promotion analysis, under the circumstances of this case, was entirely reasonable. See Proposed Conclusion 478.
Lufkin also criticizes Dr. Drogin for not considering or controlling for the “nondiscriminatory factors that qualify or disqualify employees for promotions such as bidding, departmental seniority, disciplinary warnings, excessive absence, and eligibility tests.” Motion for Judgment at 21. However, as discussed above, Lufkin fails to “maintain and have available for inspection records or other information which will disclose the impact which its tests and other selection procedures have upon employment opportunities of persons by identifiable race,” as it is expressly required to do under the Uniform Guidelines. See Proposed Findings 66, 140, 157, 162, 168, 173, 178, 183-184. Accordingly, because Lufkin has not complied with its obligation to analyze these factors for adverse impact, it has no basis to claim, as it does in its motion, that they are “non-discriminatory.” Furthermore, the Court may draw an inference that the records would have contained evidence unfavorable to the employer. See Proposed Conclusions 468-473, 568.
Lufkin’s criticism that the availability pool method used by Dr. Drogin did not produce results, for particular promotions, that are the same as the availability lists based on bid lists purportedly maintained by Lufkin and purportedly summarized in the bid databases created by Lufkin’s counsel does not undercut the methodology Dr. Drogin used, which is the same methodology Dr. Baker used in creating her proxy pools, and it thus is clear that if it is assumed that Dr. Drogin’s use of proxy or availability pools was appropriate, the method he used to create those pools was appropriate. See Proposed Finding 338; Proposed Conclusions 478.
Accordingly, for all of the reasons discussed above and in the more detailed Proposed Findings and Conclusions, Court should reject Lufkin’s argument that Dr. Drogin’s hourly promotion analysis is flawed and credit Dr. Drogin’s findings.
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D. Plaintiffs Have Presented Ample Evidence to Support their Disparate Impact Claim with Regard to Promotions of Salaried Employees Which Lufkin has not Credibly Rebutted. Lufkin contends that Plaintiffs failed to produce anecdotal evidence from class members
in support of their salaried promotion claim. See Motion for Judgment at __, (“no class member testified that he was denied a salaried promotion”). As discussed above, such anecdotal evidence is neither required nor necessary for Plaintiffs to meet their prima facie burden. Here, Plaintiffs have identified the challenged practice – Lufkin’s subjective decision system – and presented statistical evidence of disparities. This satisfies Plaintiffs’ burden.
The evidence presented at trial shows that Lufkin’s salaried promotion decisions are subjective and allow unconscious stereotypes and other improper considerations to enter into the decision making process. This evidence includes testimony and other evidence demonstrating that (1) managers have complete discretion in deciding which employees to promote into salaried positions; (2) selections for salaried promotions are made through subjectively determined and unstructured interviews, and using job descriptions that are not professionally developed nor based on an analysis of the specific jobs in question to determine the knowledge, skills and abilities related to successful performance in the particular job, but instead prepared by Viron Barbay and an English Professor who “knows nothing” about the jobs at Lufkin, both of whom are untrained in the development of valid, job-related job descriptions; (3) managers use highly subjective criteria, such as “strongest desire for the job,” “superior mechanical ability,” “strong sense of urgency on repairs,” and “self-confidence;” (4) Lufkin does not collect and analyze the results of any of its salaried promotion employee selection procedures for adverse impact, despite its legal obligation to do so; and (5) managers are not held accountable for their promotion decisions or in any way evaluated on their performance with regard to equal employment opportunities. See Proposed Findings 64-202. Such evidence amply supports Plaintiffs’ claim. See Proposed Conclusions 489-494.
Lufkin also seeks dismissal of Plaintiffs’ salaried promotion claim on the ground that, despite Dr. Drogin’s finding that “[t]here is a statistically significant shortfall in promotions of
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blacks into salary jobs in EEO categories 1-5,” and that the Z-value for this disparity is –2.02, Plaintiffs’ statistical evidence is not legally significant.
As this Court has previously held in this case, “[t]here are no bright-line rules regarding what degree of statistical disparity is necessary to support a disparate impact claim. Traditionally, the statistics must show a "gross disparity" in how the different races are affected. … A deviation greater than three standard deviations is sufficient to support a prima facie case.” See McClain, 187 F.R.D. at 276. Other courts also have rejected arguments of strict legal benchmarks requiring a particular standard deviation to demonstrate that data has statistical significance. See Rendon v. AT & T Technologies, 883 F.2d 388, 397-98 (5th Cir.1989) Moreover, “[w]hether a given [test result] should be regarded as statistically significant must be determined on a case by case basis since the value signifying statistical significance is dependent upon sample size.” Overton v. City of Austin, 871 F.2d 529, 544 (5th Cir.1989) (Jones, J., concurring).
The courts have recognized that it is the convention of statisticians to recognize that a disparity of 1.96 or more standard deviations from expected values establishes statistical significance. Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975); Reynolds v. Sheet Metal Workers Local 102, 498 F. Supp. 952 (D.D.C. 1980), aff'd, 702 F.2d 221 (D.C. Cir. 1981); Vuyanich v. Republic Nat. Bank of Dallas, 505 F. Supp. 224 (N.D. Tex. 1980), judgment vacated on other grounds, 723 F.2d 1195 (5th Cir. 1984). Statistical disparities falling just short of the traditional standard of 2 may nonetheless be meaningful since consistent shortfalls in every category are probative of a pattern of discrimination, especially when other evidence confirms an allegation of discrimination. See e.g., EEOC v. American Nat’l Bank, 652 F.2d 1176, 1195 (4th Cir. 1981), cert. denied, 459 U.S. 923 (1982) (rejecting employer’s argument that the plaintiff’s statistics were not probative unless they exceeded two or three standard deviations, holding that “well short of three standard deviations, the probability levels for chance as explanation have already dropped far below the point at which courts of law – concerned with proof by the ‘greater weight’ or ‘preponderance’ would presumably have discarded the
27

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hypothesis of chance.”); see also Kadas v. MCI Systemhouse Corp., 255 F.3d 359, 362, 363 (7th Cir. 2001)(“the 5 percent test [“that is, the coefficient of the relevant correlation is at least two standards deviations away from zero”] is arbitrary. … It is for the judge to say, on the basis of a trained statistician, whether a particular significance level, in the context of a particular study in a particular case, is too low to make the study worth the consideration of a judge or jury.”)
In this case there are compelling reasons to conclude that Dr. Drogin’s finding is statistically and legally significant. First, the disparity is in excess of the significance level conventionally recognized by statisticians. Additionally, the finding of disparity in salaried promotions coupled with similar findings of disparities in initial assignments and hourly promotions, demonstrates a consistent pattern of discrimination. Likewise, evidence of a high degree of discrimination in initial assignments and hourly promotions makes it more likely than not that the lower – but still statistically significant – disparities found with respect to salaried promotions, support a finding of discrimination in salaried promotions. See McClain 187 F.R.D. at 274 ("Discrimination in hiring and advancement, even at the lower levels of the hierarchy, has a rippling effect upwards through that hierarchy.")
Thus, for all of the reasons discussed above and in the more detailed Proposed Findings and Conclusions, the Court should find for Plaintiffs on their salaried promotion claim. E. Plaintiffs Have Introduced Sufficient Evidence to Demonstrate the Adverse Impact
of Lufkin’s Discriminatory Initial Assignment and Promotion Practices on African American Employees’ Compensation, Which Lufkin Has Not Credibly Rebutted. Lufkin contends that Plaintiffs’ compensation analysis is flawed because Dr. Drogin failed to control for job classification as an independent variable in his regression analysis, and therefore, the Court should dismiss Plaintiffs’ compensation claim. As Dr. Drogin explained in his Report and testimony, he did not control for job classification in his analysis because, in light of Plaintiffs’ discriminatory initial assignment and promotion claims, the job an individual held could be affected by the discrimination, or a “tainted variable.” See Proposed Findings 361-363.
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Plaintiffs presented evidence that controlling for job classification removes from consideration the one compensation issue that is present in this case as framed by the Court’s orders and Plaintiffs’ allegations – whether Lufkin’s discriminatory practices of initial assignment and promotions result in African Americans being disproportionately limited to lower-paying jobs than similarly situated whites. Id. Conversely, including job classification in the analysis introduces a tainted variable. “A variable can be considered ‘tainted’ if (1) the variable, although perhaps related to productivity or worth, may reflect a qualification that has been denied to a protected group by the employer’s discrimination. …” 2 Employment Discrimination Law at 1699.
Tainted variables should be excluded from the analysis because the tainted variable may itself represent some of the discrimination against the protected class, so that the variable’s inclusion in the analysis will result in an underestimation of the degree of discrimination. See Statistics of Discrimination § 6.13; see also Coward v. ADT Security Systems, Inc., 140 F.3d 271, 274 (D.C. Cir. 1998) (“Depending on the theory of the case, some variables may be entirely unsuitable. Where plaintiffs allege discriminatory promotion practices, for example, this court considers inclusion of grade variables ‘inappropriate’ because an employee’s grade may itself reflect discrimination.”).
A compensation analysis that controls for job classification addresses an issue – whether African Americans are paid less than whites who hold the same job classification – that is not an issue raised in this case. Here, where Plaintiffs contend and have shown that Lufkin’s initial assignment and promotion practices have adversely impacted African Americans, it is inappropriate and prejudicial to control for job held in an analysis of compensation. Accordingly, Dr. Drogin’s compensation analysis is appropriate and necessary under the circumstances of this case. See Proposed Conclusions 479(e), 480-482.
Therefore, for all of the reasons discussed above and in the more detailed Proposed Findings and Conclusions, the Court should reject Lufkin’s motion and find for Plaintiffs on their compensation claim.
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IV. CONCLUSION Plaintiffs have presented compelling evidence to support their disparate impact claims and Lufkin has failed to credibly rebut that evidence. Therefore, for all of the reasons discussed above and in the Proposed Findings and Conclusions filed simultaneously with this Opposition, Plaintiffs respectfully request that the Court deny Lufkin’s Motion for Judgment and find for Plaintiffs on each of their disparate impact claims.

Dated: November 30, 2004

Respectfully submitted,

By: /S/
Teresa Demchak, CA Bar No. 123989 Morris J. Baller, CA Bar No. 048928 Goldstein, Demchak, Baller, Borgen & Dardarian 300 Lakeside Drive, Suite 1000 Oakland, CA 94612-3534 (510) 763-9800
Timothy Garrigan, TX Bar No. 07703600 Stuckey, Garrigan & Castetter Law Offices 2803 North Street Nacogdoches, TX 75963-1902 (936) 560-6020
Attorneys for Plaintiffs

CERTIFICATE OF SERVICE I hereby certify that I have served all counsel of record in this case, including the following, with a true and correct copy of the foregoing by sending same via electronic filing to:

Douglas Hamel Christopher V. Bacon Michelle Mahony Vinson & Elkins 2806 First City Tower, 1001 Fannin Street Houston, TX 77002-6760
on this 30th day of November, 2004.

/S/ Teresa Demchak

30

 
 Case 9:97-cv-00063-RC Document 637 Filed 05/01/2009 Page 1 of 17

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

LUFKIN DIVISION

Sylvester McClain, et al. Plaintiffs,
v. Lufkin Industries, Inc.
Defendant.

§ Civil Action No. 9:97 CV 063 (CLARK) § § § § § § § §

PLAINTIFFS’ OPPOSITION TO DEFENDANT LUFKIN INDUSTRIES, INC.’S AMENDED MOTION FOR PARTIAL SUMMARY JUDGMENT

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Defendant Lufkin’s Amended Motion for Partial Summary Judgment (“MPSJ”) (Dkt. 632), seeks dismissal of Plaintiffs’ salaried promotion claim, a claim already adjudicated on the merits in Plaintiffs’ favor by this Court in a decision affirmed by the Fifth Circuit.
Lufkin contends that because the Fifth Circuit found that the 1997 EEOC charge of named plaintiff Buford Thomas was the operative charge to support Plaintiffs’ class promotion claim, the Fifth Circuit should have – but erroneously did not – exclude promotions made in 1994-95 in addressing the remaining liability and remedy questions on appeal. Lufkin further argues that if 1994-95 salaried promotions are excluded from the statistical analysis there is no statistically significant disparity in salaried promotions for 1996-2002, the remainder of the period covered by statistical evidence in the trial record, and, therefore, Judge Cobb’s liability finding of salaried promotion discrimination, the Fifth Circuit’s affirmance of that finding and any remedies predicated on it cannot stand. Accordingly, Lufkin argues that it should be granted summary judgment on Plaintiffs’ salaried promotion claim as a matter of law.
Lufkin’s motion ignores the law of this case, the evidentiary and legal findings of this Court and the Fifth Circuit, and Title VII’s broad remedial purposes, and misinterprets the evidence before the Court and applicable case law.1 The Court should deny the MPSJ. A. Statement of Relevant Facts and Rulings in the Case
Judge Cobb found that Lufkin committed actionable classwide discrimination in both initial assignments and promotions.2 Judge Cobb found that a single practice – Lufkin’s subjective decision making – adversely impacted African American employees in initial assignments and promotions to both hourly and salaried positions in violation of Title VII.3
1 The parties’ respective reports regarding back pay demonstrate that among the disputed issues are whether law of the case requires the Court to consider the 1994-95 time period and whether the Court should apply Title VII’s two year statute of limitations in calculating back pay. See Pls.’ Br. on Disputed Class Back Pay Issues (Dkt. 629); Def. Lufkin’s Am. Position on Disputed Issues for Calculation of Monetary Relief (Dkt. 633). Resolution of these issues will affect the amount of the back pay remedy, but not whether there will be injunctive remedies regarding hourly promotion practices; Lufkin concedes this. Rather, Lufkin argues there should be no injunctive relief as to salaried promotion practices. 2 Amended Final Judgment (“Am. Final J.”) (Dkt. 552) at 19-30. 3 Id. at 5-6, 19-24.

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Lufkin appealed Judge Cobb’s liability determinations. Lufkin successfully argued to the Fifth Circuit that no relief could be awarded based on Plaintiffs’ initial assignment claim because no timely filed charge of discrimination raised the initial assignment issue on an adverse impact theory.4 The Fifth Circuit found that named plaintiff Buford Thomas’ charge of discrimination sufficiently exhausted Plaintiffs’ claim of “a discriminatory, albeit neutral, company policy authorizing subjective promotion decisions.”5 The Fifth Circuit affirmed Judge Cobb’s findings of classwide hourly and salaried promotion discrimination and his determination that Lufkin must be held liable for damages for such discrimination.6
Plaintiffs successfully argued to the Fifth Circuit that the injunction Judge Cobb had entered lacked specificity, failed to remedy the discriminatory exercise of subjective decision making, and included no provision to ensure Lufkin’s compliance. The Fifth Circuit held that the “court’s injunction lacks the detail required under Federal Rule of Civil Procedure 65(d),” and remanded to this Court the task of crafting an injunction “balancing plaintiffs’ requests for stronger measures to ensure Lufkin’s compliance with the imprecision of the liability finding.”7
Lufkin petitioned for rehearing of the panel decision, specifically raising the issue that, because the panel had found McClain’s 1995 EEOC charge did not support the class claims, and the class promotion claim could only be properly founded on Thomas’ 1997 charge, it was erroneous to uphold liability and grant relief for the years 1994-95, which are outside the 300 day period prior to the filing of Thomas’ charge. The Fifth Circuit denied Lufkin’s petition. Lufkin then petitioned for a writ of certiorari raising that same issue to the United States Supreme Court. The Supreme Court denied Lufkin’s petition. The present remand followed.

4 McClain, et al. v. Lufkin Indus., Inc., 519 F.3d 264 (5th Cir. 2008), Slip Op. filed in this Court as Dkt. 579, at 4-9.
5 Id. at 8-9.
6 Id. at 10-18.
7 Id. at 24.

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B. Legal Standards
Summary judgment is appropriate if the record discloses “that there is no genuine issue as
to any material fact and that the movant is entitled to a judgment as a matter of law.”8 The
pleadings, depositions, admissions, and answers to interrogatories, together with affidavits, must
demonstrate that no genuine issue of material fact remains.9 When considering a motion for
summary judgment, the district court “must ‘review the facts drawing all inferences most
favorable to the party opposing the motion.’”10
A court must find a “[a] factual dispute . . . [to be] ‘genuine’ if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party . . . [and a] fact . . . [to be]
‘material’ if it might affect the outcome of the suit under the governing substantive law.”11 In
other words, a factual dispute is genuine if it requires a trial to resolve competing reasonable
factual contentions.12 Judgment as a matter of law is permitted only if the facts and law will
reasonably support only one conclusion.13 C. Argument
1. The Law of the Case Doctrine and Mandate Rule Bar Lufkin’s Position as to Injunctive Relief, as Well as Back Pay.
The Fifth Circuit specifically directed that back pay be awarded for the 9 shortfall
salaried promotions.14 The necessary implication of the Fifth Circuit’s remand for back pay
8 Fed. R. Civ. P. 56(c). 9 See id.; Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Amoco Prod. Co. v. Horwell Energy, Inc., 969 F.2d 146, 148 (5th Cir. 1992). 10 Amoco, 969 F.2d at 148, quoting Reid v. State Farm Mut. Auto Ins. Co., 784 F.2d 577, 578 (5th Cir. 1986); Hertz v. Treasure Chest Casino, L.L.C., 274 F. Supp. 2d 795, 798 (E.D. La. 2003). 11 Hertz, 274 F. Supp. 2d at 798, quoting Beck v. Somerset Techs., Inc., 882 F.2d 993, 996 (5th Cir. 1989). 12 See James Wm. Moore, Moore’s Federal Practice § 56.11[3] (3d ed. 2003) (“Moore’s Federal Practice”); Amoco, 969 F.2d at 148. 13 See Bricklayers, Masons and Plasterers Int’l Union of Am., Local Union No. 15 v. Stuart Plastering Co., Inc., 512 F.2d 1017, 1024 (5th Cir. 1975); Moore’s Federal Practice §56.11[3]; Amoco, 969 F.2d at 148, quoting Reid, 784 F.2d at 578; Hertz, 274 F. Supp. 2d at 798. 14 Slip Op. at 20.

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based on the number of lost promotions in 1994-2002, is that 1994-2002 statistical evidence must be used in determining adverse impact.15 Lufkin’s argument that 1994-95 salaried
promotions must be excluded from the adverse impact analysis is barred by the law of this case and the mandate rule.16
Lufkin, however, contends that the law of the case doctrine does not preclude this Court
from granting its motion because the Fifth Circuit did not explicitly address the issues presented by the MPSJ.17 Lufkin argues that it “did not challenge Thomas’ charge” on appeal and “had no
reason to anticipate that the Court of Appeals would rely on Thomas’ charge, and, therefore,
Lufkin did not address the limitations period that would apply if Thomas’ charge was the operative charge in its original briefing.”18 In fact, Lufkin challenged Thomas’ charge in its
opening brief in the Fifth Circuit where, while conceding that the charge “does support an
alleged class-wide denial of promotions,” it argued that because “Plaintiffs … offered no
evidence of disparate impact against blacks in the time period associated with Thomas’ charge … even if Thomas’ charge would support the class promotion claim, it fails for want of proof.”19
In their reply brief in the Fifth Circuit, Plaintiffs argued that “[t]he other charge that
supports Plaintiffs’ class claims” is Thomas’ charge, and that “Lufkin … concedes [Thomas’ charge] alleges Class Claims.”20 In its reply brief, Lufkin did not mention Thomas’ charge nor
respond – as it could have – to Plaintiffs’ argument that the charge supported the class claims.
15 See Pls.’ Br. on Disputed Class Back Pay Issues (Dkt. 629) at 5-7. 16 “The mandate rule compels compliance on remand with the dictates of the superior court and forecloses relitigation of issues expressly or impliedly decided by the appellate court.” Fuhrman v. Dretke, 442 F.3d 893, 897 (5th Cir. 2006). The mandate rule provides that a lower court “ ‘implement both the letter and the spirit of the [appellate court’s] mandate,’ and may not disregard the ‘explicit directive’ of that court.” United States v. Becerra, 155 F.3d 740, 753 (5th Cir. 1998), (citing Johnson v. Uncle Ben's, Inc., 965 F.2d 1363, 1370 (5th Cir. 1992)). 17 MPSJ at 5. 18 Id. 19 Br. of Appellee-Cross Appellant Lufkin Industries, Inc. at 23 n. 8 (emphasis added). 20 Resp. and Reply of Plaintiffs-Appellants and Cross Appellees at 4, n. 5.

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Lufkin’s assertion that it could not have anticipated the Fifth Circuit “would rely on
Thomas’ charge” is not supported by the record since both parties addressed the sufficiency of
that charge in their original briefs in the Fifth Circuit, and Plaintiffs affirmatively argued in the Fifth Circuit that Thomas’ charge “support[ed] the class claims,”21 to which Lufkin failed to
respond. Therefore, Lufkin waived its argument that a different “limitations period … would apply if Thomas’ charge was the operative charge” by not raising it on appeal22; it should not be
able to raise it in this Court on remand.
Alternatively, Lufkin did argue in the Fifth Circuit that based on a lack of “evidence of
disparate impact against blacks in the time period associated with Thomas’ charge,” the charge
“fails for want of proof.” It must be assumed that the Fifth Circuit considered and rejected this
argument, either explicitly or by necessary implication, when it: (1) found Thomas’ charge
satisfied the exhaustion requirement for Plaintiffs’ class promotion claim; and (2) affirmed Judge
Cobb’s findings of classwide hourly and salaried promotion discrimination and with regard to the total number of hourly and salaried promotions lost to the class.23
Lufkin cites Alpha/Omega, as supporting its argument that despite the Fifth Circuit’s
ruling, law of the case does not apply and this Court is free to decide “issues stemming from the
finding on exhaustion that affect the promotion claims, with regard to both liability and damages.”24 Alpha/Omega does not support Lufkin’s position. In Alpha/Omega, the issue
decided on the first appeal was not the same as, nor reasonably encompassed in, the issue that
had to be addressed by the district court on remand. On the first appeal, the issue had to do with
21 The Fifth Circuit also found that “Lufkin did not contend otherwise at trial.” Slip Op. at 9. 22 See Carlisle Ventures, Inc. v. Banco Espanol de Credito, S.A., 176 F.3d 601, 609 (2d Cir. 1999) (holding appellant waived argument where its reply brief failed to respond to appellee’s contrary assertions and did not otherwise point to any evidence disputing those assertions). 23 See Alpha/Omega Ins. Servs., Inc. v. Prudential Ins. Co. of Am., 272 F.3d 276, 279 (5th Cir. 2001) (law of the case doctrine is limited to issues decided, either explicitly or by necessary implication, in the earlier litigation). 24 MPSJ at 6.

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whether there were disputed issues of material fact sufficient to require denial of the defendant’s motion for summary judgment.25 On remand, the issue – one distinct from the question resolved in the earlier appeal – was whether as a matter of law the disputed issue was material to the plaintiff’s claim.26 In this case, the Fifth Circuit explicitly addressed and ruled on the issue of how many lost promotions were at issue, and its ruling necessarily implicated the 1994-95 time period statistics. The Fifth Circuit also rejected by necessary implication Lufkin’s argument that there was insufficient “evidence of disparate impact against blacks in the time period associated with Thomas’ charge” to prove the class promotion allegations when it affirmed Judge Cobb’s hourly and salaried promotion discrimination liability finding. Lufkin should not be permitted to continue to litigate questions it has presented to, and lost in, this Court and the Fifth Circuit. The Court should deny Lufkin’s motion.
2. Even When 1994-95 Salaried Promotions are Excluded, the Statistical Patterns, Coupled With Other Evidentiary Findings Made by Judge Cobb and Affirmed by the Fifth Circuit, Support an Inference of Discrimination.
The “salaried promotions” analyzed by the parties’ respective statistical experts include promotions of hourly employees to (first line) supervisor positions as well as promotions of employees in one salaried position to another salaried position. The former category of promotions involve the same pool of potential promotees as the hourly promotion claim and the same decision makers responsible for promotions of hourly employees to hourly positions.
Lufkin’s statistical expert, Dr. Baker, reviewed the analyses of Plaintiffs’ expert Dr. Drogin with regard to salaried promotions for various time periods and also separately for promotions from hourly to salaried jobs and from one salaried job to another.27 For the period 1996-2002 –that is, excluding 1994-95 promotions, which Lufkin contends should not be included based on the timing of the filing of Thomas’ charge – Dr. Baker found that blacks
25 272 F.3d at 279-80. 26 Id. at 280-81. 27 See Second Declaration of Mary Baker, Ph.D. (“Baker Second Decl.”), Exh. C to MPSJ. The MPSJ fails to refer to this much closer analysis by Lufkin’s own expert.

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received 6.14 fewer promotions from hourly to salaried jobs for a disparity of -1.95 standard deviations.28 This is only -.01 standard deviation less than the -1.96 standard deviation Dr. Baker found for hourly to salaried job promotions for 1994-2002.29 As Dr Baker concedes, “the threshold of statistical significance [is] -1.96 standard deviations.”30 The difference between -
1.95 and -1.96 standard deviations is de minimus, i.e., a 1 in 19.5 probability of random occurrence versus 1 in 20, at the -1.96 level.31 Accordingly, even adopting Lufkin’s erroneous
contention that the Court should not consider 1994-95 salaried promotions and its unsupported
claim that statistically significant disparities are a prerequisite to remedies, see below at 8-9, 11-
13, there is a basis in such disparities in hourly to salaried promotions for 1996-2002.
The finding of a disparity in 1996-2002 hourly to salaried promotions that lies at the
borderline of statistical significance is echoed in other disparities for other relevant time periods
that suggest the presence of a causal factor – i.e., discrimination – while falling just short of the
conventional level for statistical significance. Dr. Baker found that between 1996-2004, blacks
received 5.74 fewer promotions from hourly to salaried jobs for a disparity of -1.70 standard
deviations; between 1996-2007, blacks received 4.73 fewer promotions from hourly to salaried jobs for a disparity of -1.24 standard deviations.32 Dr. Baker also found adverse impact in all
salaried promotions for 1996-2002, in that blacks received 6.35 fewer promotions from hourly to salaried jobs and within salaried jobs for a disparity of -1.62 standard deviations.33 Such a disparity has a 1 in 9 times’ probability of random occurrence.34
28 Id. (Table 2). 29 Id. (Table 2). 30 Id. at ¶ 8. 31 Declaration of Richard Drogin, Ph.D. (“Drogin Decl.”), attached as Exh. 1 hereto, at ¶ 6. 32 Baker Second Decl. (Table 2). 33 Id. (Table 1). Dr. Baker found that between 1996-2004, blacks received 6.45 fewer promotions from hourly to salaried jobs and within salaried jobs for a disparity of -1.56 standard deviations; between 1996-2007, blacks received 5.44 fewer promotions from hourly to salaried jobs and within salaried jobs for a disparity of -1.21 standard deviations. Id. 34 Drogin Decl. ¶ 6.

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a. Lufkin Ignores Judge Cobb’s Legal Analysis and Evidentiary Findings and the Fifth Circuit’s Affirmance of the Analysis and Findings.
Lufkin argues that because the 1996-2002 salaried promotion disparities are barely lower
than -1.96 standard deviations, they are not “statistically significant” and cannot support a
finding of liability under the adverse impact theory of discrimination or the imposition of
remedies. Although Lufkin asserts, without citation to judicial authority, that “[d]isparities of
less than two-standard deviations . . . cannot establish the requisite causation for disparate impact,”35 “the 5% level is an arbitrary convention. It has never been a part of professional standards to insist on a specific level of confidence . . .”36 The 5% level “does not mean that
only results significant at the 5% level should be considered; less significant results may be suggestive.”37 This is particularly the case where, as here, the amount by which the disparity
falls short of the conventional threshold is minimal and there is a consistent pattern of shortfalls
in related measures of disparity.
Furthermore, Judge Cobb’s factual and legal findings, which were affirmed by the Fifth
Circuit, expressly refute Lufkin’s contention. Judge Cobb, in articulating the legal standards
“[s]upporting a claim of disparate impact with statistical evidence,” noted that “most courts have rejected the arbitrary application of a 5% threshold.”38 He further observed that “‘[w]hether a
given [test result] should be regarded as statistically significant must be determined on a case by case basis since the value signifying statistical significance is dependent on sample size.’”39
35 MPSJ at 4. 36 United States v. Georgia Power Co., 474 F.2d 906, 915 n.11 (5th Cir. 1973). 37 Vuyanich v. Republic Nat’l Bank of Dallas, 505 F. Supp. 224, 272 (N.D. Tex. 1980), vacated on other grounds, 723 F.2d 1195 (5th Cir. 1984). 38 Am. Final J. (Dkt. 552) at 14, citing Thomas v. Deloitte Consulting LP, No. 3-02-CV-0343-M, 2004 WL 1960097, at *5 (N.D. Tex. 2004) (“The Fifth Circuit has never adopted a ‘bright line’ test for statistical significance.”); Rendon v. AT & T Technologies, 883 F.2d 388, 397-98 (5th Cir. 1989) (rejecting argument that there is a strict legal benchmark requiring a particular number of standard deviations to demonstrate that data has statistical significance). 39 Am. Final J. (Dkt. 552) at 14, quoting Overton v. City of Austin, 871 F.2d 529, 544 (5th Cir. 1989) (Jones, J., concurring).

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Notably, Judge Cobb recognized that “[e]ven statistical disparities falling just short of the traditional standard of 2 (or 1.96) standard deviations may sometimes be meaningful, since consistent shortfalls in every category are probative of a pattern of discrimination, especially when other evidence confirms allegations of discrimination.”40 In finding that the shortfall of 8.85 salaried promotions [for 1994-2002] was “significant at the .05 level,” Judge Cobb observed that “[t]he statistical significance is not as robust [as for hourly promotions], but that is in part an artifact of the smaller sample size.”41
On appeal, Lufkin argued that the salaried promotion disparity was insufficient to support the Court’s liability finding. The Fifth Circuit, in affirming Judge Cobb’s “finding of a statistically significant disparate impact in promotions,” noted that “[t]his court has rejected the contention that a disparity of two or three standard deviations is categorically insufficient to support an inference of adverse impact. And Lufkin has not persuasively explained why a standard deviation of this magnitude should be accorded reduced significance under the particular circumstances of this case.”42 Consistent with Judge Cobb’s rationale, affirmed by the Fifth Circuit, authoritative commentators also warn against automatic application of two standard deviations as a rigid cut-off, as urged by Lufkin: “A disparity that is not statistically significant at the .05 level can look highly significant when combined with appropriate anecdotal and/or comparative evidence of discrimination.”43

40 Am. Final J. (Dkt. 552) at 15, citing, E.E.O.C. v. Am. Nat’l Bank, 652 F.2d 1176, 1192 (4th Cir. 1981), cert. denied, 459 U.S. 923 (1982) (emphasis added).
41 Am. Final J. (Dkt. 552) at 29.
42 Slip Op. at 18. Since both Judge Cobb and the Fifth Circuit rejected the contention that Lufkin now raises in regard to the statistical significance of salaried promotion disparities, the law of the case doctrine also requires this Court to reject Lufkin’s contention.
43 See Paetzold, R. and S. Willborn, The Statistics of Discrimination, Sec. 4.13, Ch. 4, p. 41 (Thomson/West 2006).

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b. The 1996-2002 Statistical Data Show Adverse Impact.
The 1996-2002 statistical data for salaried promotions do show adverse impact at levels
not far below that of statistical significance. The -1.62 standard deviation in all salaried
promotions for 1996-2002 has a 1 in 9 probability of random occurrence. The hourly to salaried
promotion disparity is -1.95 standard deviations, imperceptibly short of the undisputed threshold
of statistical significance, with a 1 in 19.5 probability of random occurrence.
Moreover, although Lufkin claims that “promotions outside of the relevant time period
are not relevant,”44 Hazelwood, Lufkin’s principle supporting case, states the exact opposition.45
The other cases cited by Lufkin do not overrule the Supreme Court’s holding in Hazelwood. In
National Railroad Passenger Corp. v. Morgan, which Lufkin cites, the Supreme Court
eliminated the continuing violation doctrine for “discrete discriminatory acts,” including
termination, failure to promote, denial of transfer, or refusal to hire.46 However, the Court
expressly acknowledged that pre-liability period evidence still may reach the jury as
“background evidence in support of a timely claim.”47 Thus, even accepting Lufkin’s argument
that 1994-95 promotions cannot be used in determining adverse impact, the Court is free to
consider evidence of Lufkin’s 1994-95 salaried promotion practices as background evidence in
determining whether post-1995 evidence supports an inference of discrimination, particularly
because Lufkin’s practices were unchanged throughout 1994-2002 (or through the present time).
44 MPSJ at 4-5. 45 See Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 310 n.15 (1977) (“Proof that an employer engaged in racial discrimination prior to the effective date of Title VII might in some circumstances support the inference that such discrimination continued, particularly where relevant aspects of the decision making process had undergone little change.”); see also Valentino v. U.S. Postal Serv., 674 F.2d 56, 71 n.26 (D.C. Cir. 1982) (“[C]ategorical rejection of” statistics that “fail[] to factor out time-barred discrimination” “is not warranted.”); Williams v. Anderson, 562 F.2d 1081, 1087 n.7 (8th Cir. 1977) (“Proof that the defendants engaged in racially discriminatory practices and policies prior to the period of time for which relief is available under the statute of limitations is relevant since it creates the inference that the discrimination continued, particularly when there has been little change in the decision making process.”); Morton v. GTE N. Inc., 922 F. Supp. 1169, 1176-77 (N.D. Tex 1996) (same). 46 536 U.S. 101, 102 (2002). 47 Id.

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It is also significant that the patterns of disparities for 1996-2002, 1996-2004 and 19962007 all show consistent negative shortfalls raising an inference of discrimination.48 Judge Cobb recognized that “consistent shortfalls in every category [even if falling short of the traditional standard of 2 (or 1.96)] are probative of a pattern of discrimination, especially when other evidence confirms allegations of discrimination.”49
c. Judge Cobb Found That Other Evidence Confirmed Plaintiffs’ Allegations of Discrimination in Salaried Promotions.
There is no absolute requirement that Plaintiffs show a statistically significant disparity as a prerequisite to a finding of liability and an order for injunctive relief. Where other evidence and findings of promotion discrimination confirm the inference established by statistical evidence, it is proper to draw that inference from disparities that approach but do not reach the threshold of statistical significance. For instance, in Segar v. Smith, the D.C. Circuit affirmed the district court’s Title VII liability finding despite the fact that “plaintiffs’ statistical evidence of discrimination at [the upper] level had not achieved acceptable levels of statistical significance.”50 The liability finding was upheld because “enough other probative evidence exist[ed] to permit an inference of discrimination in promotions [in upper] level” positions.51 Plaintiffs had succeeded in showing that the defendant engaged in “discrimination in initial grade assignments, work assignments, supervisory evaluations, and discipline,” “the factors that determine a special agent’s prospects for discretionary promotions at the higher levels.”52 The D.C. Circuit held that “[a]fter finding discrimination in the factors that bear most strongly on

48 Baker Second Decl. (Tables 2 and 3). The disparities in salaried to salaried promotions only are much smaller, see Baker Second Decl. (Table 3), because there are so few African Americans in management positions that the pool and expected promotion percentages are very low. 49 Am. Final J. (Dkt. 552) at 15. 50 738 F.2d 1249, 1264 (D.C. Cir. 1984). 51 Id. at 1283. 52 Id.

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promotions, and in promotions at the immediately preceding step, the trial court could and did appropriately draw an inference of discrimination in [upper level] promotions.”53
In this case, Judge Cobb correctly noted that “[a]necdotal evidence of discrimination
against individuals brings the cold statistics to life and may buttress the showing of class wide discriminatory practices.”54 He further recognized that “[d]espite the necessary primacy of
statistical evidence, proof of intent remains relevant to a claim of disparate impact employment
discrimination. Evidence of discriminatory intent can buttress and bolster statistical data, while also serving to rebut a defense of business necessity.”55
Judge Cobb found, and the Fifth Circuit affirmed, discriminatory practices based on
evidence separate from the statistical evidence. Specifically, Judge Cobb found that Lufkin
maintained a subjective decision making system for all promotions – hourly and salaried – that
was manipulated and used to discriminate in contravention of supposedly objective rules and Collective Bargaining Agreement provisions governing promotions.56 He also found that blacks were discouraged from applying for promotions and denied equal training opportunities.57
Plaintiffs supported their statistical evidence with anecdotal testimony, including
testimony relating to salaried promotions, by plaintiff McClain and class members Florine Thompson and Vivian Crain.58 Judge Cobb credited that testimony.59 That non-statistical
53 Id. at 1283-84. 54 Am. Final J. (Dkt. 552) at 14, citing U.S. v. Int’l Bhd. of Teamsters, 431 U.S. 324, 339 (1977). 55 Am. Final J. (Dkt. 552) at 16. Moreover, “anecdotal evidence might . . . reduce the need for strong statistical proof.” Segar, 738 F.2d at 1278. “[T]he combination of convincing anecdotal and statistical evidence is potent.” Coral Construction Co. v. King County, 941 F.2d 910, 919 (9th Cir. 1991). 56 Am. Final J. (Dkt. 552) at 5-7, 21-24. 57 Am. Final J. (Dkt. 552) at 21-24 and n. 6. 58 McClain and Thompson testified about difficulties they had in getting promoted to salaried positions; Crain testified about racially derogatory comments and slurs she heard made by Lufkin HR Representative Viron Barbay, who has responsibilities affecting salaried promotions. Trial Transcript Day 7 at 131:18-132:20; see also Transcript of Deposition of Lufkin’s HR Manager John Havard (Barbay is one of several HR employees responsible for documenting the reasons for selection of employees for promotion to salaried jobs). John Havard Depo. Tr., July 9, 2008 at 181:1-182:22, attached as Exh. 1 to Declaration of Scott Grimes. 59 Am. Final J. (Dkt. 552) at 20, 23.

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evidence provided additional grounds for both Judge Cobb and the Fifth Circuit to find discrimination in salaried promotions.
d. The Combined Data for Hourly and Salaried Promotions – Measuring the Combined Effects of the Same Practice – Show Statistically Significant Adverse Impact.
Judge Cobb observed that the less robust statistical significance found for salaried promotions was “in part an artifact of the smaller sample size,”60 not because of the nonexistence of discrimination. Plaintiffs’ expert Dr. Drogin, using the same methodology he used in analyzing the data for the results he presented at trial, has combined the data for hourly and salaried promotions for the various time periods analyzed by Dr. Baker. Dr. Drogin found that between 1996-2002, blacks received 96.2 fewer hourly and salaried promotions than expected for a disparity of -6.34 standard deviations; between 1996-2004, blacks received 128.72 fewer hourly and salaried promotions than expected for a disparity of -7.78 standard deviations; and between 1996-2007, blacks received 152.34 fewer hourly and salaried promotions than expected for a disparity of -8.27 standard deviations.61 Dr. Drogin concludes that these disparities “show a high degree of statistical significance. For example, for the period of 1996-2002 the Z-value of 6.34 would occur less than once in 100 million times by random fluctuation. The larger (negative) Z-values for 1996-2004 and 1996-2007 are even less likely to occur by random fluctuation.”62 Since the mechanism of discrimination – subjective decision making – was the same for hourly and salaried promotions, these combined disparities further support the need for injunctive relief to address Lufkin’s salaried as well as hourly promotion practices.

60 Am. Final J. (Dkt. 552) at 29. 61 Drogin Decl. at ¶ 4, Table 1. 62 Id. at ¶ 5 (emphasis added).

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3. Injunctive Relief is Properly Founded on This Court’s and the Fifth Circuit’s Findings if Discrimination Even if Thomas’ Charge Establishes a Shorter Liability Period.
In fashioning an appropriate remedy for employment discrimination, Congress has granted courts plenary equitable power under Title VII.63 Section 706 (g) of Title VII, 42 U.S.C. § 2000e-5(g), expressly authorizes both injunctive and affirmative relief.64 Comprehensive injunctive relief is required here because the same discriminatory practice was found to infect salaried promotions as hourly promotions. Accordingly, an injunction should be entered requiring Lufkin to change that system in all of its uses. It would be anomalous to grant back pay (as the Court must, under the law of the case doctrine and the mandate rule) but not injunctive relief, for salaried positions: to do so would contravene the requirement that “[w]here racial discrimination is concerned the [district] court has not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future.”65 D. Conclusion
Lufkin’s motion and requested relief are barred by the law of this case and the mandate rule. Alternatively, Lufkin bears the burden of establishing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. While Lufkin attempts to argue the evidence, it fails entirely to demonstrate that there is no genuine dispute. On the contrary, both the facts and law require the disputed measures of relief. Plaintiffs respectfully request that the Court deny Lufkin’s MPSJ.

63 See Franks v. Bowman Transp. Co., 424 U.S. 747, 770 (1976).
64 See also, Franks, 424 U.S. at 785-786 (in order to foster equal employment opportunities, Congress gave the lower courts broad power under §706(g) to fashion “the most complete relief possible” to remedy past discrimination); Local 28 of Sheet Metal Workers’ Int’l Ass’n v. E.E.O.C., 478 U.S. 421, 446 (1986) (Congress intended to vest district courts with broad discretion to award appropriate equitable relief to remedy unlawful discrimination).
65 Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975); quoting Louisiana v. United States, 380 U.S. 145, 154 (1965).

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Dated: May 1, 2009

Respectfully submitted,
By: /S/
Teresa Demchak, CA Bar No. 123989 tdemchak@gdblegal.com Morris J. Baller, CA Bar No. 048928 mballer@gdblegal.com Lin Chan, CA Bar No. 255027 lchan@gdblegal.com Goldstein, Demchak, Baller, Borgen & Dardarian 300 Lakeside Drive, Suite 1000 Oakland, CA 94612-3534 (510) 763-9800
Timothy Garrigan, TX Bar No. 07703600 Tim2@sgclaw.org Stuckey, Garrigan & Castetter Law Offices 2803 North Street Nacogdoches, TX 75963-1902 (936) 560-6020
Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE I hereby certify that I have served all counsel of record in this case, including the following and all exhibits and attachments thereto, with a true and correct copy of the foregoing by sending same via electronic filing to:

Douglas Hamel Christopher V. Bacon Vinson & Elkins 2806 First City Tower 1001 Fannin Street Houston, TX 77002-6760
on this 1st day of May, 2009.

/S/ Teresa Demchak

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 Case 9:97-cv-00063-HC Document 517-1 Filed 04/19/2005 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT COURT OF TEXAS LUFKIN DIVISION

Sylvester McClain, et al.
Plaintiffs, v.
Lufkin Industries, Inc.
Defendants.

§ Civil Action No. 9:97 CV 063 (COBB) § § § § § § §

PLAINTIFFS’ OPPOSITION TO DEFENDANT LUFKIN INDUSTRIES, INC.’S MOTION TO COMPEL PRODUCTION OF DOCUMENTS

Case 9:97-cv-00063-HC Document 517-1 Filed 04/19/2005 Page 2 of 9

I.

INTRODUCTION

Despite the fact that Defendant Lufkin Industries, Inc. (“Lufkin”) earlier complained that Plaintiffs produced too much information in support of their fee application, see Lufkin’s Motion

to Delay Consideration of Attorneys’ Fees Issues Until This Case Has Been Heard on Appeal in

Response to Plaintiffs’ Motion to Extend Page Limit (“Motion to Delay”) at 1-2, Lufkin now demands that Plaintiffs produce even more information. After receiving Lufkin’s motion to

compel, Plaintiffs attempted to offer a compromise to resolve the motion. Lufkin failed to

respond to Plaintiffs’ proposal or engage in a meaningful and good faith meet and confer

process. Nonetheless, Plaintiffs are willing to produce to Lufkin certain additional documents

that are the subject of its Motion to Compel. Accordingly, Lufkin’s motion to compel those documents is moot.1

The remaining disputed categories of documents of which Lufkin seeks production are

(1) the specific time entries Plaintiffs deleted as a result of their exercise of billing judgment and

(2) receipts for all travel expenses incurred by Plaintiffs. As shown below, these documents are

either irrelevant to the issues now before the Court, would be burdensome for Plaintiffs to

produce or are duplicative and cumulative of evidence already produced by Plaintiffs.

1 Plaintiffs will produce copies of invoices of Plaintiffs’ experts. Additionally, while Plaintiffs view Lufkin’s request for documents reflecting Plaintiffs’ counsel’s hourly rates in each year prior to 2005, of marginal relevance in light of well established case law reorganizing that current rates should be awarded to account for the delay in payment, see Missouri v. Jenkins, 491 U.S. 274 (1989), and Plaintiffs believe they have provided adequate information to Lufkin from which it can determine Plaintiffs’ counsel’s historical rates, see e.g., Declaration of Teresa Demchak in Support of Plaintiffs’ Motion for an Award of Interim Attorneys’ Fees (“Demchak Decl.”) Exhibit 19 at 8, Plaintiffs will produce to Lufkin Goldstein, Demchak, Baller, Borgen & Dardarian’s hourly rate sheets for the years 2000-2004. Plaintiffs’ counsel Timothy B. Garrigan has no documents reflecting his hourly rates for the years in question.
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II. ARGUMENT Federal Rule of Civil Procedure 26(b)(1) allows the discovery of “relevant” material. Federal Rule of Civil Procedure 26(b)(2) further provides that a court may limit discovery if “(i) the discovery sought is unreasonably cumulative or duplicative …; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.” Pursuant to Federal Rule of Civil Procedure 26(b) (1) and (2), the Court should overrule Lufkin’s request for production of documents reflecting hours Plaintiffs’ counsel did not bill to this case and Plaintiffs’ travel receipts for the reasons discussed below. III. LUFKIN’S CONTENTION THAT IT IS ENTITLED TO RECORDS OF TIME CHARGED, BUT NOT BILLED, BY PLAINTIFFS’ COUNSEL IS NEITHER SUPPORTED BY CASE AUTHORITY NOR CONSISTENT WITH
LUFKIN’S COUNSEL’S OWN BILLING PRACTICES. Lufkin has not demonstrated that documents reflecting time charged, but not billed, by Plaintiffs’ counsel in this case are relevant in light of the detailed contemporaneous time records submitted by Plaintiffs’ counsel in this case. In Hensley v. Eckerhart, 461 U.S. 424 (1983), the Supreme Court emphasized the importance of the exercise of billing judgment, and described it as requiring “a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary.” Id. at 434. This is precisely the basis upon which Plaintiffs exercised billing judgment in their fee application. See Demchak Decl. at ¶ 73; Declaration of Timothy Garrigan in Support of Plaintiffs’ Motion for an Award of Interim Attorneys’ Fees, Costs and Expenses (“Garrigan Decl.”) at ¶¶ 20, 23. Contrary to Lufkin’s contention, the Court need not “simply take Plaintiffs’ counsel at their word.” Motion to Compel at 2. Plaintiffs’ exercise of billing judgment is demonstrated by the time records themselves, which have been submitted to the Court. The Court and Lufkin can see for themselves that these
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records do not contain excessive, redundant, or otherwise unnecessary hours. Moreover, Plaintiffs’ counsel’s Declarations, submitted under penalty of perjury, explain the bases on which they exercised billing judgment, including the type of billing entries they deleted and tasks they did or did not bill in their exercise of billing judgment. See Demchak Decl. at ¶¶ 73-75. Additionally, Lufkin has deposed Plaintiffs’ counsel Mr. Garrigan and questioned him extensively regarding his exercise of billing judgment. See Excerpts of Deposition of Timothy B. Garrigan, (“Garrigan Depo.”) taken on April 13, 2005, attached hereto as Exhibit 1.
The time records submitted by Plaintiffs in support of their fee motion provide the basis for assessing whether they have exercised billing judgment. See e.g., Hollowell v. Orleans Reg’l Hosp. LLC, 217 F.3d 379, 392 (5th Cir. 2000) (explaining its rejection of defendants’ claim that plaintiffs failed to exercise reasonable billing judgment, “In light of the detailed records submitted by plaintiffs’ counsel, and the careful review by the magistrate judge of all the time entries, we find defendants’ argument that the billing records reflect noncompensable time or duplicative charges unavailing.”); Carrabba v. Randalls Food Mkts., Inc., 191 F. Supp. 2d 815, 827 (N.D. Tex. 2002) (finding no proof in the record that attorneys exercised billing judgment because “the time records of [the attorney] affirmatively show that there was a failure to exercise the requisite judgment.”); Lalla v. City of New Orleans, 161 F. Supp. 2d 686, 706 (E.D. La. 2001) (discussing numerous specific time entries that reflected duplication of effort and excessive time charges in the time records submitted by the plaintiffs, and holding that “based upon the evidence in the record, counsel’s suggestion that there were a number of hours which were not billed is not supported and that plaintiffs did not exercise billing judgment in the submission of these time records.” (emphasis added)).
Moreover, the accuracy and adequacy of the time records Plaintiffs submitted with their fee motion distinguishes them from evidence considered by courts in the cases Lufkin cites in its Motion to Compel. In Walker v. U.S. Department of Housing & Urban Development, 99 F.3d 761 (5th Cir. 1996), the court noted that, “the record and briefs strongly suggest that the plaintiffs’ attorneys do not adequately understand the concept of billing judgment.” Id. at 770.
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The record in Walker included evidence that the attorneys deducted for hours inadequately documented and time spent on issues on which they did not prevail or which they did not ultimately pursue. Id. Similarly, in Leroy v. City of Houston, 831 F.2d 576 (5th Cir. 1987), the court noted that there were serious deficiencies in the billing records presented in the case, including “that some were reconstructed, after-the-fact summaries, some were often ‘scanty,’ some were never kept at all, and many lacked explanatory detail.” Id. at 585. In light of the deficient time records, the court criticized the lower court’s acceptance of the lawyer’s “purported exercise of billing judgment.” Id. Likewise in Alberti v. Klevenhagen, 896 F.2d 927 (5th Cir. 1990), the discussion of billing judgment arose in the course of the court’s review of seriously inadequate time records. The court noted that even a cursory review of the fee petition revealed items not directly related to the litigation, and concluded that including such items reflected a lack of billing judgment. Id. at 933-34.
Here, Plaintiffs have demonstrated their understanding of the requirements of billing judgment and the standards regarding compensable time under applicable authority regarding fee applications, and they have explained their unassailable methods of exercising billing judgment. See Demchak Decl. at ¶¶ 73-75; Garrigan Decl. at ¶¶ 20, 23.2 Furthermore, to the extent that Lufkin had any question about Mr. Garrigan’s billing practice, including his exercise of billing judgment, Lufkin had the opportunity to and did question him about these matters during his deposition.3 Significantly, Lufkin does not identify any specific aspect of Plaintiffs’ time
2 See Demchak Decl. at ¶ 73: (“in reviewing Goldstein Demchak’s time records in preparation for this fee motion, I exercised billing judgment and deleted over 1,300 hours of attorney and staff time that originally had been billed to the case for a total reduction of $321,159.50. This represents 6.77% of the time my firm actually spent on the case. The deleted hours included time spent on matters that, in my judgment, were peripherally, but not directly, related to the legal theories and/or factual claims of the case; time that was, in my judgment, unproductive or unnecessarily duplicative of work performed by others; and all time of certain other timekeepers whose work, while necessary and productive, amounted to relatively small individual amounts (i.e., less than twenty (20) hours per timekeeper);” Garrigan Decl. at ¶¶ 20, 23 (explaining that he made an across the board 5% reduction of his firm’s hours). 3 Lufkin did not seek to depose any of Plaintiffs’ other counsel.
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records that indicates Plaintiffs do not understand the concept of billing judgment or that Plaintiffs failed to delete excessive, redundant, or unproductive hours. Accordingly, the thorough and detailed time records submitted by Plaintiffs provide the Court and Lufkin all the information that is necessary to assess whether Plaintiffs have exercised appropriate billing judgment.
Furthermore, Plaintiffs’ exercise of billing judgment and submission of information to the Court and Lufkin regarding only the time billed as a result of the exercise of such billing judgment are consistent with normal practices. Plaintiffs note that in Lufkin’s counsel Vinson & Elkins’ (“V&E”) submission of its time in In Re Food Fast Holdings, Inc., Case No. 02-10542 (Bankr. E.D. Tex.), it did not identify the specific billing entries it deducted, but instead simply noted that it made a “reduction for hours not billed.” See Demchak Decl., Exhibits 21 and 24.4
Finally, with respect to Mr. Garrigan’s unbilled time, it would be burdensome for him to have to identify such time and, in fact, no such documents reflecting such time exist – other than the time records Mr. Garrigan has already submitted with the fee motion – since Mr. Garrigan reduced his total hours by 5% without identifying any particular time entry to delete, see Garrigan Decl. at ¶¶ 20, 23, or did not record the time deleted in the exercise of billing judgment. See Exhibit 1.
For all of the reasons discussed above, the Court should reject Lufkin’s request that Plaintiffs produce documents reflecting time charged, but not billed, to this case.
4 Plaintiffs also note that the percentage of time deducted by V&E in In Re Food Fast Holdings, Inc. was significantly less than the percentages of time Plaintiffs’ counsel have deducted from their fees in this case. Compare Demchak Decl., Exhibit 21 (3% reduction of hours by V&E in In Re Food Fast Holdings), Exhibit 24 (1% reduction of hours by V&E in In Re Food Fast Holdings) and Demchak Decl. ¶ 73 (6.77% reduction of Goldstein Demchak’s time in this case); Garrigan Decl. ¶¶ 20, 23 (5% reduction of his firm’s hours in this case.).
5

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IV. LUFKIN MISCHARACTERIZES THE EFFORT THAT WOULD BE REQUIRED FOR PLAINTIFFS TO PRODUCE TRAVEL RECEIPTS AND FAILS TO EXPLAIN WHY PRODUCTION OF SUCH DOCUMENTS IS
NECESSARY IN LIGHT OF THE EVIDENCE PLAINTIFFS HAVE ALREADY PRODUCED.
Lufkin misstates the steps Plaintiffs would have to undertake to produce their travel receipts. Lufkin states that to produce these documents “[a]ll that is needed is to copy them, some on both sides.” Motion to Compel at 4. In fact, this is not all that is required and Plaintiffs so advised Lufkin in responding to Lufkin’s request for production of these documents. Specifically, Plaintiffs explained:
In the case of travel receipts, (hotel, meals, airlines, etc.) these are all attached to the expense reports. They would need to be disassembled (staples), copied on both sides (since notes were frequently made on the back of the receipts) and then organized so as to reflect the manner in which we maintain them. Similarly, at the time of travel, frequently the expenses were apportioned between or among more than one case according to case activities. Notations related to other case activities on these receipts and invoices would need to be redacted. It would be necessary for Goldstein Demchak to hire additional staff to locate, organize redact, and copy the materials for production.
Plaintiffs’ Responses and Objections to Defendant’s Third Request for Production of Documents, No. 2, attached as Exhibit A to Motion to Compel.
Additionally, Lufkin ignores that Plaintiffs have already provided adequate explanation for the variance in prices of airline tickets for different attorneys attending the same event and why it was necessary in some instances to purchase higher priced, but refundable, airline tickets, or to change the ticket and incur additional charges. See Demchak Decl. at ¶ 96(a)-(c).
Lufkin’s reliance on 28 U.S.C. § 1821 in support of its argument that Plaintiffs must incur the substantial burden of producing these receipts is unavailing. As Lufkin acknowledges, 28 U.S.C. § 1821 expressly applies to “a witness in attendance at any court of the United States, or before a United States Magistrate, or before any person authorized to take his deposition pursuant to any rule or order of a court of the United States.” Section 1821 has nothing to do with a motion for reimbursement of a plaintiff’s litigation costs and expenses, or the adequacy of
6

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evidence submitted in support of such a motion. In fact, Lufkin cites no relevant authority supporting its claim that Plaintiffs, having produced 66 pages of detailed expense entries, see Demchak Decl. Exhibit 29, Garrigan Decl. Exhibit 2, should be forced to incur the additional time and expense to produce boxes of airline, hotel, rental car, restaurant and other travel receipts that are individually itemized by date, vendor, person incurring the expense and the amount of the expense in those entries. Furthermore, Lufkin offers no explanation of how its inspection of the receipts will assist it or the Court in determining whether any individual expense was “extravagant or unnecessary.” See Motion to Compel at 1.
When considering fee petitions, a district court should be mindful of the Supreme Court's instruction that “[a] request for attorney's fees should not result in a second major litigation.” Hensley, 461 U.S. at 437. Lufkin’s demand, under the circumstances of this case and in view of the substantial evidence Plaintiffs have already produced to support their request for reimbursement of their expenses, is burdensome, duplicative and cumulative, and should be rejected by the Court.
V. CONCLUSION
For all of the reasons discussed above, Plaintiffs respectfully submit that the Court should deny Lufkin’s request for production of documents reflecting time Plaintiffs’ counsel have charged, but not billed, to the case and Plaintiffs’ travel receipts.

Dated: April 19, 2005

Respectfully submitted,
By: /S/
Teresa Demchak, CA Bar No. 123989 Morris J. Baller, CA Bar No. 048928 Goldstein, Demchak, Baller, Borgen & Dardarian 300 Lakeside Drive, Suite 1000 Oakland, CA 94612-3534 (510) 763-9800

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Timothy Garrigan, TX Bar No. 07703600 Stuckey, Garrigan & Castetter Law Offices 2803 North Street Nacogdoches, TX 75963-1902 (936) 560-6020
Attorneys for Plaintiffs

CERTIFICATE OF SERVICE I hereby certify that I have served all counsel of record in this case, including the following, with a true and correct copy of the foregoing by sending same via electronic filing to:

Douglas Hamel Christopher V. Bacon Vinson & Elkins 2806 First City Tower 1001 Fannin Street Houston, TX 77002-6760
on this ____ day of April, 2005.

/S/ Teresa Demchak

8

 
 Case 9:97-cv-00063-HC Document 453-1 Filed 11/30/2004 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

LUFKIN DIVISION

Sylvester McClain, et al. Plaintiffs,
v. Lufkin Industries, Inc.
Defendant.

§ Civil Action No. 9:97 CV 063 (COBB) § § § § § § § §

PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO DISMISS CLASS REPRESENTATIVES PATRICK ROSS, MARY THOMAS WILLIAMS, EDDIE MASK, LEROY GARNER, SHERRY CALLOWAY SWINT, WALTER BUTLER, CLARENCE
OWENS, EARL POTTS, CLIFFORD DUIRDEN, AND ROALD MARK

Case 9:97-cv-00063-HC Document 453-1 Filed 11/30/2004 Page 2 of 11

I.

INTRODUCTION

After five years, during which all of the Class Representatives have devoted their time, energy and active participation to this litigation, Defendant. Lufkin Industries, Inc. (“Lufkin” or “Defendant”), now seeks to dismiss ten of the Class Representatives,1 alleging that these individuals have shown “no interest in this action.” The only factual basis Lufkin claims for its motion is its assertion is that these Class Representatives did not attend the trial or other postclass certification hearings and, without presenting any evidence of harm to the class, Lufkin asks this Court to conclude that these Class Representatives are not adequately representing the class. Lufkin’s Motion to Dismiss Class Representatives is just its latest attempt undermine this case from going forward as a class action, despite the Court’s 1999 class certification order. On the merits, Lufkin’s motion is specious. Neither the factual record in this case, applicable legal standards nor any of the cases Lufkin cites supports Lufkin’s motion. The Court should deny Lufkin’s motion as to each of these ten Class Representatives.

II. BACKGROUND

This case was originally filed by Named Plaintiffs Sylvester McClain and Buford Thomas. In March 1999, after a three day evidentiary hearing Plaintiffs’ motion for class certification, the Court entered its Order Granting Motion to Certify Class Action, in which it noted that:

… Lufkin argues at length against the adequacy of Sylvester McClain and Buford Thomas as class representatives. The court disagrees. The differences cited by defendant do not go to plaintiffs' suitability or capacity to manage this action. We find that the interests of the set of representative plaintiffs are common to and consistent with those of the class with respect to the litigation and resolution of this law suit. In addition the court has on file affidavits from seven additional class members who express their willingness to serve as class representatives. In the class certification hearing multiple witnesses also agreed, if called upon, to serve in that capacity. The court is firmly convinced that adequate class

1 Specifically, Lufkin seeks to dismiss Class Representatives Patrick Ross, Mary Thomas Williams, Eddie Mask, Leroy Garner, Sherry Calloway Swint, Walter Butler, Clarence Owens, Earl Potts, Clifford Duirden, and Roald Mark. See Lufkin Motion to Dismiss Class Representatives at 1.

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Case 9:97-cv-00063-HC Document 453-1 Filed 11/30/2004 Page 3 of 11

representatives are both present in the suit and available to serve. The court has continuing authority and ongoing obligation to adjust the class to serve the interests of the class members. Should the appointment of additional class representatives benefit the class, the court will move to do so. .
McClain v. Lufkin Indust., Inc., 187 F.R.D. 267, 281 (E.D. Tex. 1999).

Subsequently, the Court entered an Order Designating Class Representatives, designating

eleven class members as additional Class Representatives. See Dkt. #91. Each of the Class

Representatives Lufkin now seeks to dismiss was so designated by the Court after he or she

testified in person or by way of affidavit in connection with the class certification hearing the

Court held.

III. ARGUMENT

The Fifth Circuit has determined that “the adequacy requirement [of Rule 23(a)] mandates an inquiry into . . . the willingness and ability of the representative[s] to take an active role in and control the litigation . . . .” Berger v. Compaq Computer Corp., 257 F.3d 475, 479 (5th Cir. 2001) (quoting Horton v. Goose Creek Indep. Sch. Dist., 690 F.2d 470, 484 (5th Cir. 1982)). The purpose of the adequacy requirement is to protect the legal rights of absent class members, and “to ensure that the party is not simply lending his name to a suit controlled entirely by the class attorney.” Kirkpatrick v. J.C. Bradford & Co., 827 F.2d 718, 727 (11th Cir. 1987) (quoting 7A Wright, Miller & Kane at § 1766 pp. 310-11).
“The task of defining the precise contours of Rule 23(a)'s adequacy requirement” is “largely left to the lower courts.” Berger v. Compaq Computer Corp., 257 F.3d at 480 n.7, citing 7A Wright, Miller & Kane at § 1765, at 269 (2d ed.1986). The determination that a party would adequately protect the interests of the class is a question of fact that depends on the circumstances of each case. Guerine v. J & W Inv., Inc., 544 F.2d 863, 864-65 (5th Cir. 1977). Furthermore, a court’s decision regarding the adequacy of a class representative will not be disturbed on appeal unless it is shown to be an abuse of that discretion. Patterson v. Gen. Motors Corp., 631 F.2d 476.
The courts have not established any “bright line” requirement regarding the degree of involvement in the lawsuit that is required of class representatives in order to fulfill their duty to

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Case 9:97-cv-00063-HC Document 453-1 Filed 11/30/2004 Page 4 of 11
adequately represent the absent class members. See e.g., Kirkpatrick, 827 F.2d at 727 (“adequate class representation generally does not require that the named plaintiffs demonstrate to any particular degree that individually they will pursue with vigor the legal claims of the class.”); In re Gaming Lottery Sec. Litig., 58 F. Supp. 2d 62, 76 (S.D.N.Y. 1999) (“The participation of plaintiffs in this case has not been so minimal as to indicate a virtual abdication to the attorneys of the conduct of the case . . . .”); Byes v. Telecheck Recovery Servs., Inc., 173 F.R.D. 421, 426 (E.D. La. 1997) (“A class representative is not required to understand the meaning of complex legal terms or to direct litigation strategies.”); Ass’n. of Flight Attendants v. Texas Int’l Airlines, Inc., 89 F.R.D. 52, 61 (S.D. Tex. 1981) (“The named plaintiffs’ lack of knowledge of . . . the conduct of the litigation is not relevant to the question of the adequacy of class representative.”). A. The Class Representatives have shown the willingness and ability to take an active
role and control the litigation. Lufkin contends that the ten Class Representatives it seeks to dismiss have shown “no interest in this action.” This contention rests solely on Lufkin’s assertion that these ten Class Representatives did not attend the trial or other post-class certification hearing proceedings Plaintiffs address the non-attendance argument below in § B. However, as a threshold matter, Plaintiffs note that the Court, in designating these individuals as Class Representatives, has already made an initial determination that they have the willingness and ability to take an active role in and control the litigation. Furthermore, Lufkin is in no position to assess the overall contributions and commitments these Class Representatives have made to the litigation since the Court designated them as class representatives, other than to point out that they did not attend the trial or mediation sessions, because Lufkin has not been privy to the interactions between these and the other Class Representatives and Class Counsel. Nevertheless, Lufkin leaps to the conclusion that since these Class Representatives did not attend the trial or the mediation sessions they, therefore, have not “shown interest in the case.” Lufkin is wrong. In fact, since being designated as Class Representatives, each of the Class Representatives Lufkin seeks to dismiss have willingly and integrally participated in the
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litigation through telephone and in-person communications with Class Counsel, participating in discovery, providing documents and other information to Class Counsel and assisting Class Counsel in the formulation of positions on behalf of the class in the litigation and mediation.
The attached Declaration of Plaintiffs’ counsel Mr. Garrigan, describes the extensive involvement and significant time commitment each of these Class Representatives has devoted to the case, and to assisting Class Counsel and protecting and representing the interests of the absent class members. See Declaration of Timothy B. Garrigan, Esq. (“Garrigan Decl.”) at ¶ 4 (demonstrating that Class Representative Walter Butler participated in at least 13 phone calls with Class Counsel, 4 meetings with Class Counsel and other class representatives, and 4 individual meetings with Class Counsel; Class Representative Clifford Duirden participated in 19 phone calls with Class Counsel, 3 meetings with Class Counsel and other class representatives, and 8 individual meetings with Class Counsel; Class Representative Leroy Garner participated in 6 phone calls with Class Counsel, 4 meetings with Class Counsel and other class representatives, and 4 individual meetings with Class Counsel; Class Representative Roald Mark participated in 89 phone calls with Class Counsel, 6 meetings with Class Counsel and other class representatives, and 11 individual meetings with Class Counsel,; Class Representative Eddie Mask participated in 9 phone calls with Class Counsel, 5 meetings with Class Counsel and other class representatives, and 3 individual meetings with Class Counsel; Class Representative Clarence Owens participated in 15 phone calls with Class Counsel, 4 meetings with Class Counsel and other class representatives, and 3 individual meetings with Class Counsel; Class Representative Earl Potts participated in 89 phone calls with Class Counsel, 4 meetings with Class Counsel and other class representatives, and 4 individual meetings with Class Counsel; Class Representative Patrick Ross participated in 6 phone calls with Class Counsel, and 2 individual meetings with Class Counsel,; Class Representative Sherry Calloway Swint participated in 15 phone calls with Class Counsel, and 3 meetings with Class Counsel and other class representatives; and Class Representative Mary Williams Thomas participated in 21
4

Case 9:97-cv-00063-HC Document 453-1 Filed 11/30/2004 Page 6 of 11
phone calls with Class Counsel, 3 meetings with Class Counsel and other class representatives, and 4 individual meetings with Class Counsel).
Each of the Class Representatives Lufkin seeks to dismiss made himself or herself available for deposition during the discovery phase of this case and/or provided declarations and/or other assistance to Class Counsel during the mediation process. See Garrigan Decl. at ¶ 6.
Accordingly, Lufkin’s blanket – and wholly unsupported – contention that the Class Representatives have shown “no interest in this action” is clearly refuted by the record. B. The Class Representatives’ absence from trial is not sufficient grounds for their
dismissal. Lufkin, nevertheless, argues that these ten Class Representatives have not adequately represented the class, because they “have not attended a hearing or trial” or “any of the mediation sessions.” Motion to Dismiss Class Representatives at 3 and n.1. This is the sole basis on which Lufkin claims these Class Representatives have failed to adequately represent the class. Significantly, Lufkin does not identify in what way the class has been harmed by these Class Representatives’ non-attendance at trial or the mediation sessions. Moreover, Lufkin ignores that Plaintiffs Sylvester McClain and Bufford Thomas attended every day of trial, that Class Representative Florine Thompson also attended the trial and testified on the class’ behalf, that Mr. McClain attended every day and Ms. Thompson attended many of the mediation sessions conducted by the private mediator and Mr. McClain, Ms. Thompson and Mr. Thomas all attended the mediation session conducted by Magistrate Judge Radford. See Garrigan Decl. at ¶¶ 8-9. Without question, the class was well-represented at the trial and during the mediation. Furthermore, contrary to Lufkin’s implication, there is no absolute rule that the nonattendance of a class representative at a hearing or trial, at which his attendance was not compelled by subpoena or otherwise, alone renders that individual inadequate to serve as a class representative. Nor does Federal Rule of Civil Procedure 24(a)’s adequacy requirement mandate that every class representative attend every court hearing or mediation sessions.
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Case 9:97-cv-00063-HC Document 453-1 Filed 11/30/2004 Page 7 of 11
Most significantly, the authorities Lufkin relies on do not support its contention that courts have found class representatives to be inadequate based solely on their failure to attend trial or hearings. Each of the authorities Lufkin cites for this proposition involved circumstances far different from the case at bar. More importantly, in each case relied on by Lufkin, the determining factor in the court’s decision was not that the putative class representative did not attend trial or a hearing, but some other conduct or information in conjunction with the nonattendance that resulted in harm to the class. Thus, based on the facts and record in this case, Lufkin cannot meet the threshold standard set by the cases on which it relies.
For example, in Goldchip Funding Co. v. 20th Cent. Corp., 61 F.R.D. 592 (M.D. Pa. 1974), the court, in determining whether the putative class representatives would adequately represent the securities fraud class, noted that the only facts available to the court to make this determination, were that one plaintiff was a housewife and the other was a student, neither had business experience or knowledge of the facts, both were relying upon their attorneys, and neither had attended any of the three hearings held in the case. Id. at 595. The court concluded that these limited facts did not provide the court with sufficient information to determine whether the proposed class representatives would adequately represent the class. The court therefore denied the motion to certify the class without prejudice, and expressly held that the plaintiffs might still be able to demonstrate “a keen interest in the progress and outcome of the litigation” sufficient to meet the requirements of Rule 23, but they had not thus far. Id.
Unlike in Goldchip, this Court had ample information from and about the Class Representatives, prior to their designation as class representatives, to determine whether their presence in the case would “benefit the class” and that they would be adequate representatives of the class. See McClain, 187 F.R.D. at 281. Moreover, in Goldship, the plaintiffs’ failure to attend three hearings was just one of several factors the court cited in determining it had insufficient information to find that the plaintiffs could adequately represent the class. Here, Lufkin does not argue that the Class Representatives are inadequate on any basis other than the fact that they did not attend the trial or post-class certification hearings. This fact alone,
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Case 9:97-cv-00063-HC Document 453-1 Filed 11/30/2004 Page 8 of 11
particularly when assessed in light of other information regarding these Class Representatives’ extensive participation in assisting Class Counsel throughout the litigation and mediation phases of this case and the presence of other Class Representatives at trial and the mediation sessions, fails to justify the harsh and unnecessary relief Lufkin seeks.
Weikel v. Tower Semiconductor Ltd., 183 F.R.D. 377 (D. N.J. 1998), on which Lufkin also relies, is equally distinguishable. In Weikel, the court dismissed a class representative who stated at the class certification stage that he would need advance notice of six or seven weeks in order to arrange his schedule to participate in the trial. See id. at 396. The court, in ruling that this class representative could not adequately represent the class, found that “[i]t would be inappropriate to subject class members to trial delays created by a class representative.” Id.
In contrast, the trial in this matter was not affected by the Class Representatives’ nonattendance. In fact, Lufkin did not even file its motion until the sixth day of the eight day trial and a year and a half after the parties’ final mediation session. See Garrigan Decl. at ¶ 13. Moreover, Lufkin fails to articulate, other than in conclusory and non-specific terms, how the class has been or could be harmed by the absence of these particular Class Representatives at trial and the mediation sessions, particularly given other Class Representatives’ attendance at these proceedings.
Furthermore, unlike in Weikel, none of these Class Representatives stated that he or she was unavailable or unwilling to attend trial or sought to delay trial because of his or her personal schedule. On the contrary, when specifically asked in their depositions, several Class Representatives affirmatively testified that, should it be necessary, they would be willing to testify at trial. See, e.g., Deposition of Eddie Mask at p. 196; Deposition of Walter Butler at p. 244. In fact, one of the Class Representatives whom Defendant seeks to dismiss, Walter Butler, was subpoenaed by Lufkin to testify at trial, prepared and arrived for court on the day on which
7

Case 9:97-cv-00063-HC Document 453-1 Filed 11/30/2004 Page 9 of 11
he was scheduled to be examined, but Lufkin ultimately did not call him to testify.2 See
Garrigan Decl. at ¶ 12.
Lufkin also cites Gill v. Monroe County Dep’t of Soc. Servs., 92 F.R.D. 14 (W.D.N.Y. 1981) and Lenora v. Koller Die & Tool Co., Inc., No. 77-C-760 1978, WL 200 (E.D. Wis. July
31, 1978), as cases where class representatives were dismissed due to a demonstrated lack of
interest in the litigation. However, in neither case did the courts rely solely on the class
representatives’ non-attendance in court, but instead on demonstrated showing of harm to the
class, in dismissing class representatives. Specifically in Gill, the class representative failed to
respond to the court’s order to show cause and failed to take any action when it was apparent that
class counsel was not fulfilling his duties to the class. Gill, 92 F.R.D. at 16. In Lenora, the class
representative twice failed to appear for his scheduled deposition, despite adequate notice and
efforts by his counsel. 1978 WL 200 at *1. By comparison, in this case, each of these Class
Representatives appeared for their depositions, and have been willing and committed to assist
Class Counsel in the prosecution of this case and the protection of the absent class members’ rights throughout the five years since they were designated Class Representatives by the Court.3
2 Moreover, all of the Class Representatives were designated as trial witnesses by Lufkin and the parties agreed that the Class Representatives would attend trial on the day for which they were subpoenaed, but they would not otherwise attend. See Exhibit C, Letter from Christopher Bacon, September 27, 2004 (stating that the Class Representatives who were to be called by Lufkin at trial would be subpoenaed, and explicitly noting that they need not attend trial prior to the day of their examination). 3 Other authorities confirm that, as in Gill and Lenora, courts finding sufficient grounds for dismissal of class representatives have relied on egregious relegations of the representatives’ responsibilities that simply are not present in this case, nor alleged by Lufkin. See, e.g., Krim v. Pc Order.com, Inc., 210 F.R.D. 581, 588-89 (W.D. Tex. 2002) (denying proposed class representatives who had gained the vast majority of their knowledge of the case from their own attorneys in the few weeks between their depositions and the hearing, who had participated in very few phone calls, and who had little to no understanding of their role as class representatives); Scott v. New York City Dist. Council of Carpenters Pension Plan, No. 02 CV 3655 2004 WL 2367139, at *2-*3 (S.D.N.Y. Oct. 21, 2004) (denying a proposed class representative who showed an “alarming lack of familiarity with the suit, as well as little or nonexistent knowledge of their role as class representatives,” who had personally met with counsel only once in the three years prior to the deposition, and who was unsure what the lawsuit
(continued . . .)
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Case 9:97-cv-00063-HC Document 453-1 Filed 11/30/2004 Page 10 of 11
In summary, none of the case Lufkin cites supports its position. Moreover, Lufkin’s position, that the “adequacy of representation” standard requires each Class Representative to attend all hearings and trial, is neither practical nor necessarily in the best interests of the class.4 It is certainly reasonable and not harmful to the interests of the class for the Class Representatives, in consultation with their counsel, to make decisions about which of the Class Representatives could and would attend a hearing, settlement meeting or trial, and what contributions to the prosecution of the case and representation of the absent class members the other Class Representatives make. This is especially so where, as here, there are thirteen Class Representatives, most of whom are employed full-time and reside considerable distances from where the trial, other hearings and mediation sessions were held. See Garrigan Decl. at ¶ 7. That these Class Representatives did not take time off of work to attend trial when their presence was not required does not, as Lufkin contends, in and of itself, render them inadequate class representatives.5 Furthermore, Class Counsel was in constant contact with all of the Class Representatives in planning strategy, gathering information and checking facts throughout the litigation and mediation. See Garrigan Decl. at ¶¶ 2, 6.
Lufkin’s contention that the Class Representatives are inadequately representing the class based solely on the fact that the Class Representatives did not attend the trial and mediation sessions is groundless.
(continued …) even concerned.). 4 For example, Lufkin’s implicit suggestion that all thirteen of the Class Representatives should have participated in the more than 20 mediation sessions, is both impractical and would have a chilling effect on individuals willing to come forward and serve as class representatives. 5 Lufkin refused to give Class Representatives who are still employed by Lufkin time off from work with pay to attend the trial. See Garrigan Decl. at ¶ 10.
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Case 9:97-cv-00063-HC Document 453-1 Filed 11/30/2004 Page 11 of 11

IV. CONCLUSION For all of the foregoing reasons, the Court should deny Lufkin’s motion to dismiss Class Representatives Patrick Ross, Mary Thomas Williams, Eddie Mask, Leroy Garner, Sherry Calloway Swint, Walter Butler, Clarence Owens, Earl Potts, Clifford Duirden, and Roald Mark.

Dated: November 30, 2004

Respectfully submitted,

By: /S/
Teresa Demchak, CA Bar No. 123989 Morris J. Baller, CA Bar No. 048928 Goldstein, Demchak, Baller, Borgen & Dardarian 300 Lakeside Drive, Suite 1000 Oakland, CA 94612-3534 (510) 763-9800
Timothy Garrigan, TX Bar No. 07703600 Stuckey, Garrigan & Castetter Law Offices 2803 North Street Nacogdoches, TX 75963-1902 (936) 560-6020
Attorneys for Plaintiffs

CERTIFICATE OF SERVICE I hereby certify that I have served all counsel of record in this case, including the following, with a true and correct copy of the foregoing by sending same via electronic filing to:

Douglas Hamel Christopher V. Bacon Michelle Mahony Vinson & Elkins 2806 First City Tower, 1001 Fannin Street Houston, TX 77002-6760
on this 30th day of November, 2004.

/S/ Teresa Demchak

10

 
 Case 97-cv-00063-HC Document 369 Filed 11/26/2003 Page 1 of 13

.::" ~ ~ , - 't~ '_. :: 'r~ .~
IN THE UNITED STATES DISTRICT COURT u .::: .. ";; ::: ':~ \: !eTC (; J r\ T FOR THE EASTERN DISTRICT OF TEXAS

Sylvester McClain, et al. Plaintiffs,
v. Lufkin Industries, Inc.
Defendant.

LUFKIN DIVISION

On BY
§ Civil Action No. 9:97 CV

'-''-'>J>J

§

§

§

§

§

§

§

§

PLAINTIFFS' OPPOSITION TO EMERGENCY MOTION OF TWO UNIONS FOR STAY
Plaintiffs, Sylvester McClain, et at, oppose the Motion of two unions, l the International Association of Machinists & Aerospace Workers, Local Lodge No. 1999, AFL-CIO/CLC ("lAM"), and the Glass, Molders, Pottery, Plastics & Allied Workers International Union, Local No. 429, AFL-CIO/CLC ("GMP"), for an emergency stay of this action pending the appeal of those two unions (hereafter "Movants") from the denial of their motion to intervene in this case as of right (hereafter "Emergency Motion").
The Movants do not come close to meeting the standards for a stay in this Court, and their emergency motion can only be understood as going through the motions in order to fulfill the prerequisite for seeking a stay from the Fifth Circuit.2 However, their appeal to that Court likewise has no basis and will surely be rejected. In light of these facts, the only real purpose and effect of the Movants' motion would be to prevent the Court from conducting trial of this
1 The third Union which moved to intervene as a defendant herein, International Association of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, Local No. 587, AFLCIO/CLC ("Boilermakers"), has not joined in the emergency motion for a stay. 2 Fed. R. App. Pro. 8(a) requires that a motion for stay be made in the district court as a precondition to filing a motion for stay pending appeal in the Court of Appeals.

Case 97-cv-00063-HC Document 369 Filed 11/26/2003 Page 2 of 13

nearly seven-year old case, and delaying trial for many months until the appeal is rejected and this Court can once again carve out time for trial from its busy calendar.

I.

STATEMENT OF FACTS AND PROCEEDINGS ON THE

MOVANTS' MOTION TO INTERVENE

It is unnecessary to recapitulate in detail the background facts pertinent to the Movants'

unsuccessful motion to intervene. Those facts are thoroughly set out in Plaintiffs' Opposition to

that motion, filed November 8, 2003, at pp. 3-7. That fact statement is incorporated herein by

reference. The Court concisely summarized the pertinent facts in its Memorandum Opinion filed

November 18,2003. To highlight the most important facts, as found by the Court, (1) the

Movants were well aware of the case's pendency and issues for several years prior to the filing

of their motion to intervene; (2) even if the Movants managed somehow to remain unaware of

the failure of mediation and the movement of the case toward trial over the six months' period

prior to the filing of their motion, they remained unaware only through a studious effort to avoid obtaining knowledge that was easily available by a telephone ca1l3 or a trip to the Clerk's office;

and (3) the Court has announced repeatedly, on the public record, that it will not entertain any

request for relief that would change or reform the unions' collective bargaining agreement with

Lufkin or override its seniority provisions - relief the fear of which ostensibly motivated the Unions' belated attempt to intervene in order to participate at tria1.4

3 Plaintiffs' counsel specifically invited the Unions' attorneys to contact them to discuss the case on several occasions in writing, in April - May 2003. See Declaration of Timothy B. Garrigan, filed November 8, 2003, pp. 2-3 and Exhibits 2 and 3. The Unions' counsel did not respond to that invitation. Id. Significantly, Movants continue to ignore and offer no explanation for why they failed to respond to plaintiffs' counsel's repeated invitations to contact them to discuss the case and the Unions' interest in the case.
4 In addition, plaintiffs have on numerous occasions, on the public record, stated that they do not seek any such relief on behalf of the class, and would notify the unions and not oppose their intervening at any stage of the proceedings at which seniority relief on behalf of individual class members becomes an issue (although this appears unlikely given the Court's statements).
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Case 97-cv-00063=-HC Document 369 Filed 11/26/2fJ03 Page 3 of 13
A. Mis-Statements of Fact In Unions' Description of Mediation Proceedings and Settlement Prospects
Plaintiffs must, however, briefly respond to inaccurate, newly recast factual assertions by Movants in their Emergency Motion. First, Movants improperly and inaccurately represent positions taken by plaintiffs during confidential mediation proceedings, including that "class ... counsel recognized that [the Unions] had a legitimate and vital interest in possible remedial aspects of any relief." Unions' Motion for Stay at 2. Without violating the confidentiality of the mediation, plaintiffs deny this assertion. Quite simply, plaintiffs' agreement to allow the Unions to participate in the mediation was for strategic and not substantive reasons. See Declaration of Timothy B. Garrigan In Opposition to Lufkins and Two of the Unions' Motions for Stay. ("Garrigan Decl."), filed herewith, at ~ 6.
Movants also claim "it was acknowledged that the Unions had considerable interest in certain aspects of the mediation, to wit ... posting and bidding procedures, promotions, job training and dispute resolution." Emergency Motion at 2. Again, without violating the confidentiality of mediation, the Unions' sole articulated "interest of which plaintiffs were aware" until Lufkin's counsel spoke at the November 13, 2003 hearing, as demonstrated by the Unions' original moving papers and the GMP's motion to intervene as amicus curiae, and as witnessed by the Court at the November 13 hearing - was the seniority provision of the Collective Bargaining Agreement. Garrigan Decl. at ~ 7.
Movants' timeliness argument is premised on their claim that they believed settlement was imminent, supposedly because of the mediation sessions in which they participated and the comments of the Court and counsel for Lufkin and plaintiffs at the March 27 hearing. Movants' revisionist views of the mediation history, however, are not supported by the record. In fact, the Unions participated in only two of the over twenty mediation sessions. The Unions participated in the May 21 and 22, 2002 sessions - nearly a year before mediator Reagan Burch declared the mediation to have failed, even though matters affecting "posting and bidding procedures, promotions, job training, and grievance procedures" explicitly remained under discussion.
3

Case 9:97-cv-00063=-HC Document 369 Filed 11/26/2,003 Page 4 of 13
Garrigan Decl. at ~ 8. Once it became clear to the Unions that plaintiffs were not seeking reformation of the seniority provision as a class remedy, the Unions excused themselves from the mediation and thereafter declined invitations for their further participation, noting the Union's view that "there appears no end in sight" not that settlement was imminent as they now claim.5
Movants' selective references to the transcript of the March 27, 2003 hearing are misleading. In fact, both parties expressed doubts about the prospects of settlement at that time. Lufkin's attorney, Mr. Hamel, stated, "1 don't know whether the case will settle or not," and emphasized the "wide differences of opinion as to what is appropriate in terms of monetary relief," Tr. at 5:16, 14:11-16. Additionally, plaintiffs' counsel, Mr. Garrigan, expressed serious doubts that Lufkin was likely to settle. Id. at 9:19-22, 16:2, 19:21-22. Moreover, at the March 27 hearing, there was far more discussion about the merits, trial preparation, and a Fall 2003 trial setting than there was about settlement. See id. at 6:14-19,25,26,38 and 40. No oneincluding Movants - could reasonably have read that transcript and remained confident that the case would settle. Nor would a party with any real "interest" in the case continue to sit silently for months and not inquire whether the mediation failed, 6 whether the case had, in fact, 7 settled;
5 In a letter dated December 4,2002, to Reagan Burch, Mr. Tanner, on behalf of the Unions, "decline[d] Mr. Burch's invitation to participate in mediation at this time," and expressed the Unions "surprise[ ... ] to receive [Mr. Burch's invitation] given that the litigants apparently remain far apart on a number of important issues and some key issues have yet to be addressed, notwithstanding the long duration of this mediation." Mr. Tanner added, "Quite frankly, there appears to be no end in sight." Plaintiffs only quote from the letter to correct the record; a copy is not provided because it is marked "Privileged and Confidential Settlement Communication". 6 As noted in Plaintiffs' Opposition to the Unions' Motion to Intervene at p. 5, plaintiffs' counsel notified Mr. Tanner, liaison counsel for the Unions, on April 4, 2003, that the mediation deadline was May 15,2003. Movants' attempt to use the subsequent mediation before Magistrate Radford as support for the timeliness of their Motion to Intervene is curious and in the end, disingenuous, since, unless Movants are misrepresenting the timing of their contacts with Lufkin's counsel, Movants would not have known about the September 4,2003 mediation with Magistrate Radford until after it occurred and failed, and thus that mediation could not have factored in their decision to wait until October 31,2003 to file their Motion to Intervene. 7 Movants' counsel are experienced attorneys familiar with class action litigation and surely, know that a class action settlement is accompanied by notice to the class and a fairness hearing.
4

Case 97-cv-00063-HC Document 369 Filed 11/26/2003 Page 5 of 13
about the trial schedule or the positions being pursued by the parties; or whether that party's "interest" continued to be affected by the litigation. Yet, this is exactly what the Unions, including the two Movants here, assert that they did.
B. The Court's Order Denying Intervention
The Court properly denied the Unions' motion to intervene in its November 18,2003 Order Denying Motion to Intervene, for the reasons stated in the accompanying Memorandum Opinion of the same date (collectively referred to herein as the "November 18 Order"). The Court's November 18 Order was based on its finding that the motion failed the timeliness test for intervention under Fed. R. Civ. Pro. 24(a)(2) (non-statutory intervention of right) - the only basis for intervention asserted by the Unions in their motion - and relied primarily on Stallworth v. Monsanto Co., 558 F.2d 257 (5th Cir. 1977). The Court made fact-based findings against the Unions on all four of the factors identified as primary by the Fifth Circuit in Stallworth.8 In particular, the Court found:
(1) Although the Unions have failed to make clear what if any interest they legitimately have in the outcome of this case as framed by the plaintiffs' remedial demands and the Court's orders, the Unions' delay of at least four to five years after learning that their alleged interests might be affected, before moving to intervene, tends to demonstrate that the motion is untimely. November 18 Order at 7-9.
(2) The long delay by the Unions after learning of their interest in the case - and particularly their delay over the last six months when they must or should have known that the case would not be resolved by mediation, despite their recent and self-serving statements that they did not - would make intervention on the eve of trial "manifestly unfair and prejudicial to the Plaintiffs." Id. at 9-10.
(continued ...) See Federal Rule of Civil Procedure 23. Had this case settled by the May 15 mediation deadline that fact would have been well known among the employees and Unions at Lufkin. The absence of such information along with knowledge of the mediation deadline date should have prompted a diligent interested party to make inquiries these Movants failed to make. 8 The analytical framework established by Stallworth remains good law in the Fifth Circuit today. See, Edwards v. City of Houston, 78 F.3d 983, 1000 (5th Cir. 1996) (en bane); Trans Chemical Ltd. v. China Nat'l Machinery Imp. and Exp. Corp., 332 F.2d 815,821 (5th Cir. 2003).
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Case 9:97-cv-00063::HC Document 369 Filed 11/26/2003 Page 6 of 13
(3) Denial of intervention would cause no substantial prejudice to the Unions because the Court does not intend to modify the seniority system and because the Unions may be allowed to intervene l~ter at the remedial stage of proceedings, if that stage is reached. Id. at 10-11.
(4) The Unions showed no "unusual circumstances" that would justify their belated attempt to intervene on the eve of trial; neither a naIve l~elief that the case would settle in mediation, nor the unions' financial concerns, constitutes such circumstances. Id. at 12-13.
In short, in applying the Stallworth factors, the Court found not a single indicator favoring a finding of timeliness, and found every indicator pointed in the opposite direction.
II. MOVANTS FAIL TO SHOW ANY BASIS FOR TillS COURT TO EXERCISE ITS DISCRETION TO STAY PROCEEDINGS OR FOR THE
COURT OF APPEALS TO QUESTION THAT EXERCISE OF DISCRETION.
The Emergency Motion of Unions lAM Local 1999 and GMP Local 429 for Stay ("Emergency Motion") is premised on Fed. R. Civ. Pro. 62 and "the inherent powers of this Court." By its terms, Rule 62 is wholly inapplicable here; it confers on district courts the power to grant a stay of proceedings on ajudgment. There is no judgment here; indeed, the liability phase of trial has not commenced. Movants' entire argument is premised on the standards for granting stay of a judgment pending appeal pursuant to Rule 62. See Emergency Motion at 4-15. This argument is entirely irrelevant, and without it, Movants have presented no argument applicable to this case as it stands, pending trial.
Movants' Emergency Motion must, therefore, be understood as a request for the Court to exercise its "inherent powers." Without wishing to deny that the Court has such powers - and nowhere more so than at the stage this case has finally reached, calling for the Court to manage its trial calendar and conduct the trial proceedings - plaintiffs submit that there is no basis for the
9 Stallworth specifically authorizes and contemplates such remedial-stage interventions. See 558 F.2d at 267. Stallworth is recognized as the leading decision on the issue of timeliness under Rule 24(a)(I). See 6 Moore's Federal Practice, § 24.21[3] at p. 24-78 (3rd ed.). 10 These concerns do not seem to have prevented the Unions from making a herculean, and doubtless expensive, effort to intervene once they finally decided to try to do so. In the case of the two Movants, at least, that effort and expense continues.
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Case 97-cv-00063-HC Document 369 Filed 11/26/2~03 Page 7 of 13
Court to exercise its "inherent powers" in a manner that has no basis in the Federal Rules of Civil Procedure or under applicable authorities, nor should it do so as a matter of discretion. 11 A. Under the Standards of Rule 62, There Are No Grounds For a Stay Pending Appeal
in This Case. Even if the standards of Rule 62 are applied to the Emergency Motion, there is no basis for a stay pending appeal. Movants correctly recite the four factors to be applied in an appellate court's decision whether to grant a stay, see Emergency Motion at 4-5. See also Drummond v. Fulton County Department of Family & Child Services, 532 F.2d 1001, 1002 (5 th Cir. 1976), citing Beverly v. United States, 468 F.2d 732, 741 n. 13 (5th Cir. 1972). However, they do not come close to meeting any portion of the four-part test. The first factor considered on appeal is the likelihood of Movants prevailing on appeal. In addressing this factor, Movants reiterate the arguments they have previously made before this Court on the timeliness issue, under the four enumerated Stallworth factors. See, Emergency Motion at 5-12. Movants say absolutely nothing new in their discussion of these points, and indeed this Court's November 18 Order cogently disposes of each point rehashed by Movants in their Emergency Motion. Plaintiffs would merely abuse the patience of this Court if they in tum reargued the same points, as Movants have done. We decline to do so, and instead refer the Court back to its own well reasoned November 18 Order. Movants fall far short of showing any defect or oversight in the Court's reasoning by which it denied their motion, much less any showing that they are likely to prevail on appeal by
11 Although Movants cite no authority for the Court's "inherent power" to stay proceedings upon denial of intervention, plaintiffs have found one arguably relevant precedent. In United States v. DeLeon Guerrero, 1992 WL 212272 (D. N. Mar. 1. 1992), affd sub. nom. United States ex reI Richards v. De Leon Guerrero, 4 F. 3d 749 (9th Cir. 1993), the district court opined that "although no express provision of the Federal Rules of Civil Procedure authorizes a stay of proceedings upon denial of intervention, a court may exercise its discretion in the same fashion as it deals with an injunction pending appeal." However, in that case the district court denied the applicants' motion to intervene, and the Ninth Circuit affirmed that denial under the same abuse of discretion standard of review that, as we argue below, will apply on the appeal Movants have taken in the instant case. 4 F. 3d at 756.
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Case 9:97-cv-00063:HC Document 369 Filed 11/26/2003 Page 8 of 13
making the same arguments ofthe same points. In the Fifth Circuit, a district court's denial of an applicant's motion to intervene on the ground oftimeliness is reviewed under an abuse of discretion standard. Ceres Gulfv. Cooper, 957 F.2d 1199, 1202 n. 8 (5th Cir. 1992); Effjohn Int'l Cruise Holdings, Inc. v. A&L Sales, Inc., 346 F.3d 552,558-559 (5th Cir. 2003). Unless such an abuse occurs, the denial of intervention will not be overturned on appeal. NAACP v. New York, 413 U.S. 345, 366 (1973). Moreover, as the Fifth Circuit has held, a trial court's decision on the timeliness issue on intervention is fact-specific and should to be made, using a flexible approach, from a practical rather than technical standpoint. United States v. Texas E. Transmission Corp., 923 F.2d 410,413 (5th Cir. 1991); Edwards v. City of Houston, supra, 78 F.3d at 999.
Under these standards, the November 18 Order - far from constituting an abuse of discretion - is manifestly correct in its application of controlling law, based on indisputable facts showing the extreme untimeliness of the Unions' motion to intervene, and sensitive to the practical facts concerning the prejudice of last-minute intervention to plaintiffs and the havoc that the Unions' participation at trial, or the delay of trial, would create in these already complicated and hotly-contested proceedings. Thus, the chance that Movants will obtain a reversal on appeal of this Court's denial of their motion to intervene is extremely remote.
The second factor governing an appellate stay is whether, in the absence of a stay, Movants will suffer irreparable injury. On this point, Movants' argument - unsupported by any citation to authority, and more notable for its rhetoric than for its reasoning - goes beyond the grounds asserted in the Unions' motion to intervene, and reiterates the afterthoughts argued by the Unions for the first time at the November 13 hearing on their motion. In their pleadings, the Unions based their motion entirely on the false alarm that plaintiffs were seeking and the Court might grant modifications to the seniority system. When the Court in unambiguous terms disabused the Unions of that notion,12 the Unions - mimicking the creative but unfounded
12 See, Transcript of Hearing, November 13, 2003, at 4:4-11, 14: 21-16:9, 18:3-11.
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Case 97-cv-00063-HC Document 369 Filed 11/26/~003 Page 9 of 13
suggestion of counsel for Lufkin13 - then expanded their argument to an amorphous plaint that they have a right to participate fully in the case because matters related in some way or another to subjects of collective bargaining will be mentioned in evidence presented at trial. 14 The Court considered and properly rejected Movants' position in its November 18 Order, when it found that denial of intervention would not prejudice the Unions because "the Court intends neither to reform the CBA nor to overwrite the CBA in any fashion," and because the Unions may intervene at the remedial stage of the case, if reached. Id. at 11-12.
The third factor governing a stay on appeal is whether the existing parties to the litigation would be substantially harmed by the granting of a stay. On this point, Movants optimistically predict that a stay would last only "a matter of months, if not less" (Emergency Motion at 13). Apart from the fact that even a delay this short would burden plaintiffs with tremendous additional expense and create havoc in the Court's and parties' trial arrangements,15 this prediction underscores how frivolous Movants' position is, and how well they know it. Given the Fifth Circuit's backlog and timetable for resolving appeals, the only way the delay could be that short is if the Court of Appeals summarily denies the appeal without full briefing. Clearly, however, if the Movants' position had any substance, and the Fifth Circuit after deliberating over their appeal granted them intervention, the case would not be remanded for further discovery and trial for one to two years.
Moreover, plaintiffs and class members would be prejudiced by a last-minute stay that would render the notice mailed to class members, published in two newspapers, and broadcast on
13 Id. at 19:21-20:22, see remarks of plaintiffs' counsel at 38:11-39:17. 14 Id. at 30:7-16, 37:16-24. 15 Plaintiffs' counsel have spent thousands of hours and a small fortune in costs in preparing for a trial, without the Unions' participation, in the last six months alone. See Declaration of Teresa Demchak ("Demchak Decl."), filed herewith, at,-r 2. Much of this effort and expense would have to be repeated if the trial is continued to accommodate the Movants' pursuit of a long-shot appeal. Id. at,-r,-r 2-3.
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Case 9:97-cv-00063=-HC Document 369 Filed 11/26/2003 Page 10 of 13
local television pursuant to the Court's October 24,2003 Order as amended by the November 5, 2003 Order inaccurate. Such a stay would cause great confusion among hundreds of class members (and others in the interested community) who received formal notice that trial would begin on December 4,2003. Demchak Decl., ~ 5. Such confusion, detrimental to both the administration ofjustice and public's perception of the justice system, is entirely unnecessary as is the need for the parties and Court to spend hundreds more hours and thousands of dollars in later notice proceedings occasioned by a later trial date.
The final factor governing an appellate stay is whether the public interest would be served by a stay. Movants make two points; neither is persuasive. First, the Unions raise the spectre that denial of their motion could result in the parties' having "to try the case twice, once without the Union, and a second time with them." Id. at 13-14. Initially, it is questionable whether even that unwelcome outcome would raise any issue of public policy, as opposed to private interest. In any event, a second trial could only occur if the Court of Appeals were to hold that this Court's denial ofMovants' intervention was an abuse of discretion. Since as shown above that is not a realistic possibility, neither does Movants' spectre suggest a realistic threat.
The public interest in preventing plaintiffs from finally reaching trial of their seven year old case without further delay is far more substantial than the interest cited by Movants. In the interest of ending discriminatory employment practices, Congress has commanded that the judge assigned to a Title VII case shall have "the duty. " to assign the case for hearing at the earliest practicable date and to cause the case to be in every way expedited." 42 U.S.C. § 2000e-5(f)(5). This policy applies all the more forcefully to a large class action affecting hundreds of protected class workers, like this one. Many of the plaintiffs and class members are approaching the end
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9:97-cv-00063-HC Document 369 Filed 11/26/2003 Page 11 13
of their Lufkin careers 16 Postponement of the granting of injunctive relief will deny many of them the opportunity to work under a non-discriminatory employment system for any part of their work lives; and for other, less senior class members, the delay would subject them to continued discrimination and make more distant the promise of relief from discriminatory work condl·tI.ons. 17
Second, Movants invoke the strong national policy favoring collective bargaining and statutes and decisions that favor the protection of bona fide seniority systems as support for the proposition that "it is imperative that the Unions be present at trial." Id. at 14-15. While Movants have correctly identified a strong national policy favoring the protection of bona fide seniority systems, the conclusion they draw from it is wholly misplaced. As the Court has stated, it will not change the seniority system no matter what findings it makes at the trial on liability. Therefore, the policy favoring seniority will be upheld whether or not Movants are present at trial. Their absence, following denial of their motion to intervene, is simply irrelevant to the public interest.
B. This Court Correctly Exercised Its Inherent Powers When It Denied the Unions' Motion to Intervene.
Movants' invocation of the "inherent powers" of the Court in support of their stay request adds nothing to their misplaced re-argument under the standards of Rule 62. The Court must exercise its "inherent powers" in a manner consistent with controlling law. On the timeliness
16 Plaintiffs' statistical expert, Richard Drogin, Ph. D., has found that 138 of the 235 African Americans employed at Lufkin's production facility as of December 31, 2000 had already been with the Company for over 20 years. See, Statistical Analysis of Racial Patterns in Lufkin Workforce (October 27,2003), p. 10, Table 7. 17 The only party that would benefit from a stay is Lufkin, which would be enabled to continue in its discriminatory ways, and postpone judgment, while plaintiffs' claims languish in procedural delays. Plaintiffs believe that this, rather than any legitimate concern for the interests of the Unions, is what underlies Lufkin's sudden solicitude for the interests of its erstwhile adversaries in collective bargaining. See Plaintiffs' Opposition to Emergency Motion for Stay of Defendant Lufkin Industries, Inc., filed herewith.
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9:97-cv-00063:::HC Document 369 Filed 11/26/2003 Page 12 of 13
issue which was dispositive of the Unions' motion to intervene, the Court was clearly correct in its November 18 Order as discussed above; it would be anomalous to retreat from a clearly correct ruling in an exercise of "inherent powers." Moreover, the invocation of "inherent powers" implicates the Court's discretion. The order denying intervention was within that discretion and not an abuse thereof, as described above; and the standard of appellate review of the timeliness determination defers to that exercise of discretion. Moreover, a trial court's decision whether to grant a stay pending appeal under Rule 6218 is itself reviewed under an abuse of sound discretion standard. Wildmon v. Berwick Univ. Pictures, 983 F.2d 21,23 (5th Cir. 1992); Beverly v. United States, 468 F.2d 732, 740-41 n. 13 (5th Cir. 1972). Thus, there is no reason for any different result under the "inherent powers standard than under the Rule 62 factors discussed in Section II.A above.
Contrary to Movants' contention, the Court's proper exercise of its inherent powers requires that the stay request be denied. Fundamental to a trial court's powers is the authority to manage litigation pending before it in the interests of efficiency, economy, and procedural fairness. At no time is this power more important than at the trial stage. The timing and configuration of trial proceedings present a number of mutually interactive issues that cry out for judicial management. The Court's November 18 Order reflects a fair, flexible, and practical weighing of the various interests involved, as well as correct application of controlling legal principles; it is therefore an exercise of appropriate judicial management over trial proceedings.
The first and most overarching of the Federal Rules of Civil Procedure gives the district courts the authority as well as the duty to manage cases "to secure the just, speedy, and inexpensive determination of every action." Rule 1. The Court's "inherent power" must be exercised consistent with that objective. In this case, as it is now possible for the Court to secure the goals of Rule 1, it must do so by proceeding to trial as scheduled, without the further
18 As stated above, Plaintiffs do not concede that Rule 62 even applies here. However, we address Movants' arguments as they are made.
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97-cv-00063~HC Document 369 Filed 11/26/2003 Page 13 13

complication, delay, and expense that would be engendered by a stay of proceedings pending appeal of the November 18 Order.
III. CONCLUSION The Court should deny the Emergency Motion for a stay pending appeal.
Dated: November t ( 2003

Teresa Demchak Morris J. Baller Darci E. Burrell Joshua G. Konecky GOLDSTEIN, DEMCHAK, BALLER, BORGEN &
DARDARIAN 300 Lakeside Drive, Suite 1000 Oakland, CA 94612-3534 (510) 763-9800
Timothy Garrigan STUCKEY, GARRIGAN & CASTETTER LAW OFFICES 2803 North Street Nacogdoches, TX 75963-1902 (936) 560-6020
Attorneys for Plaintiffs

CERTIFICATE OF SERVICE

I hereby certify that I have served all counsel of record in this case, including the following, with a true and correct copy of the foregoing by sending same via FAXlhand delivery/United States mail, postage prepaid:

Douglas E. Hamel (FAX 713/615-5388)

Christopher V. Bacon (FAX 713/615-5014)

Mary Michelle Mahony (FAX 713/615-5990)

Vinson & Elkins

2806 First City Tower, 1001 Fannin

Houston TX 77002-6760

on this l,~ay of ~r

, 2003.

Ti

13

 
 Case 9:97-cv-00063-HC Document 471-1 Filed 02/11/2005 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

LUFKIN DIVISION

Sylvester McClain, et al. Plaintiffs,
v. Lufkin Industries, Inc.
Defendant.

§ Civil Action No. 9:97 CV 063 (COBB) § § § § § § § §

PLAINTIFFS’ OPPOSITION TO DEFENDANT LUFKIN INDUSTRIES, INC.’S MOTION TO AMEND AND MAKE ADDITIONAL FINDINGS OF FACT

Case 9:97-cv-00063-HC Document 471-1 Filed 02/11/2005 Page 2 of 10

I.

INTRODUCTION

Plaintiffs submit this response in opposition to Defendant Lufkin Industries, Inc.’s (“Lufkin”) Motion to Amend and Make Additional Findings. Lufkin’s motion is not designed to modify the findings or correct specific alleged errors. Instead, it is a wholesale assault on the Court’s decision, consisting of both a request that the Court reverse itself and find in favor of Lufkin and against Plaintiffs and the class, and alternatively, a request that the Court enter 87 proposed amended or additional findings, which would assure a reversal of this Court’s Judgment by the Court of Appeals. Lufkin’s motion advances no argument nor presents any new evidence which would indicate that the Court’s findings are erroneous in law or fact, or that the Court should reverse its liability findings and preliminary remedial order against Lufkin. Instead, Lufkin “reurges” its previously submitted Motion for Judgment on Partial Findings, its Amended Proposed Post-Trial Findings of Fact and Conclusions of Law, and its Motion for Summary Judgment, all of which were considered and expressly or implicitly rejected by the Court. This is an abuse of Federal Rules of Civil Procedure 52 and 59.
Additionally, Lufkin fails to offer any support that any of the 87 additional or amended findings it requests that the Court enter are necessary or appropriate at this stage of proceedings, after the Court has carefully reviewed the trial record and made its considered decision. In fact, as Plaintiffs demonstrate in this Opposition, Lufkin’s proposed additional or amended findings are unnecessary and inappropriate in that they are not supported by the record, are recycled interpretations of the record Lufkin already has proposed and the Court has rejected, and/or reflect a mischaracterization of Plaintiffs’ claims and the legal principles applicable to this disparate impact case. Plaintiffs oppose Lufkin’s proposed additional or amended findings Nos. 1-86 in their entirety and No. 87, in part, as will be discussed below.
The Court, which has overseen this case for nearly eight years, was able to assess the evidence presented, including the reliability and credibility of witnesses called by the parties. The Court’s carefully crafted liability findings are more than sufficiently detailed to allow a reviewing court to determine that the Court’s ultimate findings and conclusions are solidly

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supported by the evidence, are not clearly erroneous (as to the findings), and are based on a proper understanding of the applicable legal principles (as to the conclusions). The Court should therefore reject Lufkin’s motion in its entirety (except as to No. 87, as noted below).
II. ARGUMENT A. Requirements of Federal Rule of Civil Procedure 52(a).
Federal Rule of Civil Procedure 52(a) requires that (i)n all actions tried upon the facts without a jury . . . the court shall find the facts specially and state separately its conclusions of law thereon. .... Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.
A court’s findings “must be sufficiently detailed to give (the reviewing court) a clear understanding of the analytical process by which ultimate findings were reached and to assure (the reviewing court) that the trial court took care in ascertaining the facts.” Vicon, Inc. v. CMI Corp., 657 F.2d 768, 771 (5th Cir. 1981), quoting Golf City Inc. v. Wilson Sporting Goods Co., 555 F.2d 426, 433 (5th Cir. 1977). This requirement is not rigid. “Courts need not indulge in exegetics, or parse or declaim every fact and each nuance and hypothesis.” Vicon, 657 F.2d at 771, quoting Gulf King Shrimp Co. v. Wirtz, 407 F.2d 508, 518 (5th Cir. 1969). The test is whether findings are sufficiently comprehensive and pertinent to the issues to provide a basis for decision. Id. at 515. In making this assessment, the district court’s factual findings are examined for clear error pursuant to Fed. R. Civ. P. 52(a). Patterson v. P.H.P. Healthcare Corp., 90 F.3d 927, 933 (5th Cir. 1996), citing EEOC v. Clear Lake Dodge, 60 F.3d 1146, 1151 (5th Cir. 1995) (“Under this standard, we reverse a district court’s judgment based on erroneous fact findings only when, after weighing the evidence, we are definitely and firmly convinced that a district court made a mistake.”). “Where the court’s finding is based on its decision to credit the testimony of one witness over that of another, ‘that finding, if not internally inconsistent, can virtually never be clear error.’” Patterson, 90 F.3d at 933-34, quoting Anderson v. Bessemer City, 470 U.S. 564, 575 (1985) (internal citation omitted). If the district court’s findings are
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plausible in light of the evidence presented, a reviewing court may not reverse its decision even if it would have reached a different conclusion. Anderson, 470 U.S. at 573-74. B. Requirements of Federal Rules of Civil Procedure 52(b) and 59(e).
Rule 52(b) provides, in pertinent part, that “[u]pon motion of a party made not later than 10 days after entry of judgment the court may amend its findings or make additional findings and may amend the judgment accordingly.” Rule 52(b) is not intended to allow parties to rehash old arguments already considered and rejected by the trial court, see Am. Train Dispatchers Ass’n v. Norfolk & W. Ry. Co., 627 F. Supp. 941, 947 (N.D. Ind. 1985); its purpose is to permit the correction of any manifest errors of law or fact that are discovered, upon reconsideration, by the trial court, in order to enable the appellate court to obtain the correct understanding of factual issues determined by the trial court as a basis for the conclusions of law and judgment entered thereon. United States v. Carolina E. Chem. Co., Inc., 639 F. Supp. 1420, 1423 (D. S.C. 1986); see 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure§2582 (2d ed. 1995) (the primary purpose of Rule 52(b) is to allow the district court to correct manifest errors of fact or law or to consider newly discovered evidence. The rule, however, is not intended as a vehicle for obtaining rehearing of a party’s case).
Similarly, “[a] court possesses ‘considerable discretion in deciding whether to reopen a case in response to a motion for reconsideration arising under’ Rule 59(e).” Lupo v. WyethAyerst Labs., 4 F. Supp. 2d 642, 645 (E.D. Tex. 1997); quoting Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 174 (5th Cir.1990), cert. denied, 510 U.S. 859 (1993). “Motions for reconsideration serve the narrow purpose of allowing a party ‘to correct manifest errors of law or fact or to present newly discovered evidence.’” Id. at 645, quoting Waltman v. Int’l Paper Co., 875 F.2d 468, 473 (5th Cir.1989); and citing Williams v. Miss. Action for Progress, Inc., 824 F. Supp. 621, 623-24 (S.D. Miss. 1993). Rule 59(e) motions, therefore, “should not be used to raise arguments that could, and should, have been made before the entry of judgment ... [or] to re-urge matters that have already been advanced by a party.” Lupo, 4 F. Supp. 2d at 645,
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quoting In re Liljenerg Enter., Civ. A. No. 97-0456, 1997 WL 222497, at * 2, *3 (E.D. La. May 1, 1997); and citing State v. Sprint Communications Co., 899 F. Supp. 282, 284 (M.D. La.1995) (“[L]itigants are expected to present their strongest case when the matter is first considered. A motion to reconsider based on recycled arguments only serves to waste the resources of the court.”); Resolution Trust Corp. v. Holmes, 846 F. Supp. 1310, 1316 (S.D. Tex.1994) (motion to reconsider is not “the proper vehicle for rehashing old arguments or advancing legal theories that could have been presented earlier”). C. In “Reurging” Motions and Pleadings Already Considered and Rejected by the
Court, Lufkin Fails to Meet its Burden of Demonstrating Why the Court’s Liability Findings are Clearly Erroneous and Why They Should be Altered or Amended. Lufkin “reurges” its previously submitted Motion for Judgment on Partial Findings, its Amended Proposed Findings of Fact and Conclusions of Law (“Amended Proposed Findings”), and its Motion for Summary Judgment. Lufkin contends that “[t]hese previous filings explain why the only proper judgment is a judgment against Plaintiffs on all claims.” Lufkin’s Motion to Amend at 1-2 (emphasis added).1 In advancing arguments that Lufkin admits it has already made, all of which were considered by the Court and expressly or implicitly rejected in its Memorandum and Order entered January 13, 2005, Lufkin’s motion, on its face, fails to meet its burden under Rules 52(b) and 59(e) of demonstrating why the Court’s findings and judgment in favor of Plaintiffs are clearly erroneous.2 The Court should, therefore, reject Lufkin’s motion to reverse and amend the judgment in favor of Lufkin.
1 This peculiar word choice suggests that, in Lufkin’s view, the Court lacked the power, in exercising its adjudicatory duty, to rule for Plaintiffs. 2 Indeed, by not even attempting to meet its burden under Rules 52(b) or 59(e), Lufkin’s motion to reverse the judgment fails to comply with Federal Rule of Civil Procedure 11(b).
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D. Lufkin Fails to Provide Any Argument or Refer to Any Evidence Supporting Why the Court Should Adopt Lufkin’s Proposed Amended or Additional Findings Nos. 1-86. Alternatively, Lufkin proposes that the Court adopt 87 amended or additional findings.
See Lufkin Motion to Amend at 2-14. Lufkin provides absolutely no argument or explanation why any of the proposed amended or additional findings are necessary, appropriate or supported by the record, applicable law or new evidence. Notwithstanding Lufkin’s access to the entire record since the trial, Lufkin's Motion fails to refer to any evidence of record supporting its proposed amendments or contradicting the Court's findings. Moreover, Lufkin fails to address the credibility determinations the Court made and on which the Court’s factual findings are based (see e.g. Mem. and Order at 19, 20, 21, 22-23, 25-27), nor does it argue why the Court’s decisions to credit Plaintiffs’ witnesses over Lufkin’s witnesses were clear errors. Accordingly, Lufkin has failed to demonstrate that it is entitled to the relief it seeks under Rules 52(b) and 59(e).3 Attached to this Opposition is a chart in which Plaintiffs list Lufkin’s proposed amended or additional findings Nos. 1-86, and Plaintiffs’ response to each demonstrating why the proposed findings are (1) not supported by the record; (2) not supported by applicable legal principles; (3) have already been proposed by Lufkin and implicitly, if not expressly, rejected by the Court; (4) irrelevant; and/or (5) merely argumentative and devoid of substance. See Exhibit 1, which includes detailed summaries of the record, with citations to specific evidence in the record that support the Court's findings. See also Plaintiffs’ Proposed Post-Trial Findings of Fact and Conclusions of Law.
3 In the absence of even a facial showing to support its request that the additional or amended findings it proposes are necessary or appropriate, Lufkin’s Motion, likewise fails to comply with Federal Rule of Civil Procedure 11(b).
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E. Plaintiffs Do Not Oppose Lufkin’s Proposed Amended or Additional Finding No 87 in its Entirety. The one exception – as to which Plaintiffs do not completely oppose Lufkin’s proposed
amendment – is the Court’s finding to apply a 10% pre-judgment interest rate. See Mem. and Order at 34. The Court has the discretion to award prejudgment interest and to set an appropriate rate to make a Title VII plaintiff whole. Williams v. Trader Publ’g Co., 218 F.3d 481, 488 (5th Cir. 2000). Furthermore, the Court may vary the rate of post-judgment interest set by 28 U.S.C. §1961 depending on the circumstances of the case. Id. However, since the Court noted that it chose a 10% rate of interest “to reflect Texas law,” Mem. and Order at 34, Plaintiffs do not oppose Lufkin’s request that the Court “delete the award of pre-judgment interest at the rate of 10%” and set a lower rate, consistent with current Texas law, which changed during the course of these proceedings.
Lufkin, however, misstates the current law. Texas Finance Code§304.003, which Lufkin cites, provides that, effective June 20, 2003:
The postjudgment interest rate is: (1) the prime rate as published by the Federal Reserve Bank of New York on
the date of computation; (2) five percent a year if the prime rate as published by the Federal Reserve
Bank of New York described by Subdivision (1) is less than five percent; (3) 15 percent a year if the prime rate as published by the Federal Reserve
Bank of New York described by Subdivision (1) is more than 15 percent.
Tex. Fin. Code§304.003(c) (emphasis added). During the class period, the annual prime rate has fluctuated between a high of 9.23%
(2000) and a low of 4.12% (2003). See www.federalreserve.gov/releases/h15/data.htm. Accordingly, Plaintiffs oppose Lufkin’s proposal that the Court find that “Texas law … establishes a lower rate of 5%,” Lufkin’s Motion to Amend at 14,¶87, or that the Court find that the applicable pre-judgment interest rate for each year of the class period is 5%. If the Court
6

Case 9:97-cv-00063-HC Document 471-1 Filed 02/11/2005 Page 8 of 10

decides to amend this finding, Plaintiffs will submit evidence based on which the Court may then properly exercise its rate-setting discretion.4
III. CONCLUSION
For all of the reasons discussed above and in the attached Exhibit, which is incorporated in this Opposition by reference, Plaintiffs respectfully submit that the Court deny Lufkin’s motion to alter or amend its Memorandum and Order and Judgment to find in favor of Lufkin, and that the Court deny Lufkin’s proposed altered or amended findings Nos. 1-86. Plaintiffs have no objection to Lufkin’s proposal that the Court alter or amend its finding on post-judgment interest to less than 10% to reflect the change in Texas law, but oppose and request that the Court reject Lufkin’s request that the Court find that the interest rate applicable for all years during the liability period is 5%.

Dated: February 11, 2005

Respectfully submitted,
By: /S/
Teresa Demchak, CA Bar No. 123989 Morris J. Baller, CA Bar No. 048928 Goldstein, Demchak, Baller, Borgen & Dardarian 300 Lakeside Drive, Suite 1000 Oakland, CA 94612-3534 (510) 763-9800

4 In the event that the Court determines to alter or amend its finding on the pre-judgment interest rate, the Court should do so upon further proceedings to determine the applicable rate and the manner and method of calculation and distribution of the monetary award to the class. On this point, Plaintiffs have requested that Lufkin produce to Plaintiffs up-to-date computerized data on the class members’ earnings through January 14, 2005. Lufkin did not respond to this request. Therefore, Plaintiffs have served written discovery requesting the production of the data on Lufkin. Upon receipt of this data, Plaintiffs will present to the Court a further declaration of Dr. Drogin, which will calculate the value of the Court’s monetary award to the class, together with a request that the Court enter a supplemental Order and Judgment which includes the overall amount of the award and the direction that it be distributed to class members as specified in the Court’s opinion.
7

Case 9:97-cv-00063-HC Document 471-1 Filed 02/11/2005 Page 9 of 10 Timothy Garrigan, TX Bar No. 07703600 Stuckey, Garrigan & Castetter Law Offices 2803 North Street Nacogdoches, TX 75963-1902 (936) 560-6020 Attorneys for Plaintiffs
8

Case 9:97-cv-00063-HC Document 471-1 Filed 02/11/2005 Page 10 of 10

CERTIFICATE OF SERVICE I hereby certify that I have served all counsel of record in this case, including the following, with a true and correct copy of the foregoing by sending same via electronic filing to:

Douglas Hamel Christopher V. Bacon Vinson & Elkins 2806 First City Tower, 1001 Fannin Street Houston, TX 77002-6760
on this 11th day of February, 2005.

/S/ Teresa Demchak

 
 Case 97-cv-00063-HC Document 333 Filed 11/10/2003 Page 1 of 15

IN THE UNITED STATES DISTRICT COURT" {~r- ~ t~~'.;,""';: ~:CTL~8~n FOR THE EASTERN DISTRICT OF TEXAS -." ... ~ .. ,~! v J Lr, T
LUFKIN DIVISION

Sylvester McClain, et al. Plaintiffs,
v. Lufkin Industries, Inc.
Defendant.

()--rl:1_ § Civil Action No. 9:97 CV:~3{tOl8e-)LUFKIN

~

BY _ _

§ § § § § §

PLAINTIFFS' OPPOSITION TO MOTION TO INTERVENE OF lAM LOCAL 1999, GMP LOCAL 429 AND BOILERMAKERS LOCAL 587

I.

INTRODUCTION

On October 31, 2003 - six and one half years after this case was filed, six months after

being notified by plaintiffs' counsel ofthe Court's suggestion that the Unions might consider

intervention, and a month before trial is to scheduled to begin - the International Association of

Machinists & Aerospace Workers, Local Lodge No. 1999, AFL-CIO/CLC, ("Machinists") Glass,

Molders, Pottery, Plastics & Allied Workers International Union, Local No. 429, AFL-CIO/

CLC, ("GMP") and International Association of Boilermakers, Iron Ship Builders, Blacksmiths,

Forgers & Helpers, Local No. 587 AFL-CIO/CLC ("Boilermakers") (collectively the "Unions")

filed a motion to intervene as parties defendant pursuant to Federal Rule of Civil Procedure

24(a)(2) (hereafter referred to as "Motion to Intervene"). The Unions contend their motion was

prompted by the fact that they "recently became aware that the Court is considering granting

injunctive and equitable remedies to plaintiffs, if liability is established, that would have a

substantial adverse impact on the seniority system." Motion to Intervene at 2. The Unions

became aware of the Court's comments in April 2003, however, the Unions were not prompted

into action until a September 22,2003 telephone call between counsel for one of the Unions and

counsel for Lufkin. See p.7, infra. Moreover, the Unions seek to intervene "to ensure proper

application of the seniority provisions in their collective bargaining agreement with Lufkin, and

to address the propriety of retroactive or constructive seniority as a remedy." Id. However,

33)

1

Case 97-cv-00063-HC Document 333 Filed 11/10/2003 Page 2 of 15
these matters become relevant only if there is a liability finding against Lufkin. Therefore, clarification of the Court's bifurcation ruling to indicate that individual remedial matters will not be taken up in the liability trial will eliminate any argument that the Unions have a need to participate in the trial.
Plaintiffs oppose the Unions' eleventh hour motion. As will be shown below, the Unions have not and cannot demonstrate that they meet Rule 24(a)(2) requirements for intervention of right. Accordingly, the Court should deny the Unions' motion.
II. ARGUMENT A. The Unions Do Not Meet the Requirements of Rule 24(a)(2)
To intervene of right under Rule 24(a) an applicant must meet the following requirements: (I) the application must be timely; (2) the applicant must have an interest relating to the property or transaction which is the subject of the action; (3) the applicant must be so situated that the disposition of the action may, as a practical matter, impair or impede his ability to protect that interest; and (4) the applicant's interest must be inadequately represented by existing parties to the litigation. 1 See Edwards v. City of Houston, 78 F.3d 983, 999 (5th Cir. 1996)(en banc)(citations omitted). Failure to satisfy anyone requirement precludes intervention of right. See id.; citing Sierra Club v. Espy, 18 F.3d 1202, 1205 (5th Cir. 1994); Kneeland v. National Collegiate Athletic Ass'n., 806 F.2d 1285, 1287 (5th Cir.) cert. denied, 484 U.S. 817 (1987) ("[i]f a party seeking to intervene fails to meet anyone of those requirements, it cannot intervene as a matter ofright."). The inquiry under Rule 24(a)(2) "focuses on the particular facts and circumstances surrounding each application." Edwards v. City of Houston, 78 F.3d at 999 (citations omitted).2
1 Rule 24(a)(2) provides that "[u]pon timely application anyone shall be permitted to intervene in an action: ... when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties." 2 As the Unions acknowledge, the Civil Right Act of 1991 did not alter the standards for intervention under Rule 24 of the Federal Rules of Civil Procedure." Edwards v. City of Houston, 78 F.3d at 997, citing H.R. Rep. part I at 59, reprinted in 1991 u.S.C.C.A.N. at 597. Plaintiffs address the Unions' §2000e-2(n) argument in §II.B., below.
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Case 97-cv-00G63-HC Document 333 Filed 11/10/2003 Page 3 of 15
1. The Unions' Motion is Untimely. "Even where a party is entitled to intervene as a matter of right, Rule 24 requires that the application for intervention be timely." Wilson v. Southwest Airlines, 98 F.R.D. 725, 727 (N.D. Tex. 1983). The court considers four factors in determining whether a motion to intervene is timely: (1) the length of time during which the would-be intervenor actually knew or reasonably should have known of its interest in the case before it sought to intervene; (2) the prejudice existing parties to the litigation may suffer as a result of the would-be intervenor's failure to apply for intervention as soon as it knew or reasonably should have known of its interest in the case; (3) the prejudice the would-be intervenor may suffer if intervention is denied; and (4) whether unusual circumstances militate for or against a determination that the application is timely. There are no absolute measures of timeliness; it is determined from all the circumstances. See Edwards v. City of Houston, 78 F.3d at 1000, citing Stallworth v. Monsanto, 558 F. 2d 257,264-66 (5th Cir. 1977). Questions of timeliness are reviewed for abuse of discretion on appeal. See Stallworth v. Monsanto, 558 F. 2d at 263, citing NAACP v. New York, 413 U.S. 345, 367 (1973). 3 The Unions' motion is untimely when assessed against each of these factors.
a. The Unions Have Long Had Actual Knowledge Regarding Their Interest in the Case.
The Unions contend they "recently became aware that the Court is considering granting injunctive and equitable remedies to plaintiffs, if liability is established, that would have a substantial adverse impact on the seniority system." Motion to Intervene at 2. In so doing, the Unions refer to the Court's March 31,2003 letter posing certain questions to the parties and plaintiffs' April 11,2003 response to the Court's questions. See id. at 3-4. The Unions further contend they "had a reasonable expectation that the parties would negotiate a resolution of the dispute ... until September 22,2003, when defense counsel informed a Union attorney that mediation had failed." Id. As is demonstrated below, the Unions are being less than candid with
3 However, where the district court makes no finding regarding timeliness, the appellate court reviews this factor de novo. See Edwards v. City of Houston, 78 F.3d at 1000.
3

Case 97-cv-00063-HC Document 333 Filed 11/10/2003 Page 4 of 15
this Court. To begin, it cannot be disputed that the Unions have been aware of this case and the
issues it raises almost from the inception. While the Unions contend that they did not have "formal notice" of the class certification proceedings and therefore, "had no meaningful opportunity to seek intervention to be heard on any matters relating to the CBA in that proceeding," Motion to Intervene at 11, they fail to note that plaintiffs' counsel Timothy Garrigan, has communicated with the Unions and their counsel about the existence and subject matter of the lawsuit since very early in the litigation. See Declaration of Timothy B. Garrigan ("Garrigan Decl."), at ~ 3. Mr. Garrigan also has provided the Unions non-privileged information about the case from time to time upon their request. See id. The Unions also fail to mention that after the Court issued its class certification ruling, the GMP sought to appear in the case as amicus curiae, "with regard to issues relevant to preservation of the collectively bargained for seniority provision." See GMP's Motion to Appear as Amicus Curiae, filed on February 11, 2000, at 2. The motion was denied by the Court. Furthermore, the Unions acknowledge - as they must - that they participated in two sessions of the parties' mediation with Reagan Burch. See Motion to Intervene at 13 n. 2. The Unions, however, fail to mention that they were invited to a third mediation session, and declined the invitation. See Garrigan Decl. at ~ 5.
Focusing more particularly on the specific events which the Unions describe as the basis for their motion further impeaches the Unions' claim that they "recently" became aware of their interest in this matter. On March 27,2003, the Court held a Status Conference in this matter, at which the Court indicated it may consider remedies that affect the departmental seniority provision ofthe CBA. See Garrigan Decl. at ~ 6. The Court also questioned whether it had the authority to order such relief and stated it was going to pose this and other questions in writing to the parties. See id. The Court suggested the parties notify the Unions that the Court was considering the possibility of portable seniority as a remedy "so they could intervene if they wish." See id. Thereafter, on March 31, the Court propounded written questions on the parties. See Letter dated March 31, 2003 from Hon. Howell Cobb to Counsel for Parties. Among the
4

Case 97-cv-00CJ63-HC Document 333 Filed 11/10/2003 Page 5 of 15
questions was whether "[i]fplaintiffs establish liability, ... [the Court could] reform the [nontransferability] aspect" of the CBA to provide for some type of portable seniority from department to department. See id.
On April 4, 2003, Mr. Garrigan sent copies of the transcript of the March 27 Status Conference and the Court's March 31 letter to Rod Tanner, counsel for the Machinists. See Letter dated Apr. 4,2004, from T. Garrigan to R. Tanner, attached as Exhibit 1 to Garrigan Decl.4 In his cover letter, Mr. Garrigan advised Mr. Tanner of the Court's comments at the Status Conference regarding possible portable seniority relief and the Unions' possible intervention. See id. Mr. Garrigan also advised Mr. Tanner that the parties had submitted a proposed Docket Control Order that set May 1, 2003, as the date by which additional parties must be added to the litigation, and that "plaintiffs do not intend to join the union as defendants (or in any other capacity) in the case." See id. Mr. Garrigan further advised Mr. Tanner that the plaintiffs had concluded "the Court would not have the authority to order the Company or unions to implement companywide rather than departmental seniority and this [was] not a remedy plaintiffs are seeking," and plaintiffs intended to so advise the Court in their response to the Court's March 30 letter. See id. Mr. Garrigan also advised Mr. Tanner that the proposed Docket Control Order gave the parties until May 15,2003, to complete the mediation or declare it unsuccessful. See id. Finally, Mr. Garrigan asked Mr. Tanner to call him after he reviewed the letter with counsel for the other two Unions and suggested that the three of them, and plaintiffs' co-counsel, Teresa Demchak, and Mr. Garrigan schedule a conference call to discuss these matters and answer any questions the unions might have. See id. Mr. Tanner did not respond to the letter. See id.
Subsequently, on April 24, 2003, Mr. Garrigan sent Mr. Tanner a copy of plaintiffs' April 11,2003 letter to the Court, in which plaintiffs' responded to the Court's questions. See Letter dated Apr. 24, 2003, from T. Garrigan to R. Tanner, attached as Exhibit 2 to Garrigan Decl. In
4 During the mediation, the attorneys for the three Unions had designated Mr. Tanner as liaison for any inquiries from the parties to the Unions. Garrigan Decl. at ~ 5.
5

Case 97-cv-000B3-HC Document 333 Filed 11/10/2003 Page 6 of 15
his transmittal letter, Mr. Garrigan again asked Mr. Tanner to call him to discuss "these matters." See id. Mr. Tanner contacted Mr. Garrigan approximately two weeks later asking only that Mr. Garrigan provide Mr. Tanner a copy of plaintiffs' April 29, 2003 letter to the Court.5 See id. Mr. Garrigan did so, and again asked Mr. Tanner to call him when the Unions "want to talk" about these matters. See Letter dated May 7,2003, from T. Garrigan to R. Tanner, attached as Exhibit 3 to Garrigan Decl.
The next time plaintiffs' counsel heard from the Unions was Friday, October 24, 2003, when Mr. Tanner faxed a letter to plaintiffs' and defendant's counsel advising them that "in the near future the Unions will file a motion to intervene as right as parties defendant pursuant to Fed. R. Civ. P. (24)(a)(2)," and asking for the parties' respective position on the motion. See Letter dated Oct. 24, 2003, from R. Tanner to Plaintiffs' and Defendant's Counsel, attached as Exhibit 4 to Garrigan Decl.
Upon receiving the letter, Mr. Garrigan telephoned Mr. Tanner and left a voicemail message asking that he return the call. Garrigan Decl. at ~ 14. Mr. Tanner returned Mr. Garrigan's call on Monday, October 27, and faxed him two pages from the Unions' proposed motion which Mr. Tanner contended required the Unions to intervene now in order to protect their right to subsequently challenge any Order of the Court that affected the CBA's
seniority provision.6 See Garrigan Decl. at ~ 15. Mr. Tanner suggested that he, Mimi Satter,
counsel for the GMP, Ms. Demchak and Mr. Garrigan confer by telephone, which they did later that same day. See Garrigan Decl. at ~ 15.
During that conference call, Mr. Tanner claimed that the Unions "had no idea" what had been happening in the case until September 22, when he called defendant, Lufkin Industries, Inc. 's ("Lufkin) counsel, Douglas Hamel, "on another matter," and Mr. Hamel informed him that the parties' mediation had not resulted in a settlement of the case and the case was proceeding to trial. See Garrigan Decl. at ~ 16. Mr. Tanner made no mention of Mr. Garrigan's April 4, April
5 In the April 29 letter, plaintiffs replied to Lufkin's responses to the Court's March 31 questions. 6 Mr. Tanner faxed pages 9 and 10 of the Unions' motion. These pages relate to the Unions' 42 U.S.C. §2000e-2(n) argument. See §II.B, above.
6

Case 97-cv-00063-HC Document 333 Filed 11/10/2003 Page 7 of 15
29 or May 7, 2003 letters to him during the call. See id. As the correspondence described above and attached to Mr. Garrigan's Declaration
unequivocally reveals, the Unions knew as early as April 4, 2003, that the Court had re-opened the case, and of the Court's comments regarding possible seniority relief and intervention of the Unions made at the March 27 Status Conference. Furthermore, the Unions knew as early as April 4, 2003, that the deadline for the mediation to succeed or fail was May 15. In addition, the Unions knew as early as April 4, 2003, of plaintiffs' position on the Court's inquiry regarding portable seniority, and knew by April 29, 2003, of plaintiffs' specific response to the Court's question on this issue, including plaintiffs' position on the possible provision of retroactive or constructive seniority to individual class members. By their own admission, the Unions did nothing for six months - they made no effort to determine the outcome of the mediation or the status of the litigation, which they easily could have done by checking the Court's electronic docket or calling either of the parties. 7 Instead, the Unions ignored the information plaintiffs provided to them as well as plaintiffs' counsel's numerous attempts to contact the Unions' liaison counsel. Indeed, according to the Unions, the only thing that prompted them to act was a phone call Mr. Tanner made to Lufkin's counsel "on another matter." Under these specific facts and circumstances, the Unions' six month delay in filing their motion cannot be characterized as either "brief' or "reasonable.,,8 See Motion to Intervene at 12.
b. Plaintiffs Would be Prejudiced by the Unions' Intervention at this Stage of the Proceedings.
"The prejudice to the original parties to the litigation that is relevant to the question of timeliness is only that prejudice which would result from the would-be intervenor's failure to request intervention as soon as he knew or reasonably should have known about his interest in the action." Stallworth v. Monsanto, 558 F. 2d at 265. The Unions' long, inexplicable and unjustifiable delay in bringing their motion manifestly prejudices plaintiffs. During the past
7 Plaintiffs can only confirm that the Unions did not contact plaintiffs' counsel between early May and late October. See Garrigan Decl. at tj[ 13. 8 The Unions' long and intimate knowledge of the issues involved in the case also must factor into the unreasonableness of their delay in bringing their motion.
7

Case 97-cv-00G63-HC Document 333 Filed 11/10/2003 Page 8 of 15
seven months, while the Unions remained silent, the parties and the Court have been engaged in
hard fought, contentious discovery and trial preparations, including submission of a Joint Final
Pre-Trial Order, resolution of numerous motions that further define the issues for trial and
submission of proposed findings of fact and conclusions oflaw. Had the Unions brought their
motion when they claim they first learned of their interest in the case, any discovery to be taken
against the Unions - who seek to enter the case as defendants and "to participate ... with full
rights as parties at trial and any related proceedings," Motion to Intervene at 2 - could have been conducted during that time.9 While the Unions claim they "do not seek to conduct any discovery
or take any other action that could delay trial," Motion to Intervene at 12, the Unions cannot
seriously believe that plaintiffs have no need or interest in obtaining, or right to obtain, discovery
from the putative defendant Unions, particularly when the Unions "request a total of ten hours at
the liability stage of trial to present evidence and conduct cross-examination of witnesses ...." Id. at 2. 10 Moreover, the harm and prejudice the Unions' delay causes plaintiffs is further
compounded by the unmistakable evidence of Lufkin's assistance to the Unions in bringing their
motion, see below at § II.A.4, and the fact that, on the issue of Lufkin's liability to the class, the Unions' and Lufkin's interests are clearly and inextricably aligned, see id. ll The Unions' motion
9 As of April 29, 2003, the date Mr. Garrigan sent a copy of plaintiffs' April 11 letter responding to the Court's March 31 questions, triggering the Unions' awareness of their "interest" in the case, the parties had just begun discovery following the Court's March 19,2003 trial setting Order and had not yet taken any depositions. 10 Compare Edwards v. City of Houston, 78 F.3d at 1002, where the court found no prejudice in the intervenor's delay in bringing their motion where "from the time the proposed decree was submitted to the district court to the conclusion of the fairness hearing [during which time the intervenors filed their motion] the parties to this litigation did nothing except anticipate and prepare to address the possible obj ections that would be made to the decree." II Because the Unions did not participate in pre-trial discovery and other trial preparation activities, plaintiffs have little idea of what evidence the Unions will introduce and positions the Unions will take in examining witnesses at trial, if they are permitted to intervene. Conversely, since the Unions believe their interests are closely aligned with those of Lufkin, and are evidently communicating with Lufkin's counsel, it is likely that the Unions intend to provide (if they have not already provided) Lufkin with information about the Unions' trial positions and evidence. To permit the Unions to intervene without allowing plaintiffs discovery would, therefore, invite trial by ambush. To permit the Unions to intervene while allowing plaintiffs discovery would be not much better, as it would at best interfere with and distract plaintiffs from their on-going trial preparations, and at worst require revision of their proposed pre-trial findings and conclusions, witness list and trial exhibits, and could easily result in a postponement of trial.
8

Case 97-cv-00063-HC Document 333 Filed 11/10/2003 Page 9 of 15
is prejudicially untimely. c. Denial of the Unions' Motion at this Time Will Not Prejudice The Unions.
The third factor regarding timeliness "focuses on the prejudice caused the applicants if
their petitions are denied." Edwards v. City of Houston, 78 F.3d at 1002. Denial of the Unions'
motion will not prejudice them. The Unions contend their interest is in "preserving a collectively
bargained seniority system." Motion to Intervene at 2. As a threshold matter, plaintiffs are not
challenging the "collective bargained system," and, in any event, as the Unions undeniably are
aware, plaintiffs have expressly waived "reformation of the CBA's departmental seniority
provision as a remedy in this matter." See Letter dated Apr. 11,2003, from T. Demchak,
D. Burrell and T. Garrigan to Hon. Howell Cobb, attached as Exhibit 4 to Unions' Appendix to
Motion to Intervene ("Unions' App.") at 3. "Plaintiffs' waiver eliminate[s] the possibility of their obtaining those remedies in this action." Donnelly v. Glickman, 159 F.2d 405, 410 (9th Cir.
1998).
The Unions also assert an interest in "address[ing] the propriety of retroactive or
constructive seniority as a remedy." Motion to Intervene at 2.12 However, the primary general
factual issue to be decided initially is whether Lufkin's employment practices with regard to
initial job assignments, training, promotion and compensation have had a disparate impact on the
12 In their motion, the Unions mischaracterize plaintiffs' position, insisting that "plaintiffs are seeking an award of retroactive or constructive seniority for numerous individual class members for promotion purposes." See Motion to Intervene at 4, 14. First of all, at this stage of the proceedings, plaintiffs are not "seeking" any relief on behalf of individual class members, since such relief depends on a finding of liability against Lufkin. Moreover, the subject of "an award of retroactive or constructive seniority for individual class members," came up in a hypothetical discussion regarding the Court's authority to award seniority relief should the Court find Lufkin liable. In addition, as plaintiffs discussed in their April 11, 2003 letter to the Court and as they explained to the Unions' counsel in the October 27 conference call, the possible circumstances in which an award of retroactive or constructive seniority to individual class members would be appropriate or warranted in this case would be determined at remedial proceedings in which the Union could, if appropriate, seek to participate. Plaintiffs believe that such seniority relief would be limited and not necessary or appropriate for a class member seeking relief for discriminatory
promotions only. See Garrigan Decl. at -,r 17; Unions' App., Exh. 4 at 4. Nevertheless, the Unions
consistently make reference to such relief "for promotion purposes" in their motion. Finally, the entire issue of retroactive or constructive seniority relief is premature in the absence of a liability finding and proceedings to determine the manner and method for awarding individual relief to class members. See id. at 7-10.
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class. Until there is a liability finding against Lufkin, there is no legal predicate for the Court to award any relief, including to individual class members. The Court has indicated that it intends to have separate remedial proceedings, perhaps using a Special Master. 13
In this respect therefore, the Unions' motion is premature because they have no protectable interest in the litigation in the absence of a liability finding and proceedings to determine the manner and method for awarding individual relief to class members, see below at §II.A.3, and the motion should be denied without prejudice to the Unions renewing the motion in the remedy proceedings should the Court find Lufkin liable for unlawful discrimination against the class and determine that remedial proceedings on each class member's individual entitlement to injunctive relief, including potential constructive or retroactive seniority rights, are appropriate and necessary. 14 See Donnelly v. Glickman, 159 F.2d at, 410 citing Churchill County v. Babbitt, 1072, 1083 (9th Cir. 1998) ("[T]he district court did not err by limiting intervention only to the remedial phase" when the applicant had no interest in the liability phase of the action.); Forest Conservation Council v. United States Forest Serv., 150 F.3d 1489, 1499 & n. 11 (9th Cir.l995) (The applicants "are entitled to intervene as of right under Fed. R. Civ. P. 24(a)(2) in the portion of the proceedings addressing the injunctive relief sought by plaintiffs ... [even though they] cannot claim any interest that relates to the issue of the [defendant's] liability."). Accordingly, under the facts and circumstances of this case, the Unions cannot demonstrate that denial of their Motion to Intervene will be prejudicial to them.
d. Unusual Circumstances Militate Against A Determination that the Unions' Motion is Timely And No Unusual Circumstances Militate in Favor of Such a Determination.
As demonstrated at length above in §II.A.l.a., the Unions' inexplicable and unwarranted decision to wait until the eve of trial, after discovery and trial preparations have nearly been completed, militates against a determination that their motion is timely.
13 Additionally, plaintiffs' Motion for Clarification and/or Reconsideration of the Court's July 11, 2003 Ruling on Bifurcation currently is pending before the Court. 14 As an alternative, the Court could determine only to award formulaic back pay relief to class members, which could be done without individualized "mini-trials" on each class member's specific claims. See Unions' App., Exh. 4 at 7-10.
10

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Consistently, no unusual circumstances militate in favor of such a determination. See Stallworth v. Monsanto, 558 F. 2d at 266, where the court noted, as an example, that "if a wouldbe intervenor who had failed to apply for intervention promptly after he became aware of his interest in the case could advance a convincing justification for his tardiness, such as that for reasons other than lack of knowledge he was unable to intervene sooner, this would militate in favor of a finding that his petition was timely." In stark comparison, the Unions offer "no convincing justification for [their] tardiness." Instead, the Unions claim that because "[t]he parties were involved in extensive mediation proceedings for approximately three years before that settlement process obviously failed[,] [t]he Unions had a reasonable expectation that the parties would negotiate a resolution of the dispute ... until September 22,2003, when defense counsel informed a Union attorney that mediation had failed." Motion to Intervene at 13. It is disingenuous for the Unions to make this assertion in light of plaintiffs' counsel's April and May letters to Mr. Tanner, and even if the Unions truly had that "expectation," their reliance on it without making any effort to find out what really happened, does not militate in favor of a determination that the Unions' motion is timely. For all of the reasons discussed in §§II.A.l a-d, the Court should deny the Unions' motion on timeliness grounds.
2. The Unions Have No Legally Protected Right in Proceedings to Determine Whether Lufkin Industries' Subjective Employment Practices Have an Unlawful Disparate Impact on African American Employees Where Plaintiffs are Not Challenging the "Collectively Bargained System" Or Claiming that the Seniority System Has a Disparate Impact on the Class.
"To demonstrate an interest relating to the property or subject matter of the litigation sufficient to support intervention of right, the applicant must have a 'direct, substantial, legally protectable interest in the proceedings. '" Edwards v. City of Houston, 78 F3d at 1004, quoting New Orleans Pub. Servo Inc. v. United Gas Pipe Line Co., 732 F.2d 452,463 (5th Cir. 1984) (en banc). Accordingly, it is first necessary to identify what is the property or subject matter of the proceedings. See Taylor Communication Group, Inc. V. Southwestern Bell Telephone Company, 172 F.3d 385, 388 (5th Cir.), reh. den. (1999). In this case the threshold subject to be determined is whether Lufkin's employment practices have a disparate impact on African American employees. The Unions claim no interest in this issue. Indeed, the only possible protectable
11

97-cv-00063-HC Document 333 Filed 11/10/2003 Page 12 15
interest the Unions have articulated is whether the Court "might" award constructive or retroactive seniority relief to individual class members upon a finding of liability against Lufkin and in the remedial phase of the litigation. Thus, in essence, the Unions seek to intervene in litigation that they necessarily must concede will have no impact on the departmental seniority system, and only "may" impact seniority rights of any of their individual members. The Unions' interest in the proceedings is speculative at best, and in any event, premature and does not support their intervention in the case at this time.
3. The Unions' Ability to Protect Their Interest Will Not Be Impaired by Denial of their Intervention at this Time.
Inasmuch as the Unions' interest, if any, in this case would arise only if the Court finds Lufkin liable and if the Court determines during remedial proceedings to award retroactive or constructive seniority to individual class members who might be eligible for such relief, denial of the Unions' motion at this time will not impair their ability to protect their interest at the appropn.ate tI.me. 15
4. The Unions' Interest is Adequately Protected by Lufkin Industries. The fourth requirement for intervention of right is that the "would-be intervenor's interest not be adequately represented by existing parties." Edwards v. City of Houston, 78 F.3d at 1005. The burden of establishing inadequate representation is on the applicant for intervention. Id., citing Hopwood v. Texas, 21 F.3d 603,605 (5th Cir. 1994); Sierra Club v. Espy, 18 F.3d at 1205. A "presumption of adequate representation arises when the would-be intervenor has the same ultimate objective as a party to the lawsuit." Edwards v. City of Houston, 78 F.3d at 1005. In such a case, "the applicant for intervention must show adversity of interest, collusion, or nonfeasance on the part of the existing party to overcome the presumption." Id. (citations omitted). The Unions claim that their "bargaining relationship" with Lufkin "is adversarial, and their interests and objectives are often divergent." Motion to Intervene at 15 (emphasis added). However, this is beside the point in determining whether the Unions' interests are being
15 Plaintiffs' counsel have advised the Unions that plaintiffs would not oppose the Unions' intervention in such remedial proceedings. Garrigan Decl. ~ at 17.
12

97-cv-00063-HC Document 333 Filed 11/10/2003 Page 13 15
inadequately represented by Lufkin in these proceedings, and, in fact, the Unions cannot make
such a showing. Lufkin vehemently denies any liability for unlawful discrimination against its African
American employees. See Joint Pre-Trial Order, filed Sept. 30, 2003 at 5 ~ 2. Such liability, of
course, is the predicate for the award of any kind of relief to the class, including retroactive or
constructive seniority to individual class members, something both Lufkin and the Unions have
an interest in preventing. Lufkin also maintains that it makes promotions of hourly employees
based on seniority and consistent with the terms ofCBA. See Defendant's Pre-Trial Proposed Findings of Fact and Conclusions of Law ("Lufkin Proposed Findings") at 10-11, ~~ 92-108.
This is the saine interest the Unions seek to represent in this case. Indeed, at this stage of the
proceedings, the Unions' and Lufkin's interests are closely aligned. In fact, one need only look
at the striking similarities between the "salient facts" outlined in the Unions' motion and
Lufkin's proposed findings to ascertain how closely aligned their interests are. Specifically, ~~ 8-12, 14-19,20-22,24-26 in the Unions' motion are verbatim or nearly verbatim of Lufkin's proposed findings 1-6,8, 11, 13-15, 18,93-102, 104-105, 137_138. 16
In sum, the Unions have presented no convincing explanation why their interests are not,
16 Additionally, the Unions' motion and Lufkin's proposed findings contain nearly identical mischaracterizations of Plaintiffs' Response to Lufkin's Second Interrogatories, No. 10, which asked "Do Plaintiffs contend that Lufkin's black hourly employees are not adequately represented by the unions representing such employees in employment decisions? If so, state the facts supporting such contention." After stating their objections to the Interrogatory, Plaintiffs responded, "Lufkin, not the unions, is responsible for making employment decisions other than those prescribed by the Collective Bargaining Agreement (excluding, of course, those provisions of the Agreement which afford Lufkin discretion, such as the ability clause). To the extent Lufkin is asking whether plaintiffs contend that African American hourly employees are not adequately represented by the unions that represent such employees in employment disputes, plaintiffs do not contend that, as a class, African Americans are not adequately represented by the unions in this regard. Whether any individual class member has not been adequately represented by the unions in an employment dispute is beyond the reach of this lawsuit." Lufkin, in its proposed pre-trial findings, characterized plaintiffs' position as, "Plaintiffs concede that, as a class, African American hourly employees are adequately represented by the unions that represent such employees in employment disputes and all other issues covered by the Union Contract." Lufkin's Proposed Finding No. 17. In conspicuously similar language, the Unions state, "Plaintiffs have conceded ... that the Unions have adequately represented African American unit employees, as a class, in employment disputes and all other issues covered by the CBA." Motion to Intervene at 11-12.
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being represented adequately by Lufkin in this case. I7 Instead, the Unions offer only the sweeping and non-specific statement that unless they are permitted to intervene, the Unions' "interest in ensuring that the CBA is interpreted correctly and in representing the rights of all unit employees will be undermined." This does not even meet the "minimal" showing, the Unions concede they are required to meet. B. 42 U.S.c. § 2000e-2(n) Has No Bearing on The Unions' Motion to Intervene
The Unions, in some detail, explain the history and provisions of 42 U.S.C. §2000e-2(n), which Congress enacted in response to the Supreme Court's decision in Martin v. Wilks, 490 U.S. 755 (1989). Section 2000e-2(n), however, is irrelevant to the Unions' motion to intervene. Section 2000e-2(n) does not change the standards for intervention under Federal Rule of Civil Procedure 24. See Edwards v. City of Houston, 78 F.3d at 997 (citation omitted). Therefore, §2000e-2(n) provides no independent support for the Unions' motion. If anything, the Unions' concern with the preclusive impact §2000e-2(n) can have on collateral attacks or subsequent challenges to employment discrimination judgments in certain circumstances, makes the Unions' delay in bringing their motion all the more indefensible. In any event, by its terms §2000e-2(n) precludes collateral attacks or challenges of a "litigated or consent judgment or order that resolves a claim of employment discrimination." In this case, there is no "litigated or consent judgment or order" resolving a claim of discrimination. Therefore, §2000e-2(n) is immaterial to the issue of the Unions' intervention in this matter at this time.
III. CONCLUSION For all of the reasons discussed above, the Unions' have not met their burden of demonstrating that their Motion to Intervene is timely, or otherwise meets the requirements of Rule 24(a)(2). Accordingly, the Court should deny the motion without prejudice to its renewal at
17 The Unions claim federal law prohibits Lufkin from providing legal services for the Unions' benefit. See Motion to Intervene at 15. Of course, the fact that at least for now, the interests of the Unions and Lufkin are aligned does not mean that the two are in an attorney-client relationship. However, a review of the similarities between the Unions' "salient facts" and other statements in the Unions' motion, and Lufkin's proposed findings, certainly raises the question of whether, perhaps, the Unions have already taken advantage of Lufkin's "legal services for the Unions' benefit."
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such time as they have a "direct, substantial, legally protectable interest in the proceedings."

Dated: November _ , 2003

Respectfully Submitted,

BY:~_~ - ~

Teresa Demchak

)

Morris J. Baller

Darci E. Burrell Joshua G. Konecky Goldstein, Demchak, Baller, Borgen & Dardarian 300 Lakeside Drive, Suite 1000 Oakland, CA 94612-3534 (510) 763-9800

Timothy Garrigan Stuckey, Garrigan & Castetter Law Offices 2803 North Street Nacogdoches, TX 75963-1902 (936) 560-6020

CERTIFICATE OF SERVICE

I hereby certify that I have served all counsel of record in this case, including the following, with a true and correct copy of the foregoing by sending same via FAXlhand deliverylUnited States mail, postage prepaid:

Douglas E. Hamel (FAX 713/615-5388) Christopher V. Bacon (FAX 713/615-5014) Mary Michelle Mahony (FAX 713/615-5990) Vinson & Elkins 2806 First City Tower, 1001 Fannin Houston TX 77002-6760

Rod Tanner

(FAX 817/377-1136)

Rod Tanner & Associates

6000 Western Place, Suite 100

Fort Worth TX 76107-4654

Mimi Satter

(FAX 315/471-7849)

Satter & Andrews

McCarthy Building

217 South Salina Street, Sixth Floor

Syracuse NY 13202

J. Donald Carona, Jr. (FAX 409/883-4814)

Law Offices of Martin Dies

1009 West Green

Orange TX 77630-5619

E NN. on this

day of

,2003.

15

 
 Case 9:97-cv-00063-HC Document 480 Filed 02/22/2005 Page 1 of 17

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

LUFKIN DIVISION

Sylvester McClain, et al. Plaintiffs,
v. Lufkin Industries, Inc.
Defendant.

§ Civil Action No. 9:97 CV 063 (COBB) § § § § § § § §

PLAINTIFFS’ OPPOSITION TO MOTION OF DEFENDANT LUFKIN INDUSTRIES, INC., TO VACATE THE COURT’S JANUARY 18, 2005
ORDER DIRECTING FURTHER PROCEEDINGS REGARDING INJUNCTIVE RELIEF

Case 9:97-cv-00063-HC Document 480 Filed 02/22/2005 Page 2 of 17
INTRODUCTION Defendant Lufkin Industries, Inc.’s (“Lufkin”) Motion to Vacate the Court’s Order of January 18, 2005 and Response to Plaintiffs’ Motion for Order Requiring Further Proceedings (“Motion to Vacate”) is a grab-bag of procedural complaints, attacks on the Court’s authority to issue orders in furtherance of its duty to eradicate Lufkin’s pervasive and long-standing discriminatory practices found in the Memorandum and Order entered January 13, 2005 (“Mem. & Order”), refusals to acknowledge the need and propriety of a remedy for found discrimination, excuses for Lufkin’s stubborn insistence on delaying the arrival of effective justice in the form of specific injunctive relief for the Class, unfounded accusations that the Court is improperly delegating its duties to Plaintiffs’ attorneys, and ad-hominem attacks on the motives and actions of Class Counsel in pursuing an effective remedy on behalf of the Class. Baseless in substance and intemperate in its charges of improprieties on all sides (excepting its own side), Lufkin’s Motion to Vacate should be rejected in its entirety. Instead, the Court should continue on the course it set in the Memorandum and Order and the January 18, 2005 Order. The Court has found, and based on the evidence at trial was “convinced,” that Lufkin discriminated broadly against the Class in its initial assignment and promotion practices (as to both hourly and salaried positions), and as a result Class members lost compensation. Mem. & Order at 37. In its initial opinion, the Court initially suggested additional proceedings by referring to specific measures it did not order “at this time” and by referring to the possibility of appointing a “monitor to oversee Lufkin’s compliance efforts.” Mem. & Order at 38. Nowhere did the Court say it would “never” consider more specific measures, or say when it would consider further the use of a monitor. In the January 18, 2005 Order, the Court properly provided Lufkin with a window of opportunity to participate in a constructive process to craft appropriate injunctive relief provisions that would not only eliminate discrimination, but also accommodate Lufkin’s legitimate business needs. The Court did so by providing an 80 day period during which it ordered the parties to meet and confer, report as to the results of their work and their
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recommendations for how to proceed further, and appear for a hearing originally scheduled for April 7, 2005.1 After the entry of the January 18 Order, Lufkin gave every indication that it would refuse to participate meaningfully in this process: it first engaged in a series of evasive and dilatory maneuverings;2 then filed the motion to vacate addressed in this brief. However, in an about-face that came as a surprise to plaintiffs, Lufkin participated – with both lead defense counsel and Vice President Paul Perez in attendance – in an all-day conference on February 16, 2005, at which the parties had a serious, substantive, and constructive discussion of injunctive relief issues , and agreed to have further discussions. The ultimate outcome of plaintiffs’ efforts to engage Lufkin in the process of devising appropriate injunctive remedies against its discriminatory practices is not yet known, and will be reported to the Court in March 2005 pursuant to the January 18 Order. However, Lufkin’s initial course of action toward delay and appeal, and inaction toward implementation of the injunction, followed by apparently serious consideration of constructive discussions (while reserving its right to appeal), only serve to underscore the critical need for the further proceedings and continuing court supervision of the
1 In its Order entered February 14, 2005 (Dkt. 476), the Court continued that date to a later time not yet specified. 2 On January 19, 2005 – the day the Court’s January 18 Order was entered and served – Plaintiffs’ counsel wrote to Lufkin’s attorneys proposing prompt convening of an in-person meet and confer. On January 20, 2005, Lufkin’s counsel wrote to Plaintiffs’ counsel proposing to satisfy the Court’s meet-and-confer requirement by a telephone conference, and requesting a list of available dates in February. On January 24, 2005, Plaintiffs’ counsel responded by providing a list of available dates, beginning with February 1, and further repeating their suggestion that an in-person meeting, in Houston, would be more appropriate and potentially productive. When Lufkin’s counsel did not respond, Plaintiffs’ counsel reiterated their proposal in a letter sent on January 31, 2005. During a required pre-filing telephonic meet-and-confer of the parties’ counsel on the present motion to vacate by Lufkin, held on February 3, 2005, Plaintiffs’ counsel again raised the question of an in-person meet-and-confer to comply with the January 18 Order. Lufkin’s counsel, in a February 4, 2005 letter, finally offered dates for such a meeting. Plaintiffs’ counsel immediately accepted the first offered date, February 16, 2005.
Copies of all of the letters cited in this footnote are attached to the Declaration of Teresa Demchak, filed herewith.
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process of developing specific injunctive remedies, as anticipated in and required by the January 18 Order. Therefore, the Court should deny Lufkin’s motion to vacate that Order.

I.

THE COURT RETAINS THE POWER AND DUTY TO

ASSURE THAT COMPLETE AND EFFECTIVE INJUNCTIVE

RELIEF IS GRANTED; PLAINTIFFS’ MOTION FOR FURTHER

PROCEEDINGS, AND THE COURT’S JANUARY 18, 2005

ORDER, WERE PROPER STEPS TO ENFORCE THE COURT’S

AUTHORITY AND OBLIGATION.

Upon finding unlawful discrimination in a Title VII case, a district court has “not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future.” Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975), quoting Louisiana v. United States, 380 U.S. 145, 154 (1960). See also, Franks v. Bowman Transp. Co., Inc., 424 U.S. 747, 785-786 (1976) (In order to foster equal employment opportunities, Congress gave the lower courts broad power under § 706(g) to fashion “the most complete relief possible” to remedy past discrimination); Local 28 of Sheet Metal Workers’ Int’l Ass’n v. E.E.O.C., 478 U.S. 421, 446 (1986) (Congress intended to vest district courts with broad discretion to award appropriate equitable relief to remedy unlawful discrimination). Lufkin’s contention that once this Court, having found systemic discrimination, entered its Final Judgment, it could take no further steps to address the remedial duty imposed by Title VII is irreconcilably inconsistent with the sweeping command of the Supreme Court in Albemarle, Franks, and Sheet Metal Workers.
There is extensive authority for the Court’s exercise of its power to carry out its orders and enforce Title VII’s mandate even as Lufkin pursues its appeal. In Nicol v. Gulf Fleet Supply Vessels, Inc., 743 F.2d 298, 299 & n.2 (5th Cir. 1984), the Fifth Circuit noted that district courts retain jurisdiction to enforce their judgments so long as they have not been stayed or

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superseded.3 The Fifth Circuit has also held that a district court retains jurisdiction to modify a grant of injunctive relief. See Farmhand, Inc. v. Anel Eng’g Indus., Inc., 693 F.2d 1140, 114546 (5th Cir. 1982); Resolution Trust Corp. v. Smith, 53 F.3d 72, 76-77 (5th Cir. 1995); see also Int’l Ass’n of Machinists v. Eastern Air Lines, Inc., 847 F.2d 1014, 1018 (2nd Cir. 1988) (Court of Appeals affirmed authority of district court to issue injunction pending appeal).4 All of the authorities cited in this paragraph uphold the district courts’ authority during the pendency of an appeal.
The Court’s January 18 Order simply reiterates its intention to conduct further proceedings to devise specific measures to enforce its own judgment, including the injunction against ongoing discrimination and the mandatory injunctive order for Lufkin to develop nondiscriminatory assignment, promotion, and training systems. These functions are in every way consistent with the Court’s power and duty, and the Memorandum and Order. The proper, and only, way for Lufkin to seek to prevent further injunctive relief proceedings during its appeal is to obtain a stay from either this Court or the Court of Appeals. See Federal Rule of Civil Procedure 62(a) (“Unless otherwise ordered by the court, an interlocutory order or final judgment in an action for an injunction … shall not be stayed during the … pendency of an appeal”); Federal Rules of Appellate Procedure 8; Pettway v. American Cast Iron Pipe Co., 411 F.2d 998, 1003 (5th Cir. 1969); Bayless v. Martine, 430 F.2d 873, 880 (5th Cir. 1970). But, curiously, Lufkin has not even sought a stay in the five-plus weeks since the Court entered its Final Judgment and the January 18 Order.
3 Lufkin cites Nicol, but it is off-point for Lufkin’s purpose. The judgment in Nicol was a dismissal for lack of subject matter jurisdiction; by definition, and unlike the present case, that judgment left no possibility of further proceedings in the trial court. 4 Lufkin, in its Motion to Vacate at unnumbered page 10, miscites this case for a different proposition, implying that the appellate court found that the district court had abused its discretion in issuing an injunction. In fact, the district court properly issued an injunction, the appellate court held, but on grounds other than Rule 62(c).
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The further proceedings initiated by the January 18, 2005 Order are not only proper, but
necessary, and must be understood as contemplated by the general and affirmative injunctive
orders in the January 13, 2005 Memorandum and Order. Under Federal Rule of Civil Procedure
65(d) “Every order granting an injunction … shall be specific in terms; [and] shall describe in
reasonable detail, … the act or acts sought to be restrained.” The further proceedings
contemplated by the January 18 Order are a necessary and appropriate means of determining the
specific features of the mandatory injunctive relief needed to eliminate ongoing discrimination
by Lufkin and insofar as possible remedy the effects of past discrimination, while the original
prohibitory injunctive relief contained in the Memorandum and Order also remains in effect. In
the absence of a stay, this Court’s Order for further proceedings on injunctive relief is an
exercise of authority that it not only has, but is obligated to use. The Order incorporates a
sensible two-stage procedure to provide the complete relief required by Title VII: first, and
simply, prohibiting discrimination; and second, after further proceedings, permitting participation by all interested parties,5 fleshing out the affirmative measures Lufkin will be
5 This likely will include Lufkin’s three Unions. Plaintiffs have invited the Unions to participate and intervene in these proceedings, subject to appropriate limits and conditions. However, to date the Unions have responded slowly and non-specifically to Plaintiffs’ invitations, and have neither agreed to participate by invitation nor have they moved to intervene. Specifically, Plaintiffs’ counsel wrote to attorneys for the three Unions on January 31, 2005. That letter solicited the Unions’ participation in the further injunctive relief proceedings required by the Court’s January 18 Order. Ten days later, by letter dated February 9, 2005, the Unions responded by “soliciting” the parties’ consent to their intervention, without responding regarding the meet-and-confer process that is the first step required by that Order. The next day, February 10, 2005, Plaintiffs’ counsel wrote to the Unions’ attorneys, proposing a specific Stipulation and Order for intervention, informing them of the scheduled February 16 meet-and-confer session, and inviting their participation. The Unions did not reply until February 15, when their attorneys sent Plaintiffs’ counsel a letter that failed to respond specifically to the proposed stipulation for intervention and did not respond to the invitation to participate in the meet-and-confer session of the parties. To the letter sent by Plaintiffs’ counsel on February 17, 2005, asking the Unions to specify the terms of their request for intervention by responding to Plaintiffs’ previouslyproposed Stipulation, the Unions have not yet responded.
Copies of all the letters cited in this footnote are attached to the Declaration of Teresa Demchak, filed herewith.
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required to implement. The motion to vacate that order, and limit the Court’s injunctive relief to the first, prohibitory stage, should be denied.
II. LUFKIN MAY PROPERLY BE ORDERED TO PARTICIPATE IN POST-JUDGMENT PROCEEDINGS TO DEVELOP APPROPRIATE SPECIFIC MEASURES OF INJUNCTIVE RELIEF WITHOUT
COMPROMISING ITS RIGHT TO APPEAL THE FINAL JUDGMENT.
Lufkin may properly be ordered to participate in proceedings designed to assist the Court to fashion appropriate measures of specific injunctive relief, as the January 18 Order provides, and Lufkin may participate in such proceedings in a constructive manner,6 without prejudice to its positions that the Court’s liability findings were erroneous, the injunction unnecessary, and the Final Judgment should be reversed. The January 18 Order does not require Lufkin to settle the case or to waive its appellate rights, only to participate responsibly as a party in trial court proceedings that will appropriately proceed unless and until a stay is sought and granted or the Court’s judgment is reversed on appeal.7
For example, in Devex Corp. v. Houdaille Industries, Inc., 382 F.2d 17, 20-21 (7th Cir. 1967), the Court rejected plaintiffs’ argument that defendant waived its right to move to vacate a judgment including injunctive relief because defendant had consented to the form of an injunction, where defendant had expressly reserved its rights (as Lufkin has done and plaintiffs have accepted here). In Natural Resources Defense Council v. Pena, 147 F.3d 1012, 1018 (D.C. Cir. 1998), the court held that appellant had not waived its right to appeal from an injunction
6 As Lufkin appeared ready to do, at the initial meeting of the parties held February 16, 2005. See text at page 2, above. 7 Lufkin’s argument that “[b]y requiring Lufkin to agree to specific injunctive restraints, the district court implicitly requires it to waive its rights to appeal” misconstrues the nature of waiver. It is only a bar to relief if raised by another party. Plaintiffs have not raised this argument, nor will they do so, as they have clearly communicated with Lufkin in letters explicitly stating that they will not take the position that Lufkin’s participation in discussions with plaintiffs or proceedings before the Court to implement injunctive relief constitutes acceptance of the basis or propriety of that relief or a waiver of any of Lufkin’s appellate rights with respect to either the liability findings or the injunctive relief.
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where it moved for expedited entry of the injunction, noting that the “consent-to-judgment waiver doctrine provides that a party that consents to entry of final judgment waives its right to appeal the judgment unless it expressly reserves that right” (emphasis added). See also, Brumby v. Bargen, 275 F.2d 46, 49 (7th Cir. 1960) (upholding appellant’s right to appeal while observing that “Had [defendant] approved the order for injunction without limitation, then we could well agree with plaintiff’s contention [that defendant had waived the right to appeal from the injunction], for then, in fact, it would be a consent order.”); Cf. Dugas v. Trans Union Corp., 99 F.3d 724, 725-726 (5th Cir. 1996) (barring plaintiffs’ appeal of denial of a class certification motion, because plaintiff had accepted a settlement of the entire action and voluntarily consented to entry of judgment, without reserving a right to appeal the class certification issue).8
Thus, to assure that there can be no impediment to Lufkin’s full participation in the injunctive relief proceedings required by the January 18 Order, the Court should, in denying the motion to vacate that Order, expressly note that Lufkin has reserved its right to appeal from any further injunctive relief entered by the Court, as well as its underlying liability findings and the initial “cease and desist” injunction. Plaintiffs do not object to such a reservation of rights by Lufkin or a notation by the Court; indeed, we support it as it will free Lufkin of any legitimate rationale for refusing to participate constructively in the injunctive relief proceedings.9
8 The decision Lufkin relies upon for this point, Amstar Corp. v. Southern Pacific Transport Co., 607 F.2d 1100 (5th Cir. 1979), is, like Dugas, distinguishable because the proceedings under way here are not the result of a final judgment consented to by all the parties, but rather an order of the Court to which Lufkin objects even as it obeys the order. 9 Courts routinely order parties to “meet and confer” on an issue that is simultaneously being contested and/or appealed. See, e.g., North Dakota v. U.S. Army Corps of Engineers, 264 F. Supp. 2d 871, 882 (D.N.D. 2003) (court urged parties to meet and confer about non-judicial remedies while at same time they have opportunity to appeal); Natural Res. Def. Council v. Evans, No. Civ. 02-3805-EDL, 2002 WL 31553527, at *1 (N.D. Cal. 1002) (court directed parties to meet and confer while expressly stating that neither party waived right to appeal); Kennedy v. United Healthcare of Ohio, Inc., 206 F.R.D. 191, 202 (S.D. Ohio 2002) (counsel ordered to meet and confer with Magistrate Judge regarding issuance of notice, while at same time schedule set for briefing issue on appeal if stay sought).
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III. LUFKIN’S INVOCATION OF THE ROLE OF ITS UNIONS AND ITS COLLECTIVE BARGAINING OBLIGATIONS PROVIDES NO REASONS IN LAW OR FACT TO AVOID IMMEDIATE IMPLEMENTATION OF INJUNCTIVE RELIEF.
Lufkin argues that its obligation to engage in collective bargaining with its unions precludes the further proceedings ordered by the Court in the January 18 Order. In particular, Lufkin asserts that the “meet and confer” process required by the Court is inconsistent with Lufkin’s obligations under the NLRA. Lufkin’s argument ignores the facts that the Court has found broad Title VII violations, which it must therefore remedy, and that the meet and confer process is not an independent negotiation between the parties that excludes the unions, but rather an integral part of the Court-ordered remedial process, in which the unions may participate if they wish.
Although Lufkin could not, consistent with the NLRA, collectively bargain with the plaintiffs over seniority and other work rules that would violate provisions of the CBA, to the exclusion of the unions, that is not at all the process ordered by the Court. Instead, the meet-andconfer ordered by the Court is merely a part of the process by which the Court will assure that the systemic discrimination practices it found at Lufkin will be effectively enjoined and remedied. Thus, any meetings between the parties are part of the Court’s remedial proceedings, not separate private negotiations that exclude the designated bargaining agents for Lufkin’s production employees.
The Court has the duty as well as the power to modify provisions of collective bargaining agreements, or make other remedial orders that may affect collectively bargained matters, in carrying out its obligation to remedy found discrimination. See, p. 3 above. In carrying out that duty, the Court will necessarily undertake tasks that, in the absence of such a finding, could be the business of the parties to collective bargaining: balancing the interests of different groups of employees and the employer. See Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 375-76 (1976). Even if it were necessary to modify the seniority system to effect relief – which the
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plaintiffs have agreed and the Court has found it is not10 – such modifications could be undertaken as part of the process of formulating remedies. Franks v. Bowman Transp. Co., Inc., 424 U.S. 747, 775 (1976) (“we find untenable the conclusion that this form of relief may be denied merely because the interests of other employees may thereby be affected”). The process of striking appropriate remedial balances is not subject to veto by the parties to the union contract, or the wishes of the employee representatives. See, Franks, 424 U.S. at 775 (“ ‘If relief under Title VII can be denied merely because the majority group of employees, who have not suffered discrimination, will be unhappy about it, there will be little hope of correcting the wrongs to which [Title VII] is directed.’ ”) (quoting United States v. Bethlehem Steel Corp., 446 F.2d 652, 663 (2nd Cir. 1971). See also Carey v. Greyhound Bus Co., Inc., 500 F.2d 1372, 1377 (5th Cir. 1974) (employer may not use collective bargaining agreement as a shield when discriminatory practices are shown to exist).
Since the remedial processes of the Court are properly viewed as judicial, and not the subject of private collective bargaining, it follows that involvement of plaintiffs in those processes is not merely permissible, but required. The meet-and-confer between plaintiffs and Lufkin is an entirely appropriate form for that involvement to take. Moreover, nothing in the Court’s January 18 Order requires the meet-and-confer between the plaintiffs and Lufkin to be private or exclusive of the unions. On the contrary, the Court’s prior Order denying the unions’ eve-of-trial intervention attempt specifically contemplated that the unions could, if they wish, participate in formulation of the remedy.11 Consistent with that Order, plaintiffs have invited the
10 Both plaintiffs, in written submissions, and the Court, in comments at hearings on the Unions’ motion to intervene, have made it clear that they are, respectively, not seeking and not considering any changes in the seniority provisions of the collective bargaining agreements. Instead, only changes in the way Lufkin exercises the considerable discretion the collective bargaining agreement cedes to Lufkin’s management, which the Court found Lufkin exercises in a way that has unlawful adverse impact on African American employees, are open for consideration. See Plaintiffs’ Opposition to Motion to Intervene of IAM Local 1999, GMP Local 429 and Boilermakers Local 587 (Dkt. 333) at pp. 9-12. 11 Order entered November 18, 2003 (Dkt. 359), at pp. 7-8.
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Case 9:97-cv-00063-HC Document 480 Filed 02/22/2005 Page 11 of 17
unions to participate in the meet-and-confer process with Lufkin, but the unions have not so far seized this opportunity.12 Should the unions desire to discuss any possible modifications of or impact to the collective bargaining agreements as a result of the Court’s remedial proceedings, they may do so directly with the parties to this case. Should the unions prefer to stay out of the parties’ discussions, but make their positions known to the Court, they may seek to intervene in the case.
Whatever role the Unions may eventually play in the judicial process of determining injunctive remedies, Lufkin cannot, on the excuse that it is required to engage in collective bargaining with the unions, avoid the imposition of the Court’s Order to develop such remedies in the manner that the Court, in the exercise of its remedial discretion, has seen fit to require. The authorities cited by Lufkin in support of its position on this point are inapposite. Litton Financial Printing Division. v. NLRB, 501 U.S. 190, 198 (1991), like the decision in Laborers Health and Welfare Trust Fund v. Advanced Lightweight Concrete Co., 484 U.S. 539, 544 n. 6 (1988), on which Litton builds, held that an employer could not impose unilateral changes after the expiration of a collective bargaining agreement. Litton does not speak to an employer’s duties in the remedial phase of a judicial proceeding. The NLRB decisions in United States Gypsum Co., 94 NLRB 112 (1951), and Engineered Control Systems, 274 NLRB 1308 (1985), which Lufkin also relies on, simply found that those employers, based on an entire course of anti-union conduct, unlawfully refused to bargain collectively with their unions. Here, in contrast, it is the Court, not the company, that decides whether and how specific collectively bargained provisions must be changed, and, as noted above, the Unions have been invited to participate in that process.
12 See footnote 5 above, describing the correspondence between plaintiffs’ counsel and unions’ counsel on the subject of the unions’ participation in remedial proceedings.
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IV. LUFKIN’S COMPLAINTS ABOUT THE PROCEDURES FOLLOWED BY THE COURT IN ENTERING THE JANUARY 18, 2005 ORDER, AND THOSE THAT MAY BE FOLLOWED IN CARRYING OUT
THAT ORDER, ARE BASELESS AND PROVIDE NO GROUNDS TO VACATE THE ORDER.
A. Plaintiffs’ Role in the Ongoing Proceedings Required by the January 18, 2005 Order Is Neither Inappropriately Judicial Nor in Derogation of the Court’s Responsibilities. In its motion, Lufkin accuses the Court of permitting Plaintiffs to arrogate to themselves
the Court’s judicial role, and implicitly suggests that the Court is improperly delegating its judicial function to private parties. This mischaracterizes the nature and effect of the Court’s assignment of roles in the ongoing injunctive relief proceedings.
Under the Court’s January 18 Order, Lufkin must meet and confer with Plaintiffs’ counsel and receive the views of Plaintiffs with respect to necessary and appropriate measures of specific injunctive relief. That does not, of itself, mean that either Lufkin or the Court must accept what Plaintiffs propose. Lufkin’s observation that “it is still for the Court, not Plaintiffs, to make any determination of injunctive relief” (emphasis in Lufkin’s brief) is, therefore, selfevident and unremarkable. Likewise, Lufkin’s statement that any specific injunctive relief the Court may order “must [be] based on the trial record” leads nowhere because here the trial record, as evaluated by the Court in its Memorandum and Order, shows that Lufkin systematically discriminated against the class and that injunctive relief is necessary. Lufkin’s accusation that the Court’s January 18 Order improperly “delegate[s] the responsibility of making additional findings to the parties to negotiate or to Plaintiffs unilaterally to discern based on their self-serving interpretation of the trial record” is unfounded. Of course, the Court alone retains the power to decide what injunctive relief to order. Any views, proposals or interpretations the Plaintiffs may offer in the process are no more or less than the submissions of advocates for parties before the Court. Lufkin’s suggestion that the Court will uncritically adopt whatever the Plaintiffs request it to do, or delegate its responsibility to decide what remedies the law requires to Plaintiffs, demeans the Court. B. Any Monitor Appointed by the Court to Assist in Further Injunctive Relief
Proceedings Will Be Independent of the Plaintiffs, and Responsible to the Court. In its Memorandum and Order, the Court mentioned the common-sense and pragmatic possibility that “The court may also appoint a monitor to oversee Lufkin’s compliance efforts and ensure the smooth implementation of the listed requirements.” (Mem. & Order at 38) The
11

Case 9:97-cv-00063-HC Document 480 Filed 02/22/2005 Page 13 of 17
“listed requirements” of that Order include programs to assure non-discriminatory allocation of training opportunities and promotions, as well as an end to racial channeling of newly hired production employees. (Mem. & Order at 37) In fashioning and monitoring such programs, a monitor, if appointed, could fill a valuable role. However, the further injunctive relief proceedings ordered in the January 18 Order, and Plaintiffs’ role in them, do not conflate the roles of Plaintiffs and Class Counsel as representative parties and advocates, with those of the “monitor” anticipated by the Court. Lufkin’s specious assertion that “Plaintiffs cannot appoint themselves as the special master” to make recommendations to the Court for compliance with injunctive relief misrepresents the Court’s Order by suggesting that it improperly delegated judicial functions to the Plaintiffs. Instead, any monitor or special master appointed by the Court would, of necessity, be independent of both parties and responsible to the Court, not the parties or their advocates. Fed. R. Civ. P. 53(a)(2) (special master must not have relationship with, inter alia, parties or their counsel that would constitute bias or appearance of bias); id. Rule 53(g) (any action taken on special master’s recommendations or reports is function of the court); Ruiz v. Estelle, 679 F.2d 1115, 1161-62 (5th Cir. 1982).
Lufkin’s motion to vacate appears to contemplate and accept the possibility that the Court may “believe[ ] it needs assistance in establishing a process to implement its original injunction or to monitor compliance” and that therefore “it may be appropriate to appoint an independent, judicial officer as a special master to undertake this task and make any necessary recommendations for the Court’s consideration.” Plaintiffs strongly second this suggestion, and welcome the indication that the actual positions of Lufkin may not differ from Plaintiffs on this point to the extent suggested by the overheated rhetoric of Lufkin’s brief. Plaintiffs have given some thought, and made certain inquiries, along these lines, and while the present brief is perhaps not the occasion to discuss Plaintiffs’ suggestions in any detail, we would welcome the
12

Case 9:97-cv-00063-HC Document 480 Filed 02/22/2005 Page 14 of 17
opportunity to submit proposals for the Court’s consideration, preferably but not necessarily after consultations between the parties.13 C. The Court’s Prompt Entry of the January 18 Order Was Not Procedurally
Improper. Lufkin’s complaints about the speed with which the Court granted Plaintiffs’ motion for further proceedings on injunctive relief provides no grounds to vacate the January 18 Order. Many times in the course of these proceedings, the Court has exercised its inherent power to regulate proceedings and rule on matters pending before it simply and quickly, without prolonging proceedings. In many cases, those rulings have come before Plaintiffs’ counsel could submit memoranda on pending motions or matters. The January 18 Order is a particularly apt example of the Court’s exercise of its case management powers because that Order can be seen as merely carrying out its decision in the case, as set forth in the Memorandum and Order, rather than addressing a new subject. In any event, Lufkin’s point is now moot. Lufkin has raised all of the points it has in opposition to the relief sought in Plaintiffs’ original motion, in the context of the pending Motion to Vacate, and will receive the Court’s rulings, and reconsideration of the relief Lufkin opposes, when the Court next rules on this aspect of the case based on the parties’ full briefing. D. The Court Should Ignore Lufkin’s Efforts to Ascribe Purely Financial Motives to Plaintiffs and Their Counsel. At several points in its Motion to Vacate, and in particularly unprofessional and uncalledfor language, Lufkin suggests that the motivation of Plaintiffs and their counsel in suggesting the meet-and-confer process ordered by the Court in the January 18 Order was to run up attorneys’ fees. This accusation is as baseless as it is mean-spirited. The objective of Plaintiffs and the Class Counsel in seeking further injunctive relief proceedings and more specific measures of injunctive relief is, of course, to vindicate the rights of African American employees to real, and not just nominal, relief in this case. That providing the complete remedy Title VII promises may
13 For example, the Court might appoint a Magistrate of this or a nearby District to assist in further injunctive relief proceedings. Plaintiffs have identified several retired or former District Judges in Texas who might, if available, provide stature, authority, expertise, and the ability to devote time to the proceedings. There are also a number of experienced attorneys who have in other cases carried out assignments of this nature by other courts, or have the interest and ability to do so, and who would provide unbiased, expert services to assist the Court in its proceedings.
13

Case 9:97-cv-00063-HC Document 480 Filed 02/22/2005 Page 15 of 17

take more attorney time than leaving the fulfillment of that promise to Lufkin’s unsupervised and questionably reliable good faith is a truism, but not the basis for suggesting improper motives. “Plaintiffs’ attorney are, of course, not required to reduce or otherwise trim the time they spend on actions such as this, merely because the litigation will be protracted.” Ruiz v. Estelle, 553 F. Supp. 567, 576 (S.D. Tex. 1981).
As the Court is well aware, and has repeatedly seen, Lufkin’s obstructive tactics, raising of spurious issues, refusal to carry out Court orders when first made, and unnecessary motion practice have themselves greatly compounded the time necessary for Class Counsel to represent Plaintiffs effectively in this case. It ill behooves Lufkin, in a pleading filed by defense counsel who have conducted the litigation as they have, to ascribe to Plaintiffs’ attorneys a purpose of increasing the amount of their fees. In any event, the issue is a red herring. The Court should do what is necessary and appropriate to provide effective injunctive relief, including the meet-andconfer process required by the January 18 Order, without regard to the possibility that doing what will result in a just outcome may cost more than doing the least possible, and inevitably postponing the time when that just outcome will be obtained, while Lufkin seeks to overturn the Court’s orders on appeal. Finally, in a case as contentious as this one, the potential efficiencies of a constructive meet-and-confer process are likely to reduce, not increase, the attorneys’ fees compared to what would be incurred if the parties’ only dialogue is through pleadings.
CONCLUSION
The Court should deny Lufkin’s Motion to Vacate the Court’s Order of January 18, 2005.

Dated: February 22, 2005

Respectfully submitted,
By: /S/
Teresa Demchak, CA Bar No. 123989 Morris J. Baller, CA Bar No. 048928 Nina Rabin, CA Bar No. 229403 Meetali Jain, CA Bar No. 214237 Goldstein, Demchak, Baller, Borgen & Dardarian 300 Lakeside Drive, Suite 1000 Oakland, CA 94612-3534 (510) 763-9800

14

Case 9:97-cv-00063-HC Document 480 Filed 02/22/2005 Page 16 of 17 Timothy Garrigan, TX Bar No. 07703600 Stuckey, Garrigan & Castetter Law Offices 2803 North Street Nacogdoches, TX 75963-1902 (936) 560-6020 Attorneys for Plaintiffs
15

Case 9:97-cv-00063-HC Document 480 Filed 02/22/2005 Page 17 of 17

CERTIFICATE OF SERVICE I hereby certify that I have served all counsel of record in this case, including the following, with a true and correct copy of the foregoing by sending same via electronic filing to:

Douglas Hamel Christopher V. Bacon Michelle Mahony Vinson & Elkins 2806 First City Tower, 1001 Fannin Street Houston, TX 77002-6760
on this 22nd day of February, 2005.

/S/ Teresa Demchak

 
 Case 97-cv-00063-HC Document 226 Filed 08104/2003 Page 1 of 8

FOR THEEASTERNDISTRICTCOURTOF~SG -4 Ml 11: 57

LUFIGN DIVISION

:: EASTE"N~

Sylvester McClain, et al. Plaintiffs,
v.
Lufkin Industries, Inc. Defendant.

§ Civil Action No. 9:97 CV063 {COBB)
§ § § § § § § §

PLAINITFFS' REPLY TO DEFENDANT'S RESPONSE TO PLAINTIFFS' MOTION FOR RECONSIDERATION OF THE COURT'S JULY II. 2003 ORDER DISMISSING PLAINTIFFS' SYSTEMIC DISPARATE TREATMENT CLAIM AND CLASS CLAIM
FOR FRONT PAY

Case 97-cv-00063-HC Document 226 Filed 08104/2003 Page 2 8

I.

INTRODUCTION

It is clear from the plain language of Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th

Cir. 1998), that the Fifth Circuit did not intend to end over twenty-five years ofprecedent

providing for class treatment of systemic disparate treatment claims. Lufkin attempts to evade

this result by confusing the difference between resolution of individual intentional discrimination

claims and that of systemic disparate treatment claims and arguing that a disparate treatment

class action ''would require the parties to focus on each class member's individualized claims."!

Defendant's Response to Plaintiffs' Motion to Reconsider Order Dismissing Disparate Treatment

Class Claims ("Response") at 8. This contention is wrong as a matter of law. Both the Supreme

Court and the Fifth Circuit have approved the use of the class action device to litigate systemic

disparate treatment claims and have devised a method of trying those cases which clearly does

not require that each class member's individual claim be litigated.

Based on the above, plaintiffs respectfully request the Court to reverse its Order

dismissing plaintiffs' systemic disparate treatment claim and class claims for front pay.

Although plaintiffs originally requested the Court to certify these issues for appeal, in the event it

affirms its Order, plaintiffs do not believe the interests ofthe class will be served by the

additional delay that will be caused by appeal to the Fifth Circuit. Therefore, plaintiffs are

willing to proceed to trial on their disparate impact claim alone, reserving appeal of the Court's

Order until the trial is concluded. II. SYSTEMIC DISPARATE TREATMENT CLAIMS DO NOT REQUIRE THE RESOLUTION OF INDIVIDUAL ISSUES
Ignoring both Supreme Court and Fifth Circuit precedent providing that systemic disparate treatment claims are suitable for class treatment, as well as the order of proof normally followed by courts in such cases, Lufkin continues to argue that resolution of plaintiffs' systemic

I Lufkin also argues that the claims of the named plaintiffs and class representatives are not typical or common of those of the rest of the class. This is neither relevant nor appropriate at this time and should be raised in the motion to decertify the class that Lufkin clearly intends to file. Plaintiffs will respond to such arguments at that time.

1

Case 97-cv-00063-HC Document 226 Filed 08104/2003 Page 3 of 8
, disparate treatment claim2 requires the resolution of each class member's individualized claim. See Response at 8, 10. The Fifth Circuit Court of Appeals has, "routinely upheld certification of class actions to resolve Title VII cases involving ... pattern or practice claims of discrimination." Allison, 151 F.3d at 409 [emphasis added]. The approach the courts have adopted to resolve such claims was established by International Bhd. of Teamsters v. United States, 431 U.S. 324 (1977), in which the Supreme Court held that in the "initial, 'liability' stage of a pattern-or-practice suit," the plaintiff bears the burden of demonstrating that unlawful discrimination has been a regular procedure or policy followed by an employer. Id. at 360. "If successful, individual class members benefit from a presumption of back pay, their entitlement to which is determined at the second or 'remedial stage.'" Allison, 151 F.3d at 409. At the remedial stage, "class members need only prove that they were denied employment opportunities and the extent of their loss, while the burden then shifts to the employer to demonstrate that those class members were denied employment opportunities for legitimate reasons." Id. For the nearly thirty years since the Teamsters decision, courts, including the Fifth Circuit, have certified systemic disparate treatment claims and have handled such claims in the manner set forth above.3 At the liability stage, plaintiffs' systemic disparate treatment claims and disparate impact claims present similar issues and require similar proof. "The distinguishing features of the factual issues that typically dominate in disparate impact cases do not imply that the ultimate legal issue is different than in cases where disparate treatment analysis is used....
2 After years of briefing and debate on this issue, Lufkin argues for the first time that plaintiffs should be judicially estopped from arguing that the Court certified a disparate treatment claim. This is clearly prejudicial to plaintiffs, in light of the fact that plaintiffs have only five pages in which to reply to Lufkin's response. If the Court intends to entertain this argument it should permit plaintiffs to respond separately, since the fivepage reply limit does not adequately allow plaintiffs to do so. Further, aside from being untimely, this argument is also unpersuasive. Plaintiffs' statement as quoted by Lufkin - made in the context of a brief that argued that the Court's order certifying plaintiffs' Title VII and 42 U.S.C. § 1981 claims did not run afoul of Allison - is not inconsistent with the position plaintiffs have taken since Lufkin first sought to have plaintiffs' systemic disparate treatment claims dismissed. 3 Trevino v. Holly Sugar Corp., 811 F.2d 896 (5th Cir. 1987) does not, as Lufkin claims, stand for the proposition that systemic disparate treatment claims cannot be certified as class actions because individualized proof is required. Rather, the Fifth Circuit affirmed the district court's detennination that the plaintiffs failed to establish that the named plaintiff had been subjected to intentional discrimination. Id. at 905. As such, the named plaintiff no longer had a nexus with the membership of the purported class, and on that basis, the appeals court affinned the district court's denial ofclass certification. Id. at 906.
2

Case 97-cv-00063-HC Document 226 Filed 08104/2003 Page 4 of 8
Rather, the necessary premise of the disparate impact approach is that some employment practices, adopted without a deliberately discriminatory motive, may in operation be functionally equivalent to intentional discrimination." Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 987 (1988) [citation omitted]. Thus, Lufkin's efforts to draw a significant distinction between the proof to be submitted with respect to plaintiffs' disparate impact and systemic disparate treatment claims must be rejected.4
Resolution of plaintiffs' systemic disparate treatment claim does not require "consideration of each employee's individual disparate treatment claim[]." Response at 3. To be clear, plaintiffs do not intend - nor are they required - to prove all or any ofthe class members' individual disparate treatment claims. Unlike in an individual case of intentional discrimination, the plaintiff in a systemic disparate treatment case is not required to produce direct or comparative evidence of discrimination pertaining to each member ofthe class for whom relief is sought. See 1 Barbara Lindemann and Paul Grossman, Employment Discrimination Law at 45 (3d ed. 1996). "Instead, the plaintiff generally relies upon statistical evidence to create an inference of classwide discrimination." Id. Thus, a trial of plaintiffs' disparate treatment claim would, in fact, focus on "practices that allegedly affected a large group of people in a similar way," Response at 8, just as the disparate impact claim would.
To the extent resolution of class members' equitable monetary relief claims - under either a disparate impact or disparate treatment theory - requires individualized determinations at the remedial stage, courts have adopted "techniques such as the use of a special master to
4 Lufkin's contention that plaintiffs' disparate impact case-in-chiefwill principally be based on the testimony of its expert witnesses, whereas their disparate treatment claim would require testimony from up to 63 witnesses is inaccurate. While plaintiffs' systemic disparate treatment claim may very well require additional anecdotal testimony from class member witnesses, the difference is not as drastic as Lufkin suggests. Plaintiffs' preliminary witness list actually consists of only 21 non-representative class member witnesses who plaintiffs might call to testify at trial, excluding class member managers and supervisors whom plaintiffs do not intend to call as part of their case-in-chief. It is likely that only a fraction of these 21 individuals would be called to testify at trial. More importantly, the issue to be litigated at the liability stage of plaintiffs' systemic disparate treatment claim would not be each witnesses' individual disparate treatment claim, but Lufkin's broad employment practices.
3

Case 97-cv-00063-HC Document 226 Filed 08104/2003 Page 5 8
streamline the process." Allison, 151 F.3d at 409 (quoting Newberg & Conte, Newberg on Class Actions §§ 24.119-24.121 (3d ed. 1992)). As the Allison court noted, in Pettwayv. American Cast Iron Pipe Co., 494 F.2d 211 (5th Cir. 1974), the Fifth Circuit held that equitable monetary relief can be sought in a Federal Rule of Civil Procedure 23(b)(2) class action "because, as an equitable remedy similar to other fonns of affinnative injunctive relief pennitted in (b)(2) class actions, it [is] an integral component of Title VII's 'make whole' remedial scheme."s Allison, 151 F.3d at 415. Inasmuch as plaintiffs seek only equitable relief on behalf of the class, resolution of the class members' remedial claims is no different under plaintiffs' systemic disparate treatment theory than it is under their disparate impact theory. Since plaintiffs' case "involve[s] only claims for equitable monetary relief, Pettway [] control[s]," id. at 416, and plaintiffs' systemic disparate treatment claims may be properly certified under Rule 23(b)(2).
The mere availability of compensatory and punitive damages under Title VII changes none of the above analysis. The plain language of Allison makes clear that whether or not a systemic disparate treatment claim can be certified as a class action turns on the actual relief sought and that, had the Allison plaintiffs sought only equitable monetary relief, Pettway would have controlled the outcome, pennitting the plaintiffs' claims to be certified as a Rule 23(b)(2) class action. Id. at 415-16. Lufkin ignores this language and states that "as a general rule, disparate treatment classes should only be certified in cases where the questions of law or fact common to the class predominate. Lufkin, however, provides no authority whatsoever for this assertion, from Allison or elsewhere.
The only difference between a systemic disparate treatment case seeking equitable relief
S Conceding that front pay is an equitable remedy like back pay and should be treated as such for remedial purposes, Lufkin argues that front pay is "unlikely to be an appropriate remedy for Plaintiffs' alleged disparate impact claims." Lufkin's Response at 11. Whether or not such relief is "likely" to be appropriate is something that should be determined at the remedial stage, and it is inappropriate to bar class members from having access to an remedy that may be necessary to achieve "make whole" relief. Further, Lufkin acknowledges that the "Court could also order an employer to pay an employee the rate that the employee would earn in the position that the employee was supposed to have, until the desired position became available." Response at 12. This remedy Lufkin describes is, in fact, front pay, and is one of the potential remedies plaintiffs could see constituting "make whole relief' under the appropriate circumstances.
4

Case 97-cv-00063-HC Document 226 Filed 08/04/2003 Page 6 of 8

brought now and one brought before the Civil Rights Act of 1991 is the potential conflict

between the class representatives and the unnamed class members who might wish to seek

compensatory and punitive damages. Lufkin asserts that "[o]ne cannot adequately represent a

class of individuals unless one seeks the full panoply of relief to which each individual might be

entitled." Response at 10. It again cites no authority for this position, which is in direct conflict

with the plain language of both Allison and Smith v. Texaco, 263 F.3d 394 (5th Cir. 2001),

which: (1) questions whether any such conflict is created and (2) notes that such concerns can be

addressed through a notice and opt-out procedure under Rule 23(d). In Zachary v. Texaco

Exploration & Prod., Inc., 185 F.R.D. 230,244 (W.D. Tex.), the court did not consider its

discretionary powers under Ru1e 23(d), stating only that there is no clear cut right to opt out of a

Rule 23(b)(2) class action. It did, however, note that "the danger [of prejudice to absent class

members] would be greatly lessened if there was" such a right. Id. In Smith, which was decided

after Zachery, the Fifth Circuit explicitly approved the use of an opt-out and notice procedure to

cure any potential conflict that might be created by a named plaintiff's inability to seek

compensatory and punitive damages on behalf of the class. Thus, Lufkin's arguments must fail. III. CONCLUSION
Based on the foregoing and the arguments in plaintiffs' motion, plaintiffs respectfully

request the Court to reconsider its July 11,2003 Order dismissing plaintiffs' systemic disparate

treatment claim. As plaintiffs seek only equitable relief on behalf of the class, this claim can be

handled in the traditional, orderly manner that has been established by the Supreme Court and

the Fifth Circuit. While plaintiffs urge the Court to reverse its previous ruling, in the event the

Court does not choose to do so, plaintiffs are prepared to proceed on their disparate impact claim

alone and reserve appeal of this issue until the end ofthe trial on that claim.

Dated: ~-6 f- I, ZOO a

Respectfully Submitted,

By: ~: f. ~

Tereslt Demchak

I

Darci E. Burrell

Joshua G. Konecky

Goldstein, Demchak, Baller, Borgen & Dardarian

300 Lakeside Drive, Suite 1000

5

Case 97-cv-00063-HC Document 226 Filed 08/04/2003 Page 7 of 8 Oakland, CA 94612-3534 (510) 763-9800 Timothy Garrigan Stuckey, Garrigan & Castetter Law Offices 2803 North Street Nacogdoches, TX 75963-1902 (936) 560-6020
6

Case 97-cv-00063-HC Document 226 Filed 08/04/2003 Page 8 8

PROOF OF SERVICE

Case: Sylvester McClain, et al. v. Lufkin Industries, Inc. Civil Action No. 9:97CV063

STATE OF CALIFORNIA ) ) SS
COUNTYOFALAMEDA )

I have an office in the county aforesaid. I am over the age of eighteen years and not a party to the within entitled action. My business address is 300 Lakeside Drive, Suite 1000, Oakland, California 94612.

I declare that on the date hereof I served a copy of

PLAINTIFFS' REPLY TO DEFENDANT'S RESPONSE TO PLAINTIFFS' MOTION FOR RECONSIDERATION OF THE COURT'S JULY 11, 2003 ORDER DISMISSING PLAINTIFFS' SYSTEMIC DISPARATE TREATMENT CLAIM AND CLASS CLAIM FOR FRONT PAY

by causing a copy thereofto be mailed by depositing the same ina sealed envelope in the U.S. mail with postage prepaid and addressed to:

Douglas Hamel Christopher V. Bacon Michelle Mahony Vinson & Elkins 2806 First City Tower 1001 Fannin Street Houston, TX 77002-6760

I declare under penalty ofperjury under the laws of the State of California that the above is true and correct.

Executed at Oakland, California on August 1,2003.

Printed Name

Si~tbcr

28

 
 Case 9:97-cv-00063-HC Document 540 Filed 05/20/2005 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

LUFKIN DIVISION

Sylvester McClain, et al. Plaintiffs,
v. Lufkin Industries, Inc.
Defendant.

§ Civil Action No. 9:97 CV 063 (COBB) § § § § § § § §

PLAINTIFFS’ REPLY TO LUFKIN’S RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION FOR APPOINTMENTS

Case 9:97-cv-00063-HC Document 540 Filed 05/20/2005 Page 2 of 7

I.

THE PROPOSED SPECIAL MASTER APPOINTMENT

Lufkin’s Response in Opposition (“Opposition” or “Opp.”) to Plaintiffs’ Motion for Appointment of a Special Master and Court-Appointed Expert Witness (“Motion”) is fundamentally flawed in that it argues against hypothetical positions that bear little resemblance to those taken in Plaintiffs’ Motion as to both the roles of Special Master and Court and the nature of the Special Master proceedings sought.
Lufkin mischaracterizes what the Motion proposes as a further stage in trial proceedings. (Opp. at 1, 5, 8)1 Plaintiffs’ Motion seeks nothing of the sort, but rather a proceeding based on the trial record and the Court’s findings and conclusions that tracks common modern practice in the use of special masters “to oversee issues arising after trial [including] … matters of crafting and overseeing the remedial stage of the litigation.” Scheindlin and Redgrave, “The Evolution and Impact of the New Federal Rule Governing Special Masters,” 51-FEB Fed. Law. 34 (Feb. 2004) (“Scheindlin”). The Court’s January 19, 2005 Order [Dkt. 464] suggests the possible appointment of a Special Master “to determine specific details of non-monetary remedial measures and to enter such supplemental remedial orders as may be necessary and appropriate” – not to retry the case as Lufkin accuses Plaintiffs of wanting to do.
In the Memorandum and Order entered January 13, 2005 [Dkt. 461], at 38, the Court alluded to the prospect of more “specific” measures to achieve the goal of correcting the discriminatory practices it found and stated that it “may also appoint a monitor to oversee Lufkin’s compliance efforts and ensure the smooth implementation of the listed requirements.” Appointment of a Special Master post-trial to assist and advise the Court on what those specific measures should be and how they should be carried out neither usurps nor revisits the basic factfinding and decision-making authority of the Court. See authorities cited in Motion at 3-4.

1 Lufkin’s Opposition erroneously accuses Plaintiffs of “mov[ing] essentially to reopen the trial record including the taking of evidence … re-litigat[ing] their claims and submit[ting] additional evidence after the trial has concluded.” (Opp. at 1) These accusations set up a straw man target with no resemblance to the proceedings Plaintiffs seek.
1

Case 9:97-cv-00063-HC Document 540 Filed 05/20/2005 Page 3 of 7
Lufkin’s attack on the Court’s authority to appoint a Special Master is far wide of the
mark. Lufkin relies principally on the narrow, restrictive view of the circumstances in which
special masters may be used as articulated nearly half a century ago by the Supreme Court in La
Buy v. Howes Leather Co., 352 U.S. 249 (1957). But Rule 53 has been amended since then, and
modern practice has significantly evolved in the direction of broader and more flexible uses. See generally, Scheindlin, at 35-38.2 The 2003 amendments to Rule 53 were specifically intended to adopt this more modern view. Id. 3 La Buy simply no longer expresses the intent of the
amended Rule and practice under it. Scheindlin at 35.
The authorities Lufkin relies upon to attack the Court’s authority to use a special master
here do not support Lufkin’s positions. Instead, they support Plaintiffs’ proposals. The
delegation disapproved in La Buy was for trial of the case, prior to any determination by the
court of “the basic issues involved in the litigation,” including the defendant’s liability. La Buy
at 250, 253. In contrast, this Court has already tried and decided the “basic issues” and found
Lufkin liable and required to implement remedies. In United States v. Microsoft Corp., 147 F.3d
935, 940, 954-955 (D.C. Cir. 1998), the disapproved reference was “to propose findings of fact
and conclusions of law” and there was no explicit reservation by the court of the right to de novo
review of the special master’s report. In this case the Court has entered detailed findings of fact
and conclusions of law, and the Proposed Order submitted by Plaintiffs with their Motion
explicitly provides (at paragraph 4c) for de novo review of the Special Master’s report and
2 The introduction to this article, whose co-author is Judge Shira Scheindlin of the Southern District of New York, aptly summarizes this evolution: “The modern practice and use of special masters gradually evolved from a strict and limited role for trial assistance prescribed by Rule 53 to a more expanded view, with duties and responsibilities of masters extending to every stage of litigation. Recognizing that practice had stretched beyond the language of long-standing rule, the Advisory Committee on Civil Rules understood an effort to conform the rule to practice. The result is a new rule (effective Dec. 1, 2003) that differs markedly from its predecessor and sets forth precise guidelines for the appointment of special masters in the modern context.” Id. at 35. Judge Scheindlin was, at the time of writing the article, a member of the Rules Advisory Committee and the former chair of its Rule 53 subcommittee. Id. at 38 FN a1. 3 “By the end of the 20th century, . . . a master’s role in complex litigation grew to include … implementation and enforcement of post-judgment orders and decrees.” Id. at 36. The Rule 53 amendments were designed “[t]o conform Rule 53 to the contemporary practice of using masters during the … post-trial stages” of complex litigation. Id. at 37.
2

Case 9:97-cv-00063-HC Document 540 Filed 05/20/2005 Page 4 of 7
recommendations after a full opportunity for the parties to object to them. In Stauble v. Warrob, Inc., 977 F.2d 690, 691, 694-696 (1st Cir. 1991), the court held impermissible an order “referring fundamental issues of liability to a master for adjudication, over [the parties’] objection” without any procedure for de novo review by the court; and further noted, with regard to the type of reference sought by Plaintiffs here, that special masters may “appropriately perform a variety of consummatory functions, e.g. superintending … the implementation of structural injunctions.” In Sierra Club v. Clifford, 257 F.3d 444, 445, 447 (5th Cir. 2001), the improper reference was to adjudicate cross-motions for summary judgment on basic liability and remedy issues, with no provision for de novo review by the court. In re Bituminous Coal Operators’ Ass’n, 949 F.2d 1165 (D.C. Cir. 1991), was characterized in the same court’s later opinion in Microsoft, 147 F.3d at 956, as ‘”effectively rul[ing] out nonconsensual references in nonjury cases except as to peripheral issues such as discovery and remedy (emphasis added).” The reference Plaintiffs propose here fits squarely within that permissible exception.
There are also strong practical reasons to appoint a Special Master to conduct advisory proceedings on injunctive relief. Lufkin protests that there is no showing that it requires any supervision or further remedial directives with regard to initial assignments and promotions (Opp. at 1, 9-10); and asserts that there is no “evidence that Lufkin needs assistance or has failed to comply with any mandatory injunction entered by the district court” (Opp. at 1) and that it “has taken substantial steps to implementing the prescribed relief” (Opp. at 9). However, Lufkin does not disclose what if anything it has actually done to assure effective implementation of the Court’s injunctive orders or to eradicate its discriminatory practices, either in its Opposition4 or
4 Lufkin’s Opposition contains vague statements about purportedly remedial actions it has taken in three areas – retention of an unidentified expert to provide diversity training of an unspecified nature to unspecified “management” and to “advise Lufkin on its personnel policies and procedures;” instructing the TWC to refer applicants in the same way that Lufkin contended at trial they had always been referred to Lufkin during the liability period; and having a single unilateral bargaining session with the unions “to consider revisions to Lufkin’s promotion processes,” with unspecified, if any, results. (Opp. at 2) These “steps” that “Lufkin has taken” (id.) fail to provide any assurance that effective remedial actions have been taken or that the discriminatory practices found by the Court have been dismantled.
3

Case 9:97-cv-00063-HC Document 540 Filed 05/20/2005 Page 5 of 7
anywhere else in the record.5 Given its decades-long record of resistance to change, Lufkin is
unlikely to carry out such unspecified and unsupervised remedial steps unilaterally. See
Plaintiffs’ Motion, pp. 3-4 and fns. 3 and 4.
Lastly, Lufkin protests that there is no need for a Special Master because the District
Judge, or a Magistrate Judge, can fulfill any required functions in remedial proceedings (Opp. at
6-7, 10). Plaintiffs do not intend to suggest by their Motion that the Court is not capable of
understanding the remedial issues or conducting the necessary proceedings itself, should it wish
to do so. Plaintiffs’ concern is that the Court’s calendar may not provide opportunity for the type
of sustained attention and concentrated commitments of time that may be required to fashion specific relief in the absence of any cooperation or participation by Lufkin.6 Should this
perception be inaccurate, Plaintiffs would welcome the conduct of the necessary proceedings by
the Court. However, the Court should avoid delay due to the limited availability of time of the
officer mainly responsible for gathering and focusing the proposed remedies for the Court’s
ultimate consideration. Appointment of a Special Master who could commit blocks of time to
the effort, such as the experienced management labor lawyer proposed by Plaintiffs, would
5 Lufkin has consistently taken the position that “[i]t is now up to Lufkin to implement the Court’s injunction,” Defendant’s Motion to Vacate the Court’s Order of January 18, 2005 [Dkt. 468], p. 7; and has rebuffed any attempts by Plaintiffs to find out what steps it is taking, much less to discuss them with Plaintiffs as required by the Court’s January 19, 2005 Order [Dkt. 464]. Thus, as described in Plaintiffs’ Status Report to the Court [Dkt. 507], at 3-4, after a day-long meeting of the parties in which Plaintiffs’ counsel presented proposals for a variety of specific remedial measures to Lufkin, Lufkin’s counsel told Plaintiffs’ counsel that Lufkin would provide information on the remedial actions that Lufkin was working on, but never followed through by providing any such information. To this day, Plaintiffs remain in the dark on that subject. Moreover, just two days after the day long meet and confer session, Lufkin, without advising either the Court or Plaintiffs or seeking clarification from the Court regarding Lufkin’s obligation under the January 13 Order, informed the unions that compliance with that Order required the modification of the seniority and other provisions of the Collective Bargaining Agreement. See letter dated March 3, 2005 from T. Demchak and T. Garrigan to Hon. H. Cobb, and Letter dated Feb. 18, 2005 from D. Hamel to counsel for the unions, attached thereto. 6 In Plaintiffs’ counsel’s experience, at this stage of proceedings employers will almost uniformly find it in their interest to participate in fashioning a remedial order they can live with by reaching agreement with the plaintiffs. When this happens, the parties do almost all of the work and the Court has merely to review and approve their agreements. In this case, however, Lufkin has made it clear that it will fight every inch of the way, requiring an extraordinary degree of judicial involvement and intervention.
4

Case 9:97-cv-00063-HC Document 540 Filed 05/20/2005 Page 6 of 7

provide valuable additional resources to the Court. Moreover, Lufkin’s bearing the cost for this process could create an incentive for Lufkin’s cooperation.

II. THE PROPOSED EXPERT WITNESS APPOINTMENT

Lufkin’s opposition to the appointment of an expert witness or consultant also

mischaracterizes Plaintiffs’ proposal. Plaintiffs do not seek to resume trial, as Lufkin suggests.

Rather, Plaintiffs suggest appointment of a qualified person, such as the two professors identified

in the Motion, who would “provide advice in the form of testimony in evidentiary proceedings in

which the parties would participate.” Motion at 8. Such testimony would not be directed at any

review of the Court’s prior findings of whether Lufkin is liable, or whether remedies should be

granted. Lufkin’s contention that the process proposed by Plaintiffs would deprive it of the

opportunity to cross-examine the expert on his opinions or advice, or to present its own views, is

contrary to Plaintiffs’ actual proposals. See, Motion at 10, Proposed Order at paragraph 10c.

Finally, Lufkin ignores Plaintiffs’ alternative proposal that the Court order Lufkin to retain a

qualified and impartial expert whose appointment and recommendations would be subject to

review by Plaintiffs’ counsel and approval by the Court, rather than subject to Lufkin’s unilateral

(and undisclosed) decision-making processes. See, Motion at 10, Proposed Order at paragraphs

6b-c.

III. CONCLUSION

If the Court believes a Special Master and/or court-appointed expert witness would be of assistance, it has authority to make those appointments as proposed in Plaintiffs’ Motion.

Dated: May 20, 2005

Respectfully submitted,

By: /S/

Timothy Garrigan, TX Bar No. 07707703600 Stuckey, Garrigan & Castetter Law Offices 2803 North Street Nacogdoches, TX 75963-1902 (936) 560-6020

Teresa Demchak, CA Bar No. 123989 Morris J. Baller, CA Bar No. 048928 Goldstein, Demchak, Baller, Borgen & Dardarian 300 Lakeside Drive, Suite 1000 Oakland, CA 94612-3534 (510) 763-9800

Attorneys for Plaintiffs

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Case 9:97-cv-00063-HC Document 540 Filed 05/20/2005 Page 7 of 7

CERTIFICATE OF SERVICE I hereby certify that I have served all counsel of record in this case, including the following, with a true and correct copy of the foregoing by sending same via electronic filing to:

Douglas Hamel Christopher V. Bacon Vinson & Elkins 2806 First City Tower 1001 Fannin Street Houston, TX 77002-6760
on this 20th day of May, 2005.

/S/ Teresa Demchak

 
 Case 9:97-cv-00063-HC Document 512 Filed 03/30/2005 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

LUFKIN DIVISION

Sylvester McClain, et al. Plaintiffs,
v. Lufkin Industries, Inc.
Defendant.

§ Civil Action No. 9:97 CV 063 (COBB) § § § § § § § §

PLAINTIFFS’ REPLY TO DEFENDANT LUFKIN INDUSTRIES, INC.’S RESPONSE TO PLAINTIFFS’ MOTION REQUESTING THE COURT TO TAKE JUDICIAL
NOTICE OF RELEVANT FACTS CONTAINED IN THE RECORD OF ANOTHER CASE BEFORE THIS COURT AND IN THE PUBLIC RECORD (“PLAINTIFFS’
MOTION FOR JUDICIAL NOTICE”)

Case 9:97-cv-00063-HC Document 512 Filed 03/30/2005 Page 2 of 7

I.

INTRODUCTION

Plaintiffs have requested that the Court take judicial notice of Vinson & Elkins’ (“V&E”)

hourly rates billed in another case litigated in this Court not only because V&E represents

Defendant Lufkin Industries, Inc.’s (“Lufkin”) in this case, but additionally as evidence

demonstrating prevailing market rates of attorneys litigating complex cases in this Court. In

moving for judicial notice of these and other undisputed facts, Plaintiffs do not seek to

circumvent this Court’s earlier order regarding the discoverability of Lufkin’s fees and expenses,

but rather to meet Plaintiffs’ burden of production of evidence regarding prevailing market rates

in support of Plaintiffs’ pending motion for attorneys’ fees. Lufkin opposes Plaintiffs’ Motion for Judicial Notice. However, in doing so, Lufkin does not dispute the facts Plaintiffs request the

Court to judicially notice: that V&E billed certain hourly rates in another case in this Court; that

the evidence before the Court in that case included a declaration of the Honorable Robert M.

Parker, and the year of admission to the bar of each of the V&E attorneys who billed time in that

case. Instead, Lufkin argues that V&E’s hourly rates are irrelevant to the Court’s determination

of the reasonableness of Plaintiffs’ counsel’s hourly rates. Lufkin, however, misstates the

holding in Harkless v. Sweeny Indep. Sch. Dist., 608 F.2d 594 (5th Cir. 1979) and applicable

case law regarding the relevance of evidence of prevailing market rates in support of an

application for attorneys’ fees. As such, Lufkin fails to demonstrate why the Court cannot and

should not take judicial notice of the facts proffered by Plaintiffs. Therefore, the Court should

grant Plaintiffs’ motion.

II. PLAINTIFFS ASK THE COURT TO TAKE JUDICIAL NOTICE OF UNDISPUTED FACTS ON THE RECORD IN IN RE FOOD FAST HOLDINGS, LTD.
As a threshold matter, Plaintiffs do not ask the Court to take judicial notice of the factual
findings in In Re Food Fast Holdings, but instead of undisputed facts that were presented on the

record of that case. See Motion for Judicial Notice at 3. While the “reasonableness” of V&E’s

rates in In Re Food Fast Holdings may be a disputed fact or mixed question of fact and law,

Plaintiffs do not argue that this Court should be bound by the determination on this issue in that

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Case 9:97-cv-00063-HC Document 512 Filed 03/30/2005 Page 3 of 7
case. Therefore, the cases Lufkin cites for the proposition that the Court may not take judicial notice of another court’s factual findings are inapposite to the question before the Court.1
The specific “facts” on which Plaintiffs seek judicial notice are the hourly rates that V&E charged and the fact that Judge Parker submitted a declaration in In Re Food Fast Holdings, Ltd.2
These facts are as indisputable as the fact “that March 27, 2005 lands on a Sunday” or “the
listing price of a particular stock on the New York Stock Exchange at a particular moment in time.”3 See Lufkin Opposition at 3. These facts are also “capable of accurate and ready
determination by resort to [a] source [i.e., the record in In Re Food Fast Holdings, Ltd.] whose
accuracy cannot be questioned,” see Fed. R. Evid. 201, and the Court should take judicial notice
of the facts Plaintiffs proffer.
1 The cases cited by Lufkin concern mixed determinations of fact and law or disputed factual conclusions, which stand in marked contrast to the undisputed facts for which Plaintiffs seek judicial notice. See Taylor v. Charter Med. Corp., 162 F.3d 827, 830 (5th Cir. 1998) (affirming district court’s refusal to take judicial notice of another court’s determination that a hospital was a “state actor,” noting that such a determination is a mixed question of fact and law that is beyond the scope of Rule 201); Int’l Star Class Yacht Racing Ass’n v. Tommy Hilfiger U.S.A., Inc., 146 F.3d 66, 70 (2d Cir. 1998) (trial court erred in taking judicial notice of determination in previous case regarding what constituted standard industry practice); Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1081-83 (7th Cir. 1997) (trial court erred by taking judicial notice of prior factual finding that terms of class action settlement were “fair, reasonable, and adequate.”); Holloway v. Lockhart, 813 F.2d 874, 878-79 (8th Cir. 1987) (district court erred by applying a different case’s factual finding that the use of tear gas against the inmates was reasonable and necessary); United States v. Jones, 29 F.3d 1549, 1553 (11th Cir. 1994) (judicial notice of different case’s factual determination that plaintiff refused to work unless he received a salary increase not appropriate when whether plaintiff refused to work had been a disputed issue of fact). 2 Plaintiffs also request that the Court take judicial notice of information provided on the Texas State Bar Association’s website showing the year of admission to the bar of the V&E attorneys who billed time in In Re Food Fast Holdings. Lufkin does not contest that this is the type of generally known information not subject to reasonable dispute or that the Court may judicially notice these facts. 3 Lufkin resorts to Black’s Law Dictionary’s definition of “adjudicative fact.” However, the Advisory Committee Notes to Federal Rule of Evidence 201(a) state that “[a]djudicative facts are simply the facts of the particular case.” Clearly, that V&E billed certain hourly rates and Judge Parker submitted a declaration in In Re Food Fast Holdings, Ltd. are facts of that particular case that may be judicially noticed pursuant to Rule 201.
2

Case 9:97-cv-00063-HC Document 512 Filed 03/30/2005 Page 4 of 7
III. HARKLESS V. SWEENY INDEP. SCHOOL DIST. DOES NOT HOLD THAT OPPOSING COUNSEL’S RATES ARE IRRELEVANT.
Contrary to Lufkin’s assertion, the Fifth Circuit in Harkless v. Sweeny Indep. School Dist., did not hold that an opposing counsel’s billing rates are irrelevant. See Lufkin Opposition at 3. In fact, Harkless says nothing at all about an opposing counsel’s billing rates. Instead, the issue in Harkless was whether plaintiffs’ counsel’s time was reasonable where plaintiffs’ counsel did not maintain contemporaneous time records and claimed more hours than opposing counsel billed in the case. On appeal, the Fifth Circuit found that the district court had correctly concluded that plaintiffs’ counsel had spent their time efficiently and the fact that defense counsel spent less time on the case than plaintiffs’ counsel was irrelevant “so long as all compensated work [of plaintiffs’ counsel] was necessary and performed in an expeditious manner.” Harkless, 608 F.2d at 598. Thus, it is not the law in this Circuit, as Lufkin claims, that Lufkin’s counsel’s billing rates are irrelevant in determining the reasonableness of Plaintiffs’ counsel’s rates.4 See also cases cited at Plaintiffs’ Motion for Judicial Notice at 2.5
Whether a court should consider an opponent’s attorneys’ fees “depends, in part, on the objections raised by the opponent to the fee petition going to the reasonableness of the fee petition.” Coalition to Save Our Children v. State Bd. of Educ., 143 F.R.D. 61, 64 (D. Del., 1992). In this case, Lufkin has indicated its intent to challenge Plaintiffs’ counsel’s billing rates. Plaintiffs, therefore, are entitled to provide evidence of Lufkin’s counsel’s billing rates to rebut Lufkin’s objection. At the very least, the Court should reserve ruling on Plaintiffs’ Motion for
4 The Eleventh Circuit subsequently concluded that “While the concerns noted earlier [in Harkless] regarding the relevancy of evidence of the other sides’ hours and fees are still prevalent, the trial judge may consider them as going to the weight of the evidence rather than its discoverability and admissibility.” Henson v. Columbus Bank & Trust Co., 770 F.2d 1566, 1575 (11th Cir. 1985). The Eleventh Circuit was, at the time of its decision in Henson, acutely aware of the Fifth Circuit’s reasoning in Harkless, since it was in 1980, shortly after the Harkless decision, that the Fifth Circuit split into Fifth and Eleventh Circuits. 5 While Lufkin is correct that the court in U.S. Golf Corp. v. Eufaula Bank & Trust Co., 639 F.2d 1197 (5th Cir. 1981), relied on the testimony of several other lawyers in Eufala, rather than opposing counsel’s rates, Lufkin ignores that Plaintiffs seek to introduce V&E’s hourly rates billed in In Re Food Fast Holdings, Ltd. not solely because V&E represents Lufkin in this case, but additionally as evidence of hourly rates charged by attorneys of comparable experience who handle complex cases in this Court.
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Case 9:97-cv-00063-HC Document 512 Filed 03/30/2005 Page 5 of 7
Judicial Notice until Lufkin has submitted its opposition to Plaintiffs’ fees’ motion and formally stated its position on the reasonableness of Plaintiffs’ counsel’s hourly rates.6
IV. LUFKIN MISSTATES THE APPLICABLE LAW ON THE RELEVANCE OF EVIDENCE OF PREVAILING MARKET RATES. Lufkin’s contention that under Johnson v. Georgia Highway Express, Inc., 488 F.2d 714
(5th Cir. 1974), “examining and comparing” Plaintiffs’ counsel’s rates to prevailing rates in the
community for similar services by lawyers of reasonably comparable skill, experience and
reputation is “not enough nor allowed in this Circuit,” see Lufkin Opposition at 5, is a clear
misstatement of the law. In the Fifth Circuit, a district court, in determining a reasonable
attorney’s fees, must first “calculate a lodestar fee by multiplying the number of hours
reasonably expended on the litigation by a reasonable hourly rate.” Rutherford v. Harris County, Tex., 197 F.3d 173, 192 (5th Cir. 1999).7 Hourly rates “are to be calculated according to the
prevailing market rates in the relevant community.” Blum v. Stenson, 465 U.S. 886, 895 (1984);
Green v. Adm’rs of Tulane Educ. Fund, 284 F.3d 642, 662 (5th Cir. 2002) (same).
Lufkin attempts to argue that the Court’s holding in Blum does not mean what it says by
relying on a footnote in the decision that addresses the “inherent difficulty” of determining “an
appropriate market rate for the services of a lawyer.” Blum, 465 U.S. at 896. Lufkin, however,
selectively quotes from the decision and fails to note that the Court ultimately concluded that: To inform and assist the court in the exercise of its discretion, the burden is on the fee applicant to produce satisfactory evidence--in addition to the attorney's own affidavits--that the requested rates are in line with those prevailing in the
6 While the Court granted Lufkin’s Motion for Protection from Plaintiffs’ Fifth Request for Production of Documents for “the reasons cited by Lufkin,” it did so before Plaintiffs had submitted their opposition to Lufkin’s Motion for Protection challenging Lufkin’s interpretation of Harkless regarding the relevancy of opposing counsel’s fees. Moreover, as discussed above, evidence of prevailing market rates – whether of opposing counsel or other counsel in the relevant market – is relevant and necessary to the Court’s determination of a reasonable lodestar. 7 Lufkin’s contention that the Court uses the Johnson factors to initially determine the lodestar misreads Johnson’s progeny. Subsequent to Johnson, the Fifth Circuit adopted the “lodestar” method of calculating attorney’s fees. Graves v. Barnes, 700 F.2d 220, 222 (5th Cir. 1984) (citations omitted). “ ‘Under this refinement of the Johnson test,’ [t]he ‘lodestar’ is equal to the number of hours reasonably expended multiplied by the prevailing hourly rate in the community for similar work. The lodestar is then adjusted to reflect other factors such as the contingent nature of suit and the quality of the representation.’” Id. (citations omitted) (emphasis added).
4

Case 9:97-cv-00063-HC Document 512 Filed 03/30/2005 Page 6 of 7

community for similar services by lawyers of reasonably comparable skill, experience and reputation. A rate determined in this way is normally deemed to
be reasonable, and is referred to--for convenience--as the prevailing market rate.

Id. at 896 n. 11 (emphasis added).

Blum, as adopted by the Fifth Circuit in Green, clearly contemplates, indeed requires, a

district court to consider evidence regarding the billing rates of other comparably experienced

attorneys in the relevant market. V&E’s rates in other complex cases in this Court are such

evidence. Accordingly, the Court should take judicial notice of V&E’s rates, not just because

V&E represents Lufkin in this case, but also because such evidence is probative of “prevailing

[rates] in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.” Blum, 465 U.S. at 896.8 See, e.g., Nat’l Ass’n of Concerned

Veterans v. Sec’y of Def., 675 F.2d 1319, 1325 (D.C. Cir. 1982) (“Recent fees awarded by the

courts or through settlement to attorneys of comparable reputation and experience performing

similar work are also useful guides in setting an appropriate rate.”).

V. CONCLUSION

For all of the reasons discussed above and in Plaintiffs’ Motion for Judicial Notice,

Plaintiffs respectfully request that the Court take judicial notice of the undisputed facts Plaintiffs

proffer. Dated: March 30, 2005
Respectfully submitted,
By: /S/
Teresa Demchak, CA Bar No. 123989 Morris J. Baller, CA Bar No. 048928 Goldstein, Demchak, Baller, Borgen & Dardarian 300 Lakeside Drive, Suite 1000 Oakland, CA 94612-3534 (510) 763-9800

Timothy Garrigan, TX Bar No. 07703600 Stuckey, Garrigan & Castetter Law Offices 2803 North Street Nacogdoches, TX 75963-1902 (936) 560-6020
Attorneys for Plaintiffs

8 Lufkin’s unsupported claim that “[b]ecause of market conditions, and less competition from small boutiques, transactional lawyers in large firms generally bill substantially higher rates than litigators,” see Opposition at 5, is pure self-serving speculation. Lufkin will have the opportunity to prove its claim in its opposition to Plaintiffs’ motion for fees. However, Lufkin’s bald assertion does not make it so, nor defeat Plaintiffs’ request that the Court judicially notice V&E’s rates in a self-described “complex” case in this Court. At best, Lufkin’s contention – if proven – goes to the weight accorded to evidence of V&E’s rates, not whether the Court may judicially notice such evidence.

5

Case 9:97-cv-00063-HC Document 512 Filed 03/30/2005 Page 7 of 7

CERTIFICATE OF SERVICE I hereby certify that I have served all counsel of record in this case, including the following, with a true and correct copy of the foregoing by sending same via electronic filing to:

Douglas Hamel Christopher V. Bacon Vinson & Elkins 2806 First City Tower 1001 Fannin Street Houston, TX 77002-6760
on this 30th day of March, 2005.

/S/ Teresa Demchak

6

 
 Case 9:97-cv-00063-RC Document 614 Filed 03/06/2009 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

LUFKIN DIVISION

Sylvester McClain, et al. Plaintiffs,
v. Lufkin Industries, Inc.
Defendant.

§ Civil Action No. 9:97 CV 063 (CLARK) § § § § § § § §

PLAINTIFFS’ REPORT ON PLAINTIFFS’ PROPOSED OMBUDSPERSON CANDIDATES
A. INTRODUCTION
Pursuant to the Parties’ Joint Report on Proposal for Injunctive Relief (Dkt. 606), the Parties were to “attempt to reach an agreement who would serve in [the] role [of ombudsperson], no later than February 27, 2009.” Id. at 2. Should the Parties not reach agreement by that date, the Parties each “will propose [no later than March 6, 2009] three candidates for the Court to consider.” Id.
Plaintiffs proposed the three candidates discussed herein to Lufkin on February 12, 2009. See Declaration of Teresa Demchak (“Demchak Decl.”), filed herewith, at ¶ 3. On February 26, 2009, at Lufkin’s request, Plaintiffs provided the hourly rate each of Plaintiffs’ proposed candidates would bill should he be selected as the ombudsperson in this matter. Id. at ¶ 5. Lufkin did not provide its proposed ombudsperson candidates to Plaintiffs on or before February 27, 2009, nor on March 2, 2009, as it subsequently advised Plaintiffs it would do. Id. at ¶¶ 5-7. Instead, Lufkin advised Plaintiffs of two of its proposed three candidates on March 6, 2009, id. at ¶ 9, which did not allow time for Plaintiffs to conduct a meaningful review of the candidates’ backgrounds and qualifications to serve as the ombudsperson, nor for the Parties to meet and

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Case 9:97-cv-00063-RC Document 614 Filed 03/06/2009 Page 2 of 5
confer regarding the candidates prior to the March 6, 2009 deadline by which the Parties jointly agreed to submit the names of proposed candidates. Because Plaintiffs want to give the Court adequate time to review, and should the Court desire, interview candidates for the ombudsperson position, Plaintiffs are submitting the names and proposed candidates to the Court and will continue to research Lufkin’s candidates in order to comment on them as the Parties’ Joint Report on Proposal for Injunctive Relief provides.1 See id. at 2-3. Once Plaintiffs receive complete information on all of Lufkin’s candidates, they also will confer with Lufkin to determine if the Parties can agree on a single candidate. B. PLAINTIFFS’ PROPOSED OMBUDSPERSON CANDIDATES
Plaintiffs propose the following three candidates to serve as ombudsperson. For the Court’s convenience, Plaintiffs attach the biographical statements of each of the candidates as exhibits to this submission. Plaintiffs’ counsel have provided each of the proposed candidates copies of the Fifth Circuit Court of Appeals’ February 29, 2008 order and the transcript of the December 5, 2008 status conference at which the Court discussed its views regarding the possible role of an ombudsperson in monitoring the Court’s injunctive relief orders in this case. Demchak Decl. at ¶ 10. Each of the candidates has expressed his interest and availability to serve as the ombudsperson. Id. at ¶ 11.
1. R. Lawrence Ashe Mr. Ashe is a partner in Ashe, Rafuse & Hill, LLP located in Atlanta, Georgia. A copy of his biographical statement is attached as Exhibit 1. His hourly billing rate for this assignment – not his normal billing rate – would be $575.

1 Although Plaintiffs have not had time to thoroughly research Lufkin's candidates and do not know who the third candidate is, the first two do not appear to have any experience overseeing the implementation of equitable relief in a complex class action as Plaintiffs’ proposed candidates do. Plaintiffs will provide additional comments on Lufkin’s proposed candidates in a subsequent submission.

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Case 9:97-cv-00063-RC Document 614 Filed 03/06/2009 Page 3 of 5

2. Hunter R. Hughes, III
Mr. Hughes is a partner in Rogers & Hardin, located in Atlanta, Georgia. A copy of his biographical statement is attached as Exhibit 2. His hourly billing rate for this assignment – not his normal billing rate – would be $495.
3. John Wymer, III
Mr. Wymer is a partner in the Atlanta office of Paul Hastings. A copy of his biographical statement is attached as Exhibit 3. His hourly billing rate for this assignment – not his normal billing rate – would be $590.
All of Plaintiffs’ proposed candidates are management-side attorneys who have substantial experience in representing employers and have defended employment discrimination class action cases. Two of the candidates (Hughes and Ashe) have served as mediators in employment discrimination class action cases. All of the candidates also have substantial experience in advising employers on the implementation of employment practices that comply in both the letter and spirit of the fair employment laws. One of the candidates (Hughes) also has served as a court-appointed Special Master in overseeing and resolving disputes in a number of employment discrimination class action cases that were resolved through settlement and the entry of consent decrees. In Plaintiffs’ view, this is the kind of experience necessary for the person who will serve as ombudsperson in this case. That person not only must understand good and sound human resources practices, but he also must know and understand: (1) an employer’s legal requirements under the fair employment laws, (2) how to effectively investigate and resolve complaints of racial discrimination, and (3) how to interpret, and how to monitor implementation of, and compliance with, the Court’s orders.2
2 Plaintiffs are aware of a number of cases in which individuals with the type of background and experience proposed here by Plaintiffs were appointed to serve as external monitors. See e.g., Gonzalez v. Abercrombie & Fitch Stores, Inc., Case Nos. 03-2817 SI, 04-4730 and 04-4731 (N.D. Cal.) (Fred Alvarez, labor and employment litigation partner at Wilson Sonsini selected as court-appointed monitor to oversee implementation and compliance of consent decree settling race and national origin class discrimination claims); Ridgeway, v. Denny’s, Inc., Case No., C93-20202 (N.D. Cal.), United States v. TW Services, Inc. and Denny’s Inc., C-93-20208 (N.D. Cal.), and Dyson v. Denny’s, Inc., C.A. No. DKC 93-1503 (D. Md.) (Sharon Lybeck Hartmann,

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Case 9:97-cv-00063-RC Document 614 Filed 03/06/2009 Page 4 of 5

Plaintiffs endorse each of these candidates for the ombudsperson position and respectively request the Court’s consideration of them.

Dated: March 6, 2009

Respectfully submitted,

By: /S/
Teresa Demchak, CA Bar No. 123989 tdemchak@gdblegal.com Morris J. Baller, CA Bar No. 048928 mballer@gdblegal.com Goldstein, Demchak, Baller, Borgen & Dardarian 300 Lakeside Drive, Suite 1000 Oakland, CA 94612-3534 (510) 763-9800
Timothy Garrigan, TX Bar No. 07703600 tim@sgclaw.org Stuckey, Garrigan & Castetter Law Offices 2803 North Street Nacogdoches, TX 75963-1902 (936) 560-6020
Attorneys for Plaintiffs

_________________________ (Continued …)
former litigation partner selected as court-appointed monitor to oversee implementation of settlement in race discrimination class action brought on behalf of African American customers of Denny’s restaurants); see also, Wynne v. McCormick & Schmick’s Seafood Restaurants, Inc., Case No. 06-3153CW (N.D. Cal.) (plaintiffs’ employment discrimination class action litigation attorney Barry Goldstein, selected as court-appointed monitor to oversee implementation and compliance with settlement of race discrimination in employment class action lawsuit); EEOC v. The Dial Corporation, Case No. 99 C 3356 (N.D. Ill.) (George F. Galland, Jr., partner in Miner Barnhill & Galland, Nancy B. Kreiter, of counsel to Women Employed, a Chicago-based women's rights organization and Reginald E. Jones, counsel in Coudert Brothers, LLP, selected as court appointed monitors in settlement of sexual harassment case).

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Case 9:97-cv-00063-RC Document 614 Filed 03/06/2009 Page 5 of 5

CERTIFICATE OF SERVICE I hereby certify that I have served all counsel of record in this case, including the following, with a true and correct copy of the foregoing by sending same via electronic filing to:

Douglas Hamel Christopher V. Bacon Vinson & Elkins 2806 First City Tower 1001 Fannin Street Houston, TX 77002-6760
on this 6th day of March, 2009.

/S/ Teresa Demchak

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 Case 9:97-cv-00063-HC Document 544-1 Filed 05/31/2005 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

LUFKIN DIVISION

Sylvester McClain, et al. Plaintiffs,
v. Lufkin Industries, Inc.
Defendant.

§ Civil Action No. 9:97 CV 063 (COBB) § § § § § § § §

PLAINTIFFS’ RESPONSE TO AND COMMENTS ON DEFENDANT LUFKIN INDUSTRIES, INC.’S REPORT TO THE COURT ON REMEDIAL MEASURES
UNDERTAKEN TO DATE

Case 9:97-cv-00063-HC Document 544-1 Filed 05/31/2005 Page 2 of 11
INTRODUCTION
Plaintiffs submit these supplemental comments on and response to Defendant Lufkin Industries, Inc.’s (“Lufkin”) report to the Court on the remedial measures it has undertaken to date to comply with the Court’s January 13, 2005 Order.1 Before addressing the substance of Lufkin’s report, Plaintiffs note the timing of Lufkin’s submission provided little time for the Court or Plaintiffs to adequately review the report and materials submitted with the report prior to the May 25, 2005 hearing on all pending motions, including Plaintiffs’ motion for further proceedings regarding injunctive remedies. The Court set the hearing on May 5, 2005. See Order Setting Hearing (Dkt #533). Lufkin offered no explanation why it waited until the day before the hearing to submit its report, notwithstanding Plaintiffs’ repeated requests for such information from Lufkin and Lufkin’s commitment to provide such information to Plaintiffs “as it becomes available.” Plaintiffs’ Report to Court and Proposal for Injunctive Remedies, (“March 21, 2005 Report”) filed March 21, 2005 (Dkt #507), at 4, and letters dated February 24, 2005 from T. Demchak to D. Hamel, id., Ex. 2, and February 28, 2005 from D. Hamel to T. Demchak, id., Ex. 3.
Lufkin’s unilateral insistence on developing and implementing remedial measures in secret, and its expectation that Plaintiffs and the Court will be satisfied with after-the-fact cryptic and general descriptions, are unrealistic. Under the circumstances of this litigation, considerably more skepticism is warranted. Plaintiffs have proposed that specific remedies be designed with discussion or input from both parties.
Lufkin’s consistent refusal to discuss or even provide information on its remedial efforts to the Court and Plaintiffs during the over four months since the Court found Lufkin liable for systemic classwide discrimination further demonstrates why the Court – either directly or by delegation to a Special Master – must provide more specific directives and oversight to Lufkin
1 That report was in the form of a letter from Mr. Hamel, with five exhibits (Dkt.# 543).
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regarding injunctive remedies it must implement to address and eliminate the effects of the longstanding discrimination found by the Court.2 Absent such specific directives, Lufkin will act unilaterally – and, as it has to date, as discussed below, inadequately – to carry out orders that are the Court’s responsibility. A. Lufkin’s EEO Training
As Plaintiffs commented at the May 25, 2005 hearing, Lufkin’s decision to provide EEO training to its managers, as reported in the May 24 report, may be a positive first step. However, as reported by Lufkin, the EEO training it has already provided is apparently all of the training on the subject it intends to provide to its managers. Notably missing from the training outline is any indication that the Court’s findings were disclosed to or reviewed with Lufkin’s management personnel, including first line supervisors; or that the training specifically addressed any of the particular problems, or even types of problems, that the Court found exist at Lufkin.3 On the contrary, from Lufkin’s report it appears that the training was a non-specific, off-the-shelf general overview of EEO law and issues, like those that Lufkin claimed at trial its managers had
2 A further indication of Lufkin’s unwillingness to provide adequate information to the Court and Plaintiffs to enable a meaningful assessment of Lufkin’s current practices is the statements made by Lufkin’s counsel during the May 25 hearing, providing information on numbers of promotions of hourly and salaried Lufkin employees since January, but no information regarding the number of applicants for such positions. Without this information, it is impossible to credit counsel’s assertion that the selections indicate steps toward compliance by Lufkin. 3 This example illustrates why it is essential that Lufkin be required to submit any proposed remedial actions or programs to Plaintiffs for review and comment and the Court for approval, prior to implementation of the action or program. Without such oversight and left to its own devices, Lufkin has shown that it is unable to develop remedial measures that adequately and effectively address the discriminatory practices found by the Court.
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been attending for years.4 From Lufkin’s Report, it is possible that the training was hastily arranged for the purpose of reporting that some “training” had been provided, instead of having been thoughtfully designed for remedial purposes in light of the Court’s findings.
Furthermore, Lufkin has not reported that its managers have, in fact, reviewed the Court’s findings. The Court will recall that evidence presented at trial showed that Lufkin managers consistently have not received information regarding the racial composition of their workforces or racial impact of their policies and procedures. For example, the evidence demonstrated that managers typically do not receive copies of Lufkin’s Affirmative Action Plan that it is required to prepare and submit to the U.S. Department of Labor in order to be eligible to compete for federal contracts. See, Plaintiffs’ Proposed Post-Trial Findings of Fact and Conclusions of Law (“Proposed Findings”) ¶¶ 238-240. Similarly, the evidence showed that Lufkin’s HR personnel did not share the fact that the Office of Federal Contract Compliance Programs (“OFFCP”) twice found Lufkin in violation of the anti-discrimination provisions of federal law with the managers of the departments where the violations were found. Proposed Findings ¶ 209.
Moreover, Plaintiffs are informed by class members that the only notice of the Court’s January 13, 2005 Memorandum and Order that Lufkin has provided to its employees is by posting on employee bulletin boards a copy of the press release Lufkin issued after the Court entered the Order. In the press release, Lufkin states that it disagrees with the Court’s findings, that it intends to appeal the order, and is confident that it will prevail on its appeal. See copy of press release, attached hereto as Exhibit 1.
4 Without additional information, and based on the timing of the training, it appears possible that the training was hastily arranged so that Lufkin could report to the Court that some “training” – not a training program thoughtfully designed for remedial purposes in light of the Court’s orders – had occurred prior to the hearing. In any event, as Exhibits D and E to the report show, a substantial portion of the six hour training period was given over to topics such as the Equal Pay Act (a law addressing solely gender discrimination issues), sexual harassment issues, Americans With Disabilities Act (ADA) issues, and lengthy, apparently abstract discussions of statutes and legal principles unlikely to be of much use to most supervisors and managers.
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It is difficult to understand how Lufkin can engage in good faith efforts to comply with the January 13 Order – which has not been stayed – if it does not explain to its management personnel and employees the findings of discrimination the Court made and how Lufkin intends to address those findings.5
Additionally, Lufkin’s May 24 report to the Court also failed to discuss what if any other role the HR consultants Lufkin retained to provide EEO training to its management personnel will play. However, in Lufkin’s opposition to Plaintiffs’ Motion for Appointment of a Special Master, Lufkin stated that it had retained an HR consultant to review its personnel policies and procedures. Thus, the record is unclear on whether such a review has taken place, or will take place in the future, and what, if any, recommendations resulted from the review or are the objective of any future review. B. Initial Assignment Procedures
Lufkin reports that the TWC now makes the decision of which applicants to refer to Lufkin for entry level positions. See May 24 Report at 2. This remedial effort sounds very much like the practice Lufkin claimed at trial that it had been operating under, a claim that was inconsistent with the evidence and rejected by the Court. Lufkin has provided no documentation or other evidence of the allegedly changed practices, nor any explanation for why the changes were not disclosed to Plaintiffs or the Court before they were implemented.
Lufkin contends that it has removed the subjectivity from the hiring and initial assignment process, and thus has essentially fixed the problem found by the Court that resulted in the disproportionate assignment of African Americans to the Foundry and under-selection of African Americans for other divisions. Lufkin has provided no evidence about its “new” procedures, only its attorney’s characterization of them. Also, Lufkin does not report that it is monitoring the current system for adverse impact, or that it has provided any mechanism by 5 Lufkin appears to be operating under the assumption that to acknowledge the findings will jeopardize its position on appeal.
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which others could verify the changes or their implementation. However, monitoring is essential. Should the current system result in adverse impact of African Americans (either in over-assignment to the Foundry or under-assignment to other divisions), Lufkin cannot simply wash its hands of the problem and blame TWC. Lufkin cannot lawfully accommodate the disproportionate assignment of African Americans made by its agent. Lufkin must collect and analyze the results of its selection procedures as required by the EEOC’s Uniform Guidelines on Employee Selection Procedures, 29 C.F.R. § 1607. In the context of this litigation, the data gathering and analysis required by the Guidelines will also facilitate monitoring by Plaintiffs and the Court.
C. On-The-Job Training
Lufkin’s written report of the steps it is taking with regard to on-the-job training differs from the oral report Lufkin’s counsel, Mr. Hamel, provided at the May 25 hearing.6 However, regardless of the slight variations in the description of the new “procedure,” it is defective and inadequate for numerous reasons.
First, under the procedure the first line supervisor retains total discretion in allocating job assignments without any guidelines or criteria.7 This is the same practice the Court has already found discriminates against African American employees. Second, the procedure limits on-the-
6 Lufkin’s written report states that “every six months” the first line supervisor “solicits from all employees reporting directly” to him those employees’ interest in on-the-job training opportunities. See May 24 Report at 3. However, at the May 25 hearing Lufkin’s counsel reported that Lufkin posts a notice requesting employees to identify training they would like to receive. Thus, this element of Lufkin’s procedure is not clear. It also is not clear whether Lufkin actually has implemented this procedure. Plaintiffs are informed by class members that they are unaware of any postings for on-the-job training in any of Lufkin’s production departments. 7 At the hearing, Mr. Hamel stated that “preference” would be given to African Americans on the list. This is problematic. Plaintiffs are not seeking, and do not interpret the Court’s order to require, that African Americans be given preferences. What Plaintiffs are seeking – and what the law requires – is that Lufkin have policies and procedures that are race neutral and fairly administered using objective, job-related and non-discriminatory selection criteria.
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job training to only “those jobs under [the first line supervisor’s] control.”8 Thus, the procedure provides no opportunity for employees to be trained for jobs outside their job classifications. Third, the procedure contains no provision for recordkeeping or monitoring to ensure that implementation of the procedure does not result in adverse impact. Fourth, the procedure contains no provision to educate all employees fairly about how particular on-the-job training, or temporary assignments, might impact future promotions. Additionally, Lufkin does not describe how, if at all, it will record the on-the-job training employees may receive under this new procedure in the employees’ personnel files or elsewhere so that managers making selection decisions in which such training may be a relevant factor will be informed that the employee has received the training.
Finally, Lufkin provides no information regarding how it has or intends to inform employees of this new procedure to ensure that they are aware of it, understand it, and utilize it. This is a particularly important aspect of implementation of any remedial provision in a company where, as the Court has found, African American employees have been discouraged or deterred from bidding on jobs and requesting on-the-job training. See Mem. and Order at pp. 20-28. Against this historical backdrop, any remedial efforts by Lufkin must be introduced to employees in a way that will alleviate concerns – especially among African American employees – that the procedures are not “business as usual” and in a way to encourage employees’ trust and participation in the procedure. Lufkin’s “on-the-job training procedure” addresses none of these issues. D. Formal Training
Plaintiffs’ comments regarding on-the-job training are equally applicable to Lufkin’s report regarding formal training. In light of the limited formal training Lufkin has recently
8 As Mr. Hamel noted in his presentation at the hearing, the first line supervisors’ areas of responsibility are narrow.
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provided9 and the need for full participation of all employees expressing interest in the training, Plaintiffs have no additional comments on Lufkin’s proposal, except to say that Lufkin has not developed a policy or procedure on how it will ensure fairness and non-discrimination in any formal training it may provide for which participation may be limited to less than all those expressing an interest in the training. E. Promotions
1. Hourly Promotions Lufkin’s description of its “improved recordkeeping system with respect to hourly employees subject to the collective bargaining agreement” (“CBA”) does not address the basic problems found by the Court – that Lufkin and the CBA afford Lufkin management discretion (unguided by objective criteria) to make promotions to numerous bargaining unit positions, to bypass seniority and the bid list, or to decide whether to use an “objective” criteria other than seniority in selecting employees for promotion. See Mem. and Order at pp. 5-6. Lufkin’s proposal includes the provision that if an African American employee is disqualified for any reason related to a subjective determination of ability, Lufkin will review the disqualification with the employee and union, and if no agreement is reached, the employee will be advised of his right to file a grievance. This proposal does nothing to eliminate discretion, actually creates more opportunities for discretion to affect promotion decisions, is not remedial, and does not provide any opportunity for monitoring. The proposal ignores the findings of the Court, this Court’s continuing jurisdiction to monitor and oversee Lufkin’s compliance, and the class nature of this case. Lufkin must collect, analyze and report to the Court and Plaintiffs information regarding bargaining unit promotions to allow a determination of whether the promotions are discriminatory, not solely with respect to an individual class member, but as to the class as a whole. Moreover, Lufkin cannot allow the unions to usurp the Court’s and the
9 Foundry ESL classes and Trailer Division welding training. Report, pp. 3-4.
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class representatives’ roles in ensuring that Lufkin’s promotion practices do not result in adverse impact against African American employees. Similarly, Lufkin cannot substitute the union grievance procedure for the Court’s and the class representatives’ roles in monitoring and ensuring Lufkin’s compliance with the Court’s orders.
Lufkin’s representation that it has begun to negotiate with the unions regarding modifications of the CBA to comply with the Court’s orders, see May 24, Report at 4, is especially troubling. Plaintiffs outlined our concerns regarding this issue in our March 3, 2005 letter to the Court to which we attached a letter dated February 18, 2005 from Lufkin’s counsel to the unions’ counsel.
Plaintiffs were also concerned to hear from both Lufkin’s counsel and the unions’ counsel, at the May 25, 2005 hearing, that a further negotiating session between the unions and Lufkin to discuss modifications of the CBA to comply with the remedial order is planned, and that Plaintiffs have not been asked to participate in the session. Plaintiffs must be involved in any discussions regarding Lufkin’s compliance with the Court’s orders. Furthermore, as Plaintiffs explain in our March 3, 2005 letter, no modifications of the CBA – and certainly no revisions to the seniority provision – are necessary to implement the Court’s order.10
2. Salaried Promotions Lufkin’s proposal regarding salaried promotions does not address the Court’s findings in a meaningful or effective way. Lufkin proposes to monitor such promotions up to three months after the fact, as opposed to at the time of the actual promotion. Lufkin proposes to review the promotions “based on the specific requirements of the job,” but offers no promise that the “requirements of the job” are valid and job related and not, as the trial evidence demonstrated, subject to the discretion of individual managers. Lufkin provides no indication that it will collect or analyze salaried promotions data by race, to monitor for adverse impact. Instead, as with 10 We find this all the more troubling in light of Lufkin’s inaccurate assertion to the Unions at their February 2005 meeting that the Court’s orders require use of racial quotas in promotions.
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bargaining unit promotions, Lufkin, states that it will review promotions on an individual, but not class basis. Finally, Lufkin makes no provision for efficient monitoring by Plaintiffs and the Court.

CONCLUSION

Lufkin’s May 24, 2005 report to the Court further demonstrates that it does not have the interest, commitment or ability to fashion remedies to effectively address the discriminatory practices found by the Court in the absence of specific direction and greater oversight by the Court – directly or by reference to a Special Master – and Plaintiffs.11 For all of these reasons, Plaintiffs renew their request that the Court appoint a Special Master and enter further, more specific orders regarding injunctive remedies.

Dated: May 31, 2005

Respectfully submitted,

By: /S/
Teresa Demchak, CA Bar No. 123989 Morris J. Baller, CA Bar No. 048928 Nina Rabin, CA Bar No. 229403 Goldstein, Demchak, Baller, Borgen & Dardarian 300 Lakeside Drive, Suite 1000 Oakland, CA 94612-3534 (510) 763-9800
Timothy Garrigan, TX Bar No. 07703600 Stuckey, Garrigan & Castetter Law Offices 2803 North Street Nacogdoches, TX 75963-1902 (936) 560-6020
Attorneys for Plaintiffs

11 Plaintiffs believe that Lufkin’s slow and half-hearted steps may be mere palliatives, designed to distract the Court from requiring more rigorous remedies while Lufkin pursues the appeal which it hopes will save it from having to make any reforms of real substance.
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CERTIFICATE OF SERVICE I hereby certify that I have served all counsel of record in this case, including the following, with a true and correct copy of the foregoing by sending same via electronic filing to:

Douglas Hamel Christopher V. Bacon Vinson & Elkins 2806 First City Tower 1001 Fannin Street Houston, TX 77002-6760
on this 31st day of May, 2005.

/S/ Morris J. Baller

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 Case 9:97-cv-00063-RC Document 607 Filed 02/19/2009 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

LUFKIN DIVISION

Sylvester McClain, et al. Plaintiffs,
v. Lufkin Industries, Inc.
Defendant.

§ Civil Action No. 9:97 CV 063 (CLARK) § § § § § § § §

PLAINTIFFS’ SEPARATE REPORT TO THE COURT PURSUANT TO THE DECEMBER 5, 2008 ORDER

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I.

INTRODUCTION

At the Status Conference on December 5, 2008, the Court ordered Plaintiffs and Defendant Lufkin Industries, Inc. (“Lufkin”) to confer on a “methodology on injunction” and advise the Court of those issues on which they were in agreement and identify those issues on which they were not in agreement. The Parties are submitting a joint report (“Joint Report”) to the Court in which they identify and discuss the substantial areas of injunctive relief on which they have reached agreement. Plaintiffs submit this separate report to identify those areas on which the Parties have not been able to reach agreement and to discuss Plaintiffs’ position on each matter.
1. Duration of the Court’s Jurisdiction
The Parties disagree on how long the Court should exercise continuing jurisdiction over Lufkin. Plaintiffs propose seven (7) years with a provision for extension of the Court’s jurisdiction if Lufkin does not demonstrate that it has complied for the last three years of the retained jurisdiction period, as well as a provision that if Lufkin has demonstrated successful compliance for the first five (5) years of the retained jurisdiction period, it could petition the Court for early termination of the Court’s jurisdiction.
Plaintiffs’ position is that there has to be sufficient time for Dr. Campion – should the Court direct Lufkin to retain him as the Parties have recommended – to conduct his assessment, make his recommendations, Lufkin to implement the recommendations, and the Parties, the ombudsperson (see below) and the Court to determine whether the recommendations are effective in addressing the Court’s liability findings and in ensuring that the discriminatory practices found by the Court do not recur. Moreover, under the circumstances of this case, the record evidence of pervasive discrimination found by the Court and Lufkin’s history of

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recalcitrance1 and ignoring short-term orders or conciliation agreements to remedy similar
discrimination in the past– or reverting to discriminatory practices once the orders or agreements
expired2 –the term should extend over a substantial period.3
2. Authority of the Ombudsperson With Regard to Analysis of Promotion Data and Complaint Investigation
As discussed in the Joint Report, the Parties have agreed that the Court should appoint an
external ombudsperson who would have the authority to monitor Lufkin’s compliance with the
Court’s remedial orders and injunction.4
a. The Parties propose that “[t]he ombudsperson should have the authority to
review any documents maintained by Lufkin described in Paragraph 4 [of the Joint Report], audit
1 Lufkin represented to Judge Cobb that it had implemented remedial measures which in fact it had not. Specifically, Lufkin advised the Court in May 2005, that it had implemented an on-thejob training program for hourly employees and had retained a consultant to review, and advise it on, its personnel practices. Post-remand discovery revealed otherwise. Both John Havard, Lufkin’s Human Resources’ manager, designated by Lufkin pursuant to Federal Rule of Civil Procedure 30(b)(6) regarding human relations and EEO issues, and Mr. Perez, Lufkin’s Vice President and General Counsel, admitted in depositions that Lufkin had not implemented either of these actions. 2 In the two years before this case was filed, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) found on two separate occasions that Lufkin’s initial assignment and promotion practices – the same practices at issue in this litigation – discriminated against minority employees, including African Americans. See Plaintiffs’ Trial Exs. 60, 66. Although Lufkin entered into conciliation agreements with the OFCCP under which it agreed to take corrective actions, see Plaintiffs’ Trial Exs. 61, 69, Judge Cobb, eight years later, after a bench trial, found that Lufkin had continued to discriminate by its unmonitored delegation of subjective decision making to its predominantly white managers resulting in unlawful disparate impact on African American employees in initial assignments and promotions. 3 In fashioning appropriate injunctive relief a court may consider a defendant’s past and postjudgment conduct. EEOC v. Rogers Bros., Inc., 470 F.2d 965, 966 (5th Cir. 1972) (“The [defendant’s] past conduct is a relevant factor to be considered” in the court’s order of injunctive relief); Morrow v. Crisler, 491 F.2d 1053 (5th Cir. 1974) (underscoring the importance of considering post-verdict conduct in determining whether the district court ordered sufficient injunctive relief). 4 The Parties also have agreed to a process and schedule to attempt to reach agreement on a candidate to propose to the Court. Joint Report at 2-3.

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Lufkin’s promotion procedures, practices and related decisions, and conduct an independent analysis of Lufkin’s promotion-related data.” Joint Report at 5-6.
“The Parties also agree that the ombudsperson should also provide the Court with reports on the promotion data that he receives from Lufkin.” Id. The Parties disagree, however, on what the data must show for the ombudsperson to report to the Court that additional investigation is warranted. Lufkin’s position is that the data must reveal “statistically significant discrepancies of promotions adverse to black employees.”
Plaintiffs’ position is that the data need show only “any significant discrepancies of promotions adverse to black employees.” The reasons for Plaintiffs’ position are that while “statistical significance” is required for a finding of “unlawful” disparate impact,5 here there already has been a judicial finding of unlawful discrimination and where the ombudsperson finds that there are continuing patterns of disparities adverse to the class , which in his opinion, are “significant,” this is a sufficient threshold for him to advise the Court that further investigation is warranted to determine the causes of the disparities and, if necessary, to propose further remedial measures. Under these circumstances discrepancies may be of importance but not “statistically significant” because of small sample size. Additionally, Plaintiffs believe that the ombudsperson, an external monitor with subject matter expertise, who will be overseeing implementation of a remedy for found unlawful discrimination should have flexibility in reviewing the data and determining on his own when the data reveal a pattern that suggests a need for further investigation and not be limited to a standard that must be met for a determination of unlawful discrimination.
The Parties also disagree on how often the ombudsperson should report his promotion analyses to the Parties and the Court. Plaintiffs’ position is that the ombudsperson should make such reports at least semi-annually and, at his discretion, more frequently if warranted by the results of his analyses of the information he receives from Lufkin.
5 See e.g., Castaneda v. Partida, 430 U.S. 482 (1977).

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b. The Parties further agree that the ombudsperson also will have authority to receive, investigate and attempt to resolve certain complaints from Lufkin employees. Joint Report at 3-4. The Parties agree that the ombudsperson’s authority would extend to complaints from class members regarding alleged promotion-related discrimination, non-compliance and retaliation for bringing a promotion-related discrimination or compliance-related complaint to Lufkin, a union or the ombudsperson. Id.
The Parties disagree on whether an employee should be required to complain about promotion-related decisions initially to Lufkin’s Human Resources (“HR”) Department or – if the employee is a member of a labor union – to his or her union before complaining to the ombudsperson. It is Plaintiffs’ position that, at least initially,6 a class member wishing to complain about alleged race discrimination in the promotion process should be able to elect whether to complain to: (1) Lufkin’s HR Department or the union, or (2) the ombudsperson.
The reasons for Plaintiffs’ position are that: (1) Lufkin’s HR Department and its unions have been ineffective in dealing with complaints of race discrimination and (2) many of the decisions Lufkin’s managers make in their exercise of subjectivity that can affect an employee’s ability to qualify for promotions are not covered by the Collective Bargaining Agreement (“CBA”). Plaintiffs’ position is supported by Judge Cobb’s findings. For example, Judge Cobb found that day to day work assignments are not governed by the CBA and that under the CBA, there is no right to a specific position within a job classification. The Court found that Lufkin’s supervisors have broad latitude to schedule workers as they see fit and that no one checks or oversees that process. Final Amended Judgment at 21. The Court also found that “[t]he unions, which are supposed to act as watchdogs, are called in only when a worker is directly disadvantaged. When a white worker receives an unfair advantage that hurts no one else
6 By “initially,” Plaintiffs suggest that the optional procedure they propose remain in place at least for a year during which time the ombudsperson through his communications with Lufkin’s internal monitor (see Joint Report at 4-5) can determine whether Lufkin has the resources and ability to competently receive, investigate and resolve such complaints.

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specifically, such as an absence that is not marked or a chance to train on a new machine, the unions have no leverage.”7 Id. at 22-23. Judge Cobb also found that Lufkin’s managers often
discourage African Americans from bidding on jobs or not accepting jobs that they successfully
bid on. Id. at 23. Such manager conduct is not grounds for a grievance under the CBA.
With respect to promotion-related matters that are covered by the CBA, there is no
obligation that an employee use the internal grievance procedure. For example, an hourly
employee who believes that he or she did not get a promotion on account of his or her race has
the option of using the grievance procedure, filing a charge of discrimination with the Equal
Employment Opportunity Commission (EEOC), both, or neither. Accordingly, Plaintiffs believe
these employees also should have the option of using the grievance procedure or making a
complaint directly to the ombudsperson.
Additionally, at trial, Plaintiffs presented testimony from a number of class members who complained about racial discrimination to Lufkin’s HR personnel to no avail.8 In fact, Judge
Cobb found that employees who did complain about racial discrimination to Lufkin’s HR personnel – indeed even to its then-CEO – were subjected to retaliation.9 Id. at 23. Testimony at
7 The evidence presented at trial demonstrated that Lufkin treats complaints of discrimination that are filed through the union grievance procedure in the same way it treats all other grievances and not with any heightened scrutiny despite Lufkin’s obligations under both Title VII and the CBA not to engage in racial discrimination. Plaintiffs’ Trial Exhibit (“PX”) 115c. Moreover, under the grievance procedure, complaints of discrimination by hourly employees are investigated by Lufkin managers who are alleged to have engaged in the discrimination. 8 See Plaintiffs’ Proposed Post-Trial Findings of Fact and Conclusions of Law (Dkt. 451) ¶¶ 212225. Class member Vivian Crain, testified at trial that she heard Viron Barbay, a current employee of Lufkin’s Human Resources Department, using racially derogatory language and stereotypes when referring to racial minorities, including African Americans. Judge Cobb credited Ms. Crain’s testimony. Final Amended Judgment at 20. 9 Final Amended Judgment at 23 (“Florine Thompson and Sylvester McClain … had expressed discontent with aspects of Lufkin’s race-related policies; both were demoted from salaried positions to hourly positions. Ms. Thompson has earned two associate degrees, but was demoted from her salaried position and now works as a security guard. She testified that her demotion occurred shortly after she raised concerns about a hostile working environment with Lufkin management.”).

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trial also revealed that none of the current HR Department personnel have any formal education or training in HR administration or management.10 Plaintiffs’ post-remand discovery revealed that there are no African American employees in Lufkin’s HR department;11 that Lufkin has not promulgated any written guidelines to individuals responsible for investigating discrimination complaints; that there are no written protocols for investigating such complaints; that complaints of employment discrimination are not recorded or tracked electronically and that Lufkin’s HR manager has not reviewed internal complaint procedures from other companies.12
Plaintiffs hope that Lufkin will, in light of its obligation to provide equal and fair employment opportunities to all of its employees, take the opportunity to professionalize its HR Department and implement an effective internal employee complaint mechanism. To date, however, it has not done so and in the absence of such action, class members who believe they have been subjected to race discrimination in promotion-related matters should be able to complain directly to the ombudsperson.
c. The parties also disagree on what authority the ombudsperson would have should he receive complaints of alleged discrimination regarding non-promotion related employment practices. Plaintiffs’ position is that these complaints should be referred back to the Company for investigation. However, these complaints, particularly if discerned by the ombudsperson to reflect a pattern of discriminatory conduct, could be relevant to whether Lufkin is complying with the Court’s orders and the ombudsperson should have the authority to review

10 Trial Transcript (“Tr.”) Day 4 at 202:17-19; Tr. Day 4 at 14:18-25; PX 155 at L-15802. 11 Transcript of Deposition of John Havard (“Havard Depo.”), taken July 9, 2008, at 25:20-22. 12 Havard Depo. at 199:15-200:23.

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with the Company its resolution of the complaints and, where the ombudsperson finds evidence to suggest non-compliance with the Court’s orders, take appropriate action.13
3. Manager Accountability Assessment Measures
The Parties disagree on whether Lufkin should be required to develop and implement
procedures for assessing manager accountability for assuring the provision of equal employment
opportunities and compliance with the Court’s remedial orders. Lufkin currently does not
evaluate the performance of its managers on their compliance with the fair employment laws or
promotion of workforce fairness and diversity. Plaintiffs submit that formal mechanisms to hold
managers accountable for compliance with the Court’s orders are essential, especially in light of Judge Cobb’s findings of discriminatory exercise of discretion by managers.14 Such an
assessment can and should be part of the managers’ annual performance evaluation process,
should be demonstrated by objective and statistical measures and can be something Dr. Campion
can assist the company in developing and implementing. The results of the evaluations, with
regard to the superiors’ assuring career development opportunities for African American
13 The Parties agree that in cases where employees complain to the ombudsperson that the terms of the injunction have not been followed, or where black employees complain about discriminatory promotion-related decisions, the ombudsperson should have authority to conduct additional fact finding which could include requesting documents, information and data from Lufkin and interviewing supervisors and employees. The ombudsperson should report quarterly to the Court on the number of non-compliance and promotion-related complaints that the ombudsperson has received and the ombudsperson’s findings and on those complaints. Plaintiffs’ counsel and Lufkin’s counsel should be given a copy of these reports and an opportunity to respond. See Joint Report at 6. 14 For example, Judge Cobb found that “[w]hite employees can be, and are, selected and groomed for further advancement and managerial roles. Black employees are more likely to be placed in dead-end positions and left to seek training on their own, outside of regular work hours.” Amended Final Judgment at 21. Judge Cobb also found that “Because managers and supervisors at Lufkin give whites preferential treatment, blacks are less likely to gain the necessary skills. Even positions awarded to the senior bidder regardless of qualification can be influenced when supervisors are discouraging blacks from applying black advancement. It is thus not surprising that blacks are hesitant to bid and may choose to withdraw their bids even if selected.” Id. at 23.

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employees under their supervision, must be consequential in terms of the managers’ own performance evaluation, career advancement and promotion, and compensation. The system of managerial accountability should be visibly supported, and consistently reinforced, by senior level executives who set the tone and provide the lead for corporate decision-making.

Dated: February 19, 2009

Respectfully submitted,
By: /S/ Teresa Demchak, CA Bar No. 123989 Morris J. Baller, CA Bar No. 048928 Goldstein, Demchak, Baller, Borgen & Dardarian 300 Lakeside Drive, Suite 1000 Oakland, CA 94612-3534 (510) 763-9800
Timothy Garrigan, TX Bar No. 07703600 Stuckey, Garrigan & Castetter Law Offices 2803 North Street Nacogdoches, TX 75963-1902 (936) 560-6020
Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE I hereby certify that I have served all counsel of record in this case, including the following, with a true and correct copy of the foregoing by sending same via electronic filing to:

Douglas Hamel Christopher V. Bacon Vinson & Elkins 2806 First City Tower 1001 Fannin Street Houston, TX 77002-6760
on this 19th day of February, 2009.

/S/ Teresa Demchak

59497-159497-5

9

 
 Case 9:97-cv-00063-RC Document 660 Filed 08/21/2009 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

LUFKIN DIVISION

Sylvester McClain, et al. Plaintiffs,
v. Lufkin Industries, Inc.
Defendant.

§ Civil Action No. 9:97 CV 063 (CLARK) § § § § § § § §

PLAINTIFFS’ STATUS REPORT ON MONETARY RELIEF PROCEEDINGS AND REQUEST FOR SCHEDULING ORDER FOR RESOLUTION OF DISPUTED MONETARY RELIEF ISSUES

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Plaintiffs submit this Status Report to inform the Court of developments in the parties’ discussions of monetary relief issues since the entry of the Court’s Orders of June 19, 2009,1 to advise the Court of those issues and damages amounts on which the parties have reached agreement, and to request a further order deciding one outstanding issue that is now ripe for resolution and setting a schedule for resolving other matters on which the parties have not agreed. A. Review of Prior Orders and Outstanding Issues
Plaintiffs and Defendant Lufkin submitted a Joint Status Report on Back Pay Issues (Dkt. 620) on March 31, 2009, in which they informed the Court of a number of matters on which they had reached agreement and of several issues disputed by the parties and therefore to be decided by the Court. Subsequently the parties narrowed the issues in dispute at that stage of proceedings to three: (1) whether the time periods March 6, 1994-December 31, 1995, 20032004, and 2005-2007 should be included in the class back pay period; (2) whether back pay should be awarded for discrimination in promotions to salaried positions; and (3) the proper rate of pre-judgment interest. The parties submitted various pleadings on these issues in April and May 2009.2
In its June 19 Orders, the Court made the following rulings: (1) The 1994-1995 and 2003-2004 time periods must be included in the calculation of class back pay, since the prior rulings of Judge Cobb, affirmed by the Court of Appeals, are law of the case (Dkt. 647 at 3-7). (2) Additional evidence would be required for the Court to determine whether to award back pay for the time period 2005-2007 (Id. at 7-8). (3) Pre-judgment interest must be awarded at a rate of 5% per annum, based on both law of the case doctrine and the Court’s exercise of its sound ratesetting discretion (Id. at 8-11). (4) Lufkin’s Motion for Partial Summary Judgment on Plaintiffs’
1 Order re: Motion for Partial Summary Judgment (Dkt. 646) and Order re: Damages (Dkt. 647). 2 See, Plaintiffs’ Brief on Disputed Back Pay Issues, filed April 17, 2009 (Dkt. 629); Defendant Lufkin’s Position on Disputed Issues for Calculation of Monetary Relief, filed April 17, 2009 (Dkt. 631); and Defendant Lufkin’s Amended Motion for Partial Summary Judgment, filed April 17, 2009 (Dkt. 632), together with Plaintiffs’ Response, filed May 1, 2009 (Dkt. 637), and Lufkin’s Reply, filed May 12, 2009 (Dkt. 641).
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claims of discrimination in promotions to salaried positions was denied based on both law of the case doctrine and alternatively on the Court’s finding that the evidence shows discrimination in such promotions (Dkt. 646 at 4-8).
After the Court entered its June 19 Orders, the parties resolved certain other matters. Specifically, the parties stipulated that for the period of 2005-2007 Plaintiffs should be awarded $159,412, exclusive of interest, in damages for hourly promotions (and no damages for salaried promotions) (Dkt. 648). The Court entered an Order adopting that stipulation on July 2, 2009 (Dkt. 650).
As a result of the proceedings summarized above, the parties were then, and are now, in agreement that the following amounts of class back pay (damages) should be awarded to Plaintiffs; these amounts are exclusive of interest at a rate of 5% per annum, the exact amount of which is to be determined when judgment is entered:3

Hourly promotions

Salaried promotions

1994-1995

$ 483,340

$ 109,868

1996-2002

$1,901,417

$ 128,055

2003-2004

$ 487,756

0

2005-2007

$ 159,412

0

Total award

$3,031,925

$ 237,923

Total award for hourly plus salaried promotions - $3,269,845

Two matters remain in dispute: (1) whether the 5% annual pre-judgment interest on the

damages award is to be simple or compound; and (2) how the class back pay award is to be

3 All amounts in the following table, except for the 2005-2007 amount and the totals, are recited at page 2 of Lufkin’s Status Report filed April 17, 2009 (Dkt. 631), and accurately summarize the parties’ agreements as to those amounts. The 2005-2007 number was fixed by separate stipulation of the parties and Order of the Court thereon (Dkt. 650). The totals are determined by simple addition.
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allocated or distributed among the class members. The remainder of this Report addresses those two matters. B. Pre-Judgment Interest Should Be Compounded.
Plaintiffs have repeatedly requested Lufkin, through its counsel, to acknowledge that the pre-judgment interest award should be compounded annually; however, Lufkin has not agreed to do so.4 The Court should resolve the question by ruling that in calculating pre-judgment interest, a rate of 5%, compounded annually, must be used.
Judge Cobb’s Amended Final Judgment specified that, “Pre-judgment interest is to be awarded at the rate of 5%, compounded annually” (Dkt. 552 at 34). Lufkin did not appeal from the award of pre-judgment interest or the rate fixed by the Court. Although the Fifth Circuit did not affirm the particular method adopted by Judge Cobb to calculate class back pay, it did not disturb or comment on the award of interest. In their Brief on Disputed Back Pay Issues filed April 17, 2009 (Dkt. 629), Plaintiffs argued that interest had to be calculated at a 5% annual rate, on a compounded basis, as Judge Cobb had ordered. See, id. at 15-16. In its Amended Position on Disputed Issues for Calculation of Monetary Relief filed April 20, 2009, Lufkin sought a different, lower rate and asserted, without argument, that simple interest only should be awarded (Dkt. 633 at 10-11). In its June 19 Order re Damages, the Court ruled on what it described as Lufkin’s “assert[ion] that this court can, and should, reexamine Judge Cobb’s assessment of prejudgment interest at a rate of 5%, compounded annually” (Dkt. 647 at 1). Although the Court
4 On July 17, 2009, Plaintiffs’ attorneys Morris J. Baller and Teresa Demchak had a conference call with Defendants’ attorneys Douglas E. Hamel and Christopher Bacon. In that call, Mr. Baller stated that in Plaintiffs’ view interest had to be calculated on a compound basis because Judge Cobb’s order awarding back pay had specified compound interest, and this Court’s June 19, 2009 Order held Judge Cobb’s assessment of interest to be law of the case (Dkt. 647 at 8-9). On July 27, 2009, Mr. Baller sent both Mr. Hamel and Mr. Bacon an email again requesting agreement or discussion of the issue. On July 28, 2009, Mr. Bacon acknowledged that the question was pending but stated that he could not answer it at that time because Mr. Hamel was on vacation until the following week. On the same date, Mr. Baller responded by an email to Mr. Bacon asking for a conference call on the matter during the following week, after Mr. Hamel’s return from vacation. To the present date, Lufkin has neither communicated its position on the compounding of interest, nor responded to Plaintiffs’ counsel’s request for a conference on the issue.
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ruled that “Prejudgment interest shall be calculated at the rate of 5% per annum,” (id. at 11), it did not explicitly address the question of compounding.
Although the Court’s June 19, 2009 Order does not expressly require (or deny) compounding of interest, the Order’s logic requires compounding. The principal basis for the Court’s ruling was that Lufkin had waived any challenge to the interest awarded by Judge Cobb and Judge Cobb’s ruling was law of the case. See, Dkt. 647 at 8-9. Judge Cobb’s order requiring the compounding of the interest award is no less settled as law of the case than is his selection of the 5% annual interest rate.
In addition, this Court held in the alternative that, as a matter of the proper exercise of his remedial discretion, Judge Cobb’s choice of a 5% rate was proper (id. at 9-11). In the course of its discussion, this Court took note of several factors that strongly support compounding of interest here. (1) Texas law specifically provides for the rate of post-judgment interest but not pre-judgment interest, and “general principles of equity and the common law permit application of the post-judgment rate” in determining pre-judgment interest (id. at 10). While the applicable federal statute does not address whether pre-judgment interest should be compounded, it specifies that post-judgment interest “shall be compounded annually,” 28 U.S.C. §1961(b). Compounding of pre-judgment interest is the only result consistent with the combination of principles embodied in federal and state law. (2) This Court further noted the inequity caused by Lufkin’s having been “profiting for years from its policy of unlawful discrimination,” earning returns of 11% while indulging in extravagant compensation of its executives, yet opposing interest sought by wage earners victimized by its discriminatory practices “on the pay Lufkin illegally denied them for more than a decade” (Dkt. 647 at 10). Further, the Court correctly noted that its exercise of discretion in determining interest must properly reflect Title VII’s “make whole” remedial principle (id.). The same principles of equity extend to and require compounding of interest.
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C. The Court Should Require Lufkin to Negotiate Based on Plaintiffs’ Proposed Principles for Allocation of the Class Back Pay Award Among Class Members, and Order the Parties to Submit a Detailed Distribution Plan Within a Reasonable Period.
In their March 31, 2009 Joint Status Report to the Court, the parties anticipated that, once the amount of the class back pay award had been determined, they would likely be able to agree on a method for its distribution to members of the class (Dkt. 620 at 2, item (7)). Subsequently, the parties have on a number of occasions had relatively brief discussions of general principles for determining allocations to class members, and have appeared to be in general agreement on certain broad principles. In late July 2009, the parties agreed that Plaintiffs would submit a specific proposal to Lufkin for an allocation plan, and that Lufkin would respond to Plaintiffs’ proposal in a conference call the following week. On August 3, 2009, Plaintiffs delivered a written proposal to Lufkin’s counsel.5 Lufkin has not, as of this date, responded in any way to Plaintiffs’ written proposal.
In the absence of any written response by Lufkin – or for that matter any oral response since Plaintiffs have spelled out in writing and detail what they propose – Plaintiffs believe that, at a minimum, the parties are in agreement on several aspects of a distribution plan: (1) The plan should be kept simple both for efficient and accurate administration and so that its features are comprehensible to affected individuals. (2) All class members should receive a specified minimum amount without regard to how long they worked during the class back pay period. (3) The large majority of the class back pay should be allocated among class members in proportion to the amount of time they worked during the class period. (4) Eligibility for timeworked payments would be limited to those class members who completed at least a specified minimum period of employment (conceptually necessary for employees to qualify for any promotions at Lufkin). 5 A copy of this proposal is attached as Exhibit 1 to this Status Report. By reference to it, the Court will see that while the broad outlines of a distribution plan may be simple and, we hope, non-controversial, the details and mechanics are complicated enough to require some sustained attention and careful drafting.
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Plaintiffs’ proposed distribution plan fills in many details about the principles agreed upon at a general level. For example, it specifies a proposed amount of minimum payment to all class members ($250) and a proposed minimum tenure period for eligibility for time-worked payments (90 days). In the interest of simplicity, it proposes to treat all time worked during the class period – whether in hourly or salaried positions and in whatever year – as having equal weight for purposes of allocation of back pay. Other specific provisions and issues not yet discussed by the parties are also set out in Plaintiffs’ proposal.
Two main areas of complexity in the implementation of a distribution plan – one potential, and one unavoidable - are also broached in Plaintiffs’ proposal. The areas of complexity are these: (1) Defendant Lufkin has on a number of occasions indicated that it may appeal the Court’s denial of its motion for Partial Summary Judgment with respect to the inclusion of the 1994-1995 time period and/or the award of back pay for discrimination in salaried promotions (which is based on a statistical argument that, according to Lufkin, turns on whether 1994-1995 data is considered in the adverse impact analysis). Should Lufkin appeal the portion of the Court’s judgment attributable to the 1994-1995 period but not the remainder of the judgment, it may be desirable for the Court’s judgment to divide the amounts of back pay and interest awarded into separate amounts for those two time periods, so that the non-appealed portion of the judgment can be apportioned and paid without further delay. If the judgment is to be divided into separate portions in this manner, the specific provisions for the allocation will necessarily be more complicated than if no differentiation by time period is necessary. Plaintiffs’ counsel have on a number of occasions asked Lufkin’s counsel to advise whether Lufkin will appeal the ruling regarding liability for promotions in 1994-1995 and to salaried positions; however, Lufkin has not stated whether it will do so. (2) The allocation plan will also have to determine how to divide interest among the class members. While the parties may agree on the simplifying assumption that the formula should not differentiate between time worked in different years and positions in allocating principal amounts of back pay, it is not appropriate – at least in Plaintiffs’ view – to treat interest payments in the same manner, since interest on
6
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damages that accrued in the mid-1990s is properly viewed as much greater than interest on damages that accrued a decade later. Therefore the allocation formula for the interest to be awarded by the Court should be different from, and more complicated in its calculation, than that for back pay before interest.
Lufkin has not informed Plaintiffs that it opposes (or agrees to) any of their specific proposals, and Plaintiffs are not suggesting that Lufkin has been unreasonable in its positions to date on the allocation issues. However, Plaintiffs are concerned at the pattern – evident in Lufkin’s failure to respond regarding the issue of compound interest and the possible appeal of the award for 1994-1995 and salaried positions – of failing to come to grips with the issues in a timely manner that will permit the Court to enter its judgment without undue delay. D. Plaintiffs’ Request for Scheduling Order
For these reasons, Plaintiffs request that the Court issue an order requiring the parties to meet and confer regarding all of the outstanding issues relating to back pay, including the allocation plan, and to submit to the Court their joint or separate proposals for the back pay judgment, on a relatively short but feasible schedule.6 The parties will be better able to address the monetary relief issues and submit their views on the form and amount of the judgment, as a whole or divided in two portions, after the Court has ruled on whether the pre-judgment interest award is to be calculated with annual compounding.
Plaintiffs therefore request that: (1) The Court accept this Status Report as setting forth Plaintiffs’ arguments on the issue regarding compounding of interest, and require Lufkin to respond stating its position and, if that position is contrary to Plaintiffs’, its arguments, within one week. (2) The Court thereafter issue its order on the compounding of interest issue and direct the parties to meet and confer regarding all other outstanding issues and, within three weeks after the date of the Court’s order, submit their joint or separate positions on the form and
6 This process is similar to that ordered by the Court for submission of positions on the remaining injunctive relief issues in its Minute Order entered August 19, 2009 (Dkt. 658).
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amount of the monetary judgment, including principles for distribution of back pay among class

members.

Dated: August 21, 2009

Respectfully submitted,

By: /S/ Morris J. Baller Teresa Demchak, CA Bar No. 123989 tdemchak@gdblegal.com Morris J. Baller, CA Bar No. 048928 mballer@gdblegal.com Goldstein, Demchak, Baller, Borgen & Dardarian 300 Lakeside Drive, Suite 1000 Oakland, CA 94612-3534 (510) 763-9800
Timothy Garrigan, TX Bar No. 07703600 tim@sgclaw.org Stuckey, Garrigan & Castetter Law Offices 2803 North Street Nacogdoches, TX 75963-1902 (936) 560-6020
Attorneys for Plaintiffs

CERTIFICATE OF SERVICE I hereby certify that I have served all counsel of record in this case, including the following, with a true and correct copy of the foregoing by sending same via electronic filing to:

Douglas Hamel Christopher V. Bacon Vinson & Elkins 2806 First City Tower 1001 Fannin Street Houston, TX 77002-6760
on this 21st day of August 2009.

/S/ Morris J. Baller

8
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 Case 9:97-cv-00063-RC Document 680 Filed 11/13/2009 Page 1 of 16

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

LUFKIN DIVISION

Sylvester McClain, et al. Plaintiffs,
v. Lufkin Industries, Inc.
Defendant.

§ Civil Action No. 9:97 CV 063 (CLARK) § § § § § § § §

PLAINTIFFS’ STATUS REPORT AND AMENDED DISTRIBUTION PROPOSAL RE: MONETARY RELIEF

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Plaintiffs file this Status Report as directed by the Court at the conclusion of the telephonic conference on October 30, 2009. In this Report, Plaintiffs both inform the Court of further discussions and agreements reached between the parties since that time, and submit an amended proposal for the awarding and distribution of the monetary relief previously awarded to Plaintiffs and the Class by the Court’s prior Orders entered on various dates, as summarized in Plaintiffs’ Status Report on Monetary Relief Proceedings filed on August 21, 2009 (Doc. 660), and in the final Order establishing the rate of interest applicable in the calculation of that relief, entered on August 25, 2009 (Doc. 662).
The amended proposal described in this Status Report and submitted herewith replaces in its entirety the proposal submitted with Plaintiffs’ Memorandum in Support of Amended Proposed Further Order for Monetary Relief submitted on October 2, 2009 (Doc. 674). A. Report on Further Discussions and Agreements of the Parties
Since November 3, 2009, the parties have conferred by telephone on approximately onehalf dozen occasions in an attempt to clarify and reach agreement on methods of distributing the monetary relief amounts previously awarded by the Court.1 None of the methods under discussion change the total amount of the monetary award, which has been determined by prior Orders of the Court. In these discussions, the parties attempted to (1) conform the distribution methods and amounts more closely to those that the Court indicated it was inclined to favor during the November 3 conference, and (2) reach agreement, to the extent possible, on a plan that Plaintiffs could submit.
Plaintiffs are now pleased to report that they are able to submit, and attach hereto, a proposed distribution plan that meets both of the objectives stated above, and that, in the opinion
1 Several of these discussions have also involved minor revisions to the injunctive relief agreed upon by the parties and submitted to the Court. The final agreed-upon injunctive relief provisions have been or will be submitted separately to the Court. Additionally, the parties have submitted recommended candidates for the ombudsperson appointment for the Court’s consideration.
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of the class representatives and Class Counsel, is fair and equitable, as well as sufficiently clear and practicable to be understood and accepted by the class and efficiently administered by Lufkin and the Third Party Administrator recommended by the parties.
The amended proposal submitted with this Report changes all three of the major elements of the distribution plan previously submitted by Plaintiffs on October 2, 2009 (Doc. 674): the formula for distribution of the bulk of the back pay and interest based on time worked by class members during the class liability period; the per-capita awards payable to all class members without regard to their entitlement to time-worked awards; and participation awards to the named plaintiffs and class representatives. In the following section we describe the changes made to each of these three elements of the distribution plan, and Plaintiffs’ proposal. It is our understanding, based on discussions with counsel for Lufkin, that Lufkin will comment on the adoption of this proposal by the Court and its incorporation in the judgment, and may acquiesce in much or all of Plaintiffs’ proposal subject to possible appeal on the issues previously disputed by Lufkin. B. Plaintiffs’ Proposed Distribution Method
1. Per-capita awards. These awards would be payable to all class members without regard to their entitlement to awards based on time worked, or the amount of their time-worked awards. Plaintiffs’ previous proposal was for all class members to be paid $375, with the total amount of those awards to be deducted from the monetary relief fund as a whole before the division of the remainder based on time worked. The amended proposal is for a two-tiered distribution of percapita payments. Class members who worked less than 90 days during the class period would receive $375. Class members who worked 90 or more days during the class period would receive $750. The significance of the 90 day threshold is that under Lufkin’s promotion procedures and standards, only class members who worked for 90 days would have been effectively eligible for promotion, in most circumstances. The total amount distributable to the
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class in per capita awards under the amended proposal would be $749,250, or approximately 14% of the total amount of monetary relief to the class, inclusive of interest and assuming distribution at the end of 2009.
2. Participation awards. These awards would be payable to those plaintiffs, class representatives, and several other class members who by their efforts and participation contributed in an objectively measurable fashion to the prosecution and success of the action, including particularly the claim for monetary relief, on behalf of the class. Plaintiffs’ prior proposal was for 19 such awards totaling $233,662, with an average award amount of approximately $12,500 and a maximum individual award amount of $32,009. The amended proposal is based on a point system in which points are assigned to several objectively verifiable tasks and roles, resulting in 22 awards.2 Lufkin is in agreement with this point-system approach. Plaintiffs request that each point be valued at $1,000. Lufkin does not agree that this valuation results in appropriate participation award amounts and will submit its comments in that regard to the Court.3 At Plaintiffs’ proposed point value, the participation awards total $134,000, with an average award amount of slightly under $6,090 and a maximum award amount, payable to lead named plaintiff Sylvester McClain, of $18,000. In the aggregate, these participation awards would amount to approximately 2.4% of the total class recovery. The objective factors on which award entitlement and amounts were based include, in descending order of importance or value: service as a named individual plaintiff; filing of an EEOC charge on which class claims were based; attendance at mediation sessions; service as a
2 The additional three recipients of participation awards are individuals who were not listed in Plaintiffs’ October 2 proposal but who did in fact participate in the ways recognized in the amended proposal based on objective factors as described in the text. 3 Plaintiffs believe that the per-point valuation may be the only remaining matter not agreed to by the parties relating to the distribution of the monetary relief.
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class representative; testifying at trial; on the part of named plaintiffs or court-appointed class representatives, incurring the perceived risk of possible retaliation as a result of continuing to work at Lufkin after being designated as a plaintiff or class representative; giving deposition testimony; testifying at class certification hearings; and testifying by declaration.
These factors all relate, in one or more ways, to the factors recognized by courts as justifying participation awards: time and effort expended on behalf of the class; assisting counsel and performing representative tasks or fulfilling representative duties on behalf of the class; and incurrence of risk or perceived risk as a result of undertaking individual representative roles or duties. See Roberts v. Texaco, 979 F. Supp. 185, 201 (S.D.N.Y. 1997) (in discrimination-based litigation, the plaintiff is frequently a present or past employee whose present position or employment credentials or recommendation may be at risk by reason of having prosecuted the suit, who therefore lends his or her name and efforts to the prosecution of litigation at some personal peril.); Dornberger v. Metropolitan Life Ins., Co., 203 F.R.D. 118, 124-25 (S.D.N.Y. 2001); Yap v. Sumitomo Corp. of Am., No. 88 Civ. 700, 1991 WL 29112, at *4 (S.D.N.Y. Feb. 22, 1991) (award justified in part because named plaintiffs actively participated and were deposed for several days each); Lachance v. Harrington, 965 F. Supp. 630, 652 (E.D. Pa. 1997); Huguley v. General Motors Corp., 128 F.R.D. 81, 85 (E.D. Mich. 1989) (award justified because of the “onerous burden of litigation”); Cimarron Pipeline Constr., Inc. v. National Council on Comp. Ins., Nos. CIV 89-822-T, CIV-1186-T, 1993 WL 355466, at *2 (W.D. Okla. June 8, 1993) see also, Hughes v. Microsoft, No. C98-1646C, C93-0178C, 2001 WL 34089697, at *12-13 (W.D. Wash. Mar. 26, 2001) (where time and effort form the basis for incentive awards, courts have approved different levels of compensation for class representatives based upon the evidence of their individual participation.).
The court in Staton v. Boeing Co., 327 F.3d 938, 977 (9th Cir. 2003), noted with approval comparable awards of $5,000 to each class representative in a case involving a much larger number of class members (5,400) and a significantly smaller total recovery ($1.725 million). Id., referring to In re Mego Fin. Corp. Sec. Litig., 253 F.3d 454, 463 (9th Cir. 2000). That individual
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award amounted to .0029 of the total recovery while the largest proposed award here is a comparable .0033 of the monetary fund. The proposed participation awards here are also quite modest in comparison to awards approved in other cases (admittedly involving larger recoveries). Roberts, 979 F.Supp. at 205. (Awards of $2,500 to $85,000) Ingram v. The CocaCola Co., 200 F.R.D. 685 (N.D. Ga. 2006) (total individual awards of $300,000 each to class representatives, in lieu of other compensation, and $3,000 to affiants); Yap, 1991 WL 29112, at *4 ($30,000 each to two named plaintiffs).
The points awarded to various factors, and the distribution of points and resulting dollar amounts proposed to be paid to the 22 individuals for whom participation awards are sought by Plaintiffs, are described in detail in the Declaration of Timothy B. Garrigan, which is being filed with this Status Report. The Garrigan Declaration also describes in detail the rationale for using those particular factors and the weighting accorded to them. The Participation Award Worksheet showing individual point distributions is attached as Exhibit A to this Report.
3. Time Worked Awards The remainder (approximately 83.9%) of the monetary relief amount awarded to Plaintiffs and the class by the Court, after deduction for and payment of the per-capita and participation awards, would, as in Plaintiffs’ previous proposal, be distributed among class members who worked for at least 90 days (the promotability threshold and sole factor determining “eligibility” to share in these awards) during the class period. However, the method of allocating the sums paid out in time worked awards is different. The amended method is designed to respond to the Court’s recommendation that Plaintiffs propose a distribution plan that, while retaining a reasonable degree of clarity and simplicity, would increase the degree to which it results in an “equitable” distribution congruent with the Court’s specific findings and awards with respect to the jobs and periods in which promotion shortfalls and resulting lost earnings affected the class.
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In essence, Plaintiffs’ amended proposal adopts the major features of the plan advanced by Lufkin in its October 2, 2009 submission (Doc. 675), which allocates back pay (principal) amounts among class members based on weeks worked within (1) job categories, i.e. hourly or salaried positions and (2) time periods – four separate periods for hourly positions and two for salaried positions – corresponding to the periods for which the Court made specific awards, and to the specific amounts awarded, in prior Orders as summarized in Plaintiffs’ Status Report filed August 21, 2009 (Doc. 660). Interest on those back pay amounts is allocated on a year by year basis, in the manner and using the interest rates previously established by the Court in its prior Orders. In effect, this method results in awards to class members in varying amounts on a perweek worked basis depending on the time period and job category in which they worked.4
The ways in which this current proposal differs from that previously suggested by Lufkin are: (1) the amounts available for allocation based on time worked (i.e. the remainder after deduction of per-capita and participation award payments) are reduced by the amount of change in the per-capita awards and increased by the amount of change in the participation awards, for a net decrease of $261,088; and (2) the amounts “charged” to that remainder of the monetary relief fund are allocated among the 12 different categories (back pay and interest, respectively, for each of four hourly and two salaried position “cells” in the distribution formula) pro-rata in proportion to the amounts in each category.
The results of Plaintiffs’ amended proposal for distribution of back pay and interest based on weeks worked by eligible class members in the various job categories and periods may be most clearly seen in the spreadsheet, “Distribution Proposal Summary,” attached as Exhibit B to
4 Among class members in hourly positions, those who worked in 1994-1995 would receive slightly more on a per-week worked basis than those who worked in the 1996-2002 and 20032004 periods, and substantially more than those who worked in the 2005-2007 period (for which there was never any showing of statistical disparities or finding of discriminatory practices). Among salaried workers, those who worked in the 1994-1995 period would receive substantially more than those who worked in the 1996-2002 period, and those who worked after 2002 (when the evidence appears to show no promotional shortfalls) would not receive time-worked awards.
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this Report. In summary, class members who worked in hourly positions would be paid amounts ranging from $3.36 for weeks worked in 2007 to $33.26 (inclusive of principal and interest) for weeks worked in 1994; and class members who worked in salaried positions would be paid amounts ranging from $16.30 per week worked in 2002 to $21.78 per week worked in 1996, and significantly larger amounts for weeks worked in 1994-1995, years when the Court found much larger promotional disparities existed.5
4. Overall results of proposed method for distribution of per-capita and weeksworked awards
By Plaintiffs’ preliminary calculation, and assuming a date for entry of judgment (ending the application of the pre-judgment interest rate) of December 31, 2009,6 the adoption of the proposed distribution method would result in total payments for per-capita and weeks-worked awards7 ranging from a maximum of $19,946.68 for any member of the class (for two individuals who worked in salaried positions in 1994-1995 and in salaried and hourly positions after that throughout the class period), and a maximum of $17,475.66 for class members who worked exclusively in hourly positions throughout the class period (102 individuals in this group), to minimum amounts of $776.22 for class members who worked at least 90 days and $375 for class members who worked less than 90 days (371 individual class members in this
5 The differences in amounts distributed among class members who worked in salaried jobs would be much less than the differences in amounts per-week worked in those jobs, due to the relative stability and longevity of employment in salaried jobs; for the most part, a single group of individuals worked in both the 194-1995 and the 1996-2002 periods. For the same reason, the large differences in per-week amounts for hourly workers in 1994-2004 and the 2005-2007 period would not, for most of the affected individuals who worked in the 2005-2007 period, preclude them from a more ample recovery based on the higher per-week worked amounts applicable to earlier periods. 6 Final payment amounts would, of course, be calculated once the date of entry of judgment is determined, but would vary only slightly from the figures summarized in the text assuming that the date entry date is within a matter of weeks of the end of this year. 7 Excluding participation awards which are not based on factors related to the length of the awardees’ employment, but rather their participation in class representation activities.
7
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Case 9:97-cv-00063-RC Document 680 Filed 11/13/2009 Page 9 of 16
group). The average or mean payment to all class members would be $4,520, and the median payment would be $1,275.8 Of the 1,181 members of the class who would share in the award of monetary relief, 232 would receive over $10,000, and 327 would receive over $5,000. C. Plaintiffs’ Proposal for Further Proceedings on Monetary Relief
In the opinion of Plaintiffs and Class Counsel, the amounts and allocations summarized above represent a fair distribution of the monetary award determined by the Court. Therefore, Plaintiffs urge the Court to approve the distribution plan and use it as the basis for awarding monetary relief in its final judgment in the case. Plaintiffs further offer their suggestions as to how the Court should proceed from the present stage to the entry of such a judgment, taking into consideration the non-monetary issues still pending in the case, the possibility that Lufkin may appeal from some aspects of the award of monetary relief, and the desirability of a final judgment for purposes of appellate review of any issues on which appeal is sought by either side9 Plaintiffs have not discussed these procedures in any detail with Lufkin, but have attempted to fashion them in a way we believe may reduce the scope of any disputes between the parties.
1. Incorporation of the Court’s monetary relief award into a judgment. Once the Court has determined how it will award monetary relief to the Plaintiffs and the class, it should enter an order announcing its decisions, without immediately incorporating that order into a judgment. If the Court will specify a date on which it will enter the final judgment, the parties will be able to determine the exact amounts of money to be awarded in per-capita
8 The large difference between the average and median figures is attributable to the large number of class members who worked less than 90 days and would therefore receive only the $375 firsttier per-capita award. 9 Since the parties have made a joint proposal for all aspects of the injunctive relief, we do not anticipate any appeal from the Court’s judgment in this regard, assuming the Court adopts the joint proposal. Any appeal would likely be by Lufkin, from the monetary relief award, or by one or both parties from the interim award of attorneys’ fees (which both parties previously attempted unsuccessfully to appeal).
8
99734-3

Case 9:97-cv-00063-RC Document 680 Filed 11/13/2009 Page 10 of 16
awards, participation awards, and time-worked awards (principal and interest) based on the Court’s order and the anticipated judgment date.10 If desired by the Court, the parties could submit a list of class members and amounts to be awarded for incorporation into the judgment or filing with the Court and adoption by reference in the Court’s judgment. As the Court stated was its intention in the November 3 telephonic hearing, the judgment should – and under Plaintiffs’ amended proposal would – break down the monetary awards by categories in a manner that would allow Lufkin to appeal those aspects of the monetary relief (salaried positions and the 1994-1995 time period) that it may wish to appeal, and should not provide by its terms for a partial payment in the event of an appeal by Lufkin.
2. Form of judgment and issues addressed. The judgment could easily incorporate both injunctive and monetarily relief, without complications. Inclusion of an award of costs and attorneys’ fees to Plaintiffs presents additional issues, however. This is especially so as the Court previously entered an interim award (Docs. 621, 622), covering the period up to December 31, 2008, and reserved consideration of a further award for the period since January 1, 2009; Plaintiffs appealed and Lufkin cross-appealed that award; and the Fifth Circuit dismissed the appeal on finding that the Rule 54(b) judgment incorporating the Court’s interim award (Docs. 672, 673) was not an appealable order (Doc. 673). Plaintiffs believe that the forthcoming judgment should incorporate the Court’s previously entered interim award of costs and attorneys’ fees, at a minimum, while reserving
10 Because the per-capita and participation awards are to be deducted from the monetary relief fund and allocated between back pay (principal) and interest amounts on a pro-rata basis, that allocation cannot be finalized until the pre-judgment interest amount, and therefore the date of judgment, are known.
9
99734-3

Case 9:97-cv-00063-RC Document 680 Filed 11/13/2009 Page 11 of 16
consideration of a further or final award for the period after January 1, 2009.11 However, Plaintiffs – and, we assume, Lufkin – would urge the Court to fashion its judgment so that it will be found to be appealable by the Fifth Circuit. We believe it is possible to do so but suggest that the Court allow the parties to consult and submit their recommendation(s) on how this might best be accomplished, once the Court has entered its order deciding how and when the award of monetary relief to the class will be determined and judgment thereon issued. Plaintiffs (and we assume Lufkin) would submit proposals for the specific language or form appropriate for the judgment should the Court so request.
Although Plaintiffs’ suggestions would entail a short delay before entry of the Court’s judgment, that delay would not prejudice either side. The Court could, and we submit should, enter the injunction so that its remedial provisions will go into effect as soon as possible, without awaiting entry of a judgment.12 The delay before entry of the judgment incorporating the monetary relief awarded by the Court will result in the continuation of interest at 5%, but the period in which interest at this rate continues can be minimized by the Court’s requiring the parties to carry out the tasks needed to move from entry of the monetary relief order to entry of the judgment as expeditiously as possible. Plaintiffs would certainly make every effort to expedite that process.
11 An alternative procedure would be to make a further award of interim costs and fees for work done and expenses incurred by Plaintiffs’ counsel in 2009. However, such a further interim award would (1) entail additional delay in entry of a final judgment since it will require submission of an application by Plaintiffs and proceedings on that application, and (2) would not finally dispose of all fees issues since a further appeal may be taken by Lufkin on monetary relief issues relating to the class awards or by one or both sides on fees issues. 12 Although an injunctive relief order would be appealable and if appealed could throw into doubt the Court’s jurisdiction to award monetary relief, it is our understanding that since Lufkin has joined Plaintiffs in a joint proposal for injunctive relief it will not appeal the injunction. The Court might request confirmation from Lufkin on this point as it considers how to proceed.
10
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Case 9:97-cv-00063-RC Document 680 Filed 11/13/2009 Page 12 of 16

CONCLUSION
The Court should: (1) enter an Order adopting the amended proposal for distribution of monetary relief to the class described in this Status Report, the results of which are summarized in further detail in Exhibits A and B to this Report; and (2) establish a schedule for determining the form of a judgment and for further proceedings on any remaining issues to be addressed in such a judgment.

Dated: November 13, 2009

Respectfully submitted,

By: /S/ Morris J. Baller
Teresa Demchak, CA Bar No. 123989 tdemchak@gdblegal.com Morris J. Baller, CA Bar No. 048928 mballer@gdblegal.com Goldstein, Demchak, Baller, Borgen & Dardarian 300 Lakeside Drive, Suite 1000 Oakland, CA 94612-3534 (510) 763-9800
Timothy Garrigan, TX Bar No. 07703600 tim@sgclaw.org Stuckey, Garrigan & Castetter Law Offices 2803 North Street Nacogdoches, TX 75963-1902 (936) 560-6020
Attorneys for Plaintiffs
CERTIFICATE OF SERVICE
I hereby certify that I have served all counsel of record in this case, including the
following, with a true and correct copy of the foregoing by sending same via electronic filing to:

Douglas Hamel Christopher V. Bacon Vinson & Elkins 2806 First City Tower 1001 Fannin Street Houston, TX 77002-6760
on this 13th day of November 2009.

/S/ Morris J. Baller

11

99734-3

 
 Case 9:97-cv-00063-HC Document 493-1 Filed 03/02/2005 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

LUFKIN DIVISION

Sylvester McClain, et al. Plaintiffs,
v. Lufkin Industries, Inc.
Defendant.

§ Civil Action No. 9:97 CV 063 (COBB) § § § § § § § §

PLAINTIFFS’ SUR-REPLY IN OPPOSITION TO DEFENDANT LUFKIN INDUSTRIES, INC.’S MOTION TO VACATE THE ORDER OF JANUARY 18, 2005

Case 9:97-cv-00063-HC Document 493-1 Filed 03/02/2005 Page 2 of 6
Defendant Lufkin Industries, Inc.’s (“Lufkin”) Reply to Plaintiffs’ Opposition to Lufkin’s Motion to Vacate the Court’s January 18, 2005 Order is a mishmash of arguments, all irrelevant or off point, but aimed at halting the remedial proceedings the Court has the authority and, given the Court’s findings of systemic discrimination against African Americans by Defendant, Lufkin Industries, Inc., the obligation to conduct.
1. The Court Has the Authority to Oversee the Development of a Remedial Plan Lufkin’s claim that Plaintiffs “improperly suggest that the Court has the authority to rewrite its injunction,” Reply at 3, ignores a crucial fact: this Court entered its January 18, 2005 order in response to a timely post-judgment motion by Plaintiffs before Lufkin filed its notice of appeal. Plaintiffs’ motion for further proceedings, although not styled as a Federal Rule of Civil Procedure 59(e) motion to alter or amend, sought relief that included the entry of further and supplemental orders regarding the specific remedial steps Lufkin must take to address the discriminatory practices found by the Court, and therefore contemplated amendment or alteration of the Court’s original Memorandum and Order and Judgment regarding injunctive relief. See Moody Nat’l Bank v. GE Life and Annuity Assurance Co., 383 F.3d 249, 251 (5th Cir. 2004) (in determining the import of a post-judgment motion, “a motion’s substance, and not its form, controls”). Plaintiffs’ motion and the January 18, 2005 Order thus suspended the time for filing an appeal until such further proceedings are completed and the Court enters the further and supplemental remedial orders.1 See Federal Rule of Appellate Procedure 4(a)(4). It is well established that a notice of appeal filed prior to the disposition of a timely Rule 59(e) motion is premature. Osterneck v. Ernst & Whinney, 489 U.S. 169, 173-74 (1989); Harcon Barge Co., Inc.
1 In filing their cross-appeal on the non-monetary injunctive relief provisions of the Memorandum and Order and Final Judgment, expressly noted that “the Court has scheduled further proceedings on the specific remedial steps Lufkin must take to comply with the Court’s injunction entered on January 13, 2005, and that further orders entered by the Court pursuant to those proceedings may negate Plaintiffs limited appeal.” See Plaintiffs’ Cross Appeal (Dkt. # 491) at n. 1.
1

Case 9:97-cv-00063-HC Document 493-1 Filed 03/02/2005 Page 3 of 6
v. D & G Boat Rentals, Inc., 784 F.2d 665, 666 (5th Cir. 1986). All of the authorities cited by Lufkin, both in its Motion to Vacate and Reply, pertain to situations in which a district court modified an injunction while the case is on appeal. That is not the situation here, where the Court acted before Lufkin filed its appeal, and the Court’s January 18, 2005 Order, effectively tolled the time for appeal and assures that jurisdiction to alter or amend the injunction remains with this Court.
2. Lufkin’s Claim that it Is Taking Measures To Comply With the Injunction Does Not Mean this Court Does Not Have Jurisdiction to Fashion More Specific Remedies to Ensure Such Compliance and to Address the Discriminatory Practices the Court Found.
For the first time, Lufkin reports that it “has in fact taken measures consistent with the Court’s original injunction.” Reply at 2. Of course, this is what Lufkin must do, since the Court’s order has not been stayed or reversed.2 Nevertheless, whether or not Lufkin has taken measures consistent with the original injunction is irrelevant to the question of whether the Court can and must, pursuant to Federal Rule of Civil Procedure 65(d) enter orders that identify the specific steps Lufkin must take to implement the injunction and address the discriminatory practices found by the Court. See Fed. R. Civ. P. 65(d) (“Every order granting an injunction … shall be specific in terms; [and] shall describe in reasonable detail, … the act or acts sought to be restrained.”)
3. Lufkin Overstates the Waiver Argument Lufkin’s attempt to avoid compliance with the Court’s January 18, 2005 Order by claiming that in doing so it will waive its right to appeal from any further remedial orders entered by the Court overstates the law on waiver in the Fifth Circuit. See Dugas v. Trans Union Corp.,
2 It is, however, noteworthy that Lufkin does not advise the Court of what “measures” it has taken and that Lufkin refused to explain the “measures” to Plaintiffs’ counsel when the parties met on February 16, 2005, pursuant to the January 18, 2005 Order’s directive that the parties “meet and confer” about remedies. Plaintiffs, furthermore, have serious questions regarding whether the measures Lufkin is taking are being taken in good faith and consistent with the Court’s January 18 Order, and we will bring those concerns to the Court directly within the next several days.
2

Case 9:97-cv-00063-HC Document 493-1 Filed 03/02/2005 Page 4 of 6
99 F.3d 724, 726 (5th Cir. 1996) (barring appeal when plaintiff accepted the settlement, but indicating that this result was necessitated by the fact that plaintiff’s acceptance was made without expressly reserving a right to appeal). Moreover, Lufkin’s contention that Plaintiffs ignored and failed to call the Court's attention to controlling Fifth Circuit precedent regarding waiver, Amstar Corp. v. Southern Pacific Transport Co., 607 F.2d 1100 (5th Cir. 1979), see Reply at 1, is false. Plaintiffs cited and distinguished – correctly – that case in their Opposition. See Opposition (Dkt. #480) at 7 n. 8.
4. Once Again, Lufkin Insists on Hiding Behind the Unions Just as during the liability phase of this case, Lufkin again seeks to use the unions as a shield to protect it from having to take action to correct its own unlawful practices. Lufkin’s arguments regarding the unions are irrelevant and beside the point. The issue is not whether the unions can intervene at this stage of the litigation – they can, but have not chosen to do so.3 Accordingly, Lufkin’s reference to Edwards v. City of Houston, 78 F.3d 983 (5th Cir. 1996), is wholly irrelevant. Moreover, despite Lufkin’s claims that the unions are essential, it has, inexplicably, not chosen to join them as parties to the litigation. /// /// /// /// ///
3 Lufkin’s reference to the stipulation Plaintiffs proposed to the unions is gratuitous. The proposed stipulation seeks limits on the terms of the unions’ intervention, which the Court would have the discretion to impose on an intervenor, see, Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, 378 (1987); Harris v. Amoco Prod. Co., 768 F.2d 669, 675 (5th Cir. 1985) (noting that “the district court has a concomitant prerogative – as an outgrowth of its discretionary power to withhold permission altogether – to condition the intervention so as to minimize delay and not prejudice the existing parties.”), and which Plaintiffs have advised the unions they would seek upon the unions’ intervention. See Letter dated Feb. 25, 2005 from T. Demchak and T. Garrigan to M. Satter, R. Tanner and D. Carona, attached hereto as Exhibit A.
3

Case 9:97-cv-00063-HC Document 493-1 Filed 03/02/2005 Page 5 of 6

5.

Conclusion

For all of the reasons discussed above and in Plaintiffs’ Opposition, the Court should

deny Lufkin’s Motion to Vacate the January 18, 2005 Order.

Dated: March 2, 2005

Respectfully submitted,
By: /S/
Teresa Demchak, CA Bar No. 123989 Morris J. Baller, CA Bar No. 048928 Goldstein, Demchak, Baller, Borgen & Dardarian 300 Lakeside Drive, Suite 1000 Oakland, CA 94612-3534 (510) 763-9800
Timothy Garrigan, TX Bar No. 07703600 Stuckey, Garrigan & Castetter Law Offices 2803 North Street Nacogdoches, TX 75963-1902 (936) 560-6020
Attorneys for Plaintiffs

4

Case 9:97-cv-00063-HC Document 493-1 Filed 03/02/2005 Page 6 of 6

CERTIFICATE OF SERVICE I hereby certify that I have served all counsel of record in this case, including the following, with a true and correct copy of the foregoing by sending same via electronic filing to:

Douglas Hamel Christopher V. Bacon Vinson & Elkins 2806 First City Tower, 1001 Fannin Street Houston, TX 77002-6760
on this 2nd day of March, 2005.

/S/ Teresa Demchak

5

 
 Case 97-cv-00063-HC Document 292 Filed 10/21/2003 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

-" . ." to "r "~r 1'''' 1
'- .,' .,,: l i /:\1 [:']: :3q

Sylvester McClain, et al. Plaintiffs,
v.
Lufkin Industries, Inc. Defendant.

LUFKIN DIVISION

_'---- ,;; [';\:;NL- I_, ':d:
(J'f ..

§ Civil Action No. 9:97 CV 063 (COBB)

-

§

§

§

§

§

§

§

§

PLAINTIFFS' SURREPLY TO DEFENDANT'S REPLY TO PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION TO AMEND THE CLASS CERTIFICATION ORDER

Case 97-cv-00063-HC Document 292 Filed 10/21/2003 Page 2 8
In its reply to plaintiffs' opposition to Lufkin Industries, Inc.'s ("Lufkin") motion to amend the class certification order, Lufkin continues its practice of making arguments without regard to the matter at hand. Lufkin argues that Dr. Richard Drogin's supplemental analysis, which shoes disparities in the compensation and promotion of African American salaried employees, should be stricken, and that, if it is not stricken, the Court should refrain from giving notice to the class until Lufkin has an opportunity to depose Dr. Drogin regarding his supplemental analyses. Neither of these arguments, however, has anything to do with Lufkin's motion to ~end the class certification order and, certainly, neither are well taken. The question with respect to Lufkin's motion is whether the elements for certification continue to be satisfied and whether facts exist to justify modification of the certification ruling. A. Plaintiffs Have Met The Rule 23 Requirements For Maintaining A Class Action.
In determining whether class certification continues to be appropriate, "the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met." Eisen v. Carlisle and Jacquelin, 417 U.S. 156, 178 (1974). "Class certification is a procedural determination ... ," McClain v. Lufkin Industries, Inc., 187 F.R.D. 267, 278 (E.D. Tex. 1999), and this does not change when the defendant seeks to amend the class certification order. See Kuenz v. The Goodyear Tire & Rubber Co., 1987 U.S. Dist. LEXIS 13198, *6 (N.D. Ohio 1987). Lufkin, however, attempts to argue the merits, claiming that plaintiffs do not have evidence to support a claim of discrimination against salaried workers. This is clearly an attempt to seek an end run around Lufkin's failed motion for summary judgment as opposed to a challenge to the Rule 23 requirements. 1 Nonetheless, plaintiffs came forward with evidence demonstrating that plaintiffs can establish a statistically significant disparity in the promotion and compensation of salaried workers. This showing is more than sufficient to defeat Lufkin's motion to amend the class certification order. Whether Dr. Drogin's supplemental analysis should be stricken is a separate question that is not relevant here.
1 Lufkin's only arguments going to the question of certification have, as discussed fully in plaintiffs' response, already been considered and rejected by the Court.
1

Case 97-cv-00063-HC Document 292 Filed 10/21/2003 Page 3 8
Moreover, Lufkin fails to comprehend the legal significance on whether Lufkin has established that the class should be amended of its failure to preserve data and records it was required to maintain pursuant to EEOC regulations. Plaintiffs do not argue that the data and records Lufkin unlawfully destroyed or failed to maintain would support only the claims of salaried employees, but rather, that such evidence pertains to plaintiffs' claim that other employment processes, such as training, evaluations, job qualifications, and testing have a disparate impact on the class, and that, as a result, the Court may direct an inference that the missing records contained information that was unfavorable to Lufkin. Such an evidentiary inference would rebut Lufkin's contention that plaintiffs have not presented evidence that Lufkin's employment processes, other than initial assignment and promotions, are discriminatory and would sustain plaintiffs' burden with respect to class certification.2
Further, as Lufkin is clearly attempting to use a summary judgment standard to advance its motion to amend the class certification order, it is appropriate to take note of that standard. To defeat summary judgment, plaintiffs would only be required to come forward with evidence to show that there is a genuine dispute with respect to a material issue of fact. Plaintiffs would not be required to prove their case, and the Court would not be able to resolve factual disputes. Lufkin apparently believes that it would be entitled to judgment as a matter oflaw if plaintiffs could not demonstrate a disparity of more than three standard deviations. However, there is no bright line rule that a particular threshold is required for a finding of discrimination. See Watson v. Fort Worth Bank & Trust, 487 U.S. 977,995 (1988) ; Smith v. Xerox Corp., 196 F.3d 358, 366 (2d Cir. 1999); EEOC v. Joe's Stone Crab, Inc., 220 F.3d 1263, 1277 n.14 (11th Cir. 2000). Thus, courts are left to decide on a case-by-case basis whether statistics that purport to show discrimination are in fact sufficient to the task. See Abbott v. Federal Forge, Inc., 912 F.2d 867,
2 Lufkin also contends that the complaint does not raise issues regarding Lufkin's use of "objective tests." However, Lufkin asserts that it uses written or demonstrative tests to measure "ability." See, ~ Lufkin's Proposed Findings of Fact and Conclusions of Law, filed September 30,2003,'127-133. Plaintiffs, however, contend that Lufkin has never met its federal obligations to (1) collect data to determine whether its tests have an adverse impact on the class or (2) validate its tests. The absence of such evidence raises an inference adverse to Lufkin with respect to its affinnative "job relatedness" defense and is relevant to pretext.
2

Case 97-cv-00063-HC Document 292 Filed 10/21/2003 Page 4 8
873 (6th Cir. 1990). Statistical disparities falling just short of the traditional standard of2 standard deviations may nonetheless be meaningful since consistent shortfalls in every category are probative of a pattern of discrimination, especially when other evidence confinns an allegation of discrimination. See Fisher v. Procter & Gamble Mfg. Co., 613 F.2d 527,545-46 & n. 35 (5th Cir. 1980); EEOC v. American Nat'l Bank, 652 F.2d 1176, 1195 (4th Cir. 1981); see also Kadas v. MCI Systemhouse Corp., 255 F.3d 359, 362, 363 (7th Cir. 2001)(test of two standard deviations is arbitrary; court must decide, based on the infonnation before it whether a particular significance level is sufficient). If the Court was to apply a summary judgment standard here - which Lufkin clearly seeks3 - plaintiffs have plainly demonstrated that a genuine dispute remains that must be resolved at trial. Thus, whether the Court applies the appropriate standard for modifying a class certification order or a summary judgment standard, Lufkin's motion must fail. B. Dr. Drogin May Appropriately Submit A Supplemental Report.
As such arguments are clearly not relevant to the instant motion, plaintiffs will only briefly respond to Lufkin's contention that Dr. Drogin's supplemental analyses4 should be stricken. Lufkin argues that Dr. Drogin should not be pennitted to submit an additional expert report because, pursuant to the Docket Control Order, his report was due on June 16,2003. Lufkin makes this argument despite the fact that, at the time Dr. Drogin's report was due, there were two months remaining in the discovery period and that Lufkin continues to produce crucial infonnation even after the close of discovery. 5 The Docket Control Order is intended to serve as a case management tool. It is certainly not intended to be used as Lufkin is trying to use it - as a sword to prevent plaintiffs from making their prima facie case, from raising questions regarding the
3 Lufkin certainly cannot be suggesting that the evidentiary standard for amending the class certification order is higher than that for summary judgment. If plaintiffs can defeat summary judgment, it is without question that they have produced enough evidence to defeat a motion to amend the class. 4 Dr. Drogin is continuing to analyze the evidence and may have additional analyses which will be contained in his supplemental report. S In fact, as discussed in plaintiffs' motion to compel, plaintiffs are still awaiting production of relevant information.
3

Case 97-cv-00063:HC Document 292 Filed 10/21/2003 Page 5 8
scientific reliability of Lufkin's experts' testimony,6 or from seeking redress from Lufkin's discovery abuses.7 In negotiating the Docket Control Order, plaintiffs attempted, to the best of their ability at that time, to provide a reasonable schedule by which certain tasks would be accomplished. s Just as Lufkin was not able to anticipate that an August 15,2003 dispositive motion deadline would not be workable, plaintiffs could not anticipate the amount of information
that plaintiffs would receive - and are still receiving - after Dr. Drogin's report was due that would be relevant to understanding Lufkin's practices and how the data should be analyzed.9
Even more importantly, Lufkin has not suggested that it will be prejudiced if Dr. Drogin submits a supplemental report. Notably, Lufkin's counsel reserved time to depose Dr. Drogin on his supplemental analysis, so Lufkin can hardly claim to be surprised that such a report is
forthcoming. lo There are still at least several weeks until trial and sufficient time for Lufkin to
analyze and respond to Dr. Drogin's supplemental analyses. I I Lufkin should not be able to assert that plaintiffs have no evidence to make a prima facie case with respect to salaried employees and then attempt to prevent plaintiffs from introducing such evidence.
C. Dr. Drogin's Supplemental Report Has No Bearing On The Notice To The Class.
Lufkin suggests that, should the Court refuse to strike Dr. Drogin's supplemental analyses, the Court should postpone sending notice to the class until Lufkin has an opportunity to depose Dr.
6 See Lufkin's opposition to plaintiffs' motion in limine to exclude the testimony of Lufkin's experts, filed October 13, 2003. 7 See Lufkin's opposition to plaintiffs' motion to compel, filed October 14,2003. 8 Furthermore, Lufkin insisted that plaintiffs' statistical expert report should be concluded sufficiently early enough to allow Lufkin to analyze it before the dispositive motion deadline, which was originally the same date as the dispositive motion deadline. 9 It is ironic that, after criticizing, however incorrectly, Dr. Drogin for failing to properly model Lufkin's practices in his statistical analysis, Lufkin suggests that it would have been sufficient for Dr. Drogin to analyze the bid data without plaintiffs having sufficient information to form an understanding of Lufkin's practices. 10 Although Lufkin insists that it does not intend to do so, plaintiffs believe that it will actually be necessary for Dr. Baker to submit a supplemental report if she intends to testify regarding an analysis of the salaried bid database or any other analysis completed after she was deposed. Lufkin has stated that such analysis is only intended to assist it with cross-examination of Dr. Drogin, but, clearly, only Dr. Baker could provide testimony with respect to said analysis and such testimony would have to be set forth in a report pursuant to Federal Rule of Civil Procedure 26(a)(2)(B). lJ Notably, Lufkin doesn't even ~ that it will not have sufficient time to address Dr. Drogin's report.
4

Case 97-cv-00063-HC Document 292 Filed 10/21/2003 Page 6 8

Drogin "because the resolution ofthis issue will ultimately dictate the scope ofthe class." See Lufkin's Reply at 4. Lufkin, however, is incorrect in this assertion. 12 As stated earlier, whether the class certification order should be modified turns on whether the class continues to meet the requirements of Rule 23. Lufkin has provided no reason why further examination of Dr. Drogin should affect the Court's class certification order, other than to suggest that the 2.02 standard deviation Dr. Drogin found is not sufficient. As Lufkin itself notes, two standard deviations constitutes statistical significance. Whether 2.02 standard deviations is legally sufficient to establish a prima facie case of disparate impact with respect to salaried employees, when considered along with all ofthe other evidence plaintiffs intend to introduce at trial, is a merits issue which cannot be resolved by the Court before trial. It is certainly enough upon which to maintain a class action on behalf of salaried employees. As such, Lufkin's attempt to delay notice to the class must be rejected, and since Lufkin has failed to demonstrate that circumstances exist that would justify modifying the class definition, its motion to amend the class certification order should be denied as well.

Dated: October 20, 2003

Respectfully Submitted,
By:J)~ E.~
Teresa Demchak Morris J. Baller Darci E. Burrell Joshua G. Konecky GOLDSTEIN, DEMCHAK, BALLER, BORGEN & DARDARIAN 300 Lakeside Drive, Suite 1000 Oakland, CA 94612-3534 Tel: (510) 763-9800 Fax: (510) 835-1417

12 Plaintiffs, of course, do not dispute Lufkin's right to further depose Dr. Drogin.
5

Case 97-cv-00063-HC Document 292 Filed 10/21/2003 Page 7 8 Timothy Garrigan STUCKEY, GARRIGAN & CASTETTER LAW OFFICES 2803 North Street Nacogdoches, TX 75963-1902 Tel: (936) 560-6020 Fax: (936) 560-9578
6

Case 97-cv-00063-::HC Document 292 Filed 10/21/2003 Page 8 8

PROOF OF SERVICE
Case: Sylvester McClain, et at. v. Lufkin Industries, Inc. Civil Action No. 9:97CV063
STATE OF CALIFORNIA ) ) SS
COUNTYOFALAMEDA )
I have an office in the county aforesaid. I am over the age of eighteen years and not a party to the within entitled action. My business address is 300 Lakeside Drive, Suite 1000, Oakland, California 94612.

I declare that on the date hereof I served a copy of
PLAINTIFFS' SURREPLY TO DEFENDANT'S REPLY TO PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION TO AMEND THE CLASS CERTIFICATION ORDER
by causing a copy thereofto be transmitted via facsimile and by causing a true copy thereofto be mailed by depositing the same in a sealed envelope in the U.S. mail with postage prepaid and addressed to:

Douglas Hamel Christopher V. Bacon Michelle Mahony Vinson & Elkins 2806 First City Tower 1001 Fannin Street Houston, TX 77002-6760
I declare under penalty of perjury under the laws of the State of California that the above is true and correct.
Executed at Oakland, California on October 20,2003.

Printed Name

~- Signature

V

53

 
 Case 97-cv-00063_-HC Document 276 Filed 10/1012003 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

Sylvester McClain, et al. Plaintiffs,
v. Lufkin Industries, Inc.
Defendant.

LUFKIN DNISION
§ Civil Action No. 9:97 CV 063 (BCOY~Bi'iiBn;);--,,<::::::',.LI..-l--
§ § § § § § § §

PLAINTIFFS' SURREPLY TO LUFKIN'S REPLY TO PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT

Case 9:97-cv-00063-HC Document 276 Filed 10/1012003 Page 2 of 10

I.

INTRODUCTION

In its reply to plaintiffs' opposition to its motion for partial summary judgment on the

initial assignment claim ("Lufkin's Reply"), Lufkin Industries, Inc. ("Lufkin") makes an effort to

convince the Court that it will be committing reversible error ifit does not grant Lufkin's
motion.! In so doing, Lufkin ~akes a number of errors in its legal analysis and confuses what is

really at issue here. As an initial matter, the instant motion is a motion for partial summary

judgment. Thus, the question the Court must answer is whether Lufkin has demonstrated that

there are no genuine issues of fact with respect to plaintiffs' initial assignment claim and whether

Lufkin is entitled to judgment on this issue as a matter oflaw. Lufkin's suggestion that the Court

could be committing reversible error, therefore, is an empty threat in light ofthe fact that Lufkin

could not appeal the Court's denial of its motion for partial summary judgment in any event.

Further, the Supreme Court's decision in General Telephone Co. of the Southwest v.

Falcon, 457 U.S. 147 (1982), is simply not relevant to the instant motion. Lufkin argues that

Mr. McClain and Mr. Thomas do not have standing to file a charge of discrimination with the

Equal Employment Opportunity Commission ("EEOC") that raises initial assignment claims,

relying, in part, on Falcon. Lufkin, however, confuses the difference between the standing

necessary to file an EEOC charge with the requirements of Rule 23 of the Federal Rule of Civil

Procedure. As discussed further below, Falcon addresses the prerequisites a class action must

meet to satisfy Rule 23, an issue which is separate and distinct from whether a plaintiff had

standing to file an EEOC charge. Lufkin's motion for summary judgment, as Lufkin itself

acknowledges, addresses two issues: (1) whether an initial assignment claim falls within the

scope of Mr. McClain's or Mr. Thomas' EEOC charges and (2) whether Mr. McClain or

Mr. Thomas have standing to assert an initial assignment claim. See Lufkin's Reply at I n.2.

1 Lufkin's habit of continuously threatening the Court with the specter ofreversible error is distasteful. Rather than attempting to intimidate the Court, Lufkin's time might be better spent on paying attention to the applicable legal standards and engaging in sound legal analysis that is pertinent to the issue at hand.

1

Case 97-cv-00063-HC Document 276 Filed 10/10/2003 Page 3 of 10
Falcon has no bearing on either of these issues. For these reasons and those discussed below, Lufkin's motion for partial summary judgment should be denied.
II. ARGUMENT In its reply, Lufkin states that the "real issue" here is whether Mr. McClain or Mr. Thomas can prosecute a class initial assignment claim "when they did not make such claim in their EEOC charges, and such claim by them was time-barred at the time they filed their EEOC charges, and neither have standing to make an initial assignment claim because neither was initially assigned to the Foundry division?" Lufkin's Reply at 1. This, in fact, is not the "real issue," much as Lufkin might prefer it to be. Lufkin has filed a motion for partial summary judgment. Thus, the real issue is whether Lufkin has established that there are no genuine issues of material fact with respect to plaintiffs' initial assignment claim and that it is entitled to judgment as a matter of law. In other words, has Lufkin established that the facts and law with respect to this issue will reasonably support only one conclusion? See Bricklayers, Masons and Plasterers Int'l Union of Am., Local Union No. 15 v. Stuart Plastering Co., Inc., 512 F.2d 1017, 1024 (5th Cir. 1975). As set forth in detail in plaintiffs' opposition to Lufkin's motion, Lufkin's factual propositions as set forth above are disputed by plaintiffs and can only be resolved if the Court resolves factual disputes, something which it cannot do in response to a summary judgment motion. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Leonard v. Dixie Well Servo & Supply, Inc., 828 F.2d 291,294 (5th Cir. 1987). While, unlike in its partial summary judgment motion, Lufkin at least gives lip service to the summary judgment standard in its reply, it continues to argue that it is entitled to judgment based on its interpretation of the evidence, rather then by demonstrating that there can be no other interpretation. This is not enough to meet Lufkin's burden, and its motion should be denied.
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Case 9:97-cv-00063-HC Document 276 Filed 10/10/2003 Page 4 of 10
A. Lufkin Has Not Demonstrated That It Is Entitled To Judgment As A Matter Of Law With Respect To The Scope Of Mr. McClain's EEOC Charge.
As stated earlier and as set forth fully in plaintiffs' opposition to the instant motion, whether the initial assignment claim is within the scope of Mr. McClain's January 29, 1995 memorandum requires a factual determination.2 Summary judgment on this issue is not appropriate unless there are no competing reasonable factual contentions requiring resolution. See Amoco Prod. Co. v. Horwell Energy, Inc., 969 F.2d 146, 148 (5th Cir. 1992). It is not enough for Lufkin to simply state that, "as a matter oflaw," plaintiffs' initial assignment claims are outside the scope of the EEOC investigation that could reasonably be expected to grow out of Mr. McClain's EEOC charge. Lufkin bears the burden of establishing that this is the case, and it does not even attempt do this. It simply argues that, based on its interpretation of the facts, it is entitled to summary judgment. It does not come forward with any evidence to demonstrate that its view of the evidence is the only reasonable view. In that Mr. McClain's January 29, 1995 memorandum, his testimony at the class certification hearing and his August 12, 1995 letter all create a genuine issue of material fact that must be resolved at trial, Lufkin's motion must fail?
The cases cited by Lufkin for the proposition that initial assignment claims are not within the scope of the named plaintiffs' charges of discrimination, see Lufkin's Reply at 4 n.9, do not change the fact that Lufkin is not entitled to summary judgment. As a threshold matter, all of these cases are easily distinguishable in that they involve narrow individual claims before the EEOC, which the parties attempted to expand substantially in their complaints or which were not
2 Lufkin attempts to cure that fact that it did not refer to Mr. McClain's January 29, 1995 memorandum in its summary judgment motion by pointing out the fact that this memorandum was attached to its motion. Lufkin, however, does not discuss the contents of or make any reference to this memorandum in arguing that Mr. McClain's charge of discrimination can not have given rise to an investigation of Lufkin's initial assignment practices. Whether it was attached to Lufkin's motion or not, Lufkin could not bear its burden of demonstrating that summary judgment is appropriate without even discussing this document. 3 Moreover, since Lufkin has not met its burden, plaintiffs have no obligation to come forward with any evidence. See Gray v. Greyhound Lines, East, 545 F.2d 169, 174 (D.C. Cir. 1976).
3

Case 97-cv-00063-HC Document 276 Filed 10/1012003 Page 5 of 10
in the scope of an actual EEOC investigation. Most importantly, the existence ofthese cases, even if they stood for the proposition for which Lufkin offers them, does not establish that Lufkin is entitled to judgment on this issue as a matter oflaw. These courts simply did that which this Court must do at trial - evaluate the evidence and the disputed facts to detennine the appropriate scope of the EEOC charge at issue.
Additionally, as suggested in plaintiffs' opposition to Lufkin's motion, this issue has already been decided. In order to certify a class that included initial assignment claims, the Court necessarily decided that Mr. McClain and Mr. Thomas had exhausted their administrative remedies with respect to this claim. Further, also as noted in plaintiffs' opposition, Lufkin has repeatedly - and unsuccessfully - raised the issue of the scope of Mr. McClain's and Mr. Thomas' EEOC charges. Lufkin is incorrect in its assertion that the law of the case does not apply to a district court's own detenninations within an ongoing case.4 See Loumar, Inc. v. Smith, 698 F. Supp. 759, 762 (5th Cir. 1983); 18 James WM. Moore Moore's Federal Practice § 134.22 (3d ed. 2003). While the law of the case doctrine does not limit the district court's power to reconsider or change its decisions, a court generally should not do so unless the court is presented with substantially additional or different evidence, controlling authority has since made a contrary decision ofthe law applicable to the particular issue, or the prior decision was clearly erroneous and would work a manifest injustice. See Paul v. U.S., 734 F.2d 1064, 1065 (5th Cir. 1984). Lufkin has not demonstrated that any factors are present that would make it appropriate for the Court to change its earlier class certification determination. Further, while
4 Lufkin's contention that it was not required to assert its defense that Mr. McClain and Mr. Thomas failed to exhaust their administrative rem~dies is equally incorrect. While exhaustion is a condition precedent to a Title VII lawsuit, it may be waived by the defendant. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982). Failure to raise the issue in a timely manner constitutes waiver. See Hernandez v. Hill Country Telephone Coop., 849 F.2d 139, 142 (5th Cir. 1988) (citing to Moore v. Tangipahoa Parish Sch. Bd., 594 F.2d 489 (5th Cir. 1979) (laches and limitations are affinnative defenses which must be specially pled under Fed.R.Civ.P 8(c)).
4

Case 97-cv-00063-HC Document 276 Filed 10/10/2003 Page 6 of 10
the Court could certainly revisit its class certification decision, the instant motion is a motion for partial summary judgment, not a motion to decertify the class or to amend the class definition. For purposes of Lufkin's partial summary judgment motion, the Court has already determined that the initial assignment claim is within the scope of Mr. McClain's or Mr. Thomas' EEOC charges. B. Lufkin Has Not Demonstrated That, As A Matter Of Law, Mr. McClain And
Mr. Thomas Do Not Have Standing To Assert An Initial Assignment Claim. For all the reasons stated in plaintiffs' opposition to Lufkin's motion for partial summary judgment, Mr. McClain and Mr. Thomas have standing to file a charge the scope of which includes an initial assignment claim. A charge of discrimination may be filed with the EEOC by any person claiming to be aggrieved, see 42 U.S.C. § 2000e-S(b), and the requirements of being an 'aggrieved' person for the purpose of filing a charge have been liberally construed. See 4 Lex K. Larson Employment Discrimination § 70.02[1] (2d ed. 2003) ("Employment Discrimination"); see also Anjelino v. New York Times Co., 200 F.3d 73,91 (3d Cir. 2000). All that is necessary for Mr. McClain and Mr. Thomas to have standing is that they allege an injury in fact. See Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38 (1976). As set forth fully in plaintiffs' opposition, Mr. McClain's charge can reasonably be read as suggesting that the discrimination he experienced was part of a general policy of discrimination at Lufkin. Thus, Mr. McClain was alleging a specific and concrete injury resulting from Lufkin's general policy of discrimination, a policy which also led to the channeling of African Americans to the
Foundry. Compare Shipes v. Trinity Indus., No. TY-80-462-CA, 1981 WL 65, * 7 (E.D. Tex.
October 10, 1985) (class representative has standing to represent a class including those who had suffered injuries different from his own, if the same allegedly discriminatory policy infected both types of claimed injuries).
In its reply to plaintiffs' opposition, Lufkin argues that because of Fa1con, Mr. McClain and Mr. Thomas could not have standing to assert an injury from a general policy of
5

Case 97-cv-00063-HC Document 276 Filed 10/10/2003 Page 7 of 10
discrimination. 5 Falcon, however, is concerned with the requirements necessary to satisfy Rule
23. See Falcon, 457 U.S. at 158 ("We cannot disagree with the proposition underlying the
across-the-board rule - that racial discrimination is by definition class discrimination. But the
allegation that such discrimination has occurred neither detennines whether a class action may
be maintained in accordance with Rule 23 nor defines the class that may be certified."); see also
Fellows v. Universal Restaurants, Inc., 701 F.2d 447,450 n.2 (5th Cir. 1983) ("In approving [the
principle that racial discrimination is class discrimination] ... the Court noted the
distinguishable merit issues that relate to maintenance of a Title VII class action ....").
Whether a class representative has standing to assert particular class claims is a distinctly
different question from whether that individual may properly represent a class of individuals
under Rule 23. See Miller v. Hygrade Food Prods. Corp., 89 F. Supp. 2d 643, 647-654 (E.D. Pa.
2000) (recognizing and discussing distinction between an analysis of standing and the
5 Lufkin's suggestion that Falcon eliminated the use of across-the-board class certification is inaccurate. While Falcon limited the use of an across-the-board theory of class certification, the Supreme Court suggested that such a theory may be appropriate if discrimination manifests itself in different practices in the same general fashion. See Falcon, 457 U.S. at 159 n.15; see also Fleming v. Travenol Lab., Inc., 707 F.2d 829, 832 (5th Cir. 1983) (noting that Falcon limited the practice of certifying across-the-board class actions and that the approach may still be appropriate in some circumstances); Alvarez v. Widnall, No. CIVSA96CA1167FB, 1998 WL 1782553, *3 (W.D. Tex. March 4, 1998) (across-the-board attacks on discriminatory employment practices limited by Falcon); Young v. Pierce, 628 F. Supp. 1037, 1041-42 (E.D. Tex. 1985) (noting that Falcon did not rule out across-the-board class actions). While arguing that an across-the-board certification runs afoul of Falcon and post-Falcon Fifth Circuit precedent, Lufkin acknowledges, as it must, that an across-the-board class maybe certified if the defendant has an entirely subjective decisionmaking process. Lufkin argues, however, that plaintiffs cannot benefit from this exception because Lufkin does not have an entirely subjective decisionmaking process. It should be noted, as an initial matter, that an entirely subjective decisionmaking process was just an example given by the Supreme Court of a promotion practice which manifests itself in different employment practices in the same general fashion; in the same discussion, the Court also refers to a "biased test" used to evaluate both applicants and incumbent employees. Further, whether or not Lufkin's employment practices are entirely subjective is a question of fact, and, even assuming this is an issue here, Lufkin has introduced no evidence to demonstrate that its employment practices are not entirely SUbjective. Lufkin cannot simply state that its practices are not entirely subjective; it bears the burden of demonstrating that there is no genuine issue of material fact.
6

Case 97-cv-00063-HC Document 276 Filed 10/10/2003 Page 8 of 10
requirements of typicality and commonality); see also 4 Employment Discrimination § 81.02[1], 81.02[2] ("Generally, the issue of constitutional standing is not affected by the class action nature of the litigation .... What is important here is that the existence of constitutional standing does not establish compliance with Rule 23 requirements.... [The] question ... [of whether the named plaintiff is qualified to represent the class] is technically not one of standing at all; it is the separate question of whether the named plaintiff, with standing, has met the requirements of Fed. R. Civ. P. 23(a) entitling him or her to represent the class.").
Thus, Falcon has no bearing on whether Mr. McClain and Mr. Thomas have standing to file a charge which encompasses an initial assignment claim or whether Lufkin can establish as a matter of law that they have no such standing. Thus, all Mr. McClain and Mr. Thomas must do to satisfy standing requirements is allege that they have suffered some injury in fact, which, as discussed above and in plaintiffs' opposition to Lufkin's motion, they have done.6 Lufkin has not demonstrated that the named plaintiffs are not "persons aggrieved" and, therefore, cannot demonstrate that, as a matter oflaw, Mr. McClain and Mr. Thomas do not have standing to file a charge which encompasses an initial assignment claim.
III. CONCLUSION Lufkin has not demonstrated that there are no genuine issues of material fact with respect to plaintiffs' initial assignment claim nor has Lufkin demonstrated that it is entitled to judgment
6 While, at the summary judgment stage, a plaintiff may be required to bring forth evidence demonstrating that he or she has suffered injury from a general policy of discrimination, see Miller, 89 F. Supp. 2d at 647, Lufkin does not argue in its motion for summary judgment that Mr. McClain and Mr. Thomas have not suffered an injury in fact from a general policy of discrimination and has presented no evidence to suggest that no genuine issue of fact remains in this regard. As such, plaintiffs have no obligation to come forward with any evidence demonstrating the contrary. Nonetheless, evidence of Lufkin's highly subjective decisionmaking practices, which constitute a general policy of discrimination and from which the named plaintiffs suffered injury in fact, is outlined in the report of plaintiffs' industrial/organizational psychology expert, Dr. Richard Martell, at Section IV, which includes a discussion of Lufkin's initial assignment practices at Section N.A, attached as Exhibit A to Plaintiffs' Opposition to Lufkin's Motion For Leave to Serve Additional Interrogatories, filed July 28, 2003. This evidence creates a genuine issue of material fact that must be resolved at trial.
7

Case 97-cv-00063-HC Document 276 Filed 10/10/2003 Page"9 of 10

as a matter of law on this issue. As Lufkin has not met is burden, its motion for partial summary judgment on plaintiffs' initial assignment claims should be denied.

Dated: October 9, 2003

Resp~Su~mitted, ~
By:~f.~
Teresa Demchak Morris J. Baller Darci E. Burrell Joshua G. Konecky Goldstein, Demchak, Baller, Borgen & Dardarian 300 Lakeside Drive, Suite 1000 Oakland, CA 94612-3534 (510) 763-9800
Timothy Garrigan Stuckey, Garrigan & Castetter Law Offices 2803 North Street Nacogdoches, TX 75963-1902 (936) 560-6020

8

Case 9:97-cv-00063-HC Document 276 Filed 10/10/2003 Page 10 10

PROOF OF SERVICE

Case: Sylvester McClain, et at. v. Lufkin Industries, Inc. Civil Action No. 9:97CV063

STATE OF CALIFORNIA ) ) SS
COUNTY OF ALAMEDA )

I have an office in the county aforesaid. I am over the age of eighteen years and not a party to the within entitled action. My business address is 300 Lakeside Drive, Suite 1000, Oakland, California 94612.

I declare that on the date hereof! served a copy of

PLAINTIFFS' SURREPLY TO LUFKIN'S REPLY TO PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT

by causing a copy thereof to be transmitted via facsimile and by causing a true copy thereof to be mailed by depositing the same in a sealed envelope in the U.S. mail with postage prepaid and addressed to:

Douglas Hamel Christopher V. Bacon Michelle Mahony Vinson & Elkins 2806 First City Tower 1001 Fannin Street Houston, TX 77002-6760

I declare under penalty ofpeIjury under the laws of the State of California that the above is true and correct.

Executed at Oakland, California on October 9,2003.

Print~:~~?VNW

Si~

47

 
 Case 97-cv-00063-HC Document 385 Filed 12/15/2003 Page 1 of 300
TRANSCRIPT OF PROCEEDINGS

1

1

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

2

LUFKIN DIVISION

3 SYLVESTER MCCLAIN, ET AL, ) CIVIL DOCKET NO.

PLAINTIFFS 4

) 9: 97 -Cv-63 dl

)

,.,{...

)

5 VS

) BEAUMONT,

)

6

)

)

7 LUFKIN INDUSTRIES, INC., ) DECEMBER 4, 2003

DEFENDANT

) 9:00 A.M.

8

*************************************************~**** **

9

TRANSCRIPT OF BENCH TRIAL

10

DAY 1

BEFORE THE HONORABLE HOWELL COBB

11

UNITED STATES DISTRICT JUDGE

12 *******************************************************

13 APPEARANCES:

14 FOR THE PLAINTIFFS: 15 16 17 18 19 20

TIMOTHY GARRIGAN
STUCKEY, GARRIGAN & CASTETTER
P.O. BOX 631902 NACOGDOCHES, TX 75963-1902
TERESA DEMCHAK DARCI BURRELL JOSHUA KONECKY MORRIS BALLER
SAPERSTEIN GOLDSTEIN DEMCHAK &
BALLER 300 LAKESIDE DRIVE, SUITE 1000 OAKLAND, CA 94612

21 FOR THE DEFENDANT:
22
23
24
./'
25

DOUGLAS HAMEL
CHRISTOPHER BACON MICHELLE MAHONY
VINSON & ELKINS
1001 FANNIN STREET, SUITE 2300 HOUSTON, TX 77002-6760

WENDELL R. PARKS, OFFICIAL COURT REPORTER 409-654-2834

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TRANSCRIPT OF PROCEEDINGS

03:05 PM 1 03:05 PM 2

203 PARTS, I DON'T WORK WITH THEM.
MR. GARRIGAN: THEY GET NOISIER, TOO, WHEN THEY

03:05 PM 3 GET MORE MOVING PARTS.

03:05 PM 4

THE COURT: WELL, I CAN USE A HAMMER, AND A

03 :05 PM 5 HAMMER MAKES A LOT OF NOISE , ESPECIALLY WHEN YOU HIT YOUR 03:05 PM 6 THUMB.

03:05 PM 7

MR. GARRIGAN: I'VE MADE NOISE.

03:05 PM 8 BY MR. GARRIGAN:

03 :05 PM 9 Q. TELL ME, MR. DEASON, HOW DOES THE CHIPPING GUN

03:05 PM 10 COMPARE TO A CHAINSAW?

03:05 PM 11 A.

IT'S LOUD. IF YOU GET CLOSED UP IN A HOUSING USING

03:06 PM 12 A CHIPPING GUN, IT'S LOUDER THAN A CHAINSAW. 03:06 PM 13 Q. WHICH ONE VIBRATES AND SHAKES MORE, A CHIPPING GUN

03: 06 PM 14 OR A CHAIN SAW?

03:06 PM 15 A. 03:06 PM 16 Q.

A CHIPPING GUN. OKAY. NOW, IN MY LIMITED EXPERIENCE WITH

03:06 PM 17 CHAINSAWS -- YOU NOTICE I STILL HAVE ALL MY APPENDAGES.

03:06 PM 18 THEY GO THROUGH A LOT OF TROUBLE TO PUT RUBBER GRIPS ON

03:06 PM 19 THEM AND ISOLATE THE ENGINE FROM THE HAND GRIPS.

03:06 PM 20 A. 03:06 PM 21 Q. 03:06 PM 22 A.

UH-HUH. DO THEY HAVE RUBBER HAND GRIPS ON THE CHIPPING GUN? NO, IT'S SOLID IRON. I MEAN, IT'S MADE OUT OF

03:06 PM 23 03:06 PM 24 03:06 PM 25

THE TRIGGER IS IRON, EVERYTHING ON THE CHIPPING GUN IS IRON. Q. IS THERE ANYTHING TO CUSHION THE ACTION OF THE

WENDELL R. PARKS, OFFICIAL COURT REPORTER 409-654-2834

97-cv-00063-HC Document 385 Filed 12/15/2003 Page 3 of 300
TRANSCRIPT OF PROCEEDINGS

204

03:06 PM 1 CHIPPING GUN FROM YOUR HANDS? IS IT JUST A SOLID --

03:06 PM 2 A. NO, I HAVEN'T SEEN ONE YET. I WISH THEY WOULD COME

03:06 PM 3 UP WITH ONE.

03:06 PM 4 Q. WHICH ONE WEIGHS MORE, THE CHIPPING GUN OR A

03:06 PM 5 CHAINSAW?

03:06 PM 6

THE COURT: WELL, IS A A FIFTEEN-INCH CHAINSAW,

03:06 PM 7 AN ELECTRIC OR A GAS? IS IT A TWENTY-ONE-INCH?

03:06 PM 8 BY MR. GARRIGAN:

03:07 PM 9 Q. HOW ABOUT AN EIGHTEEN-INCH GASOLINE CHAINSAW FROM 03:07 PM 10 SEARS?

03:07 PM 11 A. THE CHIIPING GUN PROBABLY OUTWEIGHS IT.

03:07 PM 12 03 :07 PM 13

Q. OKAY. WHEN YOU USE THE CHIPPING GUN, HOW LONG ARE YOU USING IT?

03:07 PM 14 A.

IT ALL DEPENDS ON WHAT IS WRONG WITH THE CASTING.

03:07 PM 15 IF IT'S GOT BAD "BURN-IN" ON IT, YOU'LL PROBABLY BE USING

03:07 PM 16 IT ALL DAY.

03:07 PM 17 Q.

THE OTHER TOOLS YOU SAID YOU USED WERE GRINDERS?

03:07 PM 18 A. 03:07 PM 19 Q.

UH-HUH. HOW DOES THAT COMPARE TO A CHAIN SAW?

03:07 PM 20 A. WITH YOUR TWO-INCH, IT'S LOUD ON THE CLOSED-IN AREA,

03:07 PM 21 BUT IN AN OPEN AREA, YOU KNOW, IT'S JUST SEMI. BUT ALL OF

03 :07 PM 22 03:07 PM 23 03:08 PM 24 03:08 PM 25

THEM CLOSED IN, THEY MAKE A LOUD NOISE. Q. DO YOU THINK LOUDER THAN A CHAIN SAW? A. YEAH. Q. WHICH ONE IS BIGGER, THE GRINDERS OR THE CHAINSAW?

WENDELL R. PARKS, OFFICIAL COURT REPORTER 409-654-2834

97-cv-00063-HC Document 385 Filed 12/15/2003 Page 4 of 300

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TRANSCRIPT OF PROCEEDINGS

03:08 PM 1 03:08 PM 2 03:08 PM 3 03:08 PM 4 03:08 PM 5 03:08 PM 6 03:08 PM 7 03:08 PM 8 03:08 PM 9 03:08 PM 10

205 A. THE CHAINSAW PROBABLY WOULD BE. Q. WHEN YOU USE THE GRINDER, DO YOU HAVE TO USE THE WEIGHT AND FORCE OF YOUR BODY TO WORK IT? A. YES. Q. OR WILL ITS OWN WEIGHT -A. YOU HAVE TO USE THE WEIGHT OF YOUR BODY. Q. AND HOW LONG DURING A TYPICAL SHIFT DO YOU WORK WITH THE GRINDER? A. WELL, YOU PRETTY MUCH HAVE TO HAVE YOUR GRINDER ON EVERYTHING. SO IF YOU'RE WORKING TEN HOURS, YOU'RE GOING

03:08 PM 11 TO PRETTY MUCH USE YOUR GRINDER TEN HOURS.

03:08 PM 12 Q.

IS THERE A LOT OF TURNOVER IN THE WORK FORCE IN THE

03:08 PM 13 CLEANING ROOM? DO A LOT OF PEOPLE QUIT?

03: 08 PM 14 A. OH, YES. YES, A LOT OF PEOPLE QUIT.

03:08 PM 15 Q.

ARE THERE NEW GUYS COMING THROUGH?

03:09 PM 16 A.

YES.

03:09 PM 17 Q. WHEN NEW GUYS COME IN, HOW OFTEN DO THEY JUST QUIT?

03:09 PM 18 A. WE'VE HAD SOME GO TO LUNCH AND NOT COME BACK. I

03:09 PM 19 MEAN, YOU KNOW, IT ALL DEPENDS ON HOW BAD THEY WANT TO

03:09 PM 20 WORK I GUESS. WE HAVE SOME MAYBE TWO DAYS, MAYBE A WEEK.

03:09 PM 21 Q. HOW LONG DOES IT TAKE ONE OF THE NEW GUYS TO GET

03:09 PM 22 03:09 PM 23 03:09 PM 24

USED TO WORKING IN THE CLEANING ROOM? A. I DON'T THINK YOU EVER GET USED TO IT. Q. WELL, ARE THERE ANY PROBLEMS THAT ARE ASSOCIATED

03:09 PM 25 WITH STARTING TO WORK IN THE CLEANING ROOM?

WENDELL R. PARKS, OFFICIAL COURT REPORTER 409-654-2834

97-cv-00063-HC Document 385 Filed 12/15/2003 Page 6 of 300
TRANSCRIPT OF PROCEEDINGS

206

03:09 PM 1 A.

REPEAT YOUR QUESTION.

03:09 PM 2

THE COURT: ARE THERE PROBLEMS IN STARTING TO

03:09 PM 3 WORK IN THE CLEANING ROOM, LEARNING THE JOB?

03:09 PM 4

THE WITNESS: IS IT PROBLEMS TO LEARN?

03:09 PM 5

THE COURT: YEAH.

03:09 PM 6 BY MR. GARRIGAN:

03:09 PM 7 Q.

YES.

03:09 PM 8 A.

PRETTY MUCH. THEY HAVE GUYS THAT IS SUPPOSED TO BE

03:10 PM 9 SHOWING NEW GUYS HOW TO DO IT, BUT THEY HAVEN'T BEEN DOING

03: 10 PM 10 IT, YOU KNOW, THEY HAVEN'T BEEN CHIPPING AND GRINDING. SO

03: 10 PM 11 THEY PICK "D" GUYS TO TEACH THEM, YOU KNOW, AND I THINK

03: 10 PM 12 THAT'S A PROBLEM.

03:10 PM 13 Q.

WHY IS THAT A PROBLEM?

03: 10 PM 14 A.

I MEAN, BECAUSE YOU COULD GET HURT NOT KNOWING WHAT

03: 10 PM 15 TO USE OR WHAT TO DO IN CLEANING THEM CASTINGS.

03:10 PM 16 Q.

IS IT -- YOU SAID IT WAS NOISY IN THERE?

03: 10 PM 17 A.

YES.

03:10 PM 18 Q.

CAN THE PEOPLE TALK TO EACH OTHER WHILE THEy'RE

03: 10 PM 19 WORKING?

03:10 PM 20 A.

NO, YOU HAVE TO PRETTY MUCH GET RIGHT UP IN HIS EAR

03:10 PM 21 TO TELL HIM WHAT YOU'VE GOT TO SAY.

03: 10 PM 22 Q.

AND SO WHEN YOU LEARN, HOW DO YOU -- IS IT JUST BY

03:10 PM 23 WATCHING?

03:10 PM 24 A.

PRETTY MUCH. PRETTY MUCH. YOU HAVE A GUY TRAINING

03: 10 PM 25 YOU AND YOU'RE LOOKING AND SEEING WHAT HE'S DOING, AND

WENDELL R. PARKS, OFFICIAL COURT REPORTER 409-654-2834

97-cv-00063-HC Document 385 Filed 12/15/2003 Page 7 of 300
TRANSCRIPT OF PROCEEDINGS

207

03:10 PM 1 THEN HE'S STOPPING AND TELLING YOU IN YOUR EAR, YOU KNOW,

03:10 PM 2 PRETTY MUCH WHAT HE'S DOING TO THAT CASTING.

03: 11 PM 3 Q. OKAY. AND AGAIN, THE NEW GUYS, WHEN THEy'RE JUST

03:11 PM 4 LEARNING HOW TO DO IT, IS THERE ANY PHYSICAL PROBLEMS THEY

03:11 PM 5 TYPICALLY HAVE?

03:11 PM 6 A. WITH THEIR HANDS. YOUR HANDS IS PROBABLY YOUR MOST

03:11 PM 7 PHYSICAL PROBLEM FROM BEING BALLED UP ALL DAY.

03:11 PM 8 Q.

WHAT HAPPENS TO THE HANDS?

03:11 PM 9
03:11 PM 10 03:11 PM 11

A. SOME OF THE THEM START COMPLAINING ABOUT "MAN, I WOKE UP THIS MORNING AND I COULDN'T OPEN MY HAND."
I JUST TELL THEM "WELCOME TO THE CLEANING ROOM."

03:11 PM 12 Q. 03:11 PM 13 A.

YOU SAID IT WAS LOUD. HAS IT AFFECTED YOUR HEARING? MY WIFE SAY IT HAS. SHE SAY I HAVE TO HAVE THE T.V.

03:11 PM 14 UP LOUDER THAN NORMAL. OR SHE COULD BE CALLING ME AND SHE

03:11 PM 15 WOULD BE LIKE "YOU DIDN'T HEAR ME," YOU KNOW. SHE SAYS I

03:11 PM 16 TALK LOUDER. SO I DON'T KNOW.

03:11 PM 17 03: 11 PM 18 03: 12 PM 19 03:12 PM 20 03:12 PM 21 03:12 PM 22 03: 12 PM 23 03:12 PM 24 03: 12 PM 25

Q. WHEN YOU WORK, DO YOU WEAR HEARING PROTECTION?

A.

YES.

Q. WHAT SORT OF HEARING PROTECTION?

A. WE'VE GOT EARPLUGS.

Q. DID YOU HAVE PROBLEMS WITH YOUR HEARING BEFORE YOU

STARTED WORKING THERE?

A.

NO.

Q. DID THE OTHER GUYS HAVE PROBLEMS WITH THEIR HEARING?

A. SOME OF THEM. SOME OF THEM DO.

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208

03:12 PM 1 Q. DO THE GUYS WHO WORK THERE TEND TO TALK LOUD EVEN

03:12 PM 2 WHEN THEy'RE AWAY FROM WORK?

03:12 PM 3 A.

YES.

03:12 PM 4 Q. OKAY. AND THIS DIRT AND DUST THAT YOU TALKED

03:12 PM 5 ABOUT

03:12 PM 6 A.

UH-HUH.

03:12 PM 7 Q. IS THAT SOMETHING THAT FOLLOWS YOU HOME?

03:12 PM 8 A. OH, YEAH, IT DEFINITELY FOLLOWS YOU HOME. I MEAN, I

03:12 PM 9 LEAVE WORK AND MY WIFE WON'T ALLOW ME TO SIT ON ANYTHING 03: 12 PM 10 UNTIL I TAKE A SHOWER, BECAUSE IT'S STILL IN YOUR CLOTHES.

03: 12 PM 11 03:13 PM 12 03: 13 PM 13

Q. DO YOU HAVE TO WASH YOUR CLOTHES EVERY DAY AFTER YOU WORK THEN? A. MAYBE TWO DAYS AFTER, YOU KNOW, SO THAT IT WILL GET

03: 13 PM 14 IT WHERE IT WON'T GET ON THE FLOORS OR WHATEVER.

03:13 PM 15 Q.

DO YOU WASH YOUR OWN CLOTHES WITH ALL THE OTHER

03:13 PM 16 FAMILY CLOTHES?

03 : 13 PM 17 A •

OH, NO. NO.

03:13 PM 18 Q. TELL ME, ARE YOU HAVING ANY BREATHING PROBLEMS?

03 : 13 PM 19 A • SOMETIMES. SOMETIMES MY WIFE BE TELLING ME "SOUNDS

03: 13 PM 20 LIKE YOU STOPPED BREATHING" WHEN I BE SLEEPING AT NIGHT.

03:13 PM 21 SO I DON'T -- YOU KNOW. AND THEN SOMETIMES IT BE A LITTLE

03:13 PM 22 DIFFICULT TO BREATHE.

03:13 PM 23 Q. 03:13 PM 24 A. 03:13 PM 25 Q.

YOU SAID BEFORE THAT YOUR HAND WAS SORE? UH-HUH. YOUR LEFT WRIST?

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209

03: 13 PM 1 A.

UH-HUH.

03:13 PM 2 Q. DOES THAT AFFECT THE THINGS YOU LIKE TO DO WHEN

03: 13 PM 3 YOU'RE NOT WORKING?

03:13 PM 4 A.

OH, YEAH.

03:13 PM 5 Q. WHAT SORTS OF THINGS CAN YOU NO LONGER DO?

03: 13 PM 6 A.

LIKE PLAYING BASKETBALL, FOOTBALL, BASEBALL,

03:13 PM 7 SWIMMING, THAT SORT OF STUFF.

03:14 PM 8

I PRETTY MUCH CAN'T REALLY TOSS MY DAUGHTERS UP

03:14 PM 9 03:14 PM 10 03:14 PM 11

ANY MORE BECAUSE MY HAND IS SO SORE. SO I TRY NOT TO DO THAT BECAUSE I DON'T WANT TO DROP THEM.
THE COURT: TEN, TEN MINUTES, AND UNLESS I'M

03:14 PM 12 03:14 PM 13

WAYLAID BY PHONE CALLS, IT WILL BE TEN MINUTES. THE CSO: ALL RISE.

03: 14 PM 14

(RECESS)

03:34 PM 15 03: 34 PM 16

THE COURT: YOU MAY CONTINUE, MR. GARRIGAN. MR. GARRIGAN: THANK YOU.

03: 34 PM 17 BY MR. GARRIGAN:

03:34 PM 18 Q.

MR. DEASON, TELL THE COURT, WOULD YOU, WHAT BOTHERS

03: 34 PM 19 YOU MOST ABOUT WORKING IN THE CLEANING ROOM?

03:34 PM 20 A.

WHAT BOTHERS ME MOST IS, A FORTY-YEAR-OLD, AND MY

03:34 PM 21 HEALTH IS WHAT IS MY MOST CONCERN AS FAR AS LIVING, LIVING

03:34 PM 22 FIFTY YEARS OR SIXTY YEARS. I MEAN, THAT BOTHERS ME THE

03: 34 PM 23 MOST.

03:34 PM 24

THE PHYSICAL DEMANDING WORK AS IT IS, I MEAN,

03:34 PM 25 THE USE OF MY HANDS, BREATHING, WELL, YOU KNOW, THAT

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03:35 PM 1 03:35 PM 2 03:35 PM 3 03:35 PM 4 03:35 PM 5 03:35 PM 6 03:35 PM 7

210 BOTHERS ME THE MOST, MY PHYSICAL HEALTH. Q. I TAKE IT THAT OVER THE NINE YEARS YOU'VE WORKED THERE YOU SAID THAT IT AFFECTS YOUR ABILITY TO EVEN PLAY WITH YOUR KIDS? A. EXACTLY. MY HANDS ARE SO SORE, I CAN'T -- YOU KNOW, MY DAUGHTER IS FOUR. SHE WOULD LIKE FOR ME TO TOSS HER UP, BUT I CAN'T DO THAT BECAUSE I'M NOT GOING TO BE ABLE

03:35 PM 8 TO CATCH HER BECAUSE OF MY HANDS. 03:35 PM 9 Q. DO YOU THINK YOUR PHYSICAL CONDITION IS GOING TO

03:35 PM 10 03:35 PM 11 03:35 PM 12

IMPROVE OR GET WORSE IF YOU STAY IN THE FOUNDRY? A. OH, IT WILL PROBABLY GET WORSE. Q. OKAY. TELL ME, WHAT IS -- IN YOUR NINE YEARS

03:35 PM 13 WORKING IN THE CLEANING ROOM, WHAT IS THE RACIAL

03:35 PM 14 COMPOSITION OF THE WORK FORCE THERE? 03:36 PM 15 A. YOU'VE GOT MAYBE SIX PERCENT MEXICAN GUYS, MAYBE

03: 36 PM 16 THIRTY PERCENT BLACKS, AND THE REST WHITE. 03:36 PM 17 Q. HOW MANY WHITE GUYS WERE WORKING IN THE CLEANING

03: 36 PM 18 03:36 PM 19 03:36 PM 20

ROOM WHEN YOU STARTED? A. I WANT TO SAY ONE. Q. OKAY. IS THERE -- ARE THERE ANY WHITE GUYS THAT

03:36 PM 21 03:36 PM 22 03:36 PM 23 03: 36 PM 24 03: 36 PM 25

HAVE BEEN WORKING THERE DURING THE WHOLE TIME YOU HAVE?

A.

ONE.

Q. JUST ONE?

A. YES.

Q. JUZT ONE, ONE OUT OF THESE FIFTY-FIVE THAT ARE IN

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211

03: 36 PM 1 THERE?

03: 36 PM 2 A.

CLIFF WISNETTE. CLIFF WISNETTE HIRED IN A DAY AFTER

03:36 PM 3 I DID, AND HE'S STILL THERE.

03:36 PM 4

YOU HAVE KEITH KIDWELL, I MEAN, HE DRIVES A

03:37 PM 5 FORKLIFT, HE WAS THERE BEFORE I GOT THERE, YOU KNOW.

03: 37 PM 6 Q.

BUT HE'S NOT A CHIPPER/GRINDER?

03: 37 PM 7 A.

NO, JUST CLIFF WISNETTE.

03:37 PM 8 Q. OKAY. AND SO CLIFF WISNETTE IS THE ONLY WHITE GUY

03:37 PM 9 03:37 PM 10 03: 37 PM 11 03:37 PM 12 03: 37 PM 13

WHO HAS WORKED AS A CHIPPER/GRINDER IN THE CLEANING ROOM PRETTY MUCH THE WHOLE TIME YOU HAVE? A. EXACTLY. Q. IS HE TREATED THE SAME AS YOU? A. NO.

03:37 PM 14 Q.

DOES HE GET BETTER TREATMENT OR WORSE TREATMENT THAN

03:37 PM 15 YOu?

03 : 37 PM 16 A •

I WOULD SAY HE GET BETTER.

03 : 37 PM 17 Q• 03:37 PM 18 A.

WHAT ARE SOME EXAMPLES? HE GET OPPORTUNITIES TO DRIVE THE FORKLIFT, SAY IF

03:37 PM 19 KEITH KIDWELL DON'T COME IN, HE GET AN OPPORTUNITY TO

03: 37 PM 20 DRIVE THE FORKLIFT. HE GET AN OPPORTUNITY TO DO

03:37 PM 21 03: 37 PM 22 03:37 PM 23 03 : 37 PM 24

INSPECTION WORK.

Q. YOU'RE NEVER OFFERED THOSE OPPORTUNITIES?

A.

NO.

Q • TELL ME, DURING MOST OF YOUR NINE YEARS HAVE THERE

03:38 PM 25 BEEN A LOT OF OTHER WHITE GUYS THAT HAVE WORKED THERE AND

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03: 38 PM 1 03: 38 PM 2 03: 38 PM 3 03: 38 PM 4 03: 38 PM 5 03: 38 PM 6 03: 38 PM 7 03: 38 PM 8 03: 38 PM 9 03:38 PM 10 03:38 PM 11 03:38 PM 12 03:38 PM 13 03:38 PM 14

212 COME AND GONE? A. YES. Q. ANY OF THEM STAY LONG? A. I CAN'T RECALL THEIR NAMES, BUT IT WAS TWO BROTHERS THAT STAYED MAYBE TWO YEARS. I CAN'T THINK OF THEIR NAMES RIGHT OFF. Q. ALL RIGHT. WHAT'S THE MOST NUMBER OF WHITES THAT HAVE BEEN WORKING IN THE CLEANING ROOM AT ANY TIME? A. AS FAR AS CHIPPING AND GRINDING OR JUST -Q. YEAH. A. TWO. Q. THAT WOULD BE THE TWO BROTHERS? A. YEAH. WELL, THREE WITH CLIFF. Q. OKAY. HAS THERE BEEN ANY CHANGE IN THE NUMBER OF

03: 38 PM 15 WHITES WORKING IN THE CLEANING ROOM? 03:38 PM 16 A. CHIPPING AND GRINDING?

03:38 PM 17 Q. 03:38 PM 18 A.

YEAH. YOU'VE GOT TWO RIGHT NOW, CLIFF AND ANOTHER GUY THAT

03:38 PM 19 THEY JUST HIRED. 03:38 PM 20 Q. OKAY. MORE RECENTLY HAVE THEY HIRED MORE WHITES

03:39 PM 21 03: 39 PM 22 03: 39 PM 23 03:39 PM 24 03: 39 PM 25

INTO THE CLEANING ROOM? A. YES. Q. AND HAS THAT JUST HAPPENED IN THE LAST FEW MONTHS LEADING UP TO THE TRIAL? A. YES.

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03:39 PM 1 03:39 PM 2 03:39 PM 3 03:39 PM 4 03:39 PM 5 03:39 PM 6 03:39 PM 7 03:39 PM 8 03:39 PM 9 03:39 PM 10

213 Q. TELL ME, HOW DO THE CONDITIONS IN THE CLEANING ROOM AND THE FOUNDRY COMPARE TO OTHER DIVISIONS AT LUFKIN INDUSTRIES? A. IT AIN'T NO COMPARISON. THE GEAR SHOP, THERE AIN'T NO COMPARISON. Q. OKAY. HAVE YOU BEEN TO THE GEAR STOP? A. I WENT IN THERE WHEN I WORKED FOR MR. THOMPSON ONE TIME, AND IT WAS CLEAN THEN, AND I'VE BEEN IN THERE SINCE I'VE BEEN AT LUFKIN INDUSTRIES NOW, AND IT'S EVEN CLEANER. Q. AND BY GEAR SHOP, IS THAT POWER TRANSMISSION?

03: 39 PM 11 A. I GUESS THAT'S WHAT THEY CALL IT, WHERE THEY MAKE

03: 39 PM 12 03: 39 PM 13 03:39 PM 14 03: 39 PM 15 03 :40 PM 16 03 :40 PM 17

GEARS AT, PREPARE THEM, WHATEVER. Q. IT'S CLEAN? A. IT'S CLEAN. Q. HOW CLEAN IS IT? A. IT'S CLEAN. I MEAN, IT'S CLEAN, YOU KNOW. Q. COULD YOU PULL UP A CHAIR AND SIT DOWN AND EAT YOUR

03:40 PM 18 LUNCH IN THERE?

03:40 PM 19 A.

YEAH.

03 :40 PM 20 Q. COULD YOU DO THAT IN THE CLEANING ROOM?

03:40 PM 21 A. 03:40 PM 22 Q. 03:40 PM 23 A.

NO. DID YOU SAY IT WAS AIR-CONDITIONED? YES. I MEAN, THEY -- THEY TEMP-CONTROL THOSE GEARS,

03:40 PM 24 YOU KNOW. I MEAN, THEY TREAT THEM BETTER THAN THEY TREAT

03:40 PM 25 US.

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214

03:40 PM 1 Q.

HAVE YOU SEEN ANY OF THE OTHER DIVISIONS?

03:40 PM 2 A.

NO.

03:40 PM 3 Q.

HAVE YOU BEEN INTO TRAILER OR OILFIELD?

03:40 PM 4 A.

liVE NEVER BEEN TO THEM.

03 :40 PM 5 03:40 PM 6
03:40 PM 7

Q.

WOULD YOU RATHER WORK IN THE FOUNDRY OR POWER

TRANSMISSION?

A.

POWER TRANSMISSION.

03:41 PM 8 03:41 PM 9 03:41 PM 10 03:41 PM 11 03:41 PM 12 03:41 PM 13

Q.

TELL ME, HAVE YOU DONE ANYTHING -- IN YOUR NINE

YEARS HAVE YOU DONE ANYTHING TO TRY TO GET OUT OF THE

CLEANING ROOM?

A.

YES.

Q.

WHAT HAVE YOU DONE?

A.

I'VE BIDDED ON JOBS THAT THEy'VE PUT UP. I MEAN,

03:41 PM 14 YOU BID ON JOBS AND YOU CONSTANTLY BID ON JOBS, AND YOU

03:41 PM 15 NEVER HEAR NOTHING OF WHY YOU DIDN IT GET IT OR, YOU KNOW,

03:41 PM 16 WHO GOT IT, AND THEN THAT'S -- THAT'S DISCOURAGING.

03:41 PM 17

I'VE BIDDED ON TOOL ROOM JOBS, I'VE BIDDED ON

03:41 PM 18 CRANE OPERATOR JOBS, I'VE BID ON NUMEROUS OF JOBS, BUT NO

03:41 PM 19 EXPLANATION OF WHY I DIDN'T GET IT.

03:41 PM 20 Q.

HAVE YOU EVER HEARD ANYBODY IN MANAGEMENT SAY THAT

03:42 PM 21 03:42 PM 22

THEY DIDN'T WANT TO LET PEOPLE OUT OF THE CLEANING ROOM?

A.

OH, YES. I FILED A GRIEVANCE ONE TIME ABOUT THE

03:42 PM 23 TOOL ROOM JOB, AND WE WAS HAVING A MEETING, AND THEY WAS

03:42 PM 24 LIKE "WELL, WE DON'T WANT TO REALLY LOSE EXPERIENCED

03:42 PM 25 CHIPPERS AND GRINDERS." I MEAN, YOU KNOW, THAT'S JUST

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215

03:42 PM 1 SAYING "WELL, YOU'RE STUCK."

03:42 PM 2 Q.

WHO SAID THAT?

03:42 PM 3 A.

STEVE REYNOLDS, GERALD COUTEE.

03:42 PM 4 Q.

WHO IS STEVE REYNOLDS?

03:42 PM 5 A.

I THINK STEVE REYNOLDS IS THE PRODUCTION MANAGER OR

03:42 PM 6 SOMETHING OVER THERE.

03:42 PM 7 Q.

AND WAS HE EXPLAINING WHY THEY PASSED SOMEBODY OVER

03: 42 PM 8 FOR A PROMOTION?

03:42 PM 9 A.

YEAH, WE -- ON THAT TOOL ROOM JOB THEY HAD A BID

03:42 PM 10 LIST UP, AND WHAT IT WAS, IT WAS A -- ABOUT ELEVEN OF US

03:42 PM 11 OR SO SIGNED IT, AND YOU HAD TWO MEXICAN GUYS WITH MORE

03:42 PM 12 SENIORITY THAN ME, AND ONE MEXICAN GUY WAS TOLD THAT THEY

03:43 PM 13 WASN'T GOING TO LET HIM HAVE IT BECAUSE THEY DIDN'T WANT

03:43 PM 14 TO LOSE EXPERIENCED CHIPPERS AND GRINDERS.

03:43 PM 15

ANOTHER ONE WAS TOLD THAT HE DIDN'T SPEAK

03: 43 PM 16 ENGLISH GOOD.

03:43 PM 17 Q.

OKAY. THESE GUYS HAVE THE SENIORITY?

03:43 PM 18 A.

YEAH.

03:43 PM 19 Q. 03:43 PM 20 A.

AND THEY SIGNED UP FOR THE BID SHEET? OH, YES.

03: 43 PM 21 Q.

NOW, HOW MANY PEOPLE SIGNED THE BID SHEET?

03:43 PM 22
03:43 PM 23

THE COURT: ELEVEN. THE WITNESS: ABOUT ELEVEN OR SO.

03: 43 PM 24 BY MR. GARRIGAN:

03:43 PM 25 Q.

OKAY. DID THEY AWARD IT TO SOMEBODY ON THE BID

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216 03:43 PM 1 SHEET?

03:43 PM 2 A. 03:43 PM 3 Q. 03:43 PM 4 A.

NO. WHO DID THEY AWARD IT TO? THEY AWARDED IT TO A GUY THAT HAD BEEN THERE TWO

03:43 PM 5 WEEKS.

03:43 PM 6 Q.

WHAT WAS HIS RACE?

03:43 PM 7 A.

WHITE.

03:43 PM 8 Q.

HE HAD ONLY BEEN WORKING TWO WEEKS?

03:43 PM 9 A. 03:43 PM 10 Q. 03:44 PM 11 A. 03:44 PM 12 Q. 03:44 PM 13 A. 03:44 PM 14 Q. 03:44 PM 15 A.

TWO WEEKS. SO HE WOULD STILL BE PROBATIONARY? EXACTLY. HE'S NOT EVEN ALLOWED TO SIGN A BID SHEET, IS HE? EXACTLY. DID HE SIGN THE BID SHEET? NO.

03:44 PM 16 Q.

IS THAT THE MEETING WHERE THEY GAVE YOU THESE THREE

03:44 PM 17 03:44 PM 18 03:44 PM 19

REASONS FOR PASSING PEOPLE OVER?

A.

RIGHT.

Q. DID THEY EVER EXPLAIN WHY THEY PASSED OVER ALL

03:44 PM 20 ELEVEN OF THOSE PEOPLE?

03 : 44 PM 21 03:44 PM 22

A • NO, THEY JUST GAVE US THREE THE REASON WHY WE DIDN'T GET IT.

03 : 44 PM 23 Q • AND ONE OF THE REASONS, THEY JUST SAID "WE DON'T

03:44 PM 24 03:44 PM 25

WANT TO LET EXPERIENCED PEOPLE OUT OF THE CLEANING ROOM"?

A.

RIGHT.

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217

03:44 PM 1 Q.

HAVE YOU EVER BID ON A FORKLIFT JOB?

03:44 PM 2 A.

YES.

03:44 PM 3 Q.

DID YOU EVER GET IT?

03:44 PM 4 A.

NO.

03:44 PM 5 Q.

DOES IT ALWAYS GO TO THE MOST EXPERIENCED PERSON?

03:44 PM 6 A. WELL, THAT'S WHAT THEY SAY, SO I WOULDN'T HAVE NO

03 :44 PM 7 IDEA WHO IT WAS.

03:44 PM 8 Q.

DID YOU EVER SEE IT GET --

03:44 PM 9

DID YOU EVER SEE THEM HIRE SOMEBODY FROM OUTSIDE

03:44 PM 10 TO DRIVE THE FORKLIFT INSTEAD OF --

03:45 PM 11 03:45 PM 12

A. YES. I MEAN, JUST RECENTLY THEY HIRED A GUY AND PUT HIM ON A FORKLIFT, WHERE GUYS THAT HAD BEEN CHIPPING AND

03:45 PM 13 GRINDING SIGNED THE BID BUT DIDN'T GET IT.

03:45 PM 14 Q. 03:45 PM 15 A.

SO THEY POSTED THE BID FOR THE FORKLIFT JOB? RIGHT.

03:45 PM 16 Q.

CHIPPERS AND GRINDERS SIGNED UP FOR IT?

03:45 PM 17 A.

RIGHT.

03:45 PM 18 Q.

DID THAT INCLUDE BLACK GUYS, HISPANIC GUYS?

03:45 PM 19 A.

PROBABLY SOME BLACK, HISPANIC. I REALLY --

03:45 PM 20 Q.

AND THEY WENT AND HIRED A NEW GUY OFF THE STREET TO

03 : 45 PM 21 DO IT?

03:45 PM 22 A. 03:45 PM 23 Q.

RIGHT. NOW, YOU DID -- AS A RESULT OF YOUR GRIEVANCE --

03:45 PM 24 A. 03:45 PM 25 Q.

UH-HUH. -- DID YOU GET THE STOREKEEPER/TOOL ROOM JOB?

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218

03:45 PM 1 A.

YEAH. IT WAS TWO YEARS LATER THEY CAME TO ME AND

03:45 PM 2 THEY OFFERED ME THE JOB, AND THIS IS WHAT WAS SAID TO ME,

03:46 PM 3 THAT THEY WOULD DROP ME DOWN TO TWELVE-0-3, AT THE TOP OF

03:46 PM 4 STOREKEEPER PAY, SINCE I HAD REACHED THE TOP OF CHIPPING

03:46 PM 5 AND GRINDER AND FINISHER PAY. AND THAT'S WHAT I ASSUMED

03:46 PM 6 THAT WAS GOING TO TAKE PLACE, YOU KNOW. I AGREED TO IT,

03 :46 PM 7 AND

03:46 PM 8 Q.

WHO TOLD YOU THAT?

03:46 PM 9 A. 03 :46 PM 10 Q.

GERALD COUTEE. AND WHAT IS HIS POSITION?

03:46 PM 11 A.

HE'S THE MANAGER OF THE CLEANING ROOM.

03 :46 PM 12 Q.

ALL RIGHT.

03:46 PM 13

MR. HAMEL: OBJECTION, HEARSAY, YOUR HONOR. MR.

03:46 PM 14 COUTEE IS A CLASS MEMBER AS FAR AS I KNOW.

03 :46 PM 15

MR. GARRIGAN: IS THAT PART OF THE OBJECTION?

03:46 PM 16

MR. HAMEL: YES, IT'S HEARSAY AS TO MR. COUTEE.

03:46 PM 17

THE COURT: IT'S SUSTAINED.

03: 46 PM 18 BY MR. GARRIGAN:

03:46 PM 19 Q.

DID YOU GET THE STOREKEEPER POSITION?

03:46 PM 20 A.

YES.

03:46 PM 21

THE COURT: DO YOU STILL HAVE IT?

03:46 PM 22

THE WITNESS: NO. NO, SIR.

03:46 PM 23

THE COURT: HOW LONG DID YOU KEEP IT?

03:46 PM 24

THE WITNESS: FOUR MONTHS. JUDGE, I DID IT FOR

03:47 PM 25 FOUR MONTHS, AND ONE MONDAY I COME IN TO WORK, AND THEY

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219

03:47 PM 1 THEY WAS TELLING ME THAT THEY HAD DROPPED MY PAY TO TEN

03:47 PM 2 THIRTY, FROM TWELVE FIFTY-TWO TO TEN THIRTY.

03:47 PM 3

AND I'M ASKING WHAT HAPPENED, AND THEy'RE

03:47 PM 4 TELLING ME THAT THE UNION MET WITH STEVE REYNOLDS AND THEY

03:47 PM 5 DECIDED TO DROP MY PAY TO TEN THIRTY.

03:47 PM 6

AND I ASKED WHY, AND THEY SAID BECAUSE I DIDN'T

03:47 PM 7 HAVE EXPERIENCE IN DOING STOREKEEPER, BUT I HAD BEEN DOING

03:47 PM 8 STOREKEEPER. I HAD BEEN DOING IT WHEN THE GUY GO ON

03:47 PM 9 03:47 PM 10 03 :47 PM 11

VACATION, I WOULD FILL IN FOR HIM. AND FOR SOME REASON THEY DROP MY PAY TO TEN THIRTY, AND I'M LIKE, YOU KNOW, THAT'S TOO BIG OF A PAY CUT FOR ME TO TAKE.

03:47 PM 12 03 :47 PM 13 03 :47 PM 14

SO I TELL -- YOU KNOW -BY MR. GARRIGAN: Q. THAT WASN'T PART OF THE ORIGINAL DEAL, WAS IT?

03:47 PM 15 A. 03:47 PM 16 Q. 03:47 PM 17

NO. OKAY.
MR. GARRIGAN: YOUR HONOR, WHEN GERALD COUTEE

03:47 PM 18 TOLD HIM HE WOULD GET PAID THE TOP OF STOREKEEPER PAY, I

03:48 PM 19 CLEARLY WAS NOT SUBMITTING THAT FOR THE TRUTH OF THE

03 :48 PM 20 MATTER STATED. IT DIDN'T HAPPEN. IT WAS JUST TO SHOW YOU

03:48 PM 21 WHAT THE AGREEMENT HAD BEEN.

03:48 PM 22

MR. HAMEL: WELL, YOUR HONOR, THAT'S CLEARLY FOR

03:48 PM 23 THE TRUTH OF THE PROPOSITION. HE SAYS HE WANTS TO

03:48 PM 24 TESTIFY.

03:48 PM 25

THE COURT: IT CERTAINLY IS. IT CERTAINLY IS.

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03:48 PM 1

220 I DON'T KNOW WHETHER MR. COUTEE IS -- HE'S

03:48 PM 2 LISTED AS A WITNESS. I DON'T KNOW WHETHER HE'S GOING TO

03: 48 PM 3 TESTI FY OR NOT.

03:48 PM 4

MR. GARRIGAN: I DON'T EITHER. BUT HE IS ALSO

03:48 PM 5 IN MANAGEMENT, SO IT'S AN ADMISSION AS WELL.

03:48 PM 6

MR. HAMEL: IT CAN'T BE AN ADMISSION AGAINST A

03:48 PM 7 PARTY OPPONENT WHEN HE'S A PLAINTIFF, WHETHER HE'S IN

03:48 PM 8 MANAGEMENT OR NOT. I MEAN, THEy'VE TOLD US REPEATEDLY WE

03 :48 PM 9 CAN'T TALK TO ANY OF OUR MANAGERS BECAUSE THEy'RE CLASS 03:48 PM 10 MEMBERS, AND IF THEy'RE PLAINTIFFS, THEy'RE PLAINTIFFS.

03:48 PM 11

THE COURT: I JUST A MADE A COMMENT. I DON'T

03:48 PM 12 03:48 PM 13

KNOW WHETHER HE'S GOING TO TESTIFY OR NOT. MR. GARRIGAN: I DON'T EITHER.

03:48 PM 14 03:49 PM 15

THE COURT: ALL RIGHT. MR. GARRIGAN: THANK YOU, MR. DEASON.

03:49 PM 16 03:49 PM 17

I'LL PASS THE WITNESS, YOUR HONOR. THE COURT: ALL RIGHT. THANK YOU.

03:49 PM 18

CROSS-EXAMINATION

03:49 PM 19
03:49 PM 20

BY MR. HAMEL: Q. GOOD AFTERNOON, MR. DEASON.

I'M DOUG HAMEL.

03:49 PM 21 A. 03: 49 PM 22 Q.

HOW YOU DOING? LET ME TAKE YOU BACK, MR. DEASON, TO THE EARLIER

03:49 PM 23 PART OF YOUR TESTIMONY. IT'S MY UNDERSTANDING THAT YOU

03:49 PM 24 WENT INTO THE TEXAS WORKFORCE COMMISSION AND SAID THAT YOU

03: 50 PM 25 WERE LOOKING FOR WORK, AM I CORRECT IN THAT?

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221

03: 50 PM 1 A. THAT'S CORRECT.

03: 50 PM 2 Q. OKAY. AND YOU FILLED OUT THEIR FORMS ABOUT WHAT

03: 50 PM 3 SORT OF WORK YOU HAD DONE BEFORE AND WHAT YOU WERE LOOKING

03: 50 PM 4 FOR, RIGHT?

03:50 PM 5 03:50 PM 6 03:50 PM 7 03:50 PM 8 03:50 PM 9 03: 50 PM 10

A. RIGHT. Q. AND THEN AT SOME POINT IN TIME THEY CALLED YOU UP AND THEY SAID THAT THERE WAS AN OPENING AT LUFKIN INDUSTRIES, RIGHT? A. WELL, THEY DIDN'T SAY AN OPENING AT LUFKIN INDUSTRIES, THEY SAID I HAD AN INTERVIEW WITH LUFKIN

03: 50 PM 11 INDUSTRIES.

03: 50 PM 12 Q.

DID THEY ASK YOU IF YOU WANTED AN INTERVIEW?

03:50 PM 13 A.

DID THEY ASK ME?

03: 50 PM 14 Q.

YEAH.

03: 50 PM 15 A. YES. I MEAN, THAT'S PART OF FILLING OUT THE

03: 50 PM 16 PAPERWORK.

03:50 PM 17 Q. AND THEY TOLD YOU THAT THE INTERVIEW WAS FOR THE

03:50 PM 18 FOUNDRY, ISN'T THAT RIGHT?

03:50 PM 19 A. YES.

03:50 PM 20 Q. OKAY. AND YOU CAME INTO THE TEXAS WORKFORCE

03: 50 PM 21 COMMISSION, RIGHT?

03:50 PM 22 A.

RIGHT.

03:50 PM 23 Q. AND THE RECEPTIONIST GAVE YOU A LUFKIN JOB

03:50 PM 24 APPLICATION, RIGHT?

03: 50 PM 25 A.

UH-HUH.

WENDELL R. PARKS, OFFICIAL COURT REPORTER 409-654-2834

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03:50 PM 1 03:50 PM 2 03:50 PM 3 03: 50 PM 4 03: 51 PM 5 03: 51 PM 6 03: 51 PM 7 03: 51 PM 8 03:51 PM 9 03:51 PM 10

222 Q. AND YOU FILLED IT OUT, RIGHT? A. WELL, I GOT THE APPLICATION WHEN I WENT FOR THE INTERVIEW WITH BARBAY. Q. OKAY. SO YOU GO OVER TO THE COMPANY IN 1994, RIGHT, AND YOU GET AN APPLICATION ACCORDING TO YOUR TESTIMONY? A. UH-HUH. Q. HE GAVE YOU ONE AND YOU FILLED IT OUT, RIGHT? A. RIGHT. Q. OKAY. AND YOU HAVEN'T TALKED TO MR. BAR BAY YET I TAKE IT?

03: 51 PM 11 03: 51 PM 12 03: 51 PM 13 03: 51 PM 14

A. EXCUSE ME? Q. YOU HADN'T TALKED TO HIM YET, THEY JUST GAVE YOU AN APPLICATION? A. I FILLED OUT THE APPLICATION AT THE WORKFORCE

03: 51 PM 15 COMMISSION, AND THEY CALLED ME AND SAID I HAD AN INTERVIEW

03: 51 PM 16 WITH MR. BARBAY. SO I FILLED OUT THE APPLICATION THERE

03: 51 PM 17 AND HE SENT ME OVER TO TALK TO LOUIS KILLINGSWORTH. 03:51 PM 18 Q. OKAY. DID YOU FILL OUT THE LUFKIN INDUSTRIES'

03: 51 PM 19 APPLICATION?

03: 51 PM 20 A. WHEN I WAS THERE WITH MR. BARBAY.

03 :51 PM 21 Q. WHEN YOU WENT TO MR. BARBAY?

03: 51 PM 22 A.

RIGHT.

03: 51 PM 23 Q.

SO YOU WENT IN AND YOU SAT DOWN DOWN AND HE GAVE YOU

03: 51 PM 24 AN APPLICATION AND YOU FILLED IT OUT?

03: 51 PM 25 A.

RIGHT.

WENDELL R. PARKS, OFFICIAL COURT REPORTER 409-654-2834

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223

03:51 PM 1 Q. OKAY. AND YOU GAVE IT BACK TO HIM, AND THEN HE HAD

03: 51 PM 2 AN INTERVIEW WITH YOU?

03:51 PM 3 A.

RIGHT. I HAD AN INTERVIEW WITH HIM. HE CALLED ME

03: 51 PM 4 FOR AN INTERVIEW.

03:51 PM 5 Q.

ALL RIGHT. IT WAS AFTER YOU DID YOUR APPLICATION

03:51 PM 6 03: 51 PM 7

THOUGH, RIGHT? A. RIGHT.

03: 51 PM 8 Q. OKAY. NOW, LET ME SHOW YOU SOMETHING ON THE SCREEN.

03: 51 PM 9

WOULD YOU PUT UP DEASON 0014, PLEASE?

03: 52 PM 10

AND ZOOM ON THAT.

03:52 PM 11

THIS IS YOUR APPLICATION FOR EMPLOYMENT AT

03:52 PM 12 LUFKIN. THAT'S YOUR HANDWRITING, ISN'T IT?

03: 52 PM 13 A.

RIGHT.

03 : 52 PM 14 Q • AND JUST BELOW THAT LEGEND THAT SAYS THAT PEOPLE ARE

03:52 PM 15 CONSIDERED WITHOUT REGARD TO RACE, YOU WROTE IN WHAT JOB

03: 52 PM 16 YOU WERE APPLYING FOR, ISN'T THAT RIGHT?

03 : 52 PM 17 A .

RIGHT.

03:52 PM 18 Q. AND THE JOB YOU WERE APPLYING FOR WAS WHAT?

03 : 52 PM 19 A .

CHIPPER/GRINDER.

03: 52 PM 20 Q. OKAY. GO TO DEASON 0016.

03: 52 PM 21

ZOOM IN ON THE FIRST BOX. NO, I'M SORRY, THE

03:52 PM 22 THIRD BOX.

03: 52 PM 23

THE APPLICATION YOU HAD AT LUFKIN ASKED YOU TO

03: 52 PM 24 GIVE THEM WHAT EXPERIENCE YOU HAD HAD WORKING BEFORE,

03:52 PM 25 ISN'T THAT RIGHT?

WENDELL R. PARKS, OFFICIAL COURT REPORTER
409-654-2834

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224

03: 52 PM 1 A.

RIGHT.

03: 52 PM 2 Q.

AND THE JOB THAT YOU HAD HAD THIRD BACK I GUESS WAS

03:52 PM 3 WITH -- WAS IN A FOUNDRY, WASN'T IT?

03: 52 PM 4 A.

RIGHTS.

03: 52 PM 5 Q.

AND THE JOB YOU DID THERE WAS CHIPPING AND GRINDING

03:52 PM 6 IN THE FOUNDRY?

03: 52 PM 7 A.

RIGHT.

03: 52 PM 8 Q.

OKAY. AND THEN GO UP TO THE FIRST BOX, PLEASE. I'M

03:53 PM 9 SORRY. GO BACK TO THE THIRD BOX.

03:53 PM 10

THE JOB YOU HAD IN THE

03:53 PM 11

IS THAT TEXAS FOUNDRY?

03:53 PM 12 A.

UH-HUH.

03:53 PM 13 Q. OKAY. AND THEY HAD TO LET YOU GO FOR LACK OF WORK,

03:53 PM 14 IS THAT RIGHT?

03:53 PM 15 A.

RIGHT.

03:53 PM 16 Q. OKAY. AND THEN THE MOST RECENT JOB YOU HAD -- GO UP

03:53 PM 17 TO ONE -- THE MOST RECENT JOB YOU HAD WAS WITH ANOTHER

03: 53 PM 18 FOUNDRY OPERATION, ISN'T THAT RIGHT?

03: 53 PM 19 A.

RIGHT.

03: 53 PM 20 Q.

GENCO?

03 : 53 PM 21 A.

UH-HUH.

03: 53 PM 22 Q.

NOW, GENCO IS IN LUFKIN, TEXAS, TOO, ISN'T IT?

03: 53 PM 23 A.

IT WAS. I THINK THEY CLOSED DOWN.

03:53 PM 24 Q.

THEY WENT OUT OF BUSINESS?

03:53 PM 25 A.

RIGHT.

WENDELL R. PARKS, OFFICIAL COURT REPORTER
409-654-2834

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225

03:53 PM 1 Q.

OKAY. AND THE JOB THAT YOU HAD AT GENCO WAS

03:53 PM 2 BASICALLY CLEANING AND GRINDING AND SANDBLASTING, RIGHT?

03:53 PM 3 A.

RIGHT.

03:53 PM 4 Q.

SO WHEN YOU WENT TO LUFKIN

03:53 PM 5

WELL, I GUESS WHEN YOU WENT TO THE TWC, YOU TOLD

03:53 PM 6 THEM WHAT YOUR PRIOR EXPERIENCE WAS, RIGHT?

03:53 PM 7 A.

RIGHT.

03:53 PM 8 Q.

AND WHEN YOU WENT TO LUFKIN, YOU WENT INTO THE SAME

03:53 PM 9 03: 53 PM 10 03:53 PM 11

LINE OF WORK THAT YOU HAD HAD AT YOUR PREVIOUS EMPLOYMENT? A. RIGHT. Q. OKAY. NOW, WHEN YOU WENT IN TO LUFKIN, I'M CORRECT,

03: 54 PM 12 AM I NOT, THAT YOU STARTED AS A GENERAL FOUNDRYMAN?

03: 54 PM 13 A.

RIGHT.

03:54 PM 14 Q.

AND ANYBODY WHO IS A GENERAL FOUNDRYMAN AFTER THEY

03: 54 PM 15 FINISH THEIR PROBATIONARY PERIOD, IF THEY WANT TO GO INTO

03:54 PM 16 THE CLEANING AND GRINDING ROOM, THEY CAN GO THERE, CAN'T

03: 54 PM 17 THEY?

03:54 PM 18 A.

IT ALL DEPENDS ON WHAT DEPARTMENT YOUIRE IN.

03: 54 PM 19 Q.

WELL, ISN'T IT CALLED A PERPETUAL PROMOTION? IF YOU

03: 54 PM 20 WANT TO GO DO THAT WORK, BECAUSE THEY NEED PEOPLE TO DO

03: 54 PM 21 IT, YOU CAN GET IN THERE AND GO DO IT, ISN'T THAT RIGHT?

03: 54 PM 22 A.

WELL, I HAVEN'T SEEN ANYBODY VOLUNTEERING TO COME

03: 54 PM 23 DO IT.

03: 54 PM 24 Q.

WELL, MAYBE NOT A LOT OF PEOPLE WANT TO DO IT, BUT

03:54 PM 25 IF THEY WANT TO, THEY CAN?

WENDELL R. PARKS, OFFICIAL COURT REPORTER 409-654-2834

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226

03:54 PM 1 A.

I SUPPOSE.

03: 54 PM 2 Q.

OKAY. NOW, MR. DEASON, DO YOU KNOW HOW MUCH YOU'VE

03:54 PM 3 MADE THIS YEAR SO FAR?

03:54 PM 4 A.

NOT RIGHT OFFHAND.

03:54 PM 5 Q.

WOULD ABOUT -- WOULD THIRTY-FIVE THOUSAND NINE

03: 54 PM 6 HUNDRED AND NINETY-EIGHT DOLLARS BE ABOUT RIGHT?

03:54 PM 7

THE COURT: HOW MUCH?

03:54 PM 8

MR. HAMEL: THIRTY-FIVE THOUSAND NINE HUNDRED

03:55 PM 9 AND NINETY-EIGHT DOLLARS.

03: 55 PM 10

THE WITNESS: I DON'T THINK THAT'S RIGHT.

03: 55 PM 11 BY MR. HAMEL:

03: 55 PM 12 Q.

YOU DON'T THINK IT'S RIGHT? YOU DON'T THINK THAT

03:55 PM 13 THIS YEAR YOU'RE GOING TO CLEAR ABOUT FORTY THOUSAND

03:55 PM 14 DOLLARS?

03: 55 PM 15 A.

NO .

03: 55 PM 16 Q.

OKAY. MR. DEASON --

03: 55 PM 17

THE COURT: DO YOU WORK A LOT OF OVERTIME?

03: 55 PM 18

THE WITNESS: PRETTY MUCH.

03: 55 PM 19
03: 55 PM 20

THE COURT: AND YOUR RATE OF PAY IS WHAT? THE WITNESS: TWELVE EIGHTY-THREE.

03: 55 PM 21 03: 55 PM 22
03: 55 PM 23 03: 55 PM 24 03:55 PM 25

A RAISE.

THE COURT: TWELVE WHAT? THE WITNESS: TWELVE EIGHTY-THREE.
THE COURT: A FORTY-HOUR WEEK? THE WITNESS: RIGHT.

WE JUST GOT

WENDELL R. PARKS, OFFICIAL COURT REPORTER
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03: 55 PM 1

227 THE COURT: DO YOU GET A TWO-WEEK VACATION?

03: 55 PM 2

THE WITNESS: RIGHT.

03:55 PM 3

THE COURT: TIMES FIFTY WEEKS. ALL RIGHT.

03:55 PM 4

MR. HAMEL: WELL

03:55 PM 5

THE COURT: I'VE MULTIPLIED IT OUT.

03:55 PM 6

MR. HAMEL: I UNDERSTAND, YOUR HONOR.

03:55 PM 7 BY MR. HAMEL:

03: 55 PM 8 Q.

YOUR STANDARD WORKWEEK IS A FORTY-HOUR WEEK, RIGHT?

03: 55 PM 9 A.

RIGHT.

03:55 PM 10 Q.

BUT YOU GET A LOT OF OVERTIME, DON'T YOU?

03:55 PM 11 A.

RIGHT.

03:55 PM 12 Q.

AND THAT OVERTIME ADDS UP, DOESN'T IT?

03: 55 PM 13 A.

I SUPPOSE.

03:55 PM 14 Q.

SO YOUR BASE RATE MAY BE ABOUT, I DON'T KNOW,

03: 55 PM 15 TWENTY-FIVE, TWENTY-SIX, TWENTY-SEVEN THOUSAND DOLLARS,

03:55 PM 16 BUT YOU'VE DONE A LOT OF OVERTIME WORK THIS YEAR, HAVEN'T

03: 55 PM 17 YOu?

03: 55 PM 18

THE COURT: TWENTY-FIVE SIX SIXTY.

03: 56 PM 19

MR. GARRIGAN: I THINK THAT'S RIGHT, YOUR HONOR.

03: 56 PM 20 BY MR. HAMEL:

03: 56 PM 21 Q.

YOU'VE DONE A LOT OF OVERTIME WORK THIS YEAR,

03:56 PM 22
03: 56 PM 23 03:56 PM 24

HAVEN'T YOU?

A.

YEAH.

Q. OKAY. AND WHEN YOU DO OVERTIME WORK, YOU GET PAID

03:56 PM 25 ABOUT NINETTEN DOLLARS AN HOUR, DON'T YOU?

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228

03:56 PM 1 A.

I SUPPOSE.

03:56 PM 2 Q.

OKAY.

03: 56 PM 3

THE COURT: YOU GET PAID TIME AND A HALF, DON'T

03: 56 PM 4 YOU?

03: 56 PM 5

THE WITNESS: RIGHT. YES, SIR.

03: 56 PM 6 BY MR. HAMEL:

03: 56 PM 7 Q.

NOW, MR. DEASON, YOU HAVE TESTIFIED THAT YOU WERE --

03: 56 PM 8 YOU ONCE BID FOR A STOREKEEPER POSITION, ISN'T THAT RIGHT?

03: 56 PM 9 A.

RIGHT.

03:56 PM 10 Q.

OKAY. AND AT THE TIME THAT YOU BID FOR THE

03: 56 PM 11 STOREKEEPER POSITION, YOU WERE TOLD THAT YOU COULDN'T

03: 56 PM 12 YOU WOULDN'T BE CONSIDERED FOR THAT POSITION BECAUSE IT

03: 56 PM 13 WOULD BE A DEMOTION, ISN'T THAT RIGHT?

03: 56 PM 14 A.

RIGHT.

03: 56 PM 15 Q.

OKAY. AND YOU WEREN'T IN FACT EVEN THE SENIOR

03: 56 PM 16 BIDDER FOR THAT STOREKEEPER POSITION, WERE YOU?

03:56 PM 17 A.

RIGHT.

03: 56 PM 18 Q.

LET ME ASK YOU TO PUT UP DEASON 5, PLEASE.

03: 57 PM 19

OKAY. ZOOM ON THE TEXT, JUST THE TYPED TEXT.

03: 57 PM 20 SORRY.

03: 57 PM 21

NOW, IS THAT A LIST OF THE PEOPLE WHO BID FOR

03: 57 PM 22 THAT STOREKEEPER POSITION AS FAR AS YOU CAN TELL?

03: 57 PM 23 A. 03:57 PM 24 Q.

THAT'S THE LIST. OKAY. AND I THINK YOU TOLD ME THAT MR. RODRIQUEZ

03:57 PM 25 AND MR. MUNEZ WERE BOTH TOLD THAT THEY COULDN'T LEAVE THE

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229

03: 57 PM 1 03: 57 PM 2 03:57 PM 3 03:57 PM 4 03:57 PM 5 03:57 PM 6 03:58 PM 7 03: 58 PM 8 03: 58 PM 9 03:58 PM 10 03:58 PM 11

CHIPPER/GRINDER, FINISHER CLASSIFICATION, JUST AS YOU COULDN'T, BECAUSE IT WAS A DEMOTION, ISN'T THAT RIGHT? A. RIGHT. Q. AND MR. DELEON, THE FORKLIFT/TOWMOTOR OPERATOR -I'M SORRY. MR. SHAW, WHO WAS THE MELTER "A," COULDN'T GET THE BID BECAUSE THAT'S A DEMOTION FOR HIM, TOO, ISN'T IT? A. I DON'T EVEN KNOW MR. SHAW, SO I REALLY DON'T KNOW. Q. YOU DON'T KNOW THAT MR. SHAW IS WHITE? A. I HAVEN'T NEVER SEEN MR. SHAW, SO I DON'T REALLY KNOW. Q. OKAY. AND YOU WERE FIFTH ON THE SENIORITY LIST,

03: 58 PM 12 ISN'T THAT RIGHT?

03:58 PM 13 A.

NO, NOT ON THE LIST THEY SHOWED ME. I WAS THIRD.

03:58 PM 14 Q. THIRD ON THE LIST THEY SHOWED YOU?

03: 58 PM 15 A.

EXACTLY.

03: 58 PM 16 Q. OKAY. NOW, DID THE UNION EVER SHOW YOU THE

03: 58 PM 17 EXPLANATION OF THE COMPANY WITH RESPECT TO THIS SITUATION?

03: 58 PM 18 A.

I WAS THE ONE WHO FILED THE GRIEVANCE.

03:58 PM 19 Q. OKAY. WOULD YOU PUT UP DEASON 0006, PLEASE?

03: 58 PM 20

OKAY. DO YOU RECALL GETTING AN EXPLANATION THAT

03:58 PM 21 FOR RODRIGUEZ, DIAZ, DEASON AND SHAW, THAT IT WOULD HAVE

03: 59 PM 22 BEEN A DEMOTION, AND THAT MR. GONZALES AND TOWNSEND AND

03:59 PM 23 MURPHY WERE INTERVIEWED AND DIDN'T MEET THE QUALIFICATIONS

03: 59 PM 24 NECESSARY FOR A STOREKEEPER, RIGHT?

03: 59 PM 25 A.

I DON'T REMEMBER THAT.

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03: 59 PM 1 Q.

230 OKAY. DO YOU REMEMBER BEING TOLD THAT THE OTHER

03: 59 PM 2 GUYS WHO WERE ON THE LIST HADN'T BOTHERED TO COME FOR AN

03: 59 PM 3 03:59 PM 4 03:59 PM 5

INTERVIEW? A. NO, I DON'T REMEMBER BEING TOLD THAT. Q. OKAY. NOW, IS IT IN FACT THE CASE THAT TO DO A

03: 59 PM 6 STOREKEEPER JOB YOU HAVE TO SOME BASIC KNOWLEDGE OF

03: 59 PM 7 03:59 PM 8 03: 59 PM 9

STOREKEEPING, ISN'T THAT RIGHT? A. THAT'S RIGHT. Q. OKAY. AND YOU GET -- THERE'S AN ASSESSMENT DONE AS

03:59 PM 10 03: 59 PM 11 03: 59 PM 12

TO WHETHER OR NOT YOU CAN BE A STOREKEEPER, ISN'T THERE? A. MEANING WHAT? Q. MEANING THEY ASK YOU IF YOU HAVE ANY TYPING SKILLS,

03: 59 PM 13 THEY ASK YOU IF YOU HAVE ANY COMPUTER SKILLS, IF YOU HAVE

03: 59 PM 14 KNOWLEDGE OF RECEIVING OR SHIPPING OR THAT SORT OF STUFF.

03:59 PM 15 A. 03: 59 PM 16 Q. 04 :00 PM 17 A. 04 :00 PM 18 Q . 04:00 PM 19 A. 04:00 PM 20 Q.

WHO ASKS THAT? SUPERVISORS OR THE STOREKEEPERS. NO. YOU DON'T RECALL THAT? NO, NOBODY DID. OKAY. DO YOU RECALL THAT THE UNION TOLD YOU THAT

04:00 PM 21 THEY HAD GOTTEN -- THAT THEY HAD FILED A GRIEVANCE ON YOUR 04:00 PM 22 BEHALF?

04 :00 PM 23 A. 04 :00 PM 24 Q. 04:00 PM 25

RIGHT. OKAY. AND LET ME
PUT UP DEASON 001. THAT'S A LITTLE HARD TO

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231

04:00 PM 1 READ.

04:00 PM 2

THIS IS THE GRIEVANCE LET ME TELL YOU THAT WAS

04:00 PM 3 FILED ON YOUR BEHALF.

04:00 PM 4

GO DOWN TO THE SIGNATURE BLOCK, PLEASE.

04:00 PM 5

DO YOU KNOW A LARRY THIGPEN?

04:00 PM 6 A.

YEAH.

04:00 PM 7 Q.

HE'S THE PRESIDENT OF THE UNION, ISN'T HE?

04:00 PM 8 A.

RIGHT.

04:00 PM 9 Q. 04:00 PM 10 A. 04:00 PM 11 Q.

HE'S A WHITE GUY? RIGHT. AND HE FILED THIS GRIEVANCE ON YOUR BEHALF, SAYING

04:00 PM 12 THAT THERE OUGHT TO BE A RIGHT TO ALLOW SOMEBODY TO TAKE A

04:00 PM 13 04:00 PM 14

DEMOTION EVEN THOUGH THE CONTRACT DOESN'T PROVIDE FOR IT? MR. GARRIGAN: YOUR HONOR, I NEED TO OBJECT.

04:00 PM 15 HE'S JUST TELLING THE MAN WHAT SOMEBODY ELSE SAID.

04 :00 PM 16

THE COURT: I'LL TAKE IT INTO CONSIDERATION. HE

04:00 PM 17 CAN IDENTIFY THE GRIEVANCE AND IDENTIFY THIGPEN, AND HE

04:00 PM 18 CAN INQUIRE WHETHER OR NOT HE MADE THAT COMMENT TO ANYONE,

04:01 PM 19
04:01 PM 20

THAT YOU COULD TAKE A DEMOTION IF YOU WANTED TO, WHETHER IT'S IN THE AGREEMENT OR NOT.

04:01 PM 21 04:01 PM 22
04:01 PM 23

DO YOU FEEL THAT WAY, MR. DEASON? THE WITNESS: THAT'S WHAT THE GRIEVANCE -- THE UNION REPRESENTATIVE SAID. I DON'T REMEMBER MR. THIGPEN

04:01 PM 24 04:01 PM 25

SAYING IT, BUT I REMEMBER -- I CAN'T THINK OF HIS NAME. THE OTHER GUY SAID IT THAT CAME DOWN THAT FILED THE

WENDELL R. PARKS, OFFICIAL COURT REPORTER
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04:01 PM 1 04:01 PM 2

232
GRIEVANCE. HE WAS TELLING THEM THAT A MAN OUGHT TO HAVE A CHOICE ON IF HE WANTED TO TAKE A DEMOTION OR NOT. IT

04:01 PM 3 WASN'T ABOUT THE MONEY, IT WAS ABOUT BETTER HEALTH OR A

04:01 PM 4 BETTER JOB, AND THAT'S WHAT HE WAS SAYING.

04:01 PM 5 BY MR. HAMEL:

04:01 PM 6 Q.

OKAY. AND THE COMPANY --

04:01 PM 7

THE COURT: WAS THAT THE UNION REPRESENTATIVE

04:01 PM 8 TALKING TO YOU?

04:01 PM 9

THE WITNESS: WELL, HE WAS TELLING -- HE WAS

04:01 PM 10 TELLING STEVE REYNOLDS THIS.

04:01 PM 11

THE COURT: IN YOUR PRESENCE?

04:01 PM 12

THE WITNESS: WELL, WE WAS THERE AT THE MEETING.

04:01 PM 13

THE COURT: OKAY.

04: 01 PM 14

THE WITNESS: YEAH.

04:02 PM 15

THE COURT: THE OBJECTION IS OVERRULED.

04:02 PM 16 BY MR. HAMEL:

04:02 PM 17 Q.

OKAY. AND AM I CORRECT, MR. DEASON, THAT THE UNION

04:02 PM 18 ON YOUR BEHALF AND ON ONE OF THE OTHER EMPLOYEE'S BEHALF

04:02 PM 19 04:02 PM 20

NEGOTIATED AN AGREEMENT ON THIS GRIEVANCE WITH THE COMPANY, AND THE AGREEMENT WAS THAT THEY WOULD FIRST OFFER

04:02 PM 21 04:02 PM 22 04:02 PM 23 04:02 PM 24 04: 02 PM 25

THE NEXT STOREKEEPER POSITION THAT CAME OPEN TO MR. MUNEZ,

AND IF HE DECLINED IT, THEY WOULD OFFER IT TO YOU?

A.

NO, THEY SAID THEY WOULD GIVE IT TO ME. THEY HAD

ALREADY TOLD MR. MUNEZ THAT HE WASN'T GOING TO GET IT

BECAUSE THEY DIDN'T WANT TO LOSE AN EXPERIENCED CHIPPER

WENDELL R. PARKS, OFFICIAL COURT REPORTER
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04:02 PM 1 04:02 PM 2 04:02 PM 3 04:02 PM 4 04:03 PM 5 04:03 PM 6 04:03 PM 7 04:03 PM 8 04:03 PM 9 04:03 PM 10 04:03 PM 11 04:03 PM 12 04:03 PM 13 04:03 PM 14 04: 03 PM 15

233 AND GRINDER. Q. PUT UP DEASON 0013, PLEASE.
NOW, MR. DEASON, THIS IS A LETTER -GO TO WHO IT GOES TO. IT'S A LETTER THAT GOES TO THE BUSINESS AGENT OF THE MOLDERS UNION, BILLY WEBB? A. BILLY WEBB. Q. OKAY. ISN'T THAT BILLY WEBB? A. BILLY WEBB. Q. OKAY. AND IT IS WITH RESPECT TO YOUR GRIEVANCE, ISN'T IT? SHOW THE GRIEVANCE LINE. DO YOU REMEMBER THAT TO BE YOUR GRIEVANCE? A. NO, I DON'T KNOW IT BY NO NUMBERS. Q • NOW, GO DOWN TO THE THIRD PARAGRAPH, PLEASE.

04:03 PM 16

IS IT YOUR TESTIMONY THAT YOU WERE NEVER TOLD BY

04:03 PM 17 THE UNION THAT THE DEAL THAT WAS STRUCK WAS, IN EXCHANGE

04:03 PM 18 FOR THE WITHDRAWAL OF THE GRIEVANCE, THAT THE COMPANY

04:03 PM 19 AGREED TO OFFER THE STOREKEEPER POSITION TO MR. MUNEZ, AND

04:03 PM 20 04:03 PM 21 04:03 PM 22 04: 03 PM 2 3 04: 03 PM 24

THAT IF HE REFUSES, THEN IT WOULD GO TO YOU? A. NO, I WAS NEVER TOLD THAT. Q. MR. MUNEZ THOUGH WAS SENIOR TO YOU, WAS HE NOT? A. RIGHT. Q • OKAY. SO HE -- IN ANY EVENT, HE SHOULD HAVE GOTTEN

04:03 PM 25 THE JOB IF HE WANTED IT, BECAUSE HE WAS ALSO A

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234

04:03 PM 1 CLEANER/GRINDER, WASN'T HE?

04:03 PM 2 A.

EXACTLY.

04:03 PM 3 Q. OKAY. AND ISN'T IT IN FACT THE CASE THAT JOBS IN

04:04 PM 4 THE FOUNDRY ARE AWARDED ON THE BASIS OF A PERSON'S

04:04 PM 5 DEPARTMENTAL SENIORITY?

04:04 PM 6

MR. GARRIGAN: OBJECTION, NO FOUNDATION.

04:04 PM 7

THE WITNESS: I HAVE NO IDEA OF THAT.

04:04 PM 8 BY MR. HAMEL:

04:04 PM 9 Q. 04:04 PM 10 A. 04:04 PM 11 Q.

YOU DON'T KNOW ONE WAY OR THE OTHER? NO. OKAY. YOU CERTAINLY CAN'T TELL ME OF ANY JOB THAT

04:04 PM 12 04:04 PM 13 04:04 PM 14

YOU BID FOR THAT DIDN'T GO TO A PERSON THAT WAS MORE SENIOR TO YOU, CAN YOU? A. YEAH, THE CLEANING ROOM JOB. THEY GAVE IT TO A GUY

04:04 PM 15 THAT WASN'T SENIOR TO ME.

04 : 04 PM 16 Q. WHAT CLEANING ROOM JOB WAS THAT?

04 : 04 PM 17 A .

THE TOOL ROOM JOB.

04:04 PM 18 Q.

OH, THE TOOL ROOM? THEY GAVE IT TO MR. BRISTER, WHO

04:04 PM 19 WAS A GENERAL FOUNDRYMAN?

04 : 04 PM 20 A •

RIGHT.

04 : 04 PM 21 Q • WHO HAD BID ON THAT JOB, RIGHT? IT WASN'T A

04:04 PM 22 DEMOTION FOR HIM, WAS IT?

04 : 04 PM 23 A • WELL, THEY SAY YOU CAN'T BID ON A JOB IF YOU'RE NOT

04:04 PM 24 OFF OF PROBATION.

04 : 04 PM 2 5 Q . WELL, OKAY. YOU DO UNDERSTAND THAT IF THERE ARE NO

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235

04:04 PM 1 PEOPLE WHO ARE QUALIFIED ON A BID LIST, THE COMPANY CAN

04:04 PM 2 FILL THE JOB FROM SOMEWHERE ELSE?

04:04 PM 3 A.

WELL, I GUESS SO.

04:04 PM 4 Q.

OKAY. NOW, AT THE TIME YOU WERE OFFERED THE

04:04 PM 5 STOREKEEPER JOB

04:04 PM 6 A.

RIGHT.

04:04 PM 7 Q.

-- YOU WEREN'T MAKING TWELVE EIGHTY-THREE AN HOUR,

04:04 PM 8 WERE YOU?

04:05 PM 9 A.

NO.

04:05 PM 10 Q.

HOW MUCH WERE YOU MAKING?

04:05 PM 11 A.

I WAS MAKING TWELVE FIFTY-TWO.

04:05 PM 12 Q.

TWELVE FIFTY-TWO? IN WHAT YEAR WAS THAT?

04:05 PM 13

THE COURT: '96, WASN'T IT?

04:05 PM 14

THE WITNESS: NO, IT WASN'T '96. IT WAS I WANT

04:05 PM 15 TO SAY '98, SOMEWHERE IN THERE, '99 OR SO.

04:05 PM 16 BY MR. HAMEL:

04:05 PM 17 Q.

WELL, LET'S SEE.

04:05 PM 18

MR. HAMEL: JUST A MOMENT, YOUR HONOR.

04:05 PM 19

THE WITNESS: I'M NOT QUITE SURE.

04:05 PM 20 BY MR. HAMEL:

04 : 06 PM 21 Q •

PUT UP PAGE 11 -- 10868, AND FOCUS ON THIS.

04:06 PM 22

THESE ARE THE RATES OF PAY IN THE FOUNDRY

04:06 PM 23 DEPARTMENT, AND AS OF 2000 THE HIGHEST RATE OF PAY OF

04:06 PM 24 CHIPPER/GRINDER/FINISHER WAS ELEVEN EIGHTY-EIGHT, AND

04:06 PM 25 PRIOR TO THAT IT WAS ELEVEN FIFTY-THREE. THAT'S WHAT YOU

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04:06 PM 1 THINK YOU WERE MAKING?

04:06 PM 2 A.

IN WHAT YEAR WAS THIS?

04:06 PM 3 Q. WELL, IT WOULD HAVE BEEN IN -- AFTER OCTOBER OF '99,

04:06 PM 4 AND THEN AFTER OCTOBER OF 2000.

04:06 PM 5 A.

I SUPPOSE.

04:06 PM 6 Q. OKAY. WELL, IN ANY EVENT, YOU WERE --

04:07 PM 7

WELL, HOLD ON JUST A MINUTE. WHY DON'T YOU GIVE

04:07 PM 8 ME LI0869, AND FOCUS ON THIS CLASSIFICATION, STOREKEEPER.

04:07 PM 9

OKAY. IN ANY EVENT, YOU HAD THE OPPORTUNITY TO

04:07 PM 10 GO TO A STOREKEEPER POSITION, AND IN THE STOREKEEPER

04:07 PM 11 POSITION YOU SAW THAT THE WAGES WOULD GO UP TO AT THE END

04:07 PM 12 OF THAT CONTRACT YEAR ELEVEN SEVENTY-SEVEN PER HOUR. SO

04:07 PM 13 IF YOU HAD TAKEN THAT JOB AND STAYED IN IT A WHILE, YOU

04:07 PM 14 WOULD HAVE REACHED ELEVEN SEVENTY-SEVEN PER HOUR AS OF THE

04:07 PM 15 END OF LAST YEAR, AND IT' 5 GONE UP AGAIN IN THE NEW

04: 08 PM 16 CONTRACT, TOO, HASN'T IT?

04:08 PM 17 A.

I SUPPOSE.

04: 08 PM 18 Q. OKAY. BUT YOU DECIDED THAT IT WAS TOO MUCH OF A CUT

04:08 PM 19 OF PAY, SO YOU WENT BACK TO THE CLEANING AND GRINDING ROOM

04 :08 PM 20 RATHER THAN TAKE A STOREKEEPER JOB, EVEN THOUGH IT WOULD

04:08 PM 21 MAKE UP TO ELEVEN SEVENTY-SEVEN IN THE OLD CONTRACT?

04 : 08 PM 22 A • WELL, LIKE I SAID, AT FIRST THEY DROPPED MY PAY TO

04:08 PM 23 TEN THIRTY, NOT ELEVEN TEN, NOT ELEVEN FORTY-THREE OR

04:08 PM 24 ELEVEN SEVENTY-SEVEN.

04:08 PM 25 Q. WELL, DIDN'T THEY TELL YOU THAT THEY THOUGHT IT WAS

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04:08 PM 1 NOT FAIR FOR YOU TO COME IN AS A NEW STOREKEEPER AND BE

04:08 PM 2 PAID MORE THAN THE PEOPLE WHO HAD ALREADY BEEN IN THE

04:08 PM 3 STOREKEEPER CLASSIFICATION?

04:08 PM 4 A.

WELL, THAT'S NOT WHAT WAS TOLD TO ME.

04:08 PM 5

THE COURT: WHAT WAS TOLD TO YOU, AND BY WHOM?

04:08 PM 6

THE WITNESS: MR. COUTEE CAME TO ME WHEN THE

04:08 PM 7 POSITION CAME AVAILABLE AGAIN AND ASKED ME DID I WANT THE

04:08 PM 8 JOB. HE SAID HE WOULD GO UP FRONT AND TALK TO THEM, AND

04:08 PM 9 04:08 PM 10

HE WOULD DROP MY PAY TO TWELVE-O-THREE. THE COURT: OKAY.

04:09 PM 11 04:09 PM 12 04 :09 PM 13

BY MR. HAMEL: Q. ARE YOU AWARE THAT THE CONTRACT THAT THE COMPANY HAS SAYS THAT IF YOU HAVE A PERMANENT TRANSFER TO A

04:09 PM 14 LOWER-RATED CLASSIFICATION, YOU HAVE TO GET THE LOWER RATE

04:09 PM 15 OF PAY?

04:09 PM 16 A.

NO.

04 : 09 PM 17 Q •

PUT UP PAGE LI0582, PLEASE, AND FOCUS ON SECTION 3,

04:09 PM 18 WHICH WOULD BE AT THE BOTTOM RIGHT.

04:10 PM 19

DO YOU SEE THERE THAT IT SAYS "BUT ANY EMPLOYEE

04:10 PM 20 WHO IS PERMANENTLY TRANSFERRED BY THE COMPANY FROM A

04:10 PM 21 HIGHER-RATED JOB TO A LOWER-RATED JOB SHALL RECEIVE THE

04:10 PM 22 LOWER RATE OF PAY"?

04:10 PM 23 A. 04:10 PM 24 Q.

UH-HUH. OKAY. DO YOU KNOW THAT TO BE IN THE CONTRACT THAT

04:10 PM 25 THE COMPANY HAS WITH THE UNIONS?

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04:10 PM 1 A.

WHAT CONTRACT? I HAVEN'T RECEIVED A CONTRACT BOOK

04:10 PM 2 IN I DON'T KNOW WHEN. I HAVEN'T SEEN THE CONTRACT, SO I

04:10 PM 3 WOULDN'T KNOW.

04:10 PM 4 Q. OKAY. PUT UP LI0824, PLEASE.

04:10 PM 5

YOUR UNION DOESN'T GIVE YOU ONE OF THESE BOOKS,

04:10 PM 6 MR. DEASON?

04:10 PM 7 A. WE HAVEN'T SEEN A UNION BOOK IN, I KNOW IN AT LEAST

04:10 PM 8 FOUR YEARS.

04:10 PM 9 Q. OKAY. THAT'S -- NOBODY IN THE FOUNDRY HAS SEEN ONE 04:10 PM 10 I TAKE IT? THEY JUST DON'T GIVE THEM OUT?

04:10 PM 11 A.

I HAVEN'T SEEN ONE. WE USED TO GET THEM, BUT I

04: 10 PM 12 04:10 PM 13

HAVEN'T SEEN ONE HERE LATELY. NOBODY HAS. Q. OKAY. NOBODY HAS? WHITE, BLACK, HISPANIC, NOBODY

04:10 PM 14 HAS SEEN THEM?

04:10 PM 15 A.

I CAN'T SPEAK ON EVERYBODY, BUT I KNOW I HAVEN'T.

04 : 11 PM 16 Q .

OKAY. YOU DO KNOW THAT THERE ARE OTHER STOREKEEPERS

04:11 PM 17 IN THE COMPANY, DON'T YOU?

04:11 PM 18 A.

YES.

04:11 PM 19 Q.

OKAY. AND SEVERAL OF THOSE STOREKEEPERS ARE BLACK,

04:11 PM 20 AREN'T THEY?

04 : 11 PM 21 A .

YES.

04 : 11 PM 22 Q.

FOR EXAMPLE, EDDIE ANTHONY, HE'S A STOREKEEPER,

04:11 PM 23 ISN'T HE?

04 : 11 PM 24 A.

RIGHT.

04 : 11 PM 2 5 Q •

HE'S BLACK?

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04:11 PM 1 A.

HE'S BLACK.

04: 11 PM 2 Q.

MATTIE WILSON, SHE'S A STOREKEEPER?

04:11 PM 3 A.

SHE RETIRED.

04:11 PM 4 Q.

OKAY. WAS SHE BLACK?

04: 11 PM 5 A.

YEAH.

04:11 PM 6 Q. OKAY. HOW ABOUT TIMOTHY RISBY?

04:11 PM 7 A.

I DON'T KNOW HIM.

04:11 PM 8 Q. OKAY. HOW ABOUT LITTLE BURRELL, GOES BY THE NAME OF

04:11 PM 9 04:11 PM 10

"JUDGE"? A. YES, HE'S BLACK.

04:11 PM 11 Q.

OKAY. AND THERE ARE ONLY FIVE OR SIX STOREKEEPERS,

04: 11 PM 12 AREN'T THERE?

04:11 PM 13 A.

I SUPPOSE.

04:11 PM 14 Q.

AND AT ANY GIVEN TIME THREE OR FOUR OF THEM HAVE

04: 11 PM 15 BEEN BLACK?

04: 11 PM 16 A .

I SUPPOSE.

04: 11 PM 17 Q. 04:11 PM 18

OKAY. MR. HAMEL: THANK YOU, YOUR HONOR. THAT'S ALL

04:11 PM 19 THE QUESTIONS I HAVE.

04:11 PM 20

MR. GARRIGAN: IT WILL BE REAL QUICK.

04:11 PM 21

THE COURT: ALL RIGHT, SIR.

04: 11 PM 22

REDIRECT EXAMINATION

04:12 PM 23 04 : 12 PM 24

BY MR. GARRIGAN: Q. MR. DEASON, WHEN YOU WERE INTERVIEWED BY VIRON

04:12 PM 25 BARBAY, DID YOU TELL HIM THAT YOU WERE A HIGH SCHOOL

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04:12 PM 1 GRADUATE?

04: 12 PM 2 A.

YES, I WROTE IT ON MY APPLICATION.

04:12 PM 3 Q. OKAY. DID YOU TELL HIM -- WHEN YOU SPOKE TO HIM,

04: 12 PM 4 DID YOU TELL HIM THAT YOU HAD SOME COLLEGE AT SAM HOUSTON

04:12 PM 5 STATE UNIVERSITY?

04:12 PM 6

MR. HAMEL: OBJECTION, LEADING, YOUR HONOR.

04: 12 PM 7

THE COURT: OVERRULED.

04:12 PM 8 BY MR. GARRIGAN:

04:12 PM 9 Q.

DID YOU TELL HIM THAT?

04:12 PM 10 A.

NO.

04: 12 PM 11 Q.

DID HE ASK?

04: 12 PM 12 A.

NO.

04: 12 PM 13 Q.

HE DIDN'T ASK IF YOU HAD COLLEGE?

04: 12 PM 14 A •

NO.

04: 12 PM 15 Q. NOW, HAVE YOU HAD SOME ELECTRICIAN TRAINING, TOO?

04: 12 PM 16 A.

RIGHT.

04 : 12 PM 17 Q. DID THAT COME UP? DID MR. BARBAY ASK YOU ABOUT ANY

04:12 PM 18 ELECTRICIAN TRAINING YOU MIGHT HAVE?

04: 12 PM 19 A •

NO, AND I WROTE IT ON MY APPLICATION.

04:12 PM 20 Q.

NOW, YOU HAD BEEN IN THE ARMY BEFORE THAT ALSO,

04:13 PM 21 HADN'T YOU?

04 : 13 PM 22 A •

RIGHT.

04 : 13 PM 23 Q. WHAT DID YOU DO IN THE ARMY?

04 : 13 PM 24 A •

I DROVE TRUCKS.

04 : 13 PM 2 5 Q. DID YOU TELL MR. BARBAY THAT YOU HAD EXPERIENCE AS A

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04: 13 PM 1 TRUCK DRIVER?

04: 13 PM 2 A. 04: 13 PM 3 Q.

YES. DID HE OFFER YOU A JOB DRIVING A TRUCK?

04:13 PM 4 04:13 PM 5 04: 13 PM 6 04: 13 PM 7 04: 13 PM 8 04:13 PM 9 04:13 PM 10 04: 13 PM 11

A.

NO.

Q. YOU'VE HAD PRIOR WORK WORKING AT SHERRICK ELECTRIC

COMPANY, IS THAT RIGHT?

A. RIGHT.

Q. ABOUT TWO YEARS?

A. RIGHT.

Q. DOING ELECTRICAL WORK ON --

WELL, WHAT KIND OF WORK DID YOU DO?

04 :13 PM 12 A • 04:13 PM 13 Q.

FIXING STREET LIGHTS, PUTTING UP TRANSFORMERS. DID MR. BARBAY ASK YOU ABOUT ALL THESE OTHER SKILLS

04: 13 PM 14 THAT YOU HAD?

04: 13 PM 15 A. 04: 13 PM 16 Q. 04:13 PM 17 A. 04:13 PM 18 Q. 04:13 PM 19 A.
04: 13 PM 20 Q.

NO. NOW, DOES LUFKIN INDUSTRIES HAVE TRUCK DRIVERS? YES. DO THEY HAVE ELECTRICIANS? YES. DID THEY EVER SUGGEST IN ANY WAY THAT YOU MIGHT BE

04:14 PM 21 ABLE TO DO THAT KIND OF WORK FOR THEM?

04: 14 PM 22 A. 04: 14 PM 23 Q.

NO . OKAY. AND YOU HAD DONE -- YOU SAY YOU HAD WORKED AT

04:14 PM 24 TEXAS FOUNDRY?

04 :14 PM 2 5 A.

RIGHT.

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04:14 PM 1 Q. AND SOME OTHER FOUNDRY, IS THAT RIGHT?

04:14 PM 2 A.

GENCO.

04:14 PM 3 Q.

HOW LONG DID YOU WORK AT GENCO?

04:14 PM 4 A. OH, IT WAS FOR ABOUT EIGHT MONTHS. THEY CLOSED

04:14 PM 5 DOWN.

04:14 PM 6 Q.

HOW BIG WERE THE CASTINGS AT GENCO?

04:14 PM 7 A. WE WAS FIXING LIKE BOARDS FOR SHIPS, LIKE THE

04:14 PM 8 FLOORBOARDS ON SHIPS, AND ACTUALLY IT WAS JUST GRINDING

04:14 PM 9 DOWN A LITTLE TACK WELD THAT MR. MCCLAIN WAS TALKING 04:14 PM 10 ABOUT. IT REALLY WASN'T NO BIG THING, IT WAS JUST

04:14 PM 11 GRINDING OFF LITTLE KNOTS WHERE THEY HAD WELDED ON THE

04: 14 PM 12 BOARD.

04:14 PM 13 Q.

OKAY. WORKEDING ON BIG FLAT PIECES?

04:14 PM 14 A.

YEAH.

04:14 PM 15 Q.

AND THEN HOW BIG WAS THE TOOL THAT YOU USED?

04: 14 PM 16 A •

IT WAS THE SAME SIZE GRINDER THAT WE HAVE AT LUFKIN

04:15 PM 17 INDUSTRIES.

04:15 PM 18 Q.

OKAY. WAS IT EASIER TO USE IT GRINDING DOWN A TACK

04: 15 PM 19 WELD?

04:15 PM 20 A.

OH, DEFINITELY.

04:15 PM 21 Q.

AND THE WORK YOU DID AT TEXAS FOUNDRY --

04: 15 PM 22 A.
04: 15 PM 23 Q.

UH-HUH. HOW DID THAT COMPARE TO WHAT THEy'VE GOT YOU DOING

04:15 PM 24 04: 15 PM 25

AT LUFKIN INDUSTRIES? A. OH, IT WAS MUCH EASIER.

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04:15 PM 1 Q.

WAS IT CLEANER AT TEXAS FOUNDRY?

04: 15 PM 2 A.

IT'S CLEANER.

04:15 PM 3 Q.

IS THE WORK AS HARD?

04:15 PM 4 A.

NOT REALLY.

04:15 PM 5 Q. ARE THE PIECES THAT YOU HAVE TO WORK WITH AS LARGE?

04:15 PM 6 A.

NO, THEY WAS SMALLER.

04:15 PM 7 Q.

OKAY. WHEN I TALKED TO YOU ABOUT THE GRINDERS YOU

04:15 PM 8 HAD TO USE AT LUFKIN INDUSTRIES --

04:15 PM 9 A.

RIGHT.

04:15 PM 10 Q.

-- I ASKED YOU TO COMPARE THEM TO CHAINSAWS.

04:15 PM 11 A.

RIGHT.

04:15 PM 12 Q.

HOW DOES THE GRINDER YOU HAD TO USE AT TEXAS FOUNDRY

04:15 PM 13 COMPARE TO CHAINSAWS?

04:15 PM 14 A.

OH, IT'S NOT NEARLY AS LOUD AS THE ONES WE USE AT

04:15 PM 15 LUFKIN INDUSTRIES.

04:15 PM 16 Q.

HOW BIG IS IT?

04:15 PM 17 A.

THEY HAD A LITTLE CHIPPING GUN ABOUT SO THAT WE

04: 15 PM 18 USED. YOU COULD USE IT WITH ONE HAND REALLY.

04:15 PM 19 Q. 04: 15 PM 20 A.

OKAY. IT WASN'T REALLY BIG.

04:16 PM 21 Q.

OKAY. WAS ANYTHING THAT YOU HAD DONE IN THE PRIOR

04:16 PM 22 EXPERIENCE, DID IT PREPARE YOU FOR THE WORK THEy'VE GOT

04: 16 PM 23 04:16 PM 24

YOU DOING IN THE CLEANING ROOM?

A.

NO.

04: 16 PM 2 5 Q.

NOW, THIS JEREMY BRISTER, HE WAS THE GUY THAT GOT

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04:16 PM 1 THE STOREROOM JOB?

04:16 PM 2 A. YEAH. THE STOREKEEPER JOB, YES.

04:16 PM 3 Q.

WHAT WAS HIS RACE?

04:16 PM 4 A.

WHITE.

04:16 PM 5 Q. AND ISN'T HE THE SON OF ONE OF GERALD COUTEE'S

04:16 PM 6 FRIENDS?

04:16 PM 7 A.

YES.

04:16 PM 8 Q. DID THAT HAVE ANYTHING TO DO WITH HIM GETTING THAT

04:16 PM 9 04:16 PM 10

JOB? A. YES.

04: 16 PM 11

MR. HAMEL: OBJECTION, YOUR HONOR.

04: 16 PM 12

THE COURT: SUSTAINED.

04: 16 PM 13 BY MR. GARRIGAN:

04:16 PM 14 Q. NOW, MR. HAMEL ASKED ABOUT THE GRIEVANCE YOU FILED.

04 : 16 PM 15 A • 04: 17 PM 16 Q.

UH-HUH. WHEN THAT GRIEVANCE WAS BEING PRESENTED, WAS IT

04:17 PM 17 BASED IN PART ON RACE DISCRIMINATION?

04: 17 PM 18 A.

YES.

04:17 PM 19 Q.

HAVE YOU EVER KNOWN THE UNIONS OR ANYONE TO BASE A

04: 17 PM 20 GRIEVANCE ON RACE DISCRIMINATION BEFORE OR SINCE?

04 : 17 PM 21 A .

NOT THAT I COULD RECALL.

04:17 PM 22 Q. AND AFTER DISCRIMINATION WAS BROUGHT UP, IS THAT

04:17 PM 23 WHEN THE COMPANY SETTLED THE GRIEVANCE?

04:17 PM 24 A.

YES.

04:17 PM 25 Q.

OKAY. THANK YOU.

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04:17 PM 1

MR. GARRIGAN: I'LL PASS THE WITNESS.

04:17 PM 2

MR. HAMEL: JUST BRIEFLY, YOUR HONOR.

04:17 PM 3

APPROACH THE WITNESS.

04:17 PM 4

RECROSS EXAMINATION

04:17 PM 5 BY MR. HAMEL:

04:17 PM 6 Q.

MR. DEASON, LET ME HAND YOU WHAT IS MARKED FOR

04:17 PM 7 IDENTIFICATION AS DEASON 14, 15, 16 AND 17. CAN YOU

04:17 PM 8 IDENTIFY THAT FOR ME?

04:18 PM 9 04: 18 PM 10

MR. GARRIGAN: EXCUSE ME. UNDERSTOOD THAT REFERENCE. WHAT

I DON'T THINK I

04:18 PM 11

MR. HAMEL: THAT'S HOW I'VE GOT IT

04:18 PM 12 BATES-STAMPED.

04: 18 PM 13

IT'S ACTUALLY FROM MR. DEASON'S PERSONNEL FILE,

04:18 PM 14 YOUR HONOR. IT'S HIS APPLICATION.

04:18 PM 15

MR. GARRIGAN: IS IT A TRIAL EXHIBIT?

04:18 PM 16

MR. HAMEL: WELL, SINCE WE WERE ONLY RECENTLY

04: 18 PM 17 INFORMED THAT MR. DEASON WOULD TESTIFY, WE DO HAVE AS AN

04:18 PM 18 EXHIBIT ANY -- THE PERSONNEL FILE OF ANY PERSON WHO

04: 18 PM 19 TESTI FI ES . AND SO

04: 18 PM 20

AND YOU HAVE BEEN PROVIDED THE PERSONNEL FILES.

04:18 PM 21

WE'LL PUT IT IN.

04:18 PM 22

MR. GARRIGAN: I'M JUST WONDERING, DO WE HAVE IT

04: 18 PM 23 MARKED AS AN EXHIBIT?

04:18 PM 24

MR. HAMEL: WE DO NOT AT THIS TIME.

04:18 PM 25

THE COURT: I DON'T KNOW. I SINCERELY HOPE SO.

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04: 18 PM 1

MR. GARRIGAN: DOES IT HAVE A LUFKIN'S BATES

04:18 PM 2 NUMBER?

04:18 PM 3

MR. HAMEL: I DON'T THINK SO.

04:19 PM 4

MR. GARRIGAN: HAS IT BEEN PRODUCED?

04:19 PM 5

MR. HAMEL: WELL, YOU'VE HAD THE OPPORTUNITY TO

04:19 PM 6 INSPECT ANY PERSONNEL FILES YOU WANT. SO I GUESS IT HAS

04:19 PM 7 BEEN PRODUCED.

04:19 PM 8

I DON'T KNOW IF YOU INSPECTED IT.

04:19 PM 9

MR. GARRIGAN, YOU TOLD US WITHIN THREE OR FOUR

04:19 PM 10 DAYS THAT YOU WERE GOING TO CALL MR. DEASON. YOU KNOW,

04:19 PM 11 WE'LL BE GLAD TO GIVE YOU HIS PERSONNEL FILE. I MEAN, I

04:19 PM 12 DON'T HAVE A PROBLEM WITH THAT.

04:19 PM 13

THE COURT: WELL, HE WANTS TO KNOW WHETHER --

04:19 PM 14 AND HE ASKED A SIMPLE QUESTION, MR. HAMEL. HAS IT BEEN

04: 19 PM 15 PRODUCED?

04: 19 PM 16

MR. HAMEL: YOUR HONOR, I DON'T KNOW THE ANSWER

04:19 PM 17 TO THAT. WHAT I DO KNOW IS --

04:19 PM 18

THE COURT: ALL RIGHT. THEN IF YOU DON'T KNOW

04:19 PM 19 THE ANSWER, SAY "I DON'T KNOW."

04:19 PM 20

MR. HAMEL: WHAT I DO KNOW, YOUR HONOR, IS,

04:19 PM 21 WE'VE MADE AVAILABLE ANY PERSONNEL FILE THEY WANT, AND ANY

04:19 PM 22 TIME THEY ASK US TO COpy ONE, WE DO SO.

04:19 PM 23

THE COURT: I UNDERSTAND THAT, AND I'VE HAD SOME

04:19 PM 24 OF THE MOST SCURRILOUS LETTERS WRITTEN I'VE EVER SEEN FROM

04:19 PM 25 BOTH SIDES IN THIS CASE ABOUT THAT, IMPUTING BAD FAITH TO

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1 COURT REPORTER: 2 3

WENDELL R. PARKS CSR/CP/CM
FEDERAL COURT REPORTER ROOM 103 FEDERAL COURTHOUSE 300 WILLOW BEAUMONT, TX 77701

4

5

PROCEEDINGS RECORDED BY MECHANICAL STENOGRAPHY;

6

TRANSCRIPT PRODUCED BY COMPUTER

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1

INDEX

2

3 OPENING STATEMENTS:

MR. GARRIGAN

5

4 MR. HAMEL

18

5 WITNESSES FOR THE
6 PLAINTIFF: SYLVESTER MCCLAIN
7 CALVIN DEASON VIVIAN CRAIN
8

DIRECT CROSS REDIR REC

41

102 184

187 220 239 245

250 263 286

9

10

11

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1 DECEMBER 4, 2003

9:05 A.M.

09:05 AM 2

THE COURT: GOOD MORNING.

09:05 AM 3

I HAVE SOME BAD NEWS. I JUST WALKED IN AND WAS

09:06 AM 4 HANDED AN E-MAIL, AND CHIEF JUDGE JOHN HANNAH DIED THIS

09:06 AM 5 MORNING WHILE ATTENDING A MEETING IN FLORIDA. SO THE

09:06 AM 6 CHIEF JUDGE OF THE DISTRICT IS DECEASED.

09:06 AM 7

11M GOING TO START THIS MATTER. IF SOMEONE

09:06 AM 8 WANTS TO ADDRESS THE --

09:06 AM 9

IS MR. GARRIGAN HERE?

09:06 AM 10

MR. BALLER: YOUR HONOR, MR. GARRIGAN AND MS.

09:06 AM 11 DEMCHAK ARE JUST BRINGING IN THE LAST DOCUMENTS.

09:06 AM 12

11M MORRIS BALLER BY THE WAY. 11M CO-COUNSEL

09:06 AM 13 WITH THEM.

09:06 AM 14

THE COURT: WELCOME, MR. GARRIGAN.

09:06 AM 15

MR. GARRIGAN: GOOD MORNING.

09:06 AM 16

THE COURT: I ANNOUNCED TO THE OTHERS HERE THAT

09:06 AM 17 I WAS GREETED WITH BAD NEWS AS I ARRIVED AT THE OFFICE.

09:07 AM 18 JUDGE JOHN HANNAH WAS ATTENDING A JUDGE IS MEETING IN

09:07 AM 19 FLORIDA, HAD A MASSIVE HEART ATTACK AND DIED THIS MORNING.

09:07 AM 20

SO I DON'T KNOW HOW THAT'S GOING TO AFFECT THE

09:07 AM 21 PRESENTATION IN THIS CASE, BUT WE I LL PROCEED.

09:07 AM 22

YOU SAID YOU WANTED TO MAKE AN OPENING STATEMENT

09:07 AM 23 OR SOMEBODY WANTED TO MAKE AN OPENING STATEMENT.

09:07 AM 24

MR. GARRIGAN: lIVE GOT ONE PREPARED, YOUR

09:07 AM 25 HONOR.

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09:08 AM 1

THE COURT: ALL RIGHT. PROCEED.

09:08 AM 2

MR. GARRIGAN: OKAY. YOUR HONOR, FIRST, YOU'VE

09:08 AM 3 MET TERESA DELCHAK.

09:08 AM 4

WE ALSO HAVE WITH US MIKE BALLER THAT I DON'T

09:08 AM 5 BELIEVE YOU'VE MET.

09:08 AM 6

THE COURT: I'VE SEEN HIS NAME ON THE PLEADINGS.

09:08 AM 7

MR. BALLER: GOOD MORNING, YOUR HONOR.

09:08 AM 8

THE COURT: GOOD MORNING.

09:08 AM 9 09:08 AM 10

MR. GARRIGAN: I THINK YOU'VE MET DARCI BURRELL. THE COURT: GOOD MORNING.

09:08 AM 11

MR. GARRIGAN: AND JOSH KONECKY ALSO, YOUR

09: 08 AM 12 HONOR.

09:08 AM 13

THE COURT: GOOD MORNING.

09:08 AM 14

MR. KONECKY: GOOD MORNING, YOUR HONOR.

09:08 AM 15

MR. GARRIGAN: IN PART THIS IS FOR THE RECORD,

09:08 AM 16 BUT I'M NOT TRYING TO STATE THE OBVIOUS. THIS IS A

09:08 AM 17 RACE-DISCRIMINATION-IN-EMPLOYMENT CASE.

09:08 AM 18

THE PLAINTIFFS ARE A CLASS OF ABOUT SEVEN

09:08 AM 19 HUNDRED AND EIGHTY AFRICAN-AMERICANS THAT HAVE BEEN

09:09 AM 20 EMPLOYED BY LUFKIN INDUSTRIES AT SOMETIME SINCE MARCH 6,

09:09 AM 21 1994, IN THEIR ANGELINA COUNTY FACILITIES.

09:09 AM 22

THE DEFENDANT IS LUFKIN INDUSTRIES. IT'S THE

09:09 AM 23 LARGEST EMPLOYER IN ANGELINA COUNTY DURING THE CLASS

09:09 AM 24 PERIOD, THAT IS, SINCE MARCH 6, 1994.

09:09 AM 25

THEIR WORK FORCE HAS FLUCTUATED BETWEEN ABOUT

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09:09 AM 1 FIFTEEN HUNDRED AND FIFTY AND TWENTY-TWO HUNDRED AND

09:09 AM 2 FIFTY.

09:09 AM 3

ABOUT FIFTEEN PERCENT OF THEIR WORK FORCE IS

09:09 AM 4 AFRICAN-AMERICAN.

09:09 AM 5 09:09 AM 6 09:09 AM 7

THEY SHIP PRODUCTS WORLDWIDE. THEy'RE PUBLICLY-TRADED ON THE NASDAQ STOCK EXCHANGE.

09:09 AM 8

THEy'RE BECOMING INCREASINGLY INTERNATIONAL,

09 :09 AM 9 THAT I KNOW FROM READING ABOUT THEM THAT RECENTLY THEY

09:09 AM 10 PURCHASED I BELIEVE PRODUCTION FACILITIES IN FRANCE AND

09: 09 AM 11 ARG ENTI NA .

09:09 AM 12

LUFKIN INDUSTRIES CONSISTS OF FOUR PRODUCTION

09:09 AM 13 DIVISIONS. THIS WILL BE IMPORTANT IN THE CASE.

09:10 AM 14

THE FOUNDRY DIVISION HAS ABOUT THREE HUNDRED AND

09:10 AM 15 FORTY OR SO EMPLOYEES IN THE FOUNDRY. THEY MAKE HEAVY,

09:10 AM 16 WHAT I CONSIDER AT LEAST TO BE HEAVY CASTINGS.

09:10 AM 17

THE FOUNDRY DIVISION REPRESENTS THE WORST

09: 10 AM 18 WORKING CONDITIONS AT LUFKIN INDUSTRIES, ESPECIALLY WHAT

09:10 AM 19 THEY REFER TO AS THE CLEANING ROOM. THAT'S WHERE CASTINGS

09:10 AM 20 ARE CLEANED UP WITH GRINDERS AND PNEUMATIC CHIPPER GUNS.

09:10 AM 21 IT'S DUSTY, IT'S DIRTY, IT'S HOT, IT'S LOUD, AND THE WORK

09: 10 AM 22 THERE IS PHYSICALLY DEMANDING.

09:10 AM 23

THE OFCCP DID AN AUDIT OF LUFKIN INDUSTRIES.

09: 10 AM 24 THEY DESCRIBED THE FOUNDRY CONDITIONS AS LESS DESIRABLE

09:10 AM 25 WHEN COMPARED TO THE REST OF THE LUFKIN INDUSTRIES

WENDELL R. PARKS, OFFICIAL COURT REPORTER
409-654-2834

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09: 10 AM 1

7 MR. HAMEL: YOUR HONOR, WE HAVE AN OBJECTION TO

09:10 AM 2 THE INTRODUCTION OF THIS EVIDENCE, AND WE WOULD OBJECT TO

09:10 AM 3 09:10 AM 4

THE REFERENCE IN OPENING STATEMENT. THE COURT: I'M GOING TO TAKE THOSE UP WHEN THE

09: 10 AM 5 09:11 AM 6 09: 11 AM 7

EVIDENCE COMES IN, MR. HAMEL. MR. HAMEL: THANK YOU, YOUR HONOR. THE COURT: I'M GOING TO ALLOW HIM TO MAKE HIS

09:11 AM 8
09:11 AM 9

OPENING STATEMENT. MR. GARRIGAN:

OKAY.

YOUR HONOR, I STARTED WITH

09:11 AM 10 THE FOUNDRY DIVISION, REPRESENTING THE WORST WORKING

09: 11 AM 11 CONDITIONS.

09: 11 AM 12

THE NEXT LEVEL OF THE SLIGHTLY-IMPROVED WORKING

09:11 AM 13 CONDITIONS ARE AT LUFKIN INDUSTRIES' TRAILER DIVISION,

09:11 AM 14 WHERE THEY MANUFACTURE TRUCK TRAILERS. IT'S CONSIDERABLY

09:11 AM 15 BETTER. IT'S STILL DIRTY, IT'S STILL LOUD, IT'S STILL

09:11 AM 16 PHYSICALLY DEMANDING WORK, BUT IT DOESN'T COMPARE IN TERMS

09:11 AM 17 OF SEVERITY.

09:11 AM 18

THERE ARE ABOUT TWO HUNDRED, I THINK A LITTLE

09:11 AM 19 09: 11 AM 20

LESS THAN TWO HUNDRED EMPLOYEES AT THE TRAILER DIVISION TYPICALLY.

09:11 AM 21

BETTER WORKING CONDITIONS EXIST IN LUFKIN'S

09:11 AM 22
09:11 AM 23 09: 12 AM 24

OILFIELD DIVISION. THAT'S WHERE ABOUT THREE HUNDRED AND FIFTEEN EMPLOYEES WORK. IT'S CLEANER, IT'S MORE AUTOMATED.

09: 12 AM 25

THE BEST WORKING CONDITIONS IN THEIR PRODUCTION

WENDELL R. PARKS, OFFICIAL COURT REPORTER
409-654-2834

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09:12 AM 1 09:12 AM 2 09:12 AM 3 09:12 AM 4 09:12 AM 5 09:12 AM 6 09:12 AM 7 09:12 AM 8 09:12 AM 9 09: 12 AM 10

8 FACILITIES ARE AT THE POWER TRANSMISSION DIVISION. AGAIN THAT'S AROUND TWO HUNDRED EMPLOYEES.
THE POWER TRANSMISSION DIVISION IS CLEAN, LARGELY TEMPERATURE-CONTROLLED, LARGELY AUTOMATED.
NOT SURPRISINGLY, YOUR HONOR, AS THE EVIDENCE IS GOING TO SHOW IN THIS CASE, IF YOU COMPARED THE RATIO OF BLACK WORKERS TO WHITE WORKERS, IT'S INVERSELY PROPORTIONAL TO THE FAVORABILITY OF WORK CONDITIONS.
IF YOU LOOK AT THE FOUNDRY, THAT RATIO IS ABOUT SEVENTY PERCENT OF BLACK WORKERS TO WHITE WORKERS. THOSE

09:12 AM 11 ARE THE WORST WORKING CONDITIONS.

09: 12 AM 12

IF YOU LOOK AT THE TRAILER DIVISION, THAT RATIO

09:12 AM 13 IS A LITTLE ABOVE THIRTY PERCENT. WORKING CONDITIONS

09:13 AM 14 THERE ARE A LITTLE BETTER.

09: 13 AM 15

SIMILARLY, IN THE OILFIELD DIVISION THE RATIO OF

09:13 AM 16 BLACK WORKERS TO WHITE WORKERS IS ABOUT THIRTY PERCENT.

09: 13 AM 17

WHEN YOU GET TO THE POWER TRANSMISSION DIVISION,

09:13 AM 18 WHERE THE CONDITIONS ARE MOST FAVORABLE, THAT RATIO IS

09: 13 AM 19 ON LY EIGHT PERCENT.

09: 13 AM 20

THE EVIDENCE WILL SHOW THAT LUFKIN INDUSTRIES

09: 13 AM 21 PUTS GREAT EFFORT INTO ITS WORLD MARKETING POSITION, ITS

09:13 AM 22 PRODUCT DEVELOPMENT, ITS PRODUCTION EFFICIENCIES, ITS

09:13 AM 23 ENGINEERING AND ITS UPPER MANAGEMENT COMPENSATION, BUT IT

09: 13 AM 24 LEAVES EQUAL EMPLOYMENT OPPORTUNITY TO CHANCE. IT IGNORES

09:13 AM 25 ITS PROBLEMS OR IT SWEEPS THEM UNDER THE RUG WHENEVER IT'S

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09:13 AM 1 BROUGHT TO THEIR ATTENTION.

09:13 AM 2

THERE ARE NO TRAINED HUMAN RESOURCES

09:13 AM 3 PROFESSIONALS AT LUFKIN INDUSTRIES. THE HUMAN RESOURCES

09:13 AM 4 DEPARTMENT IS RUN BY THEIR GENERAL COUNSEL, PAUL PEREZ,

09:14 AM 5 WHO IS BY BACKGROUND AND TRAINING A MANAGEMENT-SIDE LABOR

09:14 AM 6 LAWYER.

09:14 AM 7

NEXT IN CHARGE OF THEIR HR OFFICE IS JOHN

09:14 AM 8 HAVARD. BY HISTORY HE'S A SECURITY GUARD.

09:14 AM 9
09:14 AM 10 09:14 AM 11 09: 14 AM 12

THE THIRD ONE IN CHARGE OF THE HR OFFICE, VIRON BARBAY, WHO BY TRAINING AND EDUCATION AND BACKGROUND IS A PHOTOGRAPHER.
THERE ARE NO HR PROFESSIONALS. THERE'S NO

09:14 AM 13 OVERSIGHT BY UPPER MANAGEMENT.

09:14 AM 14

THE CEO IN THIS CASE HAS TESTIFIED, AFTER SEVEN

09: 14 AM 15 YEARS OF LITIGATION, HE HAS NO PERSONAL KNOWLEDGE OF HOW

09: 14 AM 16 09: 14 AM 17

PERSONNEL POLICIES ARE IMPLEMENTED AND THEIR EFFECT ON
LU FKIN 's EMPLOYEES.

09:14 AM 18

LUFKIN CLAIMS TO BE AN EQUAL OPPORTUNITY

09:14 AM 19 EMPLOYER THAT DOES NOTHING TO MONITOR, CHECK ON OR DELIVER

09:14 AM 20 ON THAT REPRESENTATION.

09:14 AM 21

THERE HAVE NEVER BEEN AFRICAN-AMERICANS ON THEIR

09:14 AM 22 BOARD OF DIRECTORS, IN THEIR STOCK OPTION PROGRAMS, IN

09:14 AM 23 09:14 AM 24 09:15 AM 25

THEIR PROFIT-SHARING PROGRAMS. THE AVERAGE PAY DISPARITIES AT LUFKIN
INDUSTRIES, IF YOU EXCLUDE THE HIGHLY-PAID POSITIONS

WENDELL R. PARKS, OFFICIAL COURT REPORTER
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09: 15 AM 1 WHICH ARE ALL WHITE ANYWAY. EXCLUDING THOSE POSITIONS,

09:15 AM 2 THE AVERAGE PAY DISPARITY HAS RISEN DURING THE COURSE OF

09:15 AM 3 THIS LITIGATION FROM ABOUT TWO DOLLARS AN HOUR TO NOW OVER

09:15 AM 4 FOUR DOLLARS PURE HOUR ON AVERAGE.

09:15 AM 5 09:15 AM 6 09:15 AM 7 09:15 AM 8 09:15 AM 9 09:15 AM 10

NOW, IN COMPLIANCE WITH THIS COURT'S RULINGS AND VARIOUS 5TH CIRCUIT RULINGS, THE EVIDENCE AT THIS TRIAL WILL ADDRESS LUFKIN INDUSTRIES' LIABILITY TO THE CLASS FOR DISPARATE IMPACT DISCRIMINATION, TO BE PROVED LARGELY BY STATISTICS.
THERE WILL ALSO BE EVIDENCE THAT LUFKIN

09:15 AM 11 INDUSTRIES' PRACTICES HAVE A DISCRIMINATORY EFFECT THAT IS

09:15 AM 12 ADVERSE TO THE CLASS.

09: 15 AM 13

NOW, WHILE EVIDENCE OF INTENT IS NOT REQUIRED IN

09:15 AM 14 A DISPARATE IMPACT CASE, LUFKIN INDUSTRIES' INTENTIONS

09:16 AM 15 WILL BE EVIDENT.

09:16 AM 16

THE PLAINTIFFS CONTEND THAT LUFKIN INDUSTRIES'

09:16 AM 17 PRACTICE OF PERMITTING MOSTLY WHITE SUPERVISORS, MANAGERS

09:16 AM 18 AND OTHER DECISION-MAKERS TO EXERCISE UNFETTERED

09: 16 AM 19 SUB) ECTIVE DISCRETION OVER, IN PARTICULAR, INITIAL

09:16 AM 20 ASSIGNMENT DECISIONS, TRAINING DECISIONS AND OTHER

09:16 AM 21 TEMPORARY ASSIGNMENTS THAT AFFECT PROMOTIONS, THE

09:16 AM 22 PROMOTION DECISIONS, AS WELL AS OTHER PERSONNEL DECISIONS,

09: 16 AM 23 AS A RESULT OF THIS UNFETTERED SUB) ECTIVE DISCRETION THE

09:16 AM 24 PLAINTIFF CLASS SUFFERS AN ADVERSE IMPACT. IT HAS A BAD

09: 16 AM 25 EFFECT ON THEIR CAREERS AND THEIR COMPENSATION.

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09:16 AM 1

WE'RE GOING TO PRESENT THREE CATEGORIES OF

09:16 AM 2 EVIDENCE TO THE COURT, BACKGROUND EVIDENCE TO PROVIDE

09:16 AM 3 CONTEXT AND EVIDENCE OF THE CORPORATE CULTURE, EVIDENCE OF

09:16 AM 4 SUBJECTIVE DECISION-MAKING, AS WELL AS EXPERT TESTIMONY TO

09:16 AM 5 PROVIDE STATISTICAL EVIDENCE AND THE LINK BETWEEN

09:17 AM 6 UNCHECKED STEREOTYPES DISCRETIONARY DECISION-MAKING AND

09:17 AM 7 THE ADVERSE IMPACTS ON THE PLAINTIFF CLASS.

09:17 AM 8

THE BACKGROUND INFORMATION IS GOING TO INCLUDE

09:17 AM 9 09:17 AM 10

CLASS MEMBERS AND MANAGERS TESTIFYING. IT WILL SHOW THAT LUFKIN INDUSTRIES IS INDIFFERENT TO, AND TOLERATES, EVEN

09:17 AM 11 PROTECTS AND FOSTERS RACIAL STEREOTYPES HELD BY ITS

09:17 AM 12 SUPERVISORS, MANAGERS AND DECISION-MAKERS.

09:17 AM 13

CLASS MEMBERS AND OTHER EMPLOYEES HAVE

09:17 AM 14 CONFRONTED AND OPPOSED DISCRIMINATION FROM THE BOTTOM UP

09:17 AM 15 AT LUFKIN INDUSTRIES, OFTEN AT THEIR OWN PERIL, AND WERE

09: 17 AM 16 GENERALLY LEFT TO THE MERCY OF THE WHITE SUPERVISORS,

09:17 AM 17 WHOSE DECISIONS THEY WERE PROTESTING.

09: 17 AM 18

PART OF THE BACKGROUND THAT'S RELEVANT TO THIS

09:17 AM 19 CASE IS THE FACT THAT THIS ISN'T NEW TO LUFKIN INDUSTRIES.

09:17 AM 20 IN THE 1980S THEY WERE SUED BY A CLASS OF WOMEN FOR GENDER

09:18 AM 21 DISCRIMINATION. THAT CASE RESULTED IN A CONSENT DECREE OF

09:18 AM 22 A THREE-YEAR DURATION.

09:18 AM 23

LUFKIN INDUSTRIES LEARNED NOTHING FROM THAT

09:18 AM 24 EXPERIENCE. THEY DISCARDED ALL OF THE REMEDIES THEY HAD

09:18 AM 25 ADOPTED AS SOON AS THE CONSENT DECREE EXPIRED.

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09:18 AM 1

IN THE MID-1990S, RIGHT BEFORE, AND ABOUT THE

09:18 AM 2 09:18 AM 3 09:18 AM 4

TIME THAT THESE ISSUES WERE BEING BROUGHT TO THE EEOC, UNDER ITS CURRENT MANAGEMENT, LUFKIN INDUSTRIES WAS CITED BY THE OFCCP FOR DISCRIMINATORY PRACTICES, BOTH RACE AND

09:18 AM 5 GENDER, SOME OF THE PRACTICES THAT WE'RE GOING TO DESCRIBE

09:18 AM 6 09:18 AM 7

IN THIS CASE. THAT OCCURRED IN 1995 AND 1996, RESULTING IN CONSENT AGREEMENTS IN 1996 AND 1997.

09:18 AM 8

MANAGEMENT OF THE AFFECTED DIVISIONS WERE KEPT

09:18 AM 9 IN THE DARK ABOUT THE OFCCP FINDINGS AND THE REMEDIES.

09:19 AM 10 THE AGREEMENTS THAT THEY ENTERED INTO WERE NOT HONORED.

09:19 AM 11 THE REMEDIES THAT THEY AGREED TO WERE QUICKLY DISCARDED,

09:19 AM 12 AND THE PROBLEMS, THE ROOT CAUSES WERE NEVER ADDRESSED.

09:19 AM 13

THE HUMAN RESOURCES MANAGER HAS TESTIFIED IN

09:19 AM 14 THIS CASE THAT HE IS NOT AWARE OF ANY CHANGES IN HUMAN

09:19 AM 15 RESOURCES SINCE THE OFCCP FINDINGS.

09:19 AM 16

NOW, THIS LAWSUIT HAS BEEN PENDING SINCE 1997.

09:19 AM 17 AS I MENTIONED, THIS YEAR THE CEO TESTIFIED HE HAS LITTLE,

09:19 AM 18 IF ANY, PERSONAL KNOWLEDGE OF THE ALLEGATIONS.

09: 19 AM 19

LUFKIN INDUSTRIES HAS SPORADICALLY SENT MANAGERS

09: 19 AM 20 TO EMPLOYMENT SEMINARS, WHERE HR PROFESSIONALS HAVE

09:19 AM 21 ADVOCATED MANAGEMENT PRACTICES TO MONITOR AND ENSURE

09:19 AM 22 WORKPLACE DIVERSITY AND FAIRNESS, BUT LUFKIN INDUSTRIES

09:20AM 23 HAS STUBBORNLY RESISTED EVEN THESE BASIC CHANGES.

09:20 AM 24

YOUR HONOR, WE'LL PRESENT EVIDENCE OF THE

09:20 AM 25 SUBJECTIVE MANAGEMENT DECISIONS, THAT IS, MOSTLY WHITE

WENDELL R. PARKS, OFFICIAL COURT REPORTER 409-654-2834

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09: 20 AM 1 SUPERVISORS, MANAGERS, OTHER DECISION-MAKERS, EXERCISING

09: 20 AM 2 THEIR UNCHECKED SUBJ ECTIVE DISCRETION IN MAKING PERSONNEL

09:20 AM 3 DECISIONS. THEY DON'T USE JOB-RELATED, VALIDATED OR

09:20 AM 4 09:20 AM 5 09: 20 AM 6 09:20 AM 7

OBJECTIVE CRITERIA WHEN THEY MAKE THESE DECISIONS. THERE ARE NO MEANINGFUL WRITTEN GUIDELINES. THERE'S NO ACCOUNTABILITY OR OVERSIGHT, AND THERE'S NO REAL TRAINING IN WORKPLACE DIVERSITY.

09:20 AM 8 09: 20 AM 9
09:20 AM 10 09:20 AM 11

THE DECISIONS THAT WE'LL BE DISCUSSING WILL BE THE INITIAL ASSIGNMENTS, TEMPORARY ASSIGNMENTS AND TRAINING OPPORTUNITIES, HOW PROMOTIONS -- THE PROMOTIONS THAT ARE MADE ARE AS A RESULT OF MANAGEMENT ENCOURAGEMENT.

09:21 AM 12 THE PROMOTIONS THAT ARE DENIED TO THE PLAINTIFF CLASS ARE

09:21 AM 13 OFTEN THE RESULT OF DISCOURAGEMENT FROM MANAGEMENT. ALL

09:21 AM 14 OF THESE DECISIONS HAVE A CRITICAL IMPACT, CRITICAL AND AN

09:21 AM 15 ADVERSE IMPACT ON THE CAREERS AND COMPENSATION OF THE

09:21 AM 16 CLASS MEMBERS.

09:21 AM 17

NOW, ONE OF THE AREAS WE'RE GOING TO FOCUS ON,

09:21 AM 18 YOUR HONOR, IS THE INITIAL ASSIGNMENT PRACTICE AT LUFKIN

09:21 AM 19 INDUSTRIES.

09:21 AM 20

YOU WILL HEAR THEY DO THEIR HIRING THROUGH THE

09: 21 AM 21 TEXAS WORKFORCE COMMISSION.

09:21 AM 22

NOW, LUFKIN INDUSTRIES HAS ARGUED THAT THE TWC

09:21 AM 23 ACTUALLY MAKES THE REFERRALS TO DIFFERENT DIVISIONS, AND

09:21 AM 24 09:21 AM 25

BEARS SOME RESPONSIBILITY FOR THE DISPARATE INITIAL ASSIGNMENTS.

WENDELL R. PARKS, OFFICIAL COURT REPORTER
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09:21 AM 1

NOW, FIRST, THAT'S A RED HERRING ARGUMENT. IT

09:21 AM 2 DOESN'T MATTER. IF THE TEXAS WORKFORCE COMMISSION IS

09:21 AM 3 RESPONSIBLE OR BEARS SOME RESPONSIBILITY, LUFKIN

09:22 AM 4 INDUSTRIES IS STILL LIABLE UNDER THE DISPARATE IMPACT

09:22 AM 5 THEORY. IF THEY HAVE PRACTICES THAT RESULT IN A DISPARATE

09:22 AM 6 IMPACT, THEy'RE STILL LIABLE.

09:22 AM 7

THE FACT IS, THEIR EXPLANATION IS NOT TRUE.

09: 22 AM 8 TEXAS WORKFORCE COMMISSION RECORDS SHOW THAT BETWEEN A

09: 22 AM 9 HUNDRED, A HUNDRED AND FIFTY, MORE THAN THAT, EMPLOYEES 09:22 AM 10 HIRED DURING THE CLASS PERIOD THROUGH THE TEXAS WORKFORCE

09:22 AM 11 COMMISSION WERE ACTUALLY ASSIGNED BY LUFKIN INTO POSITIONS

09:22 AM 12 AND DIVISIONS OTHER THAN THOSE THAT THE TWC REFERRED THEM

09:22 AM 13 FOR.

09:22 AM 14

THE COURT: WHAT PERCENTAGE?

09:22 AM 15

MR. GARRIGAN: I'M NOT SURE OF THE PERCENTAGE,

09: 22 AM 16 YOUR HONOR. I BELIEVE IT WORKS OUT TO AT LEAST FIFTEEN,

09:22 AM 17 TWENTY PERCENT.

09:22 AM 18

BUT IT DEMONSTRATES THAT LUFKIN INDUSTRIES STILL

09:22 AM 19 EXERCISES CONSIDERABLE SUBJECTIVE DISCRETION ABOUT THE

09:22 AM 20 INITIAL ASSIGNMENTS. THE RESPONSIBILITY DOES NOT LIE WITH

09: 22 AM 21 THE TEXAS WORKFORCE COMMISSION.

09:23 AM 22

NOW, OTHER ASSIGNMENTS AND TRAINING

09:23 AM 23 OPPORTUNITIES ARE CRITICAL TO THE CAREERS OF ENTRY-LEVEL

09:23 AM 24 WORKERS. YOU KNOW, WHETHER THEY ENTER THE WORK FORCE AS A

09:23 AM 25 HELPER IN ONE OF THE OTHER DIVISIONS OR AS A GENERAL

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09:23 AM 1 FOUNDRYMAN IN THE FOUNDRY, WHETHER THEy'RE SWEEPING,

09: 23 AM 2 CLEANING, WHETHER THEY HELP A MACHINIST, WHETHER THEy'RE

09:23 AM 3 HELPING AN ASSEMBLER, WHETHER THEy'RE WORKING IN

09:23 AM 4 MAINTENANCE, EVEN THOSE INITIAL ASSIGNMENTS HAVE A

09:23 AM 5 DRAMATIC EFFECT ON SOMEONE'S CAREER, AND WHETHER AFTER A

09:23 AM 6 FEW YEARS THEY END UP AS A HIGHLY-PAID ELECTRICIAN OR

09:23 AM 7 MAINTENANCE MAN OR WHETHER THEy'RE STILL WORKING IN THE

09:23 AM 8 CLEANING ROOM AT THE FOUNDRY. THOSE DECISIONS ARE MADE

09:23 AM 9
09:23 AM 10 09:24 AM 11

PURELY AT THE DISCRETION OF A MOSTLY-WHITE MANAGEMENT WORK FORCE.
NOW, YOU'LL HEAR INFORMATION ABOUT THEIR

09:24 AM 12 SENIORITY SYSTEM. I THINK YOU'LL HEAR THAT THE SENIORITY

09:24 AM 13 SYSTEM IS ERODING AS A RESULT OF THE ABILITY CLAUSE AND

09:24 AM 14 NEGOTIATED CHANGES FOR DISCRETIONARY CAREER-PATH

09:24 AM 15 PROFESSIONS, WHERE SENIORITY HAS NO ROLE IN PROMOTION

09:24 AM 16 DECISIONS.

09:24 AM 17

NOW, THE SALARIED -- IN SALARIED PROMOTIONS,

09:24 AM 18 LUFKIN HAS ARGUED TO US "GEE, YOU KNOW, AFRICAN-AMERICANS

09:24 AM 19 JUST AREN'T QUALIFIED. THERE ARE NO QUALIFIED

09:24 AM 20 AFRICAN-AMERICANS FOR UPPER MANAGEMENT POSITIONS."

09:24 AM 21

THE EVIDENCE WILL SHOW THAT THAT IS NOT TRUE.

09:24 AM 22 THERE HAVE BEEN WELL-EDUCATED, WELL-QUALIFIED

09:24 AM 23 AFRICAN-AMERICANS THAT ARE ROUTINELY PASSED OVER.

09:24 AM 24

NOW, I THINK SOME OF THE MOST INTERESTING

09:24 AM 25 EVIDENCE WE'RE GOING TO PRESENT WILL BE THE EXPERT

WENDELL R. PARKS, OFFICIAL COURT REPORTER
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09:24 AM 1 TESTIMONY.

09:24 AM 2

DR. DROGIN WILL PRESENT OUR STATISTICAL

09:25 AM 3 INFORMATION. IT'S BASED ON DATA PROVIDED BY THE COMPANY.

09:25 AM 4

THE ANALYSIS SHOWS AN ADVERSE IMPACT IN

09:25 AM 5 ASSIGNMENTS, PROMOTIONS, COMPENSATION.

09:25 AM 6

IN EACH OF THOSE AREAS THE EVIDENCE WILL SHOW

09:25 AM 7 THAT THE DISPARITIES ARE CONSISTENT WITH

09:25 AM 8 LEGALLY-RECOGNIZED STANDARDS OF STATISTICAL SIGNIFICANCE.

09:25 AM 9

FOR INSTANCE, THE INITIAL ASSIGNMENTS, MORE THAN

09:25 AM 10 HALF OF THE AFRICAN-AMERICANS WHO ARE HIRED AT LUFKIN

09:25 AM 11 INDUSTRIES DURING THE CLASS PERIOD GET ASSIGNED TO THE

09:25 AM 12 FOUNDRY.

09:25 AM 13

LESS THAN A QUARTER OF THE WHITE APPLICANTS WHO

09:25 AM 14 ARE HIRED AT LUFKIN INDUSTRIES GET ASSIGNED TO THE

09:25 AM 15 FOUNDRY.

09:25 AM 16

THAT MEANS MEMBERS OF THE CLASS ARE MORE THAN

09:25 AM 17 TWICE AS LIKELY TO BE ASSIGNED TO THE FOUNDRY.

09:25 AM 18

I'M NOT GOING TO CLAIM TO UNDERSTAND THIS

09:26 AM 19 COMPLETELY. THE STATISTICAL SIGNIFICANCE OF THAT IS

09:26 AM 20 MEASURED, MORE THAN EIGHT STANDARD DEVIATIONS.

09:26 AM 21

THE CHANCES OF THAT OCCURRING IN THE ABSENCE OF

09:26 AM 22 DISCRIMINATION AS A RESULT OF RANDOM FLUCTUATIONS ARE LESS

09:26 AM 23 THAN ONE IN ONE HUNDRED TRILLION.

09:26 AM 24

THE HOURLY PROMOTIONS IN EEO CATEGORY SIX

09:26 AM 25 THROUGH EIGHT, THAT'S I THINK UNSKILLED THROUGH SKILLED

WENDELL R. PARKS, OFFICIAL COURT REPORTER
409-654-2834

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09:26 AM 1 09:26 AM 2 09:26 AM 3 09:26 AM 4 09:26 AM 5 09:26 AM 6 09:26 AM 7 09:26 AM 8 09:27 AM 9 09:27 AM 10

17 LABOR, SHOWED DISPARITIES AT MORE THAN SEVEN STANDARD DEVIATIONS.
THE SHORTFALLS ARE CONSISTENT THROUGHOUT THOSE DIVISIONS, THROUGHOUT THE DEPARTMENTS.
SALARIED PROMOTIONS, THERE'S MORE THAN A TWENTY PERCENT SHORTFALL. IT'S STATISTICALLY SIGNIFICANT AT MORE THAN TWO STANDARD DEVIATIONS.
AS I MENTIONED BEFORE, THE COMPENSATION DISPARITIES ARE ACTUALLY INCREASING.
YOUR HONOR, WE'RE ALSO --

09:27 AM 11

FINALLY, LET ME MENTION, WE'RE GOING TO BRING IN

09:27 AM 12 A DR. MARTELL, AN INDUSTRIAL OCCUPATIONAL PSYCHOLOGIST,

09: 27 AM 13 WHO WILL DESCRIBE HOW THIS IS A TEXTBOOK CASE OF AN

09: 27 AM 14 EMPLOYER THAT PERMITS RACIAL STEREOTYPES TO PERSIST,

09:27 AM 15 UNCHECKED, AND TO TAKE EFFECT THROUGH SUBJECTIVE

09:27 AM 16 DECISION-MAKING, RESULTING IN THE DISPARITIES AND ADVERSE

09:27 AM 17 IMPACTS MEASURED BY DR. DROGIN.

09: 27 AM 18

DR. MARTELL WILL ALSO EXPLAIN THAT THE

09: 27 AM 19 THOUGHTFUL USE OF CURRENTLY WIDELY-ACCEPTED HUMAN

09:27 AM 20 RESOURCES MANAGEMENT PRACTICES CAN SIGNIFICANTLY REMEDY

09: 27 AM 21 THAT SITUATION.

09:27 AM 22

DR. MARTELL'S TESTIMONY PROVIDES THE LINK

09:27 AM 23 BETWEEN PERVASIVE RACIAL STEREOTYPES, UNCHECKED SUBJECTIVE

09: 28 AM 24 DECISION-MAKING AND AN ADVERSE IMPACT IN EMPLOYMENT

09:28 AM 25 DECISIONS, AND THE FACT THAT IF THE COMPANY WOULD SIMPLY

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09:28 AM 1 USE OBJECTIVE JOB-RELATED SELECTION CRITERIA FOR HIRING

09:28 AM 2 AND PROMOTION, IF THEY WOULD MEASURE WHETHER OPPORTUNITIES

09:28 AM 3 ARE EQUALLY AVAILABLE, IF THEY WOULD PROVIDE EDUCATION AND

09:28 AM 4 TRAINING FOR THEIR HR PERSONNEL, IF THEY WOULD TAKE

09: 28 AM 5 SEVERAL MEASURES TO DISCOURAGE RACIAL STEREOTYPES AND

09:28 AM 6 ENCOURAGE DIVERSITY, AND IF THEY WOULD DEMONSTRATE A TRUE

09:28 AM 7 COMMITMENT TO PROVIDING EQUAL EMPLOYMENT OPPORTUNITIES,

09:28 AM 8 THAT THESE PROBLEMS COULD BE SOLVED.

09:28 AM 9
09: 28 AM 10 09:28 AM 11 09:28 AM 12 09:29 AM 13

HONOR.

THAT'S WHAT I EXPECT THE EVIDENCE TO SHOW, YOUR
THANK YOU. THE COURT: DO YOU WISH TO RESPOND? MR. HAMEL: YES, YOUR HONOR. THANK YOU.

09:29 AM 14

YOUR HONOR, DO I UNDERSTAND THAT OPENING

09: 29 AM 15 STATEMENT TIME IS CHARGED AGAINST THE TIME ALLOCATED BY

09:29 AM 16 THE COURT?

09:29 AM 17 09:29 AM 18 IT.

THE COURT: I'M KEEPING -- I'M KEEPING TRACK OF

09:29 AM 19

MR. HAMEL: THANK YOU, YOUR HONOR.

09:30 AM 20

YOUR HONOR, WHAT YOU WILL HEAR IN THE EVIDENCE

09:30 AM 21 IS THAT LUFKIN INDUSTRIES IS A RELATIVELY SMALL COMPANY,

09: 30 AM 22 ALTHOUGH IT IS A MAJOR EMPLOYER IN LUFKIN, TEXAS.

09: 30 AM 2 3 UNFORTUNATELY, THE EVIDENCE IS GOING TO BE A BIT

09: 30 AM 24 COMPLICATED BY THE FACT THAT LUFKIN INDUSTRIES ACTUALLY

09:30AM 25 RUNS FOUR BUSINESSES IN LUFKIN, TEXAS. IT RUNS A FOUNDRY,

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22 09:34 AM 1 UNSKILLED LABOR.

09:34 AM 2

BUT IF YOU LOOK AT VERY SKILLED LABOR, LUFKIN

09:34 AM 3 EMPLOYS BLACK EMPLOYEES IN SKILLED POSITIONS AT -- GREATLY

09: 34 AM 4 EXCEEDING THE AMOUNT THAT YOU WOULD EXPECT IN THE LABOR

09:34 AM 5 FORCE.

09:34 AM 6

YOU WILL SEE THAT THE STANDARD DEVIATIONS THAT

09:34 AM 7 THE EXPERT CALCULATES AGAINST THE CENSUS DATA WILL SHOW

09:34 AM 8 THAT IT IS CLEAR THAT LUFKIN DOES MORE THAN ITS SHARE IN

09:34 AM 9
09: 34 AM 10

TERMS OF TRYING TO IMPROVE THE EMPLOYMENT OPPORTUNITIES OF BLACK EMPLOYEES IN SKILLED LABOR OCCUPATIONS.

09: 34 AM 11

THE PLAINTIFF HAS MADE A MISSTATEMENT OF THE

09:34 AM 12 EVIDENCE THAT I WANT TO BE SURE THE COURT UNDERSTANDS AS

09: 34 AM 13 AN INITIAL CORRECTION.

09:34 AM 14

AND MR. SPARKS, WOULD YOU PUT UP 0397, PLEASE?

09:35 AM 15 IF YOU WOULD GO TO THE TOP BOX, PLEASE. I'M SORRY, THE

09: 35 AM 16 09: 35 AM 17 09: 35 AM 18

FIRST COLUMN OF NUMBERS. THAT'S IT. THANK YOU. ALL RIGHT. YOUR HONOR, THIS IS AN EXCERPT FROM

09:35 AM 19 THE PLAINTIFFS' STATISTICAL EXPERT'S REPORT, AND WHAT YOU

09: 35 AM 20 SEE IS, AND WE'LL SHOW YOU IN THE EVIDENCE EACH YEAR, BUT

09: 35 AM 21 WHAT YOU SEE IS THAT IN 1994 IN THE LUFKIN FOUNDRY

09:35 AM 22 DIVISION, WHICH IS "LUFF," WHITES OUTNUMBERED BLACK

09: 35 AM 23 EMPLOYEES IN THE FOUNDRY, AND BLACKS CONSTITUTED 27 . 6

09: 35 AM 24 PERCENT OF THE FOUNDRY EMPLOYEES, NOT AS MR. GARRIGAN

09:35 AM 25 STATED, SEVENTY PERCENT, BUT 27.6 PERCENT.

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23

09:35 AM 1

AND YOU WILL SEE IN THE EVIDENCE THAT IN EACH

09: 35 AM 2 09: 36 AM 3 09: 36 AM 4

YEAR IN THE FOUNDRY BLACK EMPLOYEES HAVE IN FACT --

MR. GARRIGAN: YOUR HONOR

MR. HAMEL:

CONSTITUTED FEWER FOUNDRY WORKERS

09: 36 AM 5 09:36AM 6

THAN WHITE EMPLOYEES. MR. GARRIGAN:

YOUR HONOR, HEIS MISSTATED WHAT I

09: 36 AM 7 SAID. I COMPARED THE RATIO OF BLACK TO WHITES.

09: 36 AM 8

AND THE FACT IS, IN THE FOUNDRY THE PRESENCE OF

09: 36 AM 9 A LARGE NUMBER OF HISPANIC WORKERS HAS THE POTENTIAL TO

09: 36 AM 10 DILUTE AND CONFUSE THE STATISTICS.

09:36 AM 11

I JUST BRING THAT TO THE COURTIS ATTENTION.

09:36 AM 12 09: 36 AM 13 09:36 AM 14

MY STATEMENT BEFORE WAS ACCURATE. THE COURT: IILL TAKE IT UNDER CONSIDERATION. MR. HAMEL: YOUR HONOR, I THINK WHAT YOU WILL

09:36 AM 15 09: 36 AM 16

FIND IS

THE COURT: ARE YOU CLASSIFYING HISPANICS AS

09:36 AM 17 09: 36 AM 18 09: 36 AM 19
09: 36 AM 20 09:36 AM 21

WHITES? WHITES?

MR. HAMEL: EXCUSE ME? THE COURT: IS THAT CLASSIFYING HISPANICS AS
MR. HAMEL: NO, YOUR HONOR. THAT IS WHITE

09: 36 AM 22 EMPLOYEES, NOT INCLUDING HISPANICS.

09:36 AM 23
09: 36 AM 24 09:36 AM 25

AS YOU CAN SEE, THE TOTAL NUMBER OF EMPLOYEES WAS THREE HUNDRED AND EIGHTY-SEVEN. THERE WERE A HUNDRED AND FIFTY-FIVE WHITES AND A HUNDRED AND SEVEN BLACKS. SO

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09:36 AM 1

24
IN THAT YEAR HISPANICS LOOKED TO ME TO BE PROBABLY ANOTHER

09:36 AM 2 HUNDRED AND FIVE.

09:36 AM 3

AND I THINK WHAT YOU'LL SEE IN THE WORK FORCE,

09:36 AM 4 THAT IN MOST YEARS THE FOUNDRY WORK FORCE IS ABOUT A THIRD

09:37 AM 5 WHITE, A THIRD BLACK AND A THIRD HISPANIC, WITH HISPANICS

09:37 AM 6 LATELY BECOMING A LITTLE BIT MORE OF A PROPORTION, AND

09:37 AM 7 WHAT YOU'LL HEAR IN THE EVIDENCE IS THAT THAT HAS TO DO

09:37 AM 8 WITH THE FACT THAT THE FOUNDRY DOES NOT REQUIRE A FACILITY

09:37 AM 9 IN ENGLISH, EITHER WITH RESPECT TO SPEAKING OR READING

09: 37 AM 10 ENGLISH.

09:37 AM 11

AT THE END OF THE DAY, YOUR HONOR, THOUGH, THIS

09:37 AM 12 CASE BECOMES MORE SIMPLE, AND IT IS SIMPLE BECAUSE THE

09: 37 AM 13 PLAINTIFFS SIMPLY HAVE NO PROOF THAT THERE IS IN FACT, AS

09:37 AM 14 THEY HAVE SAID FOR SEVEN YEARS, AND SAID CONSISTENTLY TO

09:37 AM 15 THIS COURT, THAT LUFKIN ENGAGES IN UNFETTERED SUBJECTIVE

09: 37 AM 16 DECISION-MAKING. LUFKIN DOES NOT DO SO EITHER WITH

09: 37 AM 17 RESPECT TO THE HIRING AND INITIAL ASSIGNMENT OF EMPLOYEES

09: 37 AM 18 OR WITH RESPECT TO THEIR PROMOTION OR WITH RESPECT TO

09: 37 AM 19 THEIR COMPENSATION.

09: 37 AM 20

WHAT THE COURT WILL HEAR IS THAT LUFKIN HAS

09: 37 AM 21 CONSISTENTLY USED THE TEXAS WORKFORCE COMMISSION TO

09: 37 AM 22
09: 38 AM 23

PROVIDE ITS WORK FORCE. IT REQUISITIONS PEOPLE FOR SPECIFIC JOBS FROM THE TEXAS WORKFORCE COMMISSION, AND FOR

09:38 AM 24
09:38 AM 25

THOSE SPECIFICS JOBS THE TEXAS WORKFORCE COMMISSION PUTS THE REQUISITION IN A COMPUTER, THEY GENERATE A LIST OF

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09:38 AM 1 09:38 AM 2 09:38 AM 3 09:38 AM 4 09:38 AM 5 09:38 AM 6 09:38 AM 7 09:38 AM 8 09:38 AM 9 09: 38 AM 10

25 PEOPLE TO BE INTERVIEWED, THEY ASK PEOPLE IF THEY WANT TO INTERVIEW, AND THEY ASK THEM SPECIFICALLY "DO YOU WANT TO INTERVIEW FOR A JOB IN THE FOUNDRY," OR WHEN THERE'S A JOB IN TRAILER, "DO YOU WANT TO INTERVIEW FOR A JOB IN TRAILER?" AND THEY BRING IN A GROUP OF APPLICANTS WHO KNOW WHAT JOB IT IS THAT'S AVAILABLE AT LUFKIN, AND THEy'LL INTERVIEW FOR THAT JOB.
AND WHAT THE COURT WILL HEAR IS THAT IF YOU LOOK AT THE ACTUAL APPLICANT NUMBERS AS OPPOSED TO THE NUMBERS THAT ARE USED BY THE PLAINTIFFS' EXPERT, YOU ACTUALLY LOOK

09: 38 AM 11 AT THE APPLICANT FLOW THAT HAS BEEN TRACKED BY LUFKIN

09: 38 AM 12 THROUGH TIME, THE COURT WILL SEE THAT ABOUT THIRTY-FIVE

09:38 AM 13 PERCENT OF THE APPLICANTS FOR POSITIONS IN THE FOUNDRY ARE 09: 38 AM 14 BLACK AND ABOUT THIRTY-FIVE PERCENT OF THE PEOPLE WHO GET

09: 38 AM 15 HIRED IN THE FOUNDRY ARE BLACK. SO IT IS ENTIRELY

09:38 AM 16 CONSISTENT WITH THE ACTUAL APPLICANT FLOW THAT LUFKIN SEES

09:38 AM 17 THAT THEY HIRE PEOPLE IN THE FOUNDRY WHO ARE ABOUT

09:39 AM 18 THIRTY-FIVE PERCENT BLACK.

09:39 AM 19

WHAT YOU'LL ALSO HEAR, AS OPPOSED TO WHAT MR.

09: 39 AM 20 GARRIGAN SAID ABOUT HIS EXPERT'S TESTIMONY, HIS EXPERT,

09: 39 AM 21 WHEN HE QUOTED THE STATISTICS OF SOMETHING LIKE THAT ONE

09: 39 AM 22 IN TEN TRILLION PROBABILITY OF CHANCE, I THINK THAT HIS

09:39 AM 23 EXPERT HAS AGGREGATED ALL THE DATA TOGETHER AND COME TO

09:39 AM 24 SOME CONCLUSION, AND YOU'LL SEE IN THE EVIDENCE WHY THAT'S

09: 39 AM 25 AN IMPROPER STATISTICAL TECHNIQUE.

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09:39 AM 1

26 BUT THE COURT ASKED THE QUESTION ABOUT THE

09:39 AM 2 09:39 AM 3 09: 39 AM 4 09: 39 AM 5 09:39 AM 6 09:39 AM 7 09: 39 AM 8 09:39 AM 9 09: 39 AM 10

PERCENTAGES THAT WE'RE TALKING ABOUT. THE PLAINTIFFS' EXPERT ALSO DID A STUDY IN WHICH HE LOOKED AT THE ISSUE OF WHERE DO PEOPLE GET ASSIGNED IF THEy'RE HIRED ON THE SAME DAY OR THEy'RE HIRED IN THE SAME WEEK, AND WHAT YOU WILL SEE IN THAT STUDY, EVEN AS BEST HE CAN DO, NOTWITHSTANDING THE FACT THAT HE'S BEEN A PLAINTIFFS' EXPERT FOR MANY YEARS, AND WORKED FOR MS. DEMCHAK'S FIRM ON MANY OCCASIONS, IS THAT HE COMES OUT WITH A STATISTIC THAT SAYS THE DIFFERENCE OVER NINE YEARS FROM WHAT HE WOULD HAVE

09: 39 AM 11 EXPECTED IS, COMPARING BLACKS TO NONBLACKS, IS ABOUT

09:40 AM 12 SIXTEEN OR SEVENTEEN ASSIGNMENTS IN TOTAL OVER A NINE-YEAR

09:40 AM 13 PERIOD, WHICH IS LESS THAN TWO PER YEAR, AND WHICH IS

09:40 AM 14 ABOUT ONE PERCENT OF THE TOTAL HIRING.

09:40 AM 15

SO WHEN YOU LOOK AT THIS IDEA THAT THERE IS SOME

09:40 AM 16 EXTRAORDINARY PROBABILITY OF CHANCE, IN REALITY, WHEN YOU

09:40 AM 17 LOOK INTO HIS STUDY, WHAT YOU'LL SEE IS, HE WILL SAY THAT

09:40 AM 18 IF YOU LOOK AT PEOPLE WHO ARE HIRED ABOUT THE SAME TIME,

09:40 AM 19 THE DIFFERENCE WHEN YOU COMPARE WHETHER BLACKS VERSUS

09:40 AM 20 NONBLACKS GO TO THE FOUNDRY REDUCES DOWN TO A SITUATION

09:40 AM 21 WHERE WE'RE TALKING ABOUT POTENTIALLY SIXTEEN TO EIGHTEEN

09:40 AM 22 EMPLOYMENT DECISIONS OVER A NINE-YEAR PERIOD, OR LESS THAN

09:40 AM 23 TWO EMPLOYMENT DECISIONS PER YEAR, WHEN THEY AVERAGE ABOUT

09:40 AM 24 A HUNDRED AND FIFTY-FIVE TO TWO HUNDRED EMPLOYMENT

09:40 AM 25 DECISIONS A YEAR.

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27

09:40 AM 1

SO WHAT THE COURT WILL SEE IS THAT IN FACT THERE

09:40 AM 2 IS NO COMMON-SENSE BASIS TO COME TO A CONCLUSION THAT

09:40 AM 3 THERE'S A DIFFERENCE IN ASSIGNMENT OF BLACKS TO THE

09:41 AM 4 FOUNDRY DIVISION AT LUFKIN INDUSTRIES.

09:41 AM 5

MORE CRITICAL IS THE EVIDENCE WITH RESPECT TO

09:41 AM 6 THE ALLEGED UNFETTERED SUBJECTIVE DECISION-MAKING USED BY

09:41 AM 7 LUFKIN IN ITS PROMOTIONS.

09:41 AM 8

PROMOTIONS AT LUFKIN ARE BY AND LARGE IN THE

09:41 AM 9 HOURLY WORK FORCE, WHICH IS REPRESENTED BY THE AFL-CIO, 09:41 AM 10 WHICH HAS DELEGATED ITS RESPONSIBILITY TO THREE UNIONS,

09:41 AM 11 THE MOLDERS, THE MACHINISTS AND THE BOILERMAKERS.

09:41 AM 12

THE CONTRACT WITH THOSE UNIONS PROVIDES THAT

09:41 AM 13 SENIORITY SHALL GOVERN IN THE PROMOTION OF EMPLOYEES, AND

09:41 AM 14 WHAT THE COURT WILL HEAR IS THAT IN MOST CASES THAT IS A

09:41 AM 15 VERY SIMPLE PROCESS. THEY POST A BID, PEOPLE SIGN UP FOR

09:41 AM 16 THE BID. AS LONG AS THEy'RE ASKING FOR A PROMOTION AND

09:41 AM 17 NOT A DEMOTION, THE BID IS AWARDED STRICTLY BY THE

09:41 AM 18 PERSON'S DEPARTMENTAL SENIORITY.

09:41 AM 19

THE COURT WILL HEAR THAT IN FACT THE ACTUAL USE

09:41 AM 20 OF THE ABILITY CLAUSE IS ALMOST EXCLUSIVELY CONFINED TO

09:41 AM 21 THE USE OF PAPER-AND-PENCIL TESTS, WHICH ARE USED TO

09:42 AM 22 QUALIFY PEOPLE FOR CERTAIN OF THE JOB POSITIONS THAT

09:42 AM 23 LUFKIN HAS, AND ARE TESTS WHICH ARE NEGOTIATED WITH THE

09:42 AM 24 UNIONS IN THE COLLECTIVE BARGAINING.

09:42 AM 25

THOSE PAPER-AND-PENCIL TESTS ARE NOT SUBJECTIVE.

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28

09:42 AM 1 ANYBODY CAN GO IN, INCLUDING THE UNION, LOOK AT THE TEST,

09:42 AM 2 AND THEY CAN SAY "DID THIS PERSON GET A SEVENTY OR NOT?"

09:42 AM 3

AND BY THE WAY, YOUR HONOR, WHAT THE EVIDENCE IS

09:42 AM 4 GOING TO SHOW IS THAT THIS IS NOT A TEST, THIS IS NOT AN

09:42 AM 5 ABILITY TEST, WHERE YOU SAY WE'RE GOING TO PICK OUT THE

09:42 AM 6 PERSON WHO GOT A NINETY-EIGHT INSTEAD OF A PERSON WHO GOT

09:42 AM 7 AN EIGHTY, IT IS A PASS-FAIL SITUATION.

09:42 AM 8

AS THE COURT WILL READILY UNDERSTAND, THERE ARE

09:42 AM 9 09:42 AM 10 09:42 AM 11

SITUATIONS -FOR EXAMPLE, IF YOU WANT TO PROMOTE SOMEBODY TO
BE AN ELECTRICIAN, YOU WANT TO BE SURE THEY KNOW SOMETHING

09:42 AM 12 ABOUT BEING AN ELECTRICIAN OR YOU'RE GOING TO HAVE A

09:42 AM 13 SERIOUS SAFETY PROBLEM.

09:42 AM 14

ON THE OTHER END OF THE SPECTRUM YOU HAVE THE

09:42 AM 15 JOB WHICH HAS THE MOST PROMOTIONS TO IT, AND IT'S THE

09:42 AM 16 TRAILER BUILDER "A." THERE IS A TEST IN EFFECT FOR

09:42 AM 17 TRAILER BUILDER "A." IT'S TWO SHEETS OF PAPER. ONE IS, A

09:43 AM 18 PERSON IS SHOWN A RULER AND THEy'RE ASKED TO TELL WHAT THE

09:43 AM 19
09:43 AM 20

MEASUREMENTS ON THE RULER ARE, SAY THAT THIS IS A MEASUREMENT OF ONE AND THREE-QUARTERS, THIS IS A

09:43 AM 21 MEASUREMENT OF SIX AND SEVEN-EIGHTS, AND IF THEY GET SEVEN

09:43 AM 22
09:43 AM 23

OF TEN RIGHT, THEY PASS THAT PART OF THE TEST. THE OTHER PART OF THE TEST IS A TEST WHICH IS

09:43 AM 24 09:43 AM 25

ESSENTIALLY LOOKING AT A WORKING DRAWING OF A BLUEPRINT AND TELLING WHAT'S ON THE BLUEPRINT, BOTH SKILLS THAT ARE

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09:43 AM 1 ABSOLUTELY REQUIRED TO BE A TRAILER BUILDER "A."

09:43 AM 2

AND IF YOU PASS THAT TEST, THEN TRAILER BUILDER

09:43 AM 3 "A," JUST AS THE OTHER JOBS, IS AWARDED STRICTLY ON THE

09:43 AM 4 BASIS OF DEPARTMENTAL SENIORITY.

09:43 AM 5

IF YOU LOOK AT THE ACTUAL BID SHEETS, WHICH

09:43 AM 6 LUFKIN HAS SPENT A GOOD DEAL OF TIME AND EFFORT TO ENSURE

09:43 AM 7 THAT THEY WOULD TAKE THE PAPER RECORDS THAT EXIST AND

09:43 AM 8 TRANSLATE THEM INTO A DATA BASE, YOU WILL SEE THAT THERE

09:43 AM 9 IS NO DISPARATE IMPACT AGAINST BLACK EMPLOYEES WITH

09:43 AM 10 RESPECT TO THE BIDDING PROCESS.

09:43 AM 11

YOU WILL ALSO SEE THAT THERE'S NO DISCOURAGING

09:43 AM 12 OF BLACK EMPLOYEES IN THE BIDDING PROCESS.

09:43 AM 13

FOR EXAMPLE, AND I'LL GET THE EXACT NUMBERS FOR

09:44 AM 14 THE COURT FROM THE EVIDENCE, BUT I THINK THERE ARE ABOUT

09:44 AM 15 ELEVEN THOUSAND BIDDERS, OF WHOM TWENTY-SIX OR

09:44 AM 16 TWENTY-SEVEN HUNDRED WERE BLACK. SO YOU CAN SEE THAT

09:44 AM 17 BLACKS CERTAINLY UNDERSTAND THE BIDDING PROCESS AND USE

09:44 AM 18 THE BIDDING PROCESS.

09:44 AM 19

FINALLY, YOU'RE GOING TO SEE THAT THERE IS NO

09:44 AM 20 SUBJECTIVE DECISION-MAKING AS A PRACTICAL MATTER IN THE

09:44 AM 21 PROMOTION OF PEOPLE TO THE SALARIED RANGE.

09:44 AM 22

MR. GARRIGAN KIND OF GLOSSED OVER HIS EXPERT'S

09:44 AM 23 REPORT, SAID HE FOUND SIGNIFICANCE AT TWO STANDARD

09:44 AM 24 DEVIATIONS. THE ACTUAL NUMBER IS 2.02 STANDARD

09:44 AM 25 DEVIATIONS. AND AS THIS COURT RECOGNIZED IN ITS CLASS

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09:44 AM 1 CERTIFICATION OPINION, ANY NUMBER LESS THAN THREE STANDARD

09:44 AM 2 DEVIATIONS IS NOT STATISTICALLY SIGNIFICANT.

09:44 AM 3

BUT WE WILL SHOW YOU THAT EVEN SALARIED JOBS ARE

09:44 AM 4 POSTED, AND WHEN YOU LOOK AT THOSE POSTINGS, YOU WILL SEE

09:44 AM 5 THAT BLACKS GET THEIR FAIR SHARE OF SALARIED JOBS, JUST AS

09:44 AM 6 YOU WOULD EXPECT FROM THE POSTING PROCESS.

09:44 AM 7

YOU WILL ALSO SEE THAT IT IS NOT UNFETTERED

09:45 AM 8 SELECTIVE DECISION-MAKING WITH RESPECT TO THE SELECTION OF

09:45 AM 9 PEOPLE FOR SALARIED JOBS. THEY USE A JOB DESCRIPTION,

09:45 AM 10 WHICH IS PART OF THE POSTINGS, THEY TELL PEOPLE "THIS IS

09:45 AM 11 WHAT YOU'RE GOING TO BE EXPECTED TO DO IF YOU GET THIS

09:45 AM 12 09:45 AM 13

JOB," AND THEY ASK PEOPLE "CAN YOU DO THESE THINGS?" FINALLY, WE HAVE THE COMPENSATION CLAIM. THE

09:45 AM 14 COMPENSATION CLAIM IS ONE THAT IS LARGELY MANUFACTURED BY

09:45 AM 15 THE PLAINTIFFS' EXPERT.

09:45 AM 16

WHAT THE COURT WILL SEE IS THAT FOR NINETY

09:45 AM 17 PERCENT OF THE EMPLOYEES WHO ARE COVERED BY THE COLLECTIVE

09:45 AM 18 BARGAINING AGREEMENT, THE COMPANY NEGOTIATES RATES FOR

09:45 AM 19 EACH JOB WITH RESPECT TO THOSE EMPLOYEES, AND THE CONTRACT

09:45 AM 20 PROVIDES THAT UNTIL YOU GET TO THE MAXIMUM RATE OF PAY,

09:45 AM 21 YOU MUST GET AT LEAST A TWENTY-FIVE-CENTS-PER-HOUR RAISE

09:45 AM 22 EVERY SIX MONTHS, AND YOU ONLY DON'T GET THAT RAISE IF

09:45 AM 23 YOU'RE IN THE ATTENDANCE PROGRAM, WHICH IS ALSO A

09:45 AM 24 NEGOTIATED PROGRAM.

09:45AM 25

BUT WHAT YOU'RE GOING TO HEAR IS THAT VIRTUALLY

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31

09:45 AM 1 EVERYBODY GETS THE RAISE, AND WITHIN A PERIOD OF A FEW

09:45 AM 2 YEARS, TWO OR THREE OR FOUR YEARS, THEy'VE REACHED THE

09:45 AM 3 MAXIMUM RATE OF PAY, AND, IN FACT, AT LUFKIN INDUSTRIES

09:45 AM 4 TODAY MOST OF THE HOURLY WORK FORCE ARE AT THE MAXIMUM

09:46 AM 5 RATE OF PAY.

09:46 AM 6

WITH RESPECT TO THE SALARIED WORK FORCE, THEY

09:46 AM 7 HAVE A MORE SOPHISTICATED SALARY ADMINISTRATION SYSTEM,

09:46 AM 8 BUT THE BASIS ON WHICH THE PLAINTIFFS' EXPERT HAS

09:46 AM 9 DETERMINED THAT THERE'S SOME DISPARITY IN PAY IS BY 09:46 AM 10 OMITTING FROM HIS REGRESSION ANALYSIS THE ONE FACTOR THAT

09:46 AM 11 IS MOST CRITICAL IN ANY BUSINESS IN ANY EMPLOYER'S

09:46 AM 12 DETERMINATION OF COMPENSATION, AND THAT'S WHAT THE

09:46 AM 13 PERSON'S EXPERIENCE/JOB CLASSIFICATION IS. AND WHAT YOU

09:46 AM 14 WILL HEAR FROM THE DEFENSE EXPERT, AND I THINK PERHAPS THE

09:46 AM 15 PLAINTIFFS' EXPERT WILL ALSO AGREE, IF YOU PUT A PERSON'S

09:46 AM 16 JOB CLASSIFICATION INTO HIS REGRESSION ANALYSIS, THERE IS

09:46 AM 17 NO SIGNIFICANCE AND NO DIFFERENCE OF A

09:46 AM 18 STATISTICALLY-SIGNIFICANT NATURE BETWEEN THE COMPENSATION

09:46 AM 19 OF BLACKS IN THE HOURLY RANKS OR BLACKS IN THE SALARIED

09:46 AM 20 RANKS AND WHITES IN THE HOURLY RANKS OR WHITES IN THE

09:46 AM 21 SALARIED RANKS.

09:46 AM 22

THE WAY THAT THE PLAINTIFFS' EXPERT GETS

09:47 AM 23 SIGNIFICANCE IS TO IGNORE JOB CLASSIFICATION, WHICH SIMPLY

09:47 AM 24 UNDER 5TH CIRCUIT LAW IS INAPPROPRIATE.

09:47 AM 25

AT THE END OF THE DAY, YOUR HONOR, WHAT YOU'RE

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09:47 AM 1 GOING TO SEE IS, AFTER ALL THE WORK THAT HAS GONE INTO

09:47 AM 2 THIS CASE, THE PLAINTIFFS HAVE NO EVIDENCE OF SIGNIFICANCE

09:47 AM 3 THAT THERE IS UNFETTERED SUBJECTIVE DECISION-MAKING IN THE

09:47 AM 4 EMPLOYMENT PROCESSES OF LUFKIN INDUSTRIES, AND WHAT WILL

09:47 AM 5 OCCUR IS

09:47 AM 6

THE COURT: LET ME SEE IF I UNDERSTAND YOU.

09:47 AM 7 THERE IS NO UNFETTERED DECISION-MAKING PROCESS ON

09:47 AM 8 PROMOTIONS?

09:47 AM 9

MR. HAMEL: YOUR HONOR, THERE IS NO EVIDENCE OF

09:47 AM 10 ANY STATISTICALLY-SIGNIFICANT USE OF UNFETTERED SUBJECTIVE

09:47 AM 11 09:47 AM 12

DECISION-MAKING. AND I WOULD TELL YOU THERE'S VIRTUALLY NO

09:47 AM 13 UNFETTERED SUBJECTIVE DECISION-MAKING IN ANYTHING.

09:47 AM 14

I MEAN, I THINK YOU COULD PROBABLY UNDERSTAND

09:47 AM 15 THAT IF, FOR EXAMPLE, LUFKIN INDUSTRIES WAS HIRING A VICE

09:47 AM 16 PRESIDENT FOR SALES, AND THEY HAD SOME GUY WHO HAD

09:47 AM 17 INTERNATIONAL EXPERIENCE AND THEY HAD SOME GUY WITH

09: 47 AM 18 NATIONAL EXPERIENCE, THERE WOULD BE SOME SUBJ ECTIVITY TO

09:48 AM 19 DECIDE WHAT'S MOST IMPORTANT FOR OUR BUSINESS,

09:48 AM 20 INTERNATIONAL EXPERIENCE OR DOMESTIC EXPERIENCE.

09:48 AM 21

BUT WE'RE TALKING ABOUT A HANDFUL OF PROMOTIONS,

09:48 AM 22 AND THAT IN FACT NINETY-NINE PERCENT OF THE PROMOTIONS ARE

09:48 AM 23 DONE ON THE BASIS OF EITHER SENIORITY OR WELL-RECOGNIZED

09:48 AM 24 CRITERIA WHICH ARE APPLIED WITH RESPECT TO THOSE

09:48 AM 25 PROMOTIONS.

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09:48 AM 1 09:48 AM 2

33 THERE ARE SOME SUBJECTIVE SITUATIONS IN WHICH FOR EXAMPLE, THERE HAS BEEN AN EXCEPTION

09:48 AM 3 NEGOTIATED BY THE UNION, FOR EXAMPLE, SOMEBODY WANTS TO

09:48 AM 4 CHANGE SHIFTS BECAUSE THEIR DAUGHTER HAS GOT A -- HAS

09:48 AM 5 CONTRACTED A CRITICAL ILLNESS AND THEY NEED TO HAVE A

09:48 AM 6 SHIFT SO THAT THE WIFE CAN BE AT HOME AND THEY CAN BE AT

09:48 AM 7 HOME AT DIFFERENT TIMES. THE UNION AND THE COMPANY GET

09:48 AM 8 TOGETHER AND THEY NEGOTIATE A COMPROMISE WITH RESPECT TO

09:48 AM 9
09:48 AM 10 09:48 AM 11

THAT INSIDE THE COLLECTIVE BARGAINING AGREEMENT, AND THAT MAYBE HAPPENED A HANDFUL OF TIMES, TEN OR TWELVE OVER THE LAST NINE YEARS.

09: 48 AM 12

SO, YES, YOUR HONOR, WHAT I IM TELLING YOU IS

09:48 AM 13 THAT WHAT YOU IRE GOING TO SEE IS THAT THE VAST PROPORTIONS

09:49 AM 14 OF PROMOTIONS AT LUFKIN INDUSTRIES DO NOT INVOLVE

09: 49 AM 15 SUBJ ECTIVE DECISION-MAKING. THEY INVOLVE OBJ ECTIVE

09:49 AM 16 FACTORS THAT ARE APPLIED. SOME OF THE OBJECTIVE FACTORS

09:49 AM 17 ARE SIMPLE, SUCH AS SIMPLY LOOKING TO SEE WHETHER OR NOT

09:49 AM 18 THERE IS A PROMOTION FOR A PERSON AND WHAT THAT PERSON IS

09:49 AM 19 DEPARTMENTAL SENIORITY IS, AND ITI S A MECHANICAL

09:49 AM 20 APPLICATION OF THOSE CRITERIA.

09:49 AM 21 09:48 AM 22 09:48 AM 23 09:49 AM 24

THANK YOU, YOUR HONOR. THE COURT: YOU MAY START YOUR CASE. MR. GARRIGAN: ONE MINUTE, PLEASE. YOUR HONOR, BEFORE I CALL MY FIRST WITNESS, liVE

09:49 AM 25 GOT A FEW PRELIMINARY MATTERS I WOULD LIKE TO BRING UP,

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09:49 AM 1 REALLY IN NO PARTICULAR ORDER.

09:49 AM 2

ON THE 21ST OF NOVEMBER THE COMPANY HAD AN

09:49 AM 3 ARBITRATION WITH THE UNIONS, OR WITH ONE OF THE UNIONS,

09:49 AM 4 THAT INCLUDED TESTIMONY FROM TWO OF THE CLASS MEMBERS.

09:49 AM 5 THE ARBITRATION INVOLVED A RACE DISCRIMINATION SITUATION.

09:49 AM 6 IT WAS HIGHLY UNUSUAL IN THAT THE COMPANY HAD A COURT

09:49 AM 7
09:49 AM 8

REPORTER THERE TO RECORD THE ARBITRATION PROCEEDING. THE COURT: WELL, THEy'RE ENTITLED TO DO THAT,

09:49 AM 9 ARE THEY NOT?

09:49 AM 10 09:49 AM 11

MR. GARRIGAN: WELL, THEY CERTAINLY ARE. THE COURT: ALL RIGHT. THEN IT ISN'T HIGHLY

09:49 AM 12 09:49 AM 13

UNUSUAL. MR. GARRIGAN:

NO. IT WAS HIGHLY UNUSUAL IN

09:49 AM 14 THAT RARELY ARE ARBITRATIONS RECORDED THAT WAY.

09: 50 AM 15

AND THE POINT I WANTED TO BRING UP IS THAT WE

09: 50 AM 16 REQUESTED A COpy OF THAT TRANSCRIPT FROM THE DEFEDANTS.

09: 50 AM 17 WE'RE NOT ALLOWED TO REQUEST IT FROM THE COURT REPORTER,

09: 50 AM 18 SINCE WE WERE NOT A PARTY TO THE ARBITRATION.

09:50 AM 19 09: 50 AM 20

THEY WON'T GIVE IT TO US. ALSO --

09:50 AM 21

THE COURT: WELL, IF ANY PART OF IT IS

09: 50 AM 22 INTRODUCED, DIRECTLY OR INDIRECTLY, YOU'LL BE REQUIRED

09: 50 AM 23 THERE WILL BE A REQUIREMENT BY THE COURT THAT IT ALL BE

09: 50 AM 24 09:50 AM 25

PRODUCED FOR YOU. MR. GARRIGAN: YOUR HONOR, I SUSPECT THE REASON

WENDELL R. PARKS, OFFICIAL COURT REPORTER 409-654-2834

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09: 50 AM 1 THEy'RE WITHHOLDING IT IS BECAUSE IT WOULD HELP US.

09: 50 AM 2

THE COURT: WELL

09: 50 AM 3

MR. GARRIGAN: I HAVE -- I CERTAINLY HAVE NO

09:50 AM 4 EVIDENCE OF THAT. I HAVEN'T SEEN IT.

09:50 AM 5

THE COURT: ALL RIGHT, SIR. THEN I DON'T HAVE

09: 50 AM 6 ANY EITHER. BUT IF THEy'RE GOING TO USE IT, THEy'RE GOING

09: 50 AM 7 TO FURNISH A COPY TO YOU, IF THEy'RE GOING TO USE IT

09:50 AM 8 DIRECTLY OR INDIRECTLY.

09:51 AM 9 09: 51 AM 10 09: 51 AM 11

POINT?

MR. HAMEL: YOUR HONOR, MAY I BE HEARD ON THAT WE'VE NOT REFUSED TO GIVE IT TO THE PLAINTIFFS.

09: 51 AM 12 IN FACT, THE TRANSCRIPT IS SIMPLY NOT READY.

09:51 AM 13

AS MR. GARRIGAN SAID, THE ARBITRATION WAS

09: 51 AM 14 NOVEMBER 21ST.

09: 51 AM 15

MR. GARRIGAN CALLED US AND SAID THAT HE

09: 51 AM 16 UNDERSTOOD THE TRANSCRIPT WAS READY. WE CALLED THE COURT

09: 51 AM 17 REPORTER AND WE FOUND OUT IT'S NOT READY.

09:51 AM 18

FRANKLY, WHEN IT'S READY, THEY CAN HAVE IT

09: 51 AM 19 09:51AM 20 09:51 AM 21

POSSIBL Y. WE HAVE NO PROBLEM WITH THAT WHATSOEVER. THE COURT: WHO IS THE COURT REPORTER? MR. HAMEL: I BELIEVE IT'S EXCEL COURT REPORTING

09: 51 AM 22 09:51 AM 23

IN LUFKIN, TEXAS. THE COURT: HAVE THEY ESTIMATED WHEN IT WILL BE

09: 51 AM 24 09:51 AM 25

READY?

MR. HAMEL: MY UNDERSTANDING IS SOMETIME THE END

WENDELL R. PARKS, OFFICIAL COURT REPORTER 409-654-2834

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09: 51 AM 1 OF THIS WEEK. MS. MAHONY EVIDENTLY TALKED TO THEM

09: 51 AM 2 YESTERDAY, AND IT WAS NOT READY YESTERDAY.

09:51 AM 3

MR. GARRIGAN: YOUR HONOR, I'VE TALKED TO THE

09:51 AM 4 COURT REPORTER. THE REASON IT'S NOT READY IS BECAUSE THEY

09:51 AM 5 HAVEN'T ASKED THEM TO PREPARE IT.

09:51 AM 6

DANA SMELLY HAS WON AWARDS FOR DOING REALTIME

09:51 AM 7 COURT REPORTING. SHE COULD PRODUCE IT AS SOON AS THEY

09: 52 AM 8 REQUESTED IT, AND THEY KNOW THAT.

09:52 AM 9 09: 52 AM 10

MR. HAMEL: IT'S MY UNDERSTANDING THAT THE COURT: I'M NOT GOING TO ENGAGE IN THIS

09: 52 AM 11 MINOR BICKERING BETWEEN COUNSEL. IT'S GOING TO HURT BOTH

09: 52 AM 12 SIDES ON THAT, SIR.

09: 52 AM 13

YOU'VE GOT TO REALIZE THAT I'M GOING TO RULE ON

09: 52 AM 14 MATTERS OF EVIDENCE THAT ARE IN EXISTENCE.

09: 52 AM 15

MR. GARRIGAN: OKAY.

09: 52 AM 16

THE COURT: AND AS TO THE MOTIVATION OF A COURT

09: 52 AM 17 REPORTER WHO IS NOT EMPLOYED BY THIS COURT, I'M JUST NOT

09: 52 AM 18 GOING TO GO INTO IT.

09: 52 AM 19

MR. GARRIGAN: YOUR HONOR, THE POINT IS, IT'S IN

09:52 AM 20 THEIR CONSTRUCTIVE CONTROL AND THEY HAVE WITHHELD IT.

09:52 AM 21

IT'S MY UNDERSTANDING DURING THAT ARBITRATION

09:52 AM 22 THAT DAVID JENKINS, ONE OF THE MANAGERS I EXPECT YOU'LL

09: 52 AM 23 HEAR FROM TODAY, SAID THAT IF THE EMPLOYEES WON THAT

09: 52 AM 24 ARBITRATION, AGAIN, REGARDING RACE DISCRIMINATION MATTERS,

09: 52 AM 25 THAT DURING THEIR TEN-DAY TRIAL PERIOD THEY WOULD BE

WENDELL R. PARKS, OFFICIAL COURT REPORTER 409-654-2834

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09:53 AM 1 BUSTED BACK.

09:53 AM 2

I THINK THAT WOULD HELP US IF WE COULD PRESENT

09:53 AM 3 THAT TO THE COURT.

09:53 AM 4

THE COURT: WELL, I'M NOT GOING TO RULE ON IT.

09:53 AM 5 THEY SAID THEY WOULD GIVE IT TO YOU WHEN THEY GET IT.

09:53 AM 6

THEy'RE NOT GOING TO USE IT UNTIL IT EXISTS.

09:53 AM 7

IT CAN BE SUBMITTED POST-TRIAL.

09:53 AM 8

MR. GARRIGAN: OKAY. THANK YOU, YOUR HONOR.

09:53 AM 9 09:53 AM 10 09:53 AM 11

ALSO, THE COURT HAS ORDERED THEM ON TWO OCCASIONS TO PRODUCE APPLICATIONS FROM THEIR FOUNDRY HIRE ANALYSIS. I BELIEVE YOU FIRST ORDERED IT ON OCTOBER 29TH,

09:53 AM 12 AND AGAIN ON NOVEMBER 13TH.

09:53 AM 13

NOW, IN ORDER FOR THE COURT TO BE ABLE TO

09:53 AM 14 DETERMINE WHETHER OR NOT THE DATA THAT THEY BASE THEIR

09: 53 AM 15 CASE ON IS RELIABLE, THAT UNDERLYING INFORMATION HAS TO BE

09: 53 AM 16 AVAILABLE TO US, AND AVAILABILITY HAS TO MEAN SOMETHING.

09:53 AM 17

THE FACT IS, THEY PRODUCED FIVE BOXES OF THOSE

09:54 AM 18 APPLICATIONS YESTERDAY, AND IT MAY BE NECESSARY, YOUR

09:54 AM 19 HONOR, FOR US TO ASK FOR A POST-TRIAL SUBMISSION REGARDING

09: 54 AM 20 THAT INFORMATION ALSO.

09: 54 AM 21

THE COURT: WELL, THE TIMELINESS OF THE REQUEST,

09: 54 AM 22 THE RELUCTANCE OF IT TO BE PRODUCED, THE EVENTUAL

09:54 AM 23 PRODUCTION OF IT, IF I DEEM IT'S IMPORTANT, THEN I'M GOING

09: 54 AM 24 TO WITHHOLD A RULING UNTIL I GET IT.

09: 54 AM 25

MR. GARRIGAN: ALL RIGHT. THANK YOU.

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09: 54 AM 1

WE DO HAVE --

09:54 AM 2

WE HAVE HAD A CHANCE TO LOOK AT SOME OF IT.

09:54 AM 3 WE'LL PRESENT WHAT WE CAN DURING THE TRIAL.

09:54 AM 4

MR. HAMEL: YOUR HONOR, IF I MAY BE HEARD.

09: 54 AM 5

I DON'T WANT TO SEEM TO BE BICKERING, BUT I WANT

09: 54 AM 6 TO BE SURE THE RECORD IS CLEAR.

09:54 AM 7

THE COURT ORDERED US TO PRODUCE ALL THE

09: 54 AM 8 APPLICATIONS THAT LUFKIN HAD.

09: 54 AM 9
09: 55 AM 10

THE DAY AFTER THAT COURT ORDER WAS ENTERED, WE CONTACTED THE COURT REPORTING SERVICE, AS WE HAD AGREED IN

09: 55 AM 11 THE COURT HEARING, TO BEGIN COPYING THOSE APPLICATIONS,

09:55 AM 12 AND WE TOLD THE COURT REPORTING SERVICE TO SEND THEM TO

09:55 AM 13 THE PLAINTIFFS AS THEY WERE COPIED, AND THAT IS MY

09:55 AM 14 UNDERSTANDING OF WHAT WAS DONE, UNTIL MR. GARRIGAN TOLD

09:55 AM 15 THE COURT REPORTING SERVICE NOT TO BOTHER TO SEND HIM

09: 55 AM 16 SOME, BECAUSE IT WAS GOING TO BE THE THANKSGIVING

09: 55 AM 17 HOLIDAYS, AND THEN TO SEND THEM HERE TO BEAUMONT. SO--

09:55 AM 18

THE COURT: I'M NOT GOING TO ENGAGE IN THIS.

09: 55 AM 19 NOW, I THINK YA' LL KNOW THIS. I WASN'T GOING TO ENGAGE IN

09: 55 AM 20 THIS DELAY TACTIC OF UNION INTERVENTION.

09:55 AM 21

AND APPARENTLY THE UNION HAS APPEALED, AND THE

09: 55 AM 22 THREE JUDGES OF THE COURT AFFIRMED THE DECISION, DENIED

09: 55 AM 23 THE DELAY, THE STAY, WHICH LUFKIN JOINED IN, NOT JOINED

09: 55 AM 24 IN, BUT MADE A SEPARATE ONE.

09:55 AM 25

USUALLY THE INDUSTRY AND THE UNIONS ARE

WENDELL R. PARKS, OFFICIAL COURT REPORTER
409-654-2834

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09:55 AM 1 ADVERSARIAL, BUT IN THIS THEY WERE NOT ADVERSARIAL, THEY

09:55 AM 2 WERE ALLIES.

09:56 AM 3

ANYHOW, THE STAY WAS DENIED BY ME. IT WAS

09: 56 AM 4 AFFIRMED, THAT DECISION WAS AFFIRMED, THE PRELIMINARY

09:56 AM 5 APPEAL TO

09:56 AM 6

THERE WAS AN EMERGENCY APPEAL FILED, AND JUDGE

09: 56 AM 7 GARZA WAS ON THE PANEL, AND THEY -- THAT'S EMILIO, NOT

09:56 AM 8 REYNALDO. THEY DENIED IT.

09: 56 AM 9

I EXPECTED SOME OTHER ATTEMPT TO DELAY.

09: 56 AM 10

BUT THIS KIND OF BICKERING IS NOTHING BUT DELAY,

09: 56 AM 11 MR. HAMEL, MR. GARRIGAN.

09: 56 AM 12

MR. GARRIGAN: YOUR HONOR, I'M NOT TRYING TO

09: 56 AM 13 DELAY, I'M TRYING TO GET THE INFORMATION THAT WE NEED IN

09: 56 AM 14 TIME TO PRESENT IT TO THE COURT.

09: 56 AM 15

THE LAST MATTER I WANT TO BRING UP IS THAT WE

09: 56 AM 16 REQUESTED AND ARE ENTITLED TO THEIR COMMUNICATIONS AND ANY

09:56 AM 17 WRITTEN INFORMATION THEy'VE PROVIDED TO THEIR EXPERT

09: 56 AM 18 WITNESSES. WE HAVE REQUESTED THAT.

09: 57 AM 19

THEY RECENTLY SUPPLIED US ONLY WITH REDACTED

09: 57 AM 20 COPIES OF THOSE COMMUNICATIONS.

09: 57 AM 21

WE ASKED FOR AN EXPLANATION. THERE'S NO

09: 57 AM 22
09: 57 AM 23

PRIVILEGE LOG THAT EXPLAINS THE REDACTIONS. WE THINK WE'RE ENTITLED TO ALL OF IT. THAT IS

09:57 AM 24 09: 57 AM 25

ALSO BEING WITHHELD. THE COURT:

DO YOU WANT ME TO RULE ON IT?

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09:57 AM 1

IT WILL BE PRODUCED.

09:57 AM 2

MR. HAMEL: YOUR HONOR, WE HAVE NOT WITHHELD

09: 57 AM 3 ANYTHING FROM THEM THAT WENT TO OUR EXPERT WITNESS.

09:57 AM 4

THE COURT: WHAT DID YOU REDACT?

09:57 AM 5

MR. HAMEL: E-MAIL COMMUNICATIONS TO THE PERSON

09:57 AM 6 WHO WAS ASSISTING US IN A CONSULTING CAPACITY, BUT ALSO

09:57 AM 7 ASSISTS DR. BAKER.

09:57 AM 8

ANYTHING THAT DR. BAKER HAS SEEN WE HAVE GIVEN

09:57 AM 9 09: 57 AM 10

TO THE PLAINTIFFS. WE'LL PRODUCE THE E-MAILS.

THEy'RE NOT OF ANY

09: 57 AM 11 CONSEQUENCE. BUT THEY WERE NOT RESPONSIVE TO THE REQUEST

09: 57 AM 12 THAT WAS MADE.

09: 57 AM 13

THE COURT: FURNISH ME THE REDACTED PART, NOT

09: 57 AM 14 CROSSED OUT, AND I'LL MAKE THAT DETERMINATION.

09: 58 AM 15

MR. HAMEL: MAY I APPROACH, YOUR HONOR?

09: 58 AM 16

THE COURT: YES. I'M NOT GOING TO GO THROUGH

09: 58 AM 17 THEM RIGHT NOW, BUT I'LL REVIEW THIS TODAY AND TONIGHT.

09: 58 AM 18

DO YOU HAVE ANOTHER COPY OF IT? DO YOU HAVE

09: 58 AM 19 ANOTHER COPY OF THIS? OR IF YOU DON'T, THAT'S FINE.

09:58 AM 20

MR. HAMEL: WE DO NOT, YOUR HONOR.

09:58AM 21

THE COURT: ALL RIGHT. ANYTHING ELSE?

09: 58 AM 22

MR. GARRIGAN: NO. WE'RE PREPARED TO PROCEED.

09: 58 AM 23 09: 58 AM 24

THE COURT: PROCEED. MR. GARRIGAN: WE CALL OUR FIRST WITNESS,

09:58 AM 25 SYLVESTER MCCLAIN.

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09:58 AM 1

THE COURT: MR. MCCLAIN, PLEASE COME AROUND AND

09:58 AM 2 BE SWORN

09:58 AM 3

09:58 AM 4

SYLVESTER MCCLAIN, PLAINTIFF WITNESS, SWORN

09: 59 AM 5

09:59 AM 6

THE COURT: PROCEED, SIR.

09:59 AM 7

MR. GARRIGAN: THANK YOU.

09: 59 AM 8

DIRECT EXAMINATION

09: 59 AM 9 BY MR. GARRIGAN:

09:59 AM 10 Q.

WOULD YOU PLEASE STATE YOUR NAME FOR THE RECORD?

09:59 AM 11 A.

SYLVESTER MCCLAIN.

09:59 AM 12 Q.

OKAY. MR. MCCLAIN, AGAIN, FOR THE RECORD, YOU ARE

09: 59 AM 13 THE FIRST NAMED PLAINTIFF IN THIS CAUSE OF ACTION, IS THAT

09: 59 AM 14 CORRECT?

09:59 AM 15 A.

YES.

10:00 AM 16 Q.

YOU'RE ALSO ONE OF THE CLASS REPRESENTATIVES, AND IT

10:00 AM 17 WAS YOU THAT INITIATED THIS LITIGATION?

10:00 AM 18 A.

YES.

10:00 AM 19 Q.

HOW OLD A MAN ARE YOU?

10 : 00 AM 20 A .

FIFTY-SIX.

10:00 AM 21

THE COURT: HOW OLD, SIR?

10:00 AM 22

THE WITNESS: FIFTY-SIX.

10:00 AM 23 BY MR. GARRIGAN:

10:00 AM 24 Q. 10:00 AM 25 A.

WHERE WERE YOU BORN, MR. MCCLAIN? COLMESNEIL TEXAS.

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10:00 AM 1 Q. 10:00 AM 2 A. 10:00 AM 3 Q. 10:00 AM 4 A. 10:00 AM 5 Q. 10:00 AM 6 A. 10:00 AM 7 Q. 10:00 AM 8 A. 10:00 AM 9 Q. 10:00 AM 10 A.

WHERE DID YOU ATTEND HIGH SCHOOL? IN LUFKIN, TEXAS. WHAT WAS THE HIGH SCHOOL? DUNBAR HIGH SCHOOL. DOES DUNBAR HIGH SCHOOL STILL EXIST? NO. HOW WOULD YOU DESCRIBE DUNBAR HIGH SCHOOL? DUNBAR HIGH SCHOOL WAS A PREDOMINANTLY BLACK SCHOOL. BACK BEFORE THE SCHOOLS WERE INTEGRATED? YES. IT WAS COMPLETELY SEGREGATED, YES.

10:00 AM 11 Q. WHAT YEAR DID YOU GRADUATE HIGH SCHOOL?

10:00 AM 12 A.

1965.

10:00 AM 13 Q. AND WHAT DID YOU DO AFTER FINISHING HIGH SCHOOL?

10:01 AM 14 A.

I JOINED THE NAVY, VOLUNTEERED, ENLISTED IN THE

10:01 AM 15 UNITED STATES NAVY.

10:01 AM 16 Q. WHAT KIND OF WORK DID YOU DO IN THE NAVY?

10:01 AM 17 A. I WAS A MEDICAL CORPSMAN, HOSPITAL MEDICAL CORPSMAN.

10:01 AM 18 Q.

SO DID YOU WORK IN HOSPITALS?

10:01 AM 19 A. YES, I WAS TRAINED, AND I WORKED IN BALBOA HOSPITAL

10:01 AM 20 IN SAN DIEGO, CALIFORNIA, PRIOR TO GETTING FURTHER

10:01 AM 21 TRAINING AS A COMBAT MEDIC. AND I SERVED WITH THE UNITED

10:01 AM 22 STATES MARINES IN SOUTH VIETNAM.

10:01 AM 23 Q. ALL RIGHT. AND TELL THE COURT VERY BRIEFLY WHAT YOU

10:01 AM 24 DID IN VIETNAM.

10:01 AM 25 A.

MY RESPONSIBILITY WAS TO TAKE CARE OF THE WOUNDED.

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10:01 AM 1 I MADE LIFE AND DEATH SITUATIONS. I BANDAGED WOUNDS, FROM 10:01 AM 2 A SIMPLE CUT TO LIMBS BEING SEVERED TO PEOPLE CHOKING IN

10:01 AM 3 THEIR VOMIT TO A CHEST BLOWN OPEN. I PERFORMED -- I HAD

10:01 AM 4 IN MY I WAS RESPONSIBLE FOR THAT PERSON LIVING AND

10:02 AM 5 DYING IN THOSE SITUATIONS.

10:02 AM 6 Q.

OKAY. NOW, WHERE IN RELATION TO THE BATTLE WERE YOU

10:02 AM 7 STATIONED? WERE YOU BACK AT THE HOSPITAL?

10:02 AM 8 A.

NO, SIR, I WAS IN THE BATTLE.

10:02 AM 9 Q.

DID YOU CARRY A WEAPON?

10:02 AM 10 A.

YES, SIR.

10:02 AM 11 Q.

WERE YOU EVER WOUNDED?

10:02 AM 12 A.

YES, SIR.

10:02 AM 13 Q.

WERE YOU DECORATED?

10:02 AM 14 A.

I RECEIVED THE PURPLE HEART.

10:02 AM 15 Q. WHAT KIND OF WOUNDS DID YOU HAVE?

10:02 AM 16 A.

I HAD SHRAPNEL WOUNDS FROM SIXTY MILLIMETER AND

10:02 AM 17 EIGHTY-TWO MILLIMETER MORTARS.

10:02 AM 18 Q. OKAY. SOME MORE BACKGROUND INFORMATION, MR.

10:02 AM 19 MCCLAIN. I NOTE YOU'RE A PREACHER.

10:02 AM 20 A.

YES, SIR.

10: 02 AM 21 Q .

IS THAT CORRECT? HAVE YOU ALWAYS BEEN SORT OF A

10:02 AM 22 LEADER IN YOUR CHURCH?

10: 02 AM 23 A. YES, SIR, SINCE THE AGE OF THIRTY.

10:03 AM 24 Q. ALL RIGHT. AND YOU'VE ALSO BEEN SOMEWHAT OF A

10:03 AM 25 COMMUNITY LEADER?

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10:03 AM 1 10:03 AM 2 10:03 AM 3 10:03 AM 4 10:03 AM 5 10:03 AM 6 10:03 AM 7 10:03 AM 8 10:03 AM 9 10:03 AM 10

44 A. YES, SIR. I CARE ABOUT PEOPLE. Q. HAVE YOU BEEN INVOLVED IN ANY CIVIL RIGHTS GROUPS? A. YES, SIR. I WAS PRESIDENT OF THE NAACP IN WELLS, TEXAS, FOR APPROXIMATELY SIX MONTHS. I WAS PRESIDENT OF THE LUFKIN BRANCH FROM 1983 UP UNTIL 1990. Q. ALL RIGHT. AND ANY ANOTHER SIMILAR GROUPS YOU'VE BEEN INVOLVED WITH? A. YES, THERE WERE OTHER SUPPORTING GROUPS THAT WERE IMPORTANT IN THESE AREAS, THE VOTERS LEAGUE, THE CHAMBER OF COMMERCE. THESE WERE PREDOMINANTLY BLACK. AND OTHER

10:03 AM 11 ADVOCACY GROUPS THAT CERTAINLY WORKED TO PROTECT THE

10:03 AM 12 RIGHTS OF PEOPLE.

10:03 AM 13 Q. ALL RIGHT. ARE YOU MARRIED, MR. MCCLAIN?

10:04 AM 14 A.

YES.

10:04 AM 15 Q.

DO YOU HAVE KIDS?

10:04 AM 16 A.

YES, I DO.

10:04 AM 17 Q.

HOW OLD ARE YOUR KIDS?

10:04 AM 18 A.

MY OLDEST SON IS THIRTY-ONE, MY BIOLOGICAL SON. MY

10:04 AM 19 OTHER SON IS THIRTY. I HAVE A SON THAT'S FOURTEEN. MY

10:04 AM 20 DAUGHTER IS TWENTY-FIVE. AND I HAVE THREE STEPCHILDREN,

10: 04 AM 21 IN FACT, THREE STEPDAUGHTERS. 10 :04 AM 22 Q • AND YOU STILL LIVE IN LUFKIN, WHERE YOU FINISHED

10:04 AM 23 HIGH SCHOOL?

10 :04 AM 24 A. 10 :04 AM 2 5 Q •

YES. MR. MCCLAIN, WHEN DID YOU FIRST BECOME ASSOCIATED

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10: 04 AM 1 WITH LU FKIN INDUSTRI ES?

10:04 AM 2 10:04 AM 3 10:04 AM 4 10:04 AM 5 10:05 AM 6 10:05 AM 7

A. I HIRED IN FEBRUARY OF 1972. WHEN I FIRST BECAME ASSOCIATED WITH THEM WAS AFTER I GOT OUT OF THE MILITARY, WHICH WAS IN JUNE OF '69, AND SOMETIME AFTER THAT I HIRED AT THE HEAVY WELDMENT FACILITY AT LUFKIN INDUSTRIES. Q. ALL RIGHT. SO AFTER YOU WERE AT THE WAR IN VIETNAM, YOU CAME BACK, AND WAS YOUR FIRST JOB AT LUFKIN

10:05 AM 8 INDUSTRIES?

10:05 AM 9 A. 10:05 AM 10 Q. 10:05 AM 11 A.

YES. WHAT KIND OF WORK DID YOU DO THEN? I WAS INITIALLY HIRED AS A HELPER. I DID CLEANING

10:05 AM 12 AND CHIPPING AND GRINDING.

10:05 AM 13 Q. ALL RIGHT. AND WHAT WAS YOUR JOB TITLE, HELPER?

10:05 AM 14 A. 10:05 AM 15 Q.

YES. AND THE ASSIGNMENT, THE CHIPPING AND GRINDING AND

10:05 AM 16 CLEANING THAT YOU DID, WERE THERE OTHER PEOPLE DOING THAT

10:05 AM 17 KIND OF WORK?

10:05 AM 18 A. 10:05 AM 19 Q.

YES, THERE WERE, SIR. WERE THEY WHITE OR BLACK?

10:05 AM 20 A.

BLACK, PREDOMINANTLY BLACK, ALL BLACK AS FAR AS I

10:05 AM 21 REMEMBER. THERE MAY HAVE BEEN A FEW WHITES, BUT MOSTLY

10:05 AM 22 BLACK.

10 :05 AM 23 Q • OKAY. AND WHAT WAS -- HOW LONG DID YOU WORK AS A

10:06 AM 24 HELPER?

10: 06 AM 2 5 A. I DON'T RECALL EXACTLY HOW LONG, BUT SEVERAL MONTHS

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10:06 AM 1 AT LEAST.

10:06 AM 2 Q. ALL RIGHT. WHILE YOU WERE DOING THIS CHIPPING AND

10:06 AM 3 GRINDING AND CLEANING, WERE THERE WHITE EMPLOYEES AROUND?

10:06 AM 4 A.

YES.

10:06 AM 5 Q.

WHAT KIND OF WORK WERE THE WHITE EMPLOYEES DOING?

10:06 AM 6 A.

THEY WERE WELDERS AND ASSEMBLYMEN.

10:06 AM 7 Q. WERE THOSE HIGHER-PAYING POSITIONS?

10:06 AM 8 A.

YES, THEY WERE.

10:06 AM 9 10:06 AM 10 10:06 AM 11 10:06 AM 12 10:06 AM 13 10:06 AM 14

Q. OKAY. WHAT WAS YOUR NEXT ASSIGNMENT AFTER BEING A HELPER? A. A WHITE SUPERVISOR CAME TO ME AND TOLD ME THAT THEY
NEEDED A CLASS "c" TACKER, AND I WAS ASSIGNED DOING THAT. THE COURT: A CLASS "c" -THE WITNESS: IT'S A CLASS "c" WELDER, BUT YOU

10:06 AM 15 10:06 AM 16 10:06 AM 17

ACTUALLY TACK WELD, YOUR HONOR. YOU HAVEN'T BEEN TRAINED. THE COURT: TACK WELD? THE WITNESS: YES, SIR.

10:06 AM 18 BY MR. GARRIGAN:

10:06 AM 19 Q.

NOW, DID YOU BID ON THAT JOB?

10:06 AM 20 A. 10:06 AM 21 Q. 10:06 AM 22 A. 10:07 AM 23 Q. 10:07 AM 24 A. 10: 07 AM 2 5 Q.

NO, SIR. DID YOU EXPRESS AN INTEREST IN IT? NO, SIR.
HOW DID YOU BECOME THE CLASS "c" WELDER?
I WAS TOLD TO DO IT. DID YOU CONSIDER THAT A PROMOTION?

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10:07 AM 1 A.

NO, SIR.

10:07 AM 2 Q.

DID YOU GET PAID MORE?

10:07 AM 3 10:07 AM 4 10:07 AM 5 10:07 AM 6 10:07 AM 7 10:07 AM 8 10:07 AM 9 10:07 AM 10

A. I THINK SO. Q. BUT COULD YOU HAVE DECLINED THE JOB? A. I DON'T THINK SO, BECAUSE I WAS ASSIGNED TO DO THE
JOB, THEY NEEDED CLASS "c" TACKERS, AND WE WERE CLEANING
AND GRINDING, AND I WAS TOLD TO DO IT. Q. AND AFTER HIRING ON IN 1969, HOW LONG DID YOU CONTINUE WORKING AT LUFKIN INDUSTRIES? A. THAT I DON'T REMEMBER.

10:07 AM 11 Q. WHAT'S YOUR BEST ESTIMATE?

10: 07 AM 12 A.

SIX MONTHS MAYBE.

10:07 AM 13 Q. WHAT WERE THE CIRCUMSTANCES THAT CAUSED YOU TO LEAVE

10:07 AM 14 LUFKIN INDUSTRIES?

10:07 AM 15 A. ONE NIGHT MYSELF AND A CLASS "B" WELDER WAS WELDING

10:07 AM 16 ON WHAT YOU CALL A BOAT-SHAPED OBJ ECT, AND WE HAD A

10:07 AM 17 PATTERN WHERE WHEN YOU GET TO THE TOP, YOU FLIP YOUR HOOD

10:08 AM 18 AND YOU DON'T STRIKE YOUR ARC UNTIL THE OTHER MAN HAS HIS

10:08 AM 19 EYE SHIELD OUT OF THE WAY. WHEN I FLIPPED MY HOOD, HE WAS

10:08 AM 20 WELDING, AND THE ARC BURNT MY EYES.

10:08 AM 21

I COULDN'T HARDLY SEE, SO I REPORTED TO MY

10:08 AM 22 SUPERVISOR THAT I NEEDED MEDICAL ATTENTION, AND I ASKED

10:08 AM 23 FOR A RIDE HOME. I WAS SIMPLY TOLD "YOU CAN'T DO THE

10:08 AM 24 WORK, YOU NEED TO GO HOME."

10:08 AM 25 Q.

DID THEY GIVE YOU A RIDE HOME?

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10:08 AM 1 A.

NO, SIR, THEY DID NOT.

10:08 AM 2 Q.

WHAT TIME OF DAY DID THIS OCCUR?

10:08 AM 3 A. THIS WAS AT NIGHT. IT WAS ON SECOND SHIFT.

10:08 AM 4 10:08 AM 5 10:08 AM 6 10:08 AM 7 10:08 AM 8 10:08 AM 9 10:08 AM 10

Q. HOW DID YOU GET HOME? A. I HAD TO WALK HOME, AND I LIVED ABOUT FIVE MILES FROM WHERE I WAS WORKING. Q. AND YOU HAD BEEN BLINDED? A. VIRTUALLY SO, YES, SIR. I COULD BARELY SEE THROUGH MY EYES. I COULD BARELY SEE.
I MANAGED TO MAKE IT HOME, AND AFTER I GOT HOME,

10: 08 AM 11 I WENT TO BED. I WOKE UP ABOUT 2: 00 OR 3: 00 IN THE

10: 09 AM 12 MORNING AND IT'S LIKE KNIVES WERE PROTRUDING MY EYES, AND

10:09 AM 13 MY PARENTS TOOK ME TO THE EMERGENCY ROOM.

10:09 AM 14 Q.

HAD YOU EVER SEEN SUPERVISORS REFUSE MEDICAL CARE TO

10:09 AM 15 A WHITE EMPLOYEE?

10:09 AM 16 A. 10 :09 AM 17 Q •

NO, SIR. HOW LONG WAS IT UNTIL YOU WERE ABLE TO GO BACK TO

10:09 AM 18 WORK?

10 :09 AM 19 A. I DIDN'T GO BACK.

10 :09 AM 20 Q .

WHY DIDN'T YOU GO BACK?

10 :09 AM 21 A. WELL, ONE, IT'S BECAUSE OF THE WAY I WAS TREATED. I

10:09 AM 22 MEAN, I JUST -- THE TREATMENT OF BLACK WORKERS THERE, THE

10:09 AM 23 CONDITIONS THEY WAS WORKING UNDER, AND HOW I WAS TREATED

10:09 AM 24 WHEN I WAS DOING THE JOB AND GOT INJURED, I JUST FELT IT

10:09 AM 25 WAS LESS THAN DESIRED I FELT. I HAD NO CONFIDENCE IN

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10:09 AM 1 GOING BACK THERE.

10:09 AM 2 Q. ALL RIGHT. BUT YOU DID IN FACT GO BACK, DIDN'T YOU?

10:09 AM 3 A.

YES, I WENT BACK. I DON'T REMEMBER THE

10:10 AM 4 CIRCUMSTANCES AROUND MY GOING BACK, BUT I JUST KNOW THAT

10:10 AM 5 THAT WAS -- MY EMPLOYMENT WAS ENDED DURING THAT TIME.

10:10 AM 6 Q.

OKAY. WELL, WHEN DID YOU GO BACK TO WORK AT LUFKIN

10:10 AM 7 INDUSTRIES?

10:10 AM 8 A.

OH, YOU MEAN WHEN I WENT BACK? OH, I THOUGHT YOU

10:10 AM 9 MEANT BACK TO THAT FACILITY.

10:10 AM 10

OKAY. I REHIRED AT LUFKIN INDUSTRIES IN

10:10 AM 11 FEBRUARY OF 1972.

10:10 AM 12 Q.

AFTER YOUR FIRST EXPERIENCE IN 1969, WHY DID YOU GO

10: 10 AM 13 BACK TO LUFKIN INDUSTRIES IN 1972?

10:10 AM 14 A.

BECAUSE I WAS STAYING IN BEAUMONT AND HAD MOVED BACK

10: 10 AM 15 TO LUFKIN. I HAD MARRIED, AND I NEEDED A JOB TO TAKE CARE

10:10 AM 16 OF MY FAMILY.

10: 10 AM 17 Q.

OKAY. WHAT KIND OF JOB DID YOU GET? WHAT WAS YOUR

10:10 AM 18 FIRST ASSIGNMENT WHEN YOU WENT BACK TO WORK THERE IN 1972?

10:10 AM 19 A.

I WAS ASSIGNED AS A HELPER AT THE TRAILER DIVISION.

10 : 11 AM 20 Q. OKAY. ON EITHER OF THESE OCCASIONS WHEN YOU WERE

10:11 AM 21 HIRED AT LUFKIN IN 1969 AND IN 1972, WERE YOU STEERED TO

10: 11 AM 22 THOSE POSITIONS AS OPPOSED TO A MORE DESIRABLE POSITION,

10: 11 AM 23 SAY, IN POWER TRANSMISSION?

10:11 AM 24

MR. HAMEL: OBJECTION, LEADING.

10:11 AM 25

THE COURT: OH, IT'S BEFORE THE COURT.

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50 WERE YOU ASSIGNED TO THEM OR DID YOU REQUEST

10:11 AM 2 THEM?

10:11 AM 3

THE WITNESS: I WAS ASSIGNED, YES, SIR.

10: 11 AM 4

THE COURT: ASSIGNED?

10:11 AM 5

THE WITNESS: YES, SIR. OKAY.

10:11 AM 6

THE COURT: STEERED OR NOT, I AGREE THAT THAT IS

10:11 AM 7 SORT OF, NOT ONLY LEADING, BUT IT HAS A CONNOTATION THAT

10:11 AM 8 IS NOT APPROPRIATE, AND IT

10:11 AM 9 10:11 AM 10 10:12 AM 11

IF HE WAS ASSIGNED, IT WAS ASSIGNED TO HIM. BY MR. GARRIGAN: Q. WELL, MY POINT IS, YOU HAD NO SAY ABOUT WHERE YOU

10: 12 AM 12 10:12 AM 13 10:12 AM 14

WERE ASSIGNED, IS THAT CORRECT? A. NO, SIR. Q. DID YOU KNOW WHETHER THERE WERE MORE DESIRABLE

10:12 AM 15 POSITIONS OPEN AT THE SAME TIME?

10:12 AM 16 A. 10 : 12 AM 17 Q .

NO, SIR. WERE YOU OFFERED ANY OTHER POSITIONS OTHER THAN THE

10: 12 AM 18 ONES THAT YOU ACTUALLY TOOK AND THEY ASSIGNED YOU TO?

10:12 AM 19 A.

NO, I WAS NOT.

10 : 12 AM 20 Q • DID ANYBODY EXPLAIN TO YOU ABOUT THE OTHER KIND OF

10:12 AM 21 10 : 12 AM 22

WORK DONE AT LUFKIN INDUSTRIES IN THE OTHER DIVISIONS? A . NO, THEY DID NOT.

10 : 12 AM 23 Q •

NOW, MR. MCCLAIN, HAVE YOU CONTINUED WORKING AT

10:12 AM 24 LUFKIN INDUSTRIES FROM 1972 THROUGH TODAY?

10 : 12 AM 2 5 A •

YES, I HAVE.

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10:13 AM 1 Q.

IN YOUR EXPERIENCE AT LUFKIN INDUSTRIES, HAVE YOU

10:13 AM 2 10: 13 AM 3 10:13 AM 4 10: 13 AM 5 10: 13 AM 6 10:13 AM 7 10:13 AM 8 10: 13 AM 9 10:13 AM 10

EVER OBSERVED RACE DISCRIMINATION? A. YES, I HAVE. Q. TELL US ABOUT THOSE OBSERVATIONS. A. IN THE BEGINNING, WHEN I HIRED AT LUFKIN INDUSTRIES, IF YOU WERE A BLACK WORKER AND YOU HAD COMPLETED YOUR JOB AND YOU WERE STANDING TALKING, TWO OR THREE, WELL, THEY WOULD COME AND THEY WOULD ACTUALLY GET YOU -- SEPARATE YOU AND FIND SOMETHING FOR YOU TO DO, AS OPPOSED TO IF THERE WERE WHITE WORKERS, SIX, SEVEN, EIGHT, AND IF THEY HAD

10:13 AM 11 COMPLETED THEIR JOB TASKS AND WAS WAITING ON THE TRAILER

10: 13 AM 12 TO COME DOWN THE LINE, BASICALLY THEY WAS LEFT ALONE.

10:13 AM 13

THAT WAS THE FIRST OBSERVATION OF DIFFERENT

10:13 AM 14 TREATMENT, THE WAY WE WERE TREATED AND THE WAY THEY WERE

10:13 AM 15 TREATED.

10:13 AM 16

MY NEXT DISCRIMINATION WAS, DAVID DIXON HAD FOUR

10:13 AM 17 YEARS SENIORITY AT THE MACHINE SHOP AND HAD ONE YEAR

10:14 AM 18 FROZEN SENIORITY IN THE TRAILER DIVISION. HE WAS LAID

10:14 AM 19 OFF.

10:14 AM 20

HE CAME TO ME BECAUSE HE COULDN'T GET ANYONE TO

10: 14 AM 21 HELP HIM, AND SO I FILED A GRIEVANCE BASED ON

10: 14 AM 22 DISCRIMINATION, BECAUSE THEY HAD LAID HIM OFF.

10: 14 AM 23

HE HAD FILED A COMPLAINT TO THE EEOC. THEY KNEW

10: 14 AM 24 HE HAD SENIORITY. I LOOKED AT THE SENIORITY LIST.

10:14 AM 25 THERE'S NO REASON HE SHOULDN'T HAVE BEEN TRANSFERRED TO

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10:14 AM 1 THE TRAILER DIVISION, AND THEY LAID HIM OFF, AND IT WAS

10:14 AM 2 JUST WRONG.

10:14 AM 3 Q.

WHAT WAS MR. DIXON'S RACE?

10:14 AM 4 A.

BLACK.

10:14 AM 5 Q.

OKAY. AND YOU PURSUED A GRIEVANCE ON HIS BEHALF?

10:14 AM 6 A.

YES, I WROTE HIS GRIEVANCE, AND, OF COURSE, HE

10:14 AM 7 PRESENTED IT.

10:14 AM 8 Q.

DID YOU DO THAT AS A UNION STEWARD?

10:14 AM 9 10:14 AM 10 10:14 AM 11 10:14 AM 12

A. NO, I'VE NEVER BEEN A UNION STEWARD. Q. AND IN WHAT CAPACITY WERE YOU ADVOCATING FOR HIM IN THAT GRIEVANCE? A. WELL, I'M A UNION MEMBER, AND IT SAYS THAT A

10:14 AM 13 UNION -- THE AGGRIEVED PARTY CAN FILE THE INITIAL

10:14 AM 14 GRIEVANCE, AND THAT'S WHAT I DID. IN MY CASE, I ASSISTED

10:15 AM 15 HIM BY BEING A UNION MEMBER AND BEING CONCERNED ABOUT WHAT

10: 15 AM 16 10: 15 AM 17

HAD HAPPENED TO HIM. Q. ALL RIGHT. BEFORE I ASK YOU MORE ABOUT OTHER

10:15 AM 18 DISCRIMINATION THERE, DURING YOUR TENURE HAVE YOU HAD

10: 15 AM 19 OPPORTUNITIES TO SEE THE WORKING CONDITIONS , CERTAINLY IN

10:15 AM 20 THE TRAILER PLANT?

10:15 AM 21 10:15 AM 22 10:15 AM 23

A. YES, SIR. Q. THE TRAILER PLANT IS WHERE YOU HAVE WORKED SINCE 1972?

10:15 AM 24 A. 10:15 AM 25

YES, SIR. THE COURT: EXCUSE ME JUST A MOMENT.

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10:15 AM 1

MR. HAMEL, IF YOU'RE NOT GOING TO USE THAT

10:15 AM 2 SCREEN, CAN YOU TURN THE LIGHT OFF?

10:15 AM 3

MR. HAMEL: CERTAINLY, YOUR HONOR.

10:15 AM 4

THE COURT: I DON'T KNOW WHERE IT'S COMING FROM.

10:15 AM 5

THANK YOU.

10:15 AM 6

IT'S SOMEWHAT OVERPOWERING, BLACK AND WHITE.

10:15 AM 7

MR. HAMEL: I UNDERSTAND, YOUR HONOR. WE

10: 15 AM 8 APOLOGIZE.

10:15 AM 9

THE COURT: NO APOLOGY. YOU COMPLIED WITH MY

10: 15 AM 10 REQU EST. TH ERE'S NO APOLOGY NEEDED.

10: 15 AM 11 BY MR. GARRIGAN:

10:15 AM 12 Q.

HAVE YOU HAD A CHANCE TO OBSERVE CONDITIONS IN THE

10:16 AM 13 FOUNDRY?

10:16 AM 14 A.

YES, SIR.

10:16 AM 15 Q.

OILFIELD?

10 : 16 AM 16 A •

YES, SIR.

10:16 AM 17 Q.

POWER TRANSMISSION?

10: 16 AM 18 A •

YES, SIR.

10:16 AM 19 Q.

OKAY. AND WHAT WERE THE CIRCUMSTANCES THAT YOU HAD

10:16 AM 20 THE OPPORTUNITY TO OBSERVE THE WORKING CONDITIONS IN THESE

10:16 AM 21 DIFFERENT AREAS?

10: 16 AM 22 A.

I WAS TRAINED BY LUFKIN TO BE AN AUDITOR. I WAS

10:16 AM 23 EITHER THE LEAD AUDITOR OR THE SECONDARY AUDITOR WHEN WE

10:16 AM 24 10:16 AM 25

CONDUCTED INTERNAL AUDITS OF THOSE DIVISIONS. THE COURT: WHAT DO YOU MEAN BY "INTERNAL

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10:16 AM 1 AUDITOR"?

10:16 AM 2

THE WITNESS: WELL, THAT'S WHEN, YOUR HONOR, WE

10:16 AM 3 GO IN AND WE AUDIT THE DIFFERENT PROCESSES TO SEE IF

10:16 AM 4 THEy'RE FOLLOWING THE PROCEDURES

10:16 AM 5

THE COURT: OH, ALL RIGHT.

10:16 AM 6

THE WITNESS: -- SET FORTH BY THE --

10:16 AM 7

THE COURT: YOU DON'T MEAN GOING OVER THE BOOKS?

10:16 AM 8

THE WITNESS: OH, NO, SIR.

10:16 AM 9

THE COURT: ALL RIGHT.

10:16 AM 10 BY MR. GARRIGAN:

10:16 AM 11 Q.

THESE WERE PRODUCTION AUDITS?

10:16 AM 12 A.

YES.

10: 16 AM 13 Q.

OKAY. HOW DID THE CONDITIONS IN THE FOUNDRY COMPARE

10:17 AM 14 TO THE WORKING CONDITIONS IN THE TRAILER DIVISION?

10:17 AM 15 A.

THEY WERE DEPLORABLE, HOT, DIRTY. THEY WERE MUCH

10: 17 AM 16 WORSE.

10:17 AM 17 Q.

WHAT PROPORTION -- WHAT WAS THE WORST PART OF THE

10:17 AM 18 FOUNDRY THAT YOU SAW?

10:17 AM 19 A.

IN THE CLEANING ROOM. I MEAN, IT'S HOT, IT'S DUSTY.

10:17 AM 20 YOU CAN'T HARDLY SEE, YOU CAN'T HARDLY BREATHE. IT'S

10: 17 AM 21 JUST -- IT'S JUST TERRIBLE.

10:17 AM 22 Q.

WHEN YOU WERE THERE WATCHING THE PRODUCTION

10:17 AM 23 PROCESSES, WHAT PORTION OF THE WORKERS THERE WERE WHITE?

10:17 AM 24 A.

I WAS TOLD THAT THERE WERE A FEW WHITES. I DIDN'T

10:17 AM 25 SEE THEM.

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10:17 AM 1

MR. HAMEL: OBJECTION, YOUR HONOR, HEARSAY.

10:17 AM 2

THE COURT: TELL ME WHAT YOU SAW.

10:17 AM 3

THE WITNESS: I SAW BLACK EMPLOYEES.

10:17 AM 4 BY MR. GARRIGAN:

10:18 AM 5 Q.

OKAY. TELL US, IN WHAT WAYS ARE THE WORKING

10:18 AM 6 CONDITIONS BETTER IN THE TRAILER DIVISION?

10:18 AM 7 A.

THEy'RE CLEANER. THE ENVIRONMENT IS NOT DUSTY, IT'S

10:18 AM 8 NOT EXTREMELY HOT FROM THE MELTED STEAL OR IRON THAT'S

10:18 AM 9 POURED. IT'S JUST -- IT'S MUCH BETTER.

10:18 AM 10 Q.

IS IT CLEAN IN THE TRAILER DIVISION?

10: 18 AM 11 A.

YES.

10: 18 AM 12 Q .

AND HOW DOES THE TRAILER DIVISION COMPARE TO, SAY,

10:18 AM 13 OILFIELD?

10 : 18 AM 14 A .

THAT'S LIKE -- WELL, THE OILFIELD?

10 : 18 AM 15 Q •

YES.

10 : 18 AM 16 A .

OILFIELD IS BETTER. IT HAS SLIGHTLY -- IT'S

10:18 AM 17 SLIGHTLY BETTER, SOMEWHAT BETTER.

10: 18 AM 18 Q .

ALL RIGHT. WHICH WORK AREA IS CLEANER?

10: 18 AM 19 A .

OILFIELD.

10: 18 AM 20 Q.

ARE THERE ANY OTHER WAYS THAT OILFIELD IS BETTER

10: 18 AM 21 THAN TRAILER?

10: 18 AM 22 A .

YOU MEAN AS FAR AS WORK CONDITIONS?

10: 18 AM 23 Q .
10: 18 AM 24 A .

YES. WELL, LIKE I SAID, IT'S CLEANER, IT'S NOT HOT, AND

10: 19 AM 25 THERE ARE CERTAINLY -- WHEN THERE ARE MACHINE OPERATIONS,

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10:19 AM 1 IT'S CERTAINLY CLEANER, AND THERE'S MORE OPPORTUNITY.

10:19 AM 2 Q.

OKAY. AND HOW DO THE CONDITIONS IN POWER

10:19 AM 3 TRANSMISSION COMPARE TO THE OTHER DIVISIONS?

10:19 AM 4 A.

IT'S LIKE COMPARING APPLES TO ORANGES. THERE'S NO

10:19 AM 5 COMPARISON. POWER TRANSMISSION IS CLEAN, IT'S

10:19 AM 6 AIR-CONDITIONED. IT'S JUST -- IT'S DIFFERENT AS NIGHT AND

10:19 AM 7 DAY.

10:19 AM 8 Q.

IS THE WORK AS PHYSICAL THERE?

10:19 AM 9 A. 10:19 AM 10 Q.

NO. WHAT WAS THE PROPORTION OF WHITE WORKERS THAT YOU

10: 19 AM 11 WERE ABLE TO OBSERVE AT POWER TRANSMISSION?

10: 19 AM 12 A .

THE MAJORITY, ALMOST ALL WHITE.

10:20 AM 13 Q.

I GUESS I WOULD LIKE TO ASK A LITTLE BIT ABOUT YOUR

10:20 AM 14 EXPERIENCE AT LUFKIN.

10:20 AM 15 A.

YES.

10:20 AM 16 Q.

AND THE PROGRESSION OF YOUR CAREER.

10:20 AM 17 A.

OKAY.

10:20 AM 18 Q.

YOU SAID YOU STARTED IN 1972 AS A HELPER?

10: 20 AM 19 A.

YES.

10:20 AM 20 Q.

AND WHAT IS YOUR POSITION TODAY?

10: 20 AM 21 A .

I'M AN INSPECTOR.

10:20 AM 22
10:20 AM 23

THE COURT: YOU'RE WHAT? THE WITNESS: I'M AN INSPECTOR.

10:20 AM 24 BY MR. GARRIGAN:

10:20 AM 25 Q.

WHEN DID YOU FIRST BECOME AN INSPECTOR?

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10:20 AM 1 A.

IT WAS IN THE 80s. I DONIT REMEMBER THE EXACT YEAR.

10:20 AM 2

THE COURT: THESE ARE HOURLY-RATED?

10:20 AM 3

THE WITNESS: YES, SIR.

10:20 AM 4

THE COURT: NOT A SALARIED POSITION?

10:20 AM 5

THE WITNESS: NO, SIR.

10:20 AM 6

THE COURT: WHAT IS YOUR RATE OF PAY?

10:20 AM 7

THE WITNESS: RIGHT NOW I MAKE FOURTEEN-O-EIGHT,

10:20 AM 8 FOURTEEN DOLLARS AND EIGHT CENTS AN HOUR.

10:20 AM 9 10:21 AM 10

THE COURT: WHAT WAS IT WHEN IS THE MOST RECENT RAISE YOU GOT?

10:21 AM 11

THE WITNESS: WITH THE CONTRACT THAT WE

10:21 AM 12 NEGOTIATED, THAT WAS THE MOST RECENT RAISE I GOT, IN

10:21 AM 13 OCTOBER. I THINK IT WAS TWO AND A QUARTER PERCENT.

10:21 AM 14

THE COURT: THANK YOU. PROCEED.

10: 21 AM 15 BY MR. GARRIGAN:

10:21 AM 16 Q.

ALL RIGHT. WHATIS THE HIGHEST POSITION THAT YOU

10:21 AM 17 CONSIDER YOU IVE HAD AT LUFKIN INDUSTRIES?

10:21 AM 18 A.

QUALITY MANAGER.

10:21 AM 19 Q.

AND WHEN DID YOU HAVE THAT POSITION?

10:21 AM 20 A.

ACTUALLY, ESPECIALLY FROM 1990 UNTIL 1996, BECAUSE I

10:21 AM 21 WAS CHIEF INSPECTOR FROM 187 UNTIL 1990.

10:21 AM 22 Q.

ALL RIGHT. SO YOU WERE AN INSPECTOR INITIALLY

10: 21 AM 23 SOMETIME BEFORE THE MID-80s THEN OR DURING THE MID-80s?

10 : 21 AM 24 A • 10: 21 AM 25 Q.

YEAH. THE LOWER OR MID-80S, YES. AND YOU WENT FROM THERE TO BEING CHIEF INSPECTOR?

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10:21 AM 1 A.

YES.

10: 22 AM 2 Q.

THEN QUALITY MANAGER IN 1990?

10:22 AM 3 A.

YES.

10: 22 AM 4 Q.

AND THAT LASTED UNTIL '96?

10:22 AM 5 A.

YES.

10:22 AM 6 Q.

NOW, WERE ANY OF THOSE POSITIONS SALARIED AS OPPOSED

10: 22 AM 7 TO HOURLY?

10: 22 AM 8 A.

THE CHIEF INSPECTOR AND THE MANAGER WERE SALARIED.

10:22 AM 9 Q.

OKAY. BUT AS YOU SIT HERE TODAY, YOU'RE STILL

10:22 AM 10 10:22 AM 11

DOING -- YOU'VE GOT THE ASSIGNMENT THAT YOU HAD BACK IN THE MID-80s?

10: 22 AM 12 A. 10:22 AM 13 Q.

YES. YES, SIR. OKAY. HAVE THERE BEEN TIMES DURING YOUR CAREER WHEN

10:22 AM 14 YOU FELT YOUR ADVANCEMENT WAS STALLED?

10 : 22 AM 15 A .

YES, SIR, AT LEAST SEVERAL TIMES.

10:22 AM 16 Q.

OKAY. WHAT WAS THE FIRST ONE YOU CAN THINK OF?

10: 22 AM 17 A • WELL, WHEN I WAS HIRED IN THE TRAILER DIVISION, I

10: 22 AM 18 WAS INITIALLY HIRED IN CLEANING AND SWEEPING THE FLOOR,

10:23 AM 19 AND THEY ASSIGNED ME TO THE PAINT HOUSE. I WAS ASSIGNED

10:23 AM 20 AS A CLASS "B" PAINTER. THAT WAS -- IT WAS DIRTY, IT WAS

10:23 AM 21 HOT, THE SMELLING OF THE PAINT WAS UNDESIRABLE, AND I HAD

10:23 AM 22 A LOT OF TROUBLE GETTING OUT OF THERE.

10:23 AM 23

I DID --

10:23 AM 24 Q.

WELL, BEFORE YOU GET THERE, LET ME ASK YOU, HOW DID

10:23 AM 25 YOU GET INTO THE PAINT HOUSE? WAS THAT A POSITION THAT

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10:23 AM 1 YOU BID ON?

10:23 AM 2 A.

NO, SIR.

10:23 AM 3 Q.

HOW DID YOU GET THAT JOB?

10:23 AM 4 A.

I WAS ASSIGNED THERE.

10:23 AM 5 Q.

DID YOU CONSIDER THAT A PROMOTION?

10: 23 AM 6 A.

NO, SIR.

10: 23 AM 7 Q.

OKAY. I THINK YOU MADE --

10:23 AM 8

YOU DID NOT DESIRE THAT POSITION?

10:23 AM 9 10: 23 AM 10 10: 23 AM 11 10:23 AM 12 10:23 AM 13 10:23 AM 14 10:23 AM 15 10:23 AM 16

A. NO, SIR. THE COURT: DID YOU MAKE ANY MORE MONEY? THE WITNESS: YES, SIR. I'M NOT SURE HOW MUCH,
BUT I MADE A LITTLE MORE. THE COURT: IT WAS WHATEVER IT WAS, IT WAS A SLIGHT RAISE? THE WITNESS: YES, SIR. THE COURT: ALL RIGHT.

10:23 AM 17 BY MR. GARRIGAN:

10 : 23 AM 18 Q • ALL RIGHT. OKAY. IN ADDITION TO THE PAINT HOUSE,

10:24 AM 19 WHEN ELSE HAVE YOU FELT THAT YOUR ADVANCEMENT AT LUFKIN

10:24 AM 20 10: 24 AM 21 10:24 AM 22 10:24 AM 23 10:24 AM 24

INDUSTRIES HAS BEEN STALLED? A. WELL
MR. HAMEL: OBJECTION, YOUR HONOR, LEADING. THE COURT: I'M GOING TO OVERRULE IT. THE WITNESS: AFTER -- I HAD SIGNED -- I HAD

10:24 AM 25 SIGNED NUMEROUS JOB POSTINGS, TRYING TO GET OUT OF THE

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10: 24 AM 1 PAINT HOUSE, AND I HAD SENIORITY IN A LOT OF THOSE

10:24 AM 2 INSTANCES. SO FINALLY I WAS TRANSFERRED TO THE MAIN

10:24 AM 3 BUILDING AS A CLASS "B" TRAILER BODY BUILDER.

10: 24 AM 4 BY MR. GARRIGAN:

10:24 AM 5 Q.

ALL RIGHT. AND DID YOUR -- ARE YOU TELLING US THAT

10:24 AM 6 YOUR CAREER STALLED THERE?

10:24 AM 7 A.

YES.

10:24 AM 8 Q.

AS CLASS "B"

10:24 AM 9 A.

TRAILER BODY BUILDER.

10:24 AM 10 Q.

OKAY.

10: 24 AM 11 A.

AGAIN, I WAS ASSIGNED THAT, AND I CONTINUED TO -- I

10:24 AM 12 SIGNED ALMOST EVERYTHING THAT WAS POSTED, AND IN MANY

10:25 AM 13 CASES I HAD THE SENIORITY AND I HAD THE EXPERIENCE, BUT I

10:25 AM 14 WAS PASSED OVER, AND THEY CHOSE WHITE WORKERS WITH LESS

10:25 AM 15 SENIORITY.

10:25 AM 16 Q.

ALL RIGHT. AND WAS THERE ANY OTHER TIME DURING YOUR

10:25 AM 17 CAREER WHERE YOU FELT THAT YOU COULDN IT FAIRLY BE

10: 25 AM 18 CONSIDERED FOR PROMOTIONS?

10:25 AM 19 A.

WELL, AFTER I BIDDED -- AFTER THEY FINALLY SELECTED

10:25 AM 20 ME AS A CLASS "A" TRAILER BODY BUILDER, I BIDDED TO BECOME

10:25 AM 21 AN INSPECTOR, AND I SIGNED -- I WAS PROMOTED TO INSPECTOR

10:25 AM 22 ON THREE OCCASIONS.

10:25 AM 23

THE FIRST TIME I MADE INSPECTOR, THEY DECIDED

10:25 AM 24 AFTER THREE WEEKS TO A MONTH THAT THEY DIDN IT NEED AN

10:25 AM 25 INSPECTOR. IT WAS APPARENT, THEY WERE PRODUCING THE SAME

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10:25 AM 1 PRODUCTS, THAT THEY DIDN'T WANT ME TO BE AN INSPECTOR. SO

10:25 AM 2 AFTER CONTINUALLY COMPLAINING THAT THIS WAS RACE

10:25 AM 3 DISCRIMINATION, THAT THEY WERE NOT TREATING ME THE SAME AS

10:25 AM 4 OTHER WHITE WORKERS, I HAD SENIORITY, I SIGNED IT,

10:26 AM 5 CONTINUED TO SIGN JOB POSTINGS, SO I WAS PROMOTED A SECOND

10:26 AM 6 TIME.

10:26 AM 7

AND I BELIEVE ON THE THIRD TIME IS WHEN I BECAME

10:26 AM 8 A PERMANENT INSPECTOR.

10:26 AM 9 Q. 10:26 AM 10 A. 10:26 AM 11 Q.

SO TRYING TO GET INTO THE INSPECTOR JOB -YES. IT TOOK THREE DIFFERENT TRIES?

10:26 AM 12 A. 10:26 AM 13 Q. 10: 26 AM 14 A. 10:26 AM 15 Q. 10:26 AM 16 A. 10:26 AM 17 Q.

YES. WERE THERE EVER CRITICISMS OF YOUR WORK PERFORMANCE? NO. WERE YOU DEMOTED? NO. THEY JUST TOOK IT BACK AWAY FROM YOU?

10: 26 AM 18 10:26 AM 19
10:26 AM 20
10:26 AM 21 10:26 AM 22
10:26 AM 23 10:26 AM 24

A. RIGHT, SAID, "WE DON'T NEED YOU." THE COURT: WHO SAID THAT? THE WITNESS: MY SUPERVISOR. THE COURT: DO YOU REMEMBER HIS NAME? THE WITNESS: WHEN I WAS APPLYING FOR THE
INSPECTOR, BILLY DURHAM WAS THE SUPERVISOR. HE WAS THE CHIEF INSPECTOR.

10: 26 AM 25 BY MR. GARRIGAN:

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10:26 AM 1 Q.

OKAY. NOW, HOW ABOUT --

10: 26 AM 2

HAVE THERE BEEN ANY OTHER TIMES THROUGH TODAY

10:26 AM 3 WHEN YOU HAVE FELT THAT YOU COULDN'T BE FAIRLY CONSIDERED

10:26 AM 4 FOR A PROMOTION?

10: 27 AM 5 A.

YES. I CONTINUALLY SIGNED JOB POSTINGS FOR SALARIED

10:27 AM 6 JOBS. THERE WERE NO BLACKS IN MANAGEMENT, AND -- OTHER

10:27 AM 7 THAN ONE BLACK SUPERVISOR, AND I CONTINUOUSLY SIGNED AND I

10:27 AM 8 WAS UNSUCCESSFUL. SO I FELT LIKE, YOU KNOW, I MEAN, I'M

10:27 AM 9 STUCK. I'VE GONE AS FAR AS I CAN GO. SO I WAS STUCK AS 10:27 AM 10 AN INSPECTOR. SO WHEN I DID --

10:27 AM 11

THE OPPORTUNITY FOR CHIEF INSPECTOR CAME. BILLY

10:27 AM 12 DURHAM MADE A LATERAL TRANSFER AND I SPOKE -- I SPOKE TO

10:27 AM 13 MANAGEMENT AND I TOLD THEM "NOT ONLY AM I QUALIFIED, BUT

10: 27 AM 14 I'M INTERESTED."

10:27 AM 15

SO I BECAME CHIEF INSPECTOR, AND, OF COURSE,

10:27 AM 16 LATER IN 1990 BECAME QUALITY MANAGER.

10:27 AM 17

WHEN I WAS DEMOTED, MY SUPERVISOR, DOUG

10:27 AM 18 WILLIAMS, TOLD ME "YOU WILL NEVER BE ABLE TO MOVE UP IN

10:27 AM 19 MANAGEMENT AGAIN. THIS IS THE ONLY JOB WE HAVE FOR YOU.

10:28 AM 20 SO DON'T EVEN TRY."

10:28 AM 21 Q.

YOUR SUPERVISOR TOLD YOU THAT?

10:28 AM 22 A.

YES, SIR.

10: 28 AM 23 Q.

WAS THAT A MEMBER OF MANAGEMENT?

10: 28 AM 24 A •

YES, SIR.

10: 28 AM 25 Q.

WHAT WAS HIS POSITION?

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10:28 AM 1 A.

HIS POSITION AT THAT TIME WAS -- HE WAS WARRANTY

10:28 AM 2 MANAGER, AND HE LATER -- THEY LATER INCORPORATED -- HE WAS

10:28 AM 3 ALSO MANAGER OVER QUALITY. BUT WHEN HE DEMOTED ME HE WAS

10:28 AM 4 WARRANTY MANAGER.

10:28 AM 5

THE COURT: WHAT WAS HIS NAME?

10:28 AM 6

THE WITNESS: DOUG WILLIAMS.

10:28 AM 7

THE COURT: DOUG WILLIAMS?

10:28 AM 8 BY MR. GARRIGAN:

10: 28 AM 9 Q.

WHEN DID HE TELL YOU THAT?

10:28 AM 10 A.

IN 1996, WHEN HE DEMOTED ME.

10:28 AM 11 Q.

WHO IS YOUR SUPERVISOR NOW?

10:28 AM 12 A.

STEVE CRAWFORD.

10:28 AM 13 Q.

OKAY. IS DOUG WILLIAMS OVER YOU IN ANY WAY?

10 : 28 AM 14 A.

NO .

10:28 AM 15 Q.

OKAY. WELL, YOU'VE TOLD US ABOUT YOUR -- THAT YOU

10:28 AM 16 DIDN'T FEEL YOU COULD BE FAIRLY CONSIDERED FOR PROMOTION

10:28 AM 17 IN THE PAINT HOUSE WHEN YOU WERE A CLASS "A" BODY BUILDER,

10:28 AM 18 OR WHEN YOU WERE A CLASS "B" BODY BUILDER, TRYING TO

10:29 AM 19 BECOME CLASS "A"?

10:29 AM 20 A.

YES, SIR.

10:29 AM 21 Q.

WHEN YOU WERE GOING FROM CLASS "A" TO INSPECTOR?

10: 29 AM 22 A.

YES, SIR.

10: 29 AM 23 Q • AND I GUESS SINCE 1996, WHEN YOU WERE TOLD YOU

10:29 AM 24 WOULDN'T BE CONSIDERED FOR MANAGEMENT?

10:29 AM 25 A.

YES, SIR.

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10: 29 AM 1

THE COURT: HAVE YOU MADE ANY APPLICATIONS?

10:29 AM 2

THE WITNESS: NO, SIR. AFTER I WAS TOLD THAT

10:29 AM 3 THERE WAS NO USE, THIS IS THE ONLY JOB THEY HAD FOR ME,

10:29 AM 4 THAT "WE WERE DOING YOU A FAVOR"

10:29 AM 5

ACTUALLY, THE CONTRACT PROVIDED THAT THEY PUT ME

10:29 AM 6 BACK AT THE NEXT HIGHEST LEVEL, WHICH WAS INSPECTOR, BUT

10:29 AM 7 HE TOLD ME THAT "THERE'S NO NEED OF YOU SIGNING ANYTHING,

10:29 AM 8 THIS IS ALL WE HAVE FOR YOU."

10:29 AM 9 Q. WELL, BACK WHEN YOU WERE IN THE HOURLY POSITIONS,

10:29 AM 10 PAINT HOUSE, TRYING TO BECOME CLASS "A" BODY BUILDER,

10:29 AM 11 TRYING TO BECOME AN INSPECTOR, YOU'VE ALREADY DESCRIBED

10:30 AM 12 THAT YOU KEPT BIDDING ON THOSE PROMOTIONS?

10:30 AM 13 A.

YES, SIR.

10:30 AM 14 Q.

HOW MANY TIMES DID YOU BID ON THEM?

10:30 AM 15 A.

POSSIBLY HUNDREDS, MAYBE EVEN MORE. WHEN THE BID

10: 30 AM 16 SHEET WENT UP, I SIGNED IT, BECAUSE I WANTED TO GET OUT OF

10:30 AM 17 THOSE DEAD-END POSITIONS.

10: 30 AM 18 Q .

HAVE YOU KEPT TRACK OF THE NUMBER OF TIMES THAT

10:30 AM 19 YOU'VE BID ON THOSE?

10: 30 AM 20 A.

NO, SIR. COUNTLESS OCCASIONS.

10: 30 AM 21 Q.

ALL RIGHT. AND WERE YOU PASSED OVER BY LESS SENIOR

10: 30 AM 22 WHITE EMPLOYEES?

10 : 30 AM 23 A •
10:30 AM 24 Q.

YES, SIR. DID YOU COMPLAIN ABOUT THAT?

10: 30 AM 25 A .

YES, SIR.

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10:30 AM 1 Q.

HOW OFTEN DID YOU COMPLAIN ABOUT THAT?

10:30 AM 2 A.

I COMPLAINED A LOT.

10:30 AM 3 Q.

DID THE BID SYSTEM WORK?

10:30 AM 4 A.

NO, SIR, IT DID NOT.

10:30 AM 5 Q.

WHEN YOU FINALLY GOT THESE PROMOTIONS THAT YOU

10:30 AM 6 SOUGHT FOR SO LONG, WHAT CHANGED? WHY DID YOU SUDDENLY

10:30 AM 7 GET THEM?

10:30 AM 8 A.

I HAVE NO IDEA. I DON'T -- IT COULD HAVE BEEN TO

10:31 AM 9
10: 31 AM 10 10: 31 AM 11 10: 31 AM 12 10: 31 AM 13 10: 31 AM 14

QUIET ME, TO HUSH ME UP. I DON'T KNOW. BUT I SHOULD HAVE GOTTEN THEM LONG BEFORE. Q. WHEN YOU COMPLAINED TO YOUR SUPERVISORS ABOUT THIS, HOW DID THEY RESPOND? A. I WAS ENCOURAGED TO SHUT UP, TO DO MY JOB, IF I WANTED MY JOB, AND TO QUIT MAKING WAVES.

10:31 AM 15 Q. 10:31 AM 16 A.

ALL RIGHT. WHO TOLD YOU THESE THINGS? EARL DOVER, BILLY DURHAM. EARL DOVER WAS THE SHOP

10:31 AM 17 FOREMAN FOR VANS AT THAT TIME.

10:31 AM 18 Q. 10:31 AM 19 A.

WHAT WAS HIS RACE? HE WAS WHITE.

10:31 AM 20 Q.

OKAY. AND YOU SAID BILLY DURHAM. YOU'VE ALREADY

10: 31 AM 21 10: 31 AM 22 10: 31 AM 23

MENTIONED HIM?

A .

YES.

Q • WAS HE WHITE ALSO?

10:31 AM 24 A.

YES. UNTIL THE MID-80s ALL THE SUPERVISORS WERE

10:31 AM 25 WHITE. THERE WAS ONE BLACK SUPERVISOR, FIRST-LINE

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10: 31 AM 1 SUPERVISOR.

10: 32 AM 2 10:32 AM 3 10: 32 AM 4 10:32 AM 5 10:32 AM 6 10:32 AM 7 10:32 AM 8 10:32 AM 9 10: 32 AM 10 10:32 AM 11

Q. OKAY. NOW, VERY BRIEFLY, WOULD YOU DESCRIBE TO THE COURT WHAT IT TOOK TO GET YOUR PROMOTION TO CHIEF INSPECTOR AND THEN TO QUALITY ASSURANCE MANAGER? A. WELL, I HAD COMPLAINED REPEATEDLY THAT THERE WAS BLATANT AND WIDESPREAD DISCRIMINATION IN THE SHOP AGAINST BLACKS, THAT WE WERE NOT AFFORDED AN EQUAL OPPORTUNITY, AND I YOU KNOW, BASICALLY I HAD COMPLAINED, AND WHEN I WOULD GO TO EACH LEVEL OF THE SUPERVISION, I WOULD GET THE SAME ANSWER, AND I CONCLUDED I WAS GETTING THE SAME ANSWER BECAUSE THEY WOULD UNDERSTAND, BECAUSE THEY WASN'T

10: 32 AM 12 COMMITTED TO EQUAL OPPORTUNITY.

10: 32 AM 13

SO I WENT --

10: 32 AM 14

WE HAVE -- THE COMPANY HAD AN OPEN-DOOR POLICY,

10: 32 AM 15 SO I COMPLAINED TO FRANK STEVENSON, WHO WAS THE PRESIDENT

10:32 AM 16 AT THE TIME.

10:32 AM 17 Q.

DID HE LISTEN TO YOU?

10:33 AM 18 A. INITIALLY -- INITIALLY HE DIDN'T, BUT AFTER I

10:33 AM 19 PREVAILED AND EXPLAINED TO HIM THE CONDITIONS THAT WERE

10: 33 AM 20 GOING ON, THEN HE DID. 10: 33 AM 21 Q. OKAY. AND DID THAT HAVE SOMETHING TO DO WITH YOU

10: 33 AM 22 10:33 AM 23 10:33 AM 24

GETTING THE CHIEF INSPECTOR AND QUALITY ASSURANCE MANAGER POSITION? A. YES, SIR. HE ASKED A QUESTION, IF I WAS THE FINAL

10:33 AM 25 INSPECTOR. I HAD VAST INSPECTOR EXPERIENCE. THE VAST

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10: 33 AM 1 MAJORITY OF DOCUMENTATION INFORMATION THAT BIlLY DURHAM,

10:33 AM 2 THE CHIEF INSPECTOR, WOULD USE CAME FROM ME. I SAID THAT

10:33 AM 3 10:33 AM 4

I WAS WILLING, I WAS QUALIFIED, AND I WANTED TO MOVE UP, SO HE ASKED WHY WOULDN'T I BE GIVEN THE JOB.

10:33 AM 5

SO THEY GAVE ME THE JOB TEMPORARILY, AND, OF

10:33 AM 6
10:33 AM 7
10:33 AM 8

COURSE, WHEN I HAD THE JOB TEMPORARILY, I HAD A SUPERVISOR BY THE NAME OF ART JENKINS WHO REPEATEDLY DETERRED ME, TOLD ME NOT TO GET MY HOPES UP.

10:34AM 9

AND SO FINALLY, WHEN IT WAS APPARENT THAT, EVEN

10: 34 AM 10 THOUGH I HAD DONE THE JOB FOR ABOUT SIX MONTHS,

10:34 AM 11 TEMPORARILY ASSIGNED THERE, THAT I WASN'T GOING TO GET AN

10: 34 AM 12 OPPORTUNITY TO BID ON IT, I CALLED MR. STEVENSON, AND

10:34 AM 13 10:34 AM 14

THAT'S HOW I GOT THE JOB OF CHIEF INSPECTOR.

Q.

OKAY. IN ADDITION TO YOUR COMPLAINING AND REPORTING

10:34 AM 15 TO MANAGEMENT ABOUT THE DISCRIMINATION YOU'VE SUFFERED,

10: 34 AM 16 WERE THERE EVER -- DID YOU EVER COMPLAIN ABOUT OTHER

10:34 AM 17 DISCRIMINATION?

10: 34 AM 18 A .

YES. AS A MATTER OF FACT, I COMPLAINED ABOUT

10: 34 AM 19 DISCRIMINATION THAT WAS PRACTICED AGAINST BLACKS AT LARGE.

10:34 AM 20 IT WAS WIDESPREAD, IT WAS TOLERATED BY MANAGEMENT, THE

10: 34 AM 21 SLANDEROUS NAME CALLING, DENYING OF EQUAL OPPORTUNITY. IT

10:34 AM 22 WAS OBVIOUS WHEN SENIOR BLACKS WERE PASSED OVER FOR

10: 34 AM 23 PROMOTION AND THERE WASN'T A VALID REASON GIVEN.

10:34 AM 24

AND WHEN I FILED A GRIEVANCE IN THE EARLY 80S, I

10:34 AM 25 STATED THAT THE DISCRIMINATION WAS BLATANT AND WIDESPREAD

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10:35 AM 1 AND TOLERATED BY MANAGEMENT.

10:35 AM 2 Q. ALL RIGHT. I WOULD LIKE TO SHOW YOU SOME OF OUR

10:35 AM 3 EXHIBITS, IF WE CAN FIND THEM HERE.

10: 35 AM 4

THE COURT: WELL, TAKE TEN MINUTES TO FIND THEM,

10:35 AM 5 TEN MINUTES BY THAT CLOCK.

10:35 AM 6

THE CSO: ALL RISE.

10:35 AM 7

(RECESS)

10: 58 AM 8

THE COURT: ALL RIGHT. MR. GARRIGAN, I'VE

10: 59 AM 9 10: 59 AM 10 10: 59 AM 11 10: 59 AM 12 10: 59 AM 13 10: 59 AM 14 10: 59 AM 15

CONFERRED WITH MR. BACON AND MR. HAMEL. THEY HAVE NO OBJECTION AND WILL PREPARE A COpy OF THE VARIOUS E-MAILS, PROVIDED THAT YOU'RE NOT GOING TO CALL MR. BACON OR THE CONSULTING EXPERT AS WITNESSES.
MR. GARRIGAN: WELL, I CERTAINLY DON'T EXPECT TO. IF I DO, I'LL BRING IT --
THE COURT: NO. THAT'S MY RULING. THEy'LL GIVE

10: 59 AM 16 10: 59 AM 17 10: 59 AM 18 10:59 AM 19

IT TO YOU, BUT YOU'RE NOT GOING TO CALL THEM. MR. GARRIGAN: OKAY. THE COURT: PLEASE BE SEATED. OH, MY. I HAD TWO CALLS CONCERNING JUDGE

10: 59 AM 20 HANNAH'S ARRANGEMENTS.

10:59 AM 21

YOU MAY PROCEED, SIR.

10:59 AM 22 10: 59 AM 23

BY MR. GARRIGAN: Q. ALL RIGHT.

MR. MCCLAIN, YOU HAD MENTIONED ASSISTING

11:00 AM 24 DAVID DIXON WITH A GRIEVANCE INVOLVING RACE IN THE

11:00 AM 25 MID-80S, IS THAT CORRECT?

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11:00 AM 1 A.

YES. YES, SIR.

11:00 AM 2 Q.

NOW, WHAT WAS DAVID DIXON'S RACE?

11:00 AM 3 A.

HE WAS BLACK.

11:00 AM 4 Q.

DO YOU SEE A BINDER IN FRONT OF YOU?

11:00 AM 5 A.

YES, SIR.

11:00 AM 6 Q.

I WOULD LIKE FOR YOU TO LOOK AT EXHIBITS 53 THROUGH

11:00 AM 7 58.

11:00 AM 8 A.

OKAY.

11:00 AM 9 11:00 AM 10

MR. GARRIGAN: YOUR HONOR, I HAVE COPIES FOR EVERYBODY.

11:00 AM 11

THE COURT: THANK YOU.

11: 00 AM 12 BY MR. GARRIGAN:

11:00 AM 13 Q.

EXHIBIT 53, WOULD YOU LOOK AT THAT DOCUMENT?

11:01 AM 14 A.

YES, SIR, I HAVE IT. I HAVE IT NOW.

11:01 AM 15 Q.

OKAY. WOULD YOU TELL THE COURT WHAT THAT DOCUMENT

11:01 AM 16 IS?

11:01 AM 17 A.

THIS IS THE GRIEVANCE THAT I FILED IN BEHALF OF

11:01 AM 18 MYSELF AND ALL THE BLACKS IN THE COMPANY.

11:01 AM 19 Q.

ALL RIGHT. AND WHEN DID YOU FILE THAT?

11:01 AM 20 A.

THE DATE SAYS APRIL 27, 1984.

11:01 AM 21 Q.

OKAY. AND DO YOU HAVE ANY REASON TO THINK THAT DATE

11:01 AM 22 IS NOT CORRECT?

11:01 AM 23 A.

NO, SIR.

11:01 AM 24 Q. 11 : 01 AM 2 5 A .

ALL RIGHT. AND WHO DID YOU SUBMIT THAT DOCUMENT TO? I BELIEVE THE FIRST STEP GOES TO THE PLANT

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11:01 AM 1 SUPERINTENDENT, AND I BELIEVE AT THAT TIME IT WAS JIM

11:02 AM 2 RIGGS.

11:02 AM 3 Q.

ALL RIGHT.

11:02 AM 4

MR. GARRIGAN: I WOULD ASK THAT PLAINTIFFS'

11:02 AM 5 EXHIBIT 53 BE ADMITTED.

11:02 AM 6

MR. HAMEL: OBJECTION, YOUR HONOR, RELEVANCE.

11:02 AM 7

THE COURT: TELL ME WHAT IT IS.

11:02 AM 8

MR. HAMEL: RELEVANCE, IT'S A DOCUMENT FROM

11:02 AM 9 1984, YOUR HONOR, AND HEARSAY.

11:02 AM 10

THE COURT: WELL, I AGREE, IT HAS NOTHING TO DO

11:02 AM 11 WITH THIS CASE, BUT FOR THE PURPOSE OF BACKGROUND, I THINK

11:02 AM 12 THAT'S THE REASON. THAT'S THE ONLY REASON I WOULD

11:02 AM 13 CONSIDER IT, IS BACKGROUND. IT IS NOT RELEVANT TO

11:02 AM 14 ANYTHING FROM '96 TO 2003.

11: 02 AM 15

MR. GARRIGAN: THAT'S CORRECT. YOUR HONOR, IT

11:02 AM 16 DOES, IT PRECEDES THE CLASS PERIOD BY TEN YEARS. THE

11:02 AM 17 AND OUR PURPOSE FOR SUBMITTING IT IS TO DEMONSTRATE

11: 02 AM 18 BACKGROUND.

11:02 AM 19

WE ALSO THINK IT'S RELEVANT TO THE CORPORATE

11:02 AM 20 CULTURE.

11:02 AM 21

THE COURT: I DON'T KNOW WHETHER IT'S RELEVANT

11:03 AM 22 TO THAT. IF IT IS, I'LL GIVE IT SUCH WEIGHT AS I THINK

11:03 AM 23 IT'S ENTITLED TO RECEIVE, IF ANY AT ALL.

11:03 AM 24

BUT IT IS TEN YEARS OUTSIDE, WELL OUTSIDE THE

11:03 AM 25 TIME ELEMENT.

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11:03 AM 1 BY MR. GARRIGAN:

11:03 AM 2 Q.

NOW, MR. MCCLAIN

11:03 AM 3 A.

YES, SIR.

11:03 AM 4 Q. WOULD YOU NOW LOOK AT PLAINTIFFS' EXHIBIT 54?

11:03 AM 5 A.

YES.

11:03 AM 6 Q.

WAS THAT

11:03 AM 7

WOULD YOU TELL THE COURT WHAT THE DOCUMENT IS?

11:03 AM 8 A.

PLAINTIFFS' EXHIBITS?

11:03 AM 9 Q.

PLAINTIFFS' EXHIBIT NUMBER 54.

11:03 AM 10 A.

YES.

11:03 AM 11 Q.

WHAT IS THAT?

11:03 AM 12 A.

IT IS AN ANSWER FROM JIM RIGGS TO THE GRIEVANCE THAT

11:03 AM 13 I FILED.

11:04 AM 14

THE COURT: WHO IS JIM RIGGS?

11:04 AM 15

THE WITNESS: HE'S THE WHITE PLANT

11:04 AM 16 SUPERINTENDENT, I MEAN, PRODUCTION SUPERINTENDENT AT THAT

11:04 AM 17 TIME.

11:04 AM 18

THE COURT: ALL RIGHT.

11:04 AM 19

MR. GARRIGAN: ALL RIGHT. I WOULD ASK THAT THAT

11:04 AM 20 11:04 AM 21 11 :04 AM 22

BE ADMITTED INTO EVIDENCE AT THIS TIME ALSO. MR. HAMEL: SAME OBJECTIONS, YOUR HONOR. THE COURT: IT'S NOT REALLY RELEVANT. IT'S

11:04 AM 23 INTERESTING THAT IT

11:04 AM 24

MR. RIGGS REPLIES IT'S SIMPLY TAUTOLOGY, WHICH

11:04 AM 25 COMES FROM TWO WORDS IN GREEK, "TAUTO" AND "LOGOS,"

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11:04 AM 1 11:04 AM 2
11:04 AM 3

MEANING SAME AND THE SAME THING. MR. GARRIGAN: YOUR HONOR, EXHIBITS 54
THROUGH -- EXCUSE ME -- YEAH, 54 THROUGH 58 WILL CONCERN

11:04 AM 4 THE COMPANY'S RESPONSE TO THE GRIEVANCE THAT HAS BEEN

11:05 AM 5 ADMITTED AS 53.

11:05 AM 6

THE COURT: WELL, IT'S BEEN ADMITTED FOR

11:05 AM 7 BACKGROUND ONLY.

11:05 AM 8

MR. GARRIGAN: AND FOR THE SAME REASON -- I

11:05 AM 9 ANTICIPATE THE SAME OBJECTIONS WILL COME UP.

11:05 AM 10

THE COURT: WELL, THEy'RE VALID, AND THEY REACH

11:05 AM 11 NOTHING THAT'S IN ISSUE IN THIS CASE, SIR, IN POINT OF 11:05 AM 12 TIME.

11:05 AM 13

MR. GARRIGAN: IT'S OUR CONTENTION THAT THEY ARE

11:05 AM 14 RELEVANT TO BACKGROUND AND TO THE CORPORATE CULTURE, IN

11:05 AM 15 THAT IT SHOWS NOT ONLY MR. MCCLAIN PRESENTING COMPLAINTS

11:05 AM 16 IN GOOD FAITH ABOUT RACE DISCRIMINATION, BUT THE COMPANY

11:05 AM 17 11:05 AM 18

SORT OF CAVALIERLY DISREGARDING THEM. THE COURT: I'M GOING TO CONSIDER IT FOR WHAT

11:05 AM 19 IT'S WORTH, SINCE IT'S TEN YEARS PRIOR TO THE EFFECTIVE 11:06 AM 20 DATE.

11:06 AM 21 11:06 AM 22
11:06 AM 23 11:06 AM 24 11:06 AM 25

MR. GARRIGAN: OKAY. WELL, I WOULD -DOES THAT RULING GOVERN THE COURT: YES, THAT'S THE RULING ON ALL OF THESE THAT GO TO THE COMPANY TEN YEARS BEFORE THE EFFECTIVE DATE OF THIS CASE. IT'S JUST BACKGROUND ONLY.

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11:06 AM 1

MR. GARRIGAN: OKAY. FOR THE RECORD, THAT WOULD

11:06 AM 2 BE PLAINTIFFS' EXHIBITS 53 THROUGH 58, YOUR HONOR.

11:06 AM 3

THE COURT: ALL RIGHT.

11:06 AM 4

MR. HAMEL: YOUR HONOR, WE HAVE AN ADDITIONAL

11:06 AM 5 OBJECTION TO 55 AT LEAST, BECAUSE IT'S INCOMPLETE. IT

11:06 AM 6 REFERENCES AN ATTACHMENT THAT IS NOT INCLUDED. AND

11:06 AM 7 11:06 AM 8

RELEVANCE AND HEARSAY. THE COURT: I DON'T THINK IT'S ADMISSIBLE, BUT

11:06 AM 9 I'M NOT GOING TO TURN IT DOWN. IT'S JUST FOR THE PURPOSE

11:07 AM 10 OF BACKGROUND, IF ANY AT ALL, IF IT HAS ANY PURPOSE OF

11:07 AM 11 THAT.

11: 07 AM 12 11:07 AM 13

MR. GARRIGAN: THANK YOU, YOUR HONOR. MR. HAMEL: YOUR HONOR, THE COURT UNDERSTANDS

11:07 AM 14 OUR OBJECTION IS TO ALL THE PROFFER BY THE PLAINTIFF, THE

11:07 AM 15 WHOLE SERIES OF EXHIBITS?

11:07 AM 16

THE COURT: YES, SIR. I HAVE TO READ THEM

11:07 AM 17 11:07 AM 18

BEFORE YOU OBJECT TO THEM. MR. HAMEL: ALL RIGHT.

11:07 AM 19

THE COURT: AND I'LL GIVE THEM SUCH WEIGHT AND

11:07 AM 20 CONSIDERATION AS I THINK THEy'RE ENTITLED TO RECEIVE.

11:07 AM 21 11:07 AM 22

HOWEVER, THEY BADLY ARE OUT OF TIME. MR. GARRIGAN: YOUR HONOR, IT'S OUR CONTENTION

11:07 AM 23 THAT THE CORPORATE CULTURE, THE POLICIES --

11:07 AM 24

THE COURT: I UNDERSTAND YOUR CONTENTION.

11:07 AM 25 YOU'VE STATED IT SEVERAL TIMES, SIR.

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11:07 AM 1

MR. GARRIGAN: ALL RIGHT.

11:07 AM 2

THE COURT: BUT THIS IS TEN YEARS BEFORE THAT

11:07 AM 3 DATE.

11:07 AM 4

MR. GARRIGAN: YES.

11:07 AM 5

THE COURT: AND -- PROCEED.

11:07 AM 6 BY MR. GARRIGAN:

11:08 AM 7 Q.

MR. MCCLAIN, WOULD YOU LOOK AT PLAINTIFFS' EXHIBIT

11:08 AM 8 NUMBER 59?

11:08 AM 9 A.

YES.

11:08 AM 10 Q.

WOULD YOU TELL THE COURT WHAT THAT DOCUMENT IS?

11:08 AM 11 A.

THIS CONCERNS THE GRIEVANCE THAT WAS FILED -- LET'S

11:08 AM 12 SEE.

11:08 AM 13

THE COURT: THAT'S OUT OF DATE, TOO. THAT'S

11:08 AM 14 BEFORE '96. IT'S DATED IN 1995.

11:08 AM 15

MR. GARRIGAN: YOUR HONOR, THIS DOCUMENT IS IN

11:08 AM 16 FACT THE DOCUMENT THAT CONSTITUTES THE EEOC CHARGE THAT

11:09 AM 17 INITIATES THIS CASE.

11:09 AM 18

THE COURT: I'LL CONSIDER IT FOR THAT PURPOSE

11:09 AM 19 ONLY.

11:09 AM 20

THE WITNESS: OKAY. I WAS LOOKING AT THE WRONG

11:09 AM 21 ONE. I'M SORRY.

11:09 AM 22
11:09 AM 23

THE COURT: EXCUSE ME. THE WITNESS: I WAS LOOKING AT THE WRONG ONE.

11:09 AM 24 I'M SORRY.

11: 09 AM 25 BY MR. GARRIGAN:

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11:09 AM 1 Q. ALL RIGHT. ARE YOU LOOKING NOW AT EXHIBIT 59?

11:09 AM 2 A.

YES, SIR.

11:09 AM 3 Q. AND WHAT IS THE DATE OF PLAINTIFFS' EXHIBIT 59?

11:09 AM 4 A.

MY DATE WAS JANUARY 29, 1995, AND THE STAMP DATE IS

11:09 AM 5 FEBRUARY 9, 1995.

11:09 AM 6 Q.

ALL RIGHT. AND THE -- YOU CREATED THIS DOCUMENT?

11:09 AM 7 A. 11:09 AM 8 Q.

YES, SIR, I DID. WHO DID YOU SEND IT TO?

11:09 AM 9 A.

I SENT IT TO PAUL PEREZ, HUMAN RESOURCES, DOUG

11:09 AM 10 SMITH, THE PRESIDENT, TO THE EEOC, JUSTICE DEPARTMENT,

11:09 AM 11 OFFICE OF CIVIL RIGHTS, AND THE DEPARTMENT OF HUMAN

11:10 AM 12 11:10 AM 13

RESOURCES. Q. AND WHEN DID YOU MAIL IT TO THOSE DIFFERENT

11:10 AM 14 RECIPIENTS?

11: 10 AM 15 A. 11:10 AM 16 Q.

JANUARY OF '95, SIR. NOW -- AND WOULD YOU BRIEFLY SUMMARIZE TO THE COURT

11:10 AM 17 11 : 10 AM 18 11:10 AM 19

WHAT THE CONTENT OF THAT WRITING IS? A . WELL --
MR. HAMEL: OBJECTION, YOUR HONOR.

THE WRITING

11:10 AM 20 11:10 AM 21

SPEAKS FOR ITSELF. THE COURT:

SUSTAINED.

11: 10 AM 22 BY MR. GARRIGAN:

11 : 10 AM 23 Q .

MR. MCCLAIN, AT THE END OF THAT DOCUMENT -- LET'S

11: 10 AM 24 11 : 10 AM 2 5

SEE -- YOU DESCRIBE A CULTURAL PROBLEM? A . YES, SIR.

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11:10 AM 1 Q.

DO YOU SEE THAT?

11: 10 AM 2 A.

liM LOOKING.

11:11 AM 3 Q.

ABOUT EIGHT LINES FROM THE END.

11:11 AM 4 A.

ON THE THIRD PAGE OR SECOND PAGE?

11:11 AM 5 Q.

THE LAST PAGE, ABOVE YOUR SIGNATURE.

11:11 AM 6

MR. GARRIGAN: MAY I APPROACH THE WITNESS?

11:11 AM 7

THE COURT: YOU MAY.

11:11 AM 8

THE WITNESS: YES. YES, SIR.

11: 11 AM 9 BY MR. GARRIGAN:

11:11 AM 10 Q.

OKAY. ALL RIGHT. WHAT WAS THE CULTURAL PROBLEM YOU

11: 11 AM 11 WERE REFERRING TO?

11 : 11 AM 12 A .

WELL, THE DISCRIMINATION PRACTICES, THE

11: 11 AM 13 DISCRIMINATORY INSINUATIONS AND INSULTS BEING SUFFERED BY

11:12 AM 14 BLACKS, NOT ONLY WAS IT WIDESPREAD AND BLATANT, BUT IT WAS

11:12 AM 15 TOLERATED BY MANAGEMENT, BY WHITE MANAGEMENT.

11:12 AM 16 Q.

OKAY. WHAT WAS THE SCOPE OF THIS CULTURAL PROBLEM?

11 : 12 AM 17 A .

WELL, I MEAN, BLACKS WERE BEING DENIED AN EQUAL

11:12 AM 18 OPPORTUNITY. BLACKS WERE BEING SUBJECT TO A DOUBLE

11:12 AM 19 STANDARD WHEN THEY KNOW THAT THEY HAD THE SENIORITY, WAS

11: 12 AM 20 NOT BEING PROMOTED. BLACKS WERE TREATED INDIFFERENTLY.

11:12 AM 21 THERE WERE RACIAL COMMENTS MADE THAT MANAGEMENT TOOK NO

11: 12 AM 22 CORRECTIVE ACTION. IT WAS JUST BAD FOR BLACKS IN THIS

11:12 AM 23 ENVIRONMENT. THERE WAS RACISM, AND IT WAS CONDONED AND

11:12 AM 24 11: 12 AM 25

TOLERATED BY MANAGEMENT. THAT I S FROM FIRST-LINE SUPERVISORS UP.

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11:12 AM 1 Q.

I MEAN, WAS THERE ANY PART OF THE COMPANY THAT WAS

11: 13 AM 2 NOT AFFECTED BY THIS CULTURAL PROBLEM?

11 : 13 AM 3 A •

NO .

11:13 AM 4

MR. HAMEL: OBJECTION, FOUNDATION, YOUR HONOR.

11:13 AM 5

THE COURT: I'LL CONSIDER IT FOR WHAT IT'S

11:13 AM 6 WORTH.

11: 13 AM 7 BY MR. GARRIGAN:

11:13 AM 8 Q.

WHAT WAS --

11:13 AM 9

AS YOU REPORTED AND COMPLAINED TO MANAGEMENT

11:13 AM 10 ABOUT THE DIFFERENT RACE DISCRIMINATION PROBLEMS YOU

11: 13 AM 11 ENCOUNTERED AT LUFKIN INDUSTRIES, ON YOUR OWN BEHALF AND

11:13 AM 12 ON BEHALF OF OTHERS --

11:13 AM 13 A.

YES.

11:13 AM 14 Q.

IN PARTICULAR WITH REGARD TO WHEN YOU ADVOCATED ON

11:13 AM 15 BEHALF OF THE OTHER WORKERS, WHAT WAS THE COMPANY I S

11:13 AM 16 RESPONSE?

11:13 AM 17 A.

DENIAL, NONACTION.

11: 13 AM 18 Q.

HOW DID THEY TREAT YOU?

11: 13 AM 19 A.

WITH HOSTILITY AND INDIFFERENCE, AND I WAS

11:13 AM 20 REPEATEDLY, YOU KNOW, TOLD TO KEEP MY MOUTH CLOSED.

11:14 AM 21

I WAS EVEN ENCOURAGED BY BLACKS THAT, "HEY, I

11:14 AM 22 MEAN, THEy'RE OUT TO GET YOU. YOU KNOW, WHY DON'T YOU

11: 14 AM 23 11: 14 AM 24 11: 14 AM 25

JUST GO ALONG AND, YOU KNOW, MAYBE EVERYTHING WILL BE OKAY?" BUT EVERYTHING WASN I TOKAY.
MR. HAMEL: OBJECTION TO THE HEARSAY, YOUR

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11:14 AM 1 HONOR.

11:14 AM 2

THE COURT: SUSTAINED.

11: 14 AM 3 BY MR. GARRIGAN:

11:14 AM 4 Q.

NOW, DID YOU EVER REPORT SPECIFIC INSTANCES OF RACE

11:14 AM 5 DISCRIMINATION TO SUPERVISORS?

11:14 AM 6 A.

YES.

11: 14 AM 7 Q.

OKAY. DID YOU EVER REPORT SUCH INCIDENTS TO EARL

11: 14 AM 8 DOVER?

11: 14 AM 9 A.

YES, SIR.

11:14 AM 10 Q.

WAS HE EVER PRESENT DURING AN INCIDENT OF RACE

11:14 AM 11 DISCRIMINATION?

11 : 14 AM 12 A •

YES, SIR, HE WAS.

11:14 AM 13 Q.

WOULD YOU TELL THE COURT ABOUT THAT?

11 : 14 AM 14 A .

WHEN WE WORKED ONE HUNDRED DAYS WITHOUT HAVING AN

11: 14 AM 15 ACCIDENT, A LOST-TIME ACCIDENT, WE I RE GIVEN A SAFETY

11:14 AM 16 DINNER, AND AS I WAS GOING THROUGH THE LINE TO HAVE MY

11:15 AM 17 PLATE FIXED, AS I APPROACHED THE TABLE WHERE EARL DOVER, A

11: 15 AM 18 WHITE SUPERVISOR, AND CARTER OLDS, A WHITE SUPERVISOR,

11: 15 AM 19 WERE SITTING, CARTER OLDS, A WHITE SU PERVISOR, MADE A

11: 15 AM 20 STATEMENT TO HIM THAT "HERE COMES THAT NIGGER GOING TO SIT

11: 15 AM 21 DOWN BESIDE US."

11:15 AM 22 Q.
11:15 AM 23 A. 11:15 AM 24 Q. 11: 15 AM 25 A.

WHO DID HE MAKE THAT STATEMENT TO? TO EARL DOVER. THESE WERE BOTH SUPERVISORS? YES, SIR.

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11:15 AM 1 Q.

WERE THEY YOUR SUPERVISORS?

11:15 AM 2 A.

EARL DOVER WAS. CARTER OLDS WAS NOT. HE WAS A

11:15 AM 3 SUPERVISOR AT THE PAINT HOUSE WHERE I INSPECTED, BUT HE

11:15 AM 4 WAS NOT MY SUPERVISOR.

11:15 AM 5 Q.

DID YOU EVER REPORT OTHER INSTANCES OF

11:15 AM 6 DISCRIMINATORY BEHAVIOR BY CARTER OLDS TO EARL DOVER?

11:15 AM 7 A.

YES. CARTER OLDS, I MEAN, THE MAN MADE SLANDEROUS

11: 16 AM 8 REMARKS ABOUT BLACKS, ABOUT WOMEN, ABOUT OLD PEOPLE. I

11: 16 AM 9 MEAN, IT WAS THE WORST CASE OF AN INDIVIDUAL ATTITUDE

11:16 AM 10 TOWARD PEOPLE BEING EXPRESSED, AND I EXPRESSED THAT, AND

11:16 AM 11 THERE WAS NOTHING DONE.

11:16 AM 12 Q.

DID YOU EVER REPORT OTHER INSTANCES OF

11:16 AM 13 DISCRIMINATION TO EARL DOVER?

11:16 AM 14 A.

YES. EARL DOVER WAS WALKING THROUGH THE SHOP WHEN A

11:16 AM 15 MAN BY THE NAME OF CHARLES HOME, WHO IS A BLACK MAN, AND A

11: 16 AM 16 MAN BY THE NAME OF I CAN'T THINK OF HIS NAME NOW. HE

11:16 AM 17 WAS A UNION STEWARD. BUT ANYWAY, THE WHITE GUY MADE A

11:16 AM 18 STATEMENT "THERE GOES EARL AND THAT NIGGER WALKING THROUGH

11: 16 AM 19 THE SHOP."

11: 16 AM 20

AND I REPORTED THAT TO JIM RIGGS, THE PLANT

11:16 AM 21 SUPERINTENDENT.

11 : 16 AM 2 2 Q • 11 : 16 AM 23 A .

DID HE TAKE ANY ACTION? NO, HE DID NOT, OTHER THAN TALKING TO HIM. AND I

11: 17 AM 24 11: 17 AM 25

WASN'T PRESENT WHEN HE TALKED TO HIM. Q. OKAY. DID YOU EVER OBSERVE OR BECOME AWARE OF ANY

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11: 17 AM 1 DISCRIMINATORY BEHAVIOR BY BOB ADAMS?

11:17 AM 2 A.

THAT'S THE GUY THAT MADE THE STATEMENT THAT "THERE

11:17 AM 3 GOES EARL DOVER AND THE NIGGER WALKING THROUGH THE SHOP

11:17 AM 4 TOGETHER. "

11:17 AM 5 Q.

WAS THERE ANY OTHER DISCRIMINATORY CONDUCT ON THE

11:17 AM 6 PART OF BOB ADAMS?

11:17 AM 7 A. YES, SEXUAL HARASSMENT. THAT WAS REPORTED. THERE

11:17 AM 8 WAS NOTHING DONE. SEXUAL HARASSMENT ON SEVERAL WOMEN,

11:17 AM 9 BECAUSE THEY CAME TO ME AND COMPLAINED.

11:17 AM 10

MR. HAMEL: OBJECTION, YOUR HONOR, RELEVANCE.

11: 17 AM 11

THE COURT: IT'S NOT RELEVANT TO THIS CASE.

11: 17 AM 12 BY MR. GARRIGAN:

11:17 AM 13 Q.

WERE THE WOMEN HE HARASSED WHITE OR BLACK?

11:17 AM 14 A.

BLACK.

11:17 AM 15 Q.

DID YOU REPORT THAT TO THE SUPERVISORS?

11:17 AM 16 A.

YES, I DID.

11:17 AM 17 Q.

WAS ANY CORRECTIVE ACTION TAKEN?

11: 17 AM 18 A.

NONE THAT I KNOW OF.

11: 17 AM 19 Q.

HAVE YOU EVER SEEN THE COMPANY ADDRESS SEXUAL

11:17 AM 20 HARASSMENT OF WHITE WOMEN?

11:17 AM 21

MR. HAMEL: OBJECTION, FOUNDATION AND RELEVANCE.

11: 18 AM 22

THE COURT: SUSTAINED. THIS IS NOT A GENDER

11:18 AM 23 11: 18 AM 24

DISCRIMINATION SUIT, SIR. MR. GARRIGAN: NO.

MY -- THE POINT I WAS TRYING

11: 18 AM 25 TO MAKE, YOUR HONOR, IS THAT WHEN THESE -- WHEN THERE WERE

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11:18 AM 1 INSTANCES OF SEXUAL HARASSMENT FROM A WHITE MALE

11:18 AM 2 VICTIMIZING BLACK WOMEN, THE COMPANY WAS INDIFFERENT.

11:18 AM 3 WHEN THE VICTIM WAS WHITE, THE COMPANY INDEED TOOK ACTION.

11: 18 AM 4

THE COURT: WELL, I'LL GIVE IT SUCH WEIGHT AND

11:18 AM 5 CONSIDERATION AS I CONSIDER IT'S ENTITLED TO RECEIVE, IF

11:18 AM 6 ANY.

11:18 AM 7 BY MR. GARRIGAN:

11:18 AM 8 Q.

MR. MCCLAIN, HAVE YOU OBSERVED THAT COURSE OF

11: 18 AM 9 11: 18 AM 10

ACTION? A. YES.

11: 18 AM 11 Q.

MR. MCCLAIN, I WOULD LIKE TO ASK YOU NOW ABOUT THE

11: 19 AM 12 TRAINING PRACTICES AT LUFKIN INDUSTRIES.

11: 19 AM 13 A.

ALL RIGHT, SIR.

11:19 AM 14 Q.

DID YOU EVER EXPRESS AN INTEREST IN TRAINING?

11: 19 AM 15 A.

YES, SIR, ALL THE TIME.

11:19 AM 16 Q.

HOW WOULD YOU DESCRIBE YOUR INTEREST IN TRAINING?

11:19 AM 17 A.

WELL, MY INTEREST IN TRAINING WAS TO BETTER MYSELF

11: 19 AM 18 AND TO BE ABLE TO MOVE UP.

11:19 AM 19 Q.

DID YOU EVER PASS UP AN OPPORTUNITY FOR TRAINING?

11:19 AM 20 A.

NO, SIR. EVERY INTERNAL CLASS THAT LUFKIN OFFERED I

11: 19 AM 21 TOOK.

11:19 AM 22 Q.

OKAY. WERE THERE TIMES WHEN YOU COULDN'T GET

11:19 AM 23 TRAINING?

11:19 AM 24 A.

YES.

11: 19 AM 25 Q.

WERE THERE TIMES WHEN LUFKIN WOULD REFUSE TO PROVIDE

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11: 19 AM 1 11: 19 AM 2 11:19 AM 3 11:19 AM 4 11: 19 AM 5 11: 19 AM 6 11: 19 AM 7 11:20 AM 8 11:20 AM 9 11:20 AM 10

82 YOU WITH TRAINING? A. YES. Q. WOULD YOU DESCRIBE THOSE TO US? A. WELL, ON ONE INSTANCE THAT I ACTUALLY GOT THE TRAINING, BUT IT TOOK THE INTERVENTION OF FRANK STEVENSON, THE PRESIDENT, IN ORDER FOR ME TO GET THE TRAINING. IT WAS QUALITY ASSURANCE TRAINING. IT WAS DONE BY CROSBY QUALITY SCHOOL IN DALLAS, OR THE FORT WORTH AREA. ALL OF THE MANAGERS, SUPERVISORS AND TECHNICIANS WHO WERE NOT SUPERVISORS THAT WAS INVOLVED IN PRODUCTION AND QUALITY

11:20 AM 11 WERE GOING, PURCHASING AND OTHER AREAS OF THE COMPANY,

11:20 AM 12 WERE GOING TO THIS TRAINING.

11:20 AM 13

WHEN I FOUND OUT ABOUT IT, I ASKED A QUESTION,

11:20 AM 14 WHY WASN'T I GOING. AND BASICALLY I WAS TOLD BY HERB

11:20 AM 15 GREEN, AT THAT TIME THE PRESIDENT, SENT WORD TO LEVANN

11:20 AM 16 BLOCK, THE VICE PRESIDENT IN THE TRAILER PLANT, THROUGH MY

11:20 AM 17 SUPERVISOR, BOB WESTBROOK, THAT I NEEDED TO QUIT

11:20 AM 18 COMPLAINING ABOUT GOING TO THE CLASS. WHEN THE COMPANY

11: 20 AM 19 THOUGHT I NEEDED TO GO TO SCHOOL, THEY WOULD LET ME KNOW.

11: 20 AM 20

AND I THOUGHT THAT WAS HIGHLY INAPPROPRIATE,

11:20 AM 21 SINCE I WAS QUALITY MANAGER.

11:20 AM 22 Q. ALL RIGHT. NOW, AS QUALITY MANAGER, DID YOU

11:20 AM 23 SUPERVISE OTHERS?

11:20 AM 24 A. YES, I DID.

11:20 AM 25 Q.

HOW MUCH TRAINING DID THEY GIVE YOU IN HOW TO

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11:20 AM 1 SUPERVISE OTHERS?

11:20 AM 2 A.

VIRTUALLY NONE, ONE FOUR-HOUR CLASS, WHERE WE WENT

11:21 AM 3 OVER WRITTEN MATERIAL, HANDLED THE MANUAL AND DO THE JOB.

11:21 AM 4 Q.

LET ME BACK UP A LITTLE BIT. THIS Q.A., QUALITY

11: 21 AM 5 ASSURANCE TRAINING THAT YOU WANTED AT THE CROSBY SCHOOL,

11: 21 AM 6 WHO WAS IT THAT DIDN'T WANT YOU TO TAKE IT?

11:21 AM 7 A. THE PRESIDENT OF THE COMPANY, THE VICE PRESIDENT OF

11:21 AM 8 THE TRAILER PLANT, THE PRODUCTION SUPERINTENDENT, WHO WAS

11:21 AM 9 MY SUPERVISOR AT THE TIME, THEY ALL TOLD ME POINT-BLANK IF

11:21 AM 10 THE COMPANY THOUGHT I NEEDED TO GO TO SCHOOL, THEY WOULD

11:21 AM 11 TELL ME.

11:21 AM 12

I SAW THE NEED. THE COMPANY DIDN'T SEE THE

11:21 AM 13 NEED.

11:21 AM 14 Q.

ALL RIGHT. AND ALL OF THESE WERE WHITE MEN?

11:21 AM 15 A.

YES. THERE WAS ALSO TRAINING FOR PROBLEM SOLVING,

11: 21 AM 16 STATISTICAL DATA ANALYSIS, PROCESS CONTROL, ALL WHICH WAS

11:21 AM 17 CRUCIAL FOR THE QUALITY MANAGER TO BE ABLE TO DO HIS JOB

11:22 AM 18 EFFECTIVELY. I WAS DENIED AND I WAS NEVER GIVEN THE

11: 22 AM 19 OPPORTUNITY TO RECEIVE THAT TRAINING OR ATTEND THOSE

11:22 AM 20 SCHOOLS.

11:22 AM 21 Q.

DID THE WHITE MANAGERS GET TO ATTEND SCHOOLS THAT

11:22 AM 22
11:22 AM 23

YOU DID NOT? MR. HAMEL: OBJECTION, FOUNDATION.

11:22 AM 24 11:22 AM 25

THE WITNESS: YES. THE COURT: WHAT FOUNDATION IS NEEDED FOR THAT?

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11:22 AM 1

MR. HAMEL: YOUR HONOR, HE'S NOT TESTIFIED THAT

11:22 AM 2 HE HAS ANY KNOWLEDGE WHAT OTHER WHITE MANAGERS HAVE GONE

11:22 AM 3 TO SCHOOLS OR WHAT SCHOOLS THEy'VE GONE TO.

11:22 AM 4

THE COURT: WELL, I SUSTAIN THAT.

11: 22 AM 5 BY MR. GARRIGAN:

11:22 AM 6 Q.

MR. MCCLAIN, CAN YOU IDENTIFY ANY WHITE MANAGERS WHO

11:22 AM 7 GOT MORE TRAINING THAN YOU DID?

11:22 AM 8 A.

YES, SIR.

11:22 AM 9 Q.

WHO?

11:22 AM 10 A.

ONE, WAYNE ASHLEY WAS SENT TO TEXAS A&M, FULL PAY,

11:22 AM 11 FREE LODGING AND MEALS FOR THIRTY DAYS, TO RECEIVE

11:23 AM 12 MANAGEMENT TRAINING.

11:23 AM 13

DOUG WILLIAMS, MY PREVIOUS SUPERVISOR, WAS SENT

11:23 AM 14 TO SAN DIEGO FOR THIRTY DAYS, FULL PAY, FREE LODGING, FREE

11:23 AM 15 MEALS, FOR MANAGEMENT TRAINING.

11:23 AM 16

THE OTHER QUALITY MANAGERS RECEIVED TRAINING IN

11: 23 AM 17 ALL THOSE SCHOOLS THAT I MENTIONED, STATISTICAL PROCESS

11:23 AM 18 CONTROL, STATISTICAL DATA CONTROL, PROBLEM SOLVING,

11:23 AM 19 WHATEVER.

11:23 AM 20 Q.

OKAY. AND WERE ALL OF THOSE QUALITY ASSURANCE

11:23 AM 21 MANAGERS WHITE?

11:23 AM 22 A.

YES, THEY WERE WHITE, AND THEY WERE SENT TO THOSE

11:23 AM 23 11:23 AM 24

SCHOOLS. AND THE REASON I KNOW, BECAUSE THEY TOLD ME.

Q.

ALL RIGHT. AMONG THE HOURLY WORK FORCE, WOULD YOU

11:23 AM 25 TELL THE COURT WHAT THE PROCESS IS FOR TRAINING WORKERS?

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11:23 AM 1 A.

IF MANAGEMENT, WHITE MANAGERS AND SUPERVISORS, IF

11:23 AM 2 THEY SEE A MAN THAT THEY WANT TO PUT ON A PARTICULAR JOB,

11:24 AM 3 THEy'LL TAP HIM ON THE SHOULDER, THEy'LL PULL HIM OFF TO

11:24 AM 4 THE SIDE. THEy'LL USUALLY TRAIN HIM AT THE END OF THE

11: 24 AM 5 SHIFT OR THEy'LL SEND HIM TO AN EXTERNAL SCHOOL.

11:24 AM 6

WHEN THE JOB POSTING IS PUT UP, HE SIGNS IT,

11:24 AM 7 HE'S SET, HE'S QUALIFIED, HE GETS THE JOB.

11:24 AM 8 Q.

IS THIS TRAINING EVER PROVIDED BY TEMPORARY

11:24 AM 9 ASSIGNMENTS?

11:24 AM 10 A.

YES.

11:24 AM 11 Q.

WILL YOU EXPLAIN HOW THAT WORKS, PLEASE?

11: 24 AM 12 A.

WELL, IF SOMEONE GOES ON VACATION OR IF THEy'RE

11:24 AM 13 ABSENT FOR AN INJURY OR SOMETHING LIKE THAT, THEN A WHITE

11:24 AM 14 WORKER IS CHOSEN, HE'S TRAINED TO DO THAT JOB, AND HE'S

11:24 AM 15 TEMPORARILY ASSIGNED TO THAT JOB. AND, OF COURSE, WHEN

11:24 AM 16 THE WORKER THAT'S THE MACHINE OPERATOR, WHEN HE RETIRES,

11:24 AM 17 OR IF HE CAN'T COME BACK TO WORK, THEN THAT PERSON GETS

11: 24 AM 18 THAT JOB, THAT WHITE WORKER GETS THAT JOB.

11:24 AM 19 Q.

WHO MAKES THE DECISION ABOUT WHO GETS THE

11:24 AM 20 ASSIGNMENTS?

11:24 AM 21 A.

A WHITE SUPERVISOR AND WHITE MANAGEMENT.

11:24 AM 22 Q.

OKAY. NOW, YOU'VE BEEN IN A SUPERVISORY POSITION?

11:25 AM 23 A.

YES, SIR. I WAS QUALITY MANAGER.

11:25 AM 24 Q.

DID YOU GET ANY TRAINING IN HOW TO FAIRLY MAKE THOSE

11:25 AM 25 DECISIONS?

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11:25 AM 1 A.

NO, SIR. OTHER THAN THE FOUR HOURS, NO, SIR.

11:25 AM 2 Q. AND DURING THOSE FOUR HOURS DID THEY TRAIN YOU HOW

11:25 AM 3 TO FAIRLY MAKE THOSE DECISIONS?

11:25 AM 4 A.

NO, SIR, JUST GAVE US GENERAL INFORMATION AND BROAD

11:25 AM 5 SPECIFICS AS TO WHAT CRITERIA YOU WOULD USE.

11:25 AM 6 Q.

HAVE YOU EVER OBSERVED ONE OF YOUR WHITE COLLEAGUES

11:25 AM 7 IN THE TRAILER DIVISION TO BE GETTING GROOMED FOR

11:25 AM 8 PROMOTIONS?

11:25 AM 9 A.

MOST RECENTLY

11: 25 AM 10

MR. HAMEL: OBJECTION, LEADING.

11:25 AM 11

THE COURT: IT IS LEADING, BUT I'M GOING TO

11:25 AM 12 PERMIT IT.

11:25 AM 13

MR. GARRIGAN: THANK YOU. I'M JUST TRYING TO

11: 25 AM 14 MAKE IT QUICKER.

11:25 AM 15

THE WITNESS: RICKY GILLEY WAS A WELDER. HE WAS

11:25 AM 16 TRAINED FOR ALMOST A YEAR BY BOB WESTBROOK TO BECOME HIS

11:25 AM 17 REPLACEMENT. HE IS NOW THE PRODUCTION SUPERINTENDENT.

11:25 AM 18 BY MR. GARRIGAN:

11:25 AM 19 Q.

OKAY. IS RICKY GILLEY WHITE OR BLACK?

11:26 AM 20 A.

HE'S WHITE, A WHITE SUPERVISOR.

11:26 AM 21 Q. ALL RIGHT. AND HE WAS IN THE WORK FORCE AS A WELDER

11:26 AM 22 YOU SAID?

11:26 AM 23 A. 11:26 AM 24 Q. 11:26 AM 25 A.

HE WAS A WELDER, YES. AND WHO IS BOB WESTBROOK THAT YOU'RE REFERRING TO? HE WAS PRODUCTION SUPERINTENDENT.

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11: 26 AM 1 Q.

OVER THE WHOLE TRAILER DIVISION?

11:26 AM 2 A.

YES.

11:26 AM 3 Q.

AND IS HE ALSO WHITE?

11:26 AM 4 A.

YES.

11: 26 AM 5 Q.

AND WERE YOU OFFERED THE SAME OPPORTUNITIES THAT MR.

11:26 AM 6 GILLEY WAS OFFERED?

11:26 AM 7 A.

NO, SIR.

11:26 AM 8 Q.

OKAY. WHO HAD BETTER EXPERIENCE TO OBSERVE AND BE

11:26 AM 9 11:26 AM 10 11:26 AM 11 11:26 AM 12 11:26 AM 13

ABLE TO CRITICALLY ANALYZE THE PRODUCTION OF TRAILERS? A. I DID, SIR. Q. AND WHY DO YOU SAY THAT? A. BECAUSE I'VE HAD VAST EXPERIENCE IN PRODUCTION AND INSPECTION AND QUALITY MANAGEMENT. I'VE HAD THE OVERSIGHT

11:26 AM 14 OF THE TRAILER BEING BUILT FROM SCRATCH UNTIL IT'S

11:27 AM 15 COMPLETED.

11:27 AM 16 Q.

OKAY. WERE YOU OFFERED ANY OF THOSE OPPORTUNITIES

11:27 AM 17 11:27 AM 18 11:27 AM 19 11:27 AM 20

THAT MR. GILLEY WAS?

A.

NO, SIR.

Q. WAS IT A

LET ME ASK YOU A FEW OTHER QUESTIONS ABOUT YOUR

11: 27 AM 21 TENURE AS QUALITY ASSURANCE MANAGER. NOW, THAT WAS THE

11:27 AM 22 JOB WHERE THE CEO HAD TO INTERVENE BEFORE YOUR

11:27 AM 23 11:27 AM 24

DEPARTMENT'S MANAGEMENT WOULD LET YOU -MR. HAMEL: OBJECTION, LEADING, IT'S THE LAWYER

11:27 AM 25 TESTIFYING.

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11:27 AM 1

MR. GARRIGAN: IT'S SOMETHING HE'S ALREADY

11:27 AM 2 COVERED, YOUR HONOR.

11:27 AM 3

IS THAT RIGHT?

11:27 AM 4

THE COURT: I'M GOING TO OVERRULE THE OBJECTION,

11:27 AM 5 BUT QUIT LEADING, PLEASE, SIR.

11:27 AM 6

MR. GARRIGAN: ALL RIGHT.

11:27 AM 7 BY MR. GARRIGAN:

11:27 AM 8 Q.

OKAY. AS QUALITY ASSURANCE MANAGER --

11:27 AM 9

WELL, FIRST, TELL US, HOW MANY OTHER

11:27 AM 10 AFRICAN-AMERICANS WERE AT THAT LEVEL IN THE COMPANY?

11:28 AM 11 11: 28 AM 12 11: 28 AM 13 11: 28 AM 14

A. ZERO. Q. HOW MANY AFRICAN-AMERICANS WERE ABOVE THAT LEVEL IN THE COMPANY? A. NONE.

11:28 AM 15 Q.

HOW MANY AFRICANS HAD BEEN IN MANAGEMENT POSITIONS

11:28 AM 16 BEFORE THAT TIME?

11:28 AM 17 A.

IN OVER A HUNDRED YEARS AS A COMPANY, NONE.

11:28 AM 18 Q.

SO YOU WERE THE FIRST ONE?

11:28 AM 19 A.

YES, AND ONLY ONE.

11:28 AM 20 Q.

OKAY. WAS TRAILER DIVISION MANAGEMENT SUPPORTIVE OF

11:28 AM 21 YOU IN THAT POSITION?

11:28 AM 22 A.

NO, SIR, THEY WERE NOT.

11:28 AM 23 Q.

DID THEY PROVIDE YOU WITH THE RESOURCES YOU NEEDED

11:28 AM 24 11:28 AM 25

TO DO THAT JOB? A. NO, SIR, THEY DID NOT PROVIDE ME WITH THE TRAINING,

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11:28 AM 1 THE RESOURCES, THE AUTHORITY OR THE STAFF OR EQUIPMENT TO

11:28 AM 2 DO AN EFFECTIVE JOB.

11:28 AM 3

THE COURT: WHAT EQUIPMENT WOULD BE NECESSARY?

11:28 AM 4

THE WITNESS: AN UP-TO-DATE COMPUTER, SIR.

11: 28 AM 5

THE COURT: SIR?

11:28 AM 6

THE WITNESS: AN UP-TO-DATE COMPUTER.

11:28 AM 7

THE COURT: OH.

11:28 AM 8

THE WITNESS: COMPUTER PRINTER.

11:28 AM 9 BY MR. GARRIGAN:

11:29 AM 10 Q.

AND HOW DID THAT LACK OF SUPPORT AFFECT YOU?

11:29 AM 11 A.

IT CAUSED ME TO HAVE TO WORK LONG HOURS SATURDAY AND

11:29 AM 12 11:29 AM 13

SUNDAY, BECAUSE I HAD TO DO ALL THE WORK ON THE STATISTICAL DATA MANUALLY.

11:29 AM 14

AND TOWARDS THE END THEY GOT ME AN OUT-OF-DATE

11:29 AM 15 MACINTOSH, AND THE ONLY THING I WAS ABLE TO DO THERE WAS

11: 29 AM 16 TO PLOT SOME GRAPHS.

11:29 AM 17 Q.

ABOUT HOW MANY HOURS DID YOU HAVE TO WORK A WEEK

11:29 AM 18 BECAUSE YOU DIDN'T HAVE THE RESOURCES?

11:29 AM 19 A.

EIGHTY. THAT'S GUESSING. SEVENTY TO EIGHTY.

11:29 AM 20 Q.

DID YOU PUT IN THAT MUCH TIME?

11:29 AM 21 A.

YES, SIR.

11:29 AM 22 Q.

DID YOU DO A GOOD JOB?

11: 29 AM 23 A. 11:29 AM 24 Q.

YES, SIR. WERE THERE COMPLAINTS ABOUT YOUR PERFORMANCE?

11:29 AM 25 A.

NO, SIR.

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11:29 AM 1

90 MR. HAMEL: YOUR HONOR, THE COURT HAS PREVIOUSLY

11:29 AM 2 RULED THAT MR. MCCLAIN'S INDIVIDUAL CASE IS GOING TO BE

11:29 AM 3 SEVERED AND TRIED, AND WE'RE HERE TO --

11:29 AM 4

THE COURT: YES. YOU'RE GOING INTO MOSTLY

11: 29 AM 5 DISPARATE TREATMENT. I CAN UNDERSTAND WHY YOU WOULD WANT

11: 30 AM 6 TO SHOW THAT GENERALLY AS TO THE CORPORATE CULTURE, BUT I

11: 30 AM 7 THINK YOU'RE TRYING A DISPARATE TREATMENT CASE INSTEAD OF

11: 30 AM 8 A DISPARATE IMPACT CASE.

11: 30 AM 9 11:30 AM 10 11: 30 AM 11 11: 30 AM 12 11:30 AM 13

MR. GARRIGAN: YOUR HONOR, YOU'RE CORRECT. WE'RE SUBMITTING THIS TESTIMONY ONLY TO SHOW CORPORATE CULTURE AND BACKGROUND, AND I'LL TRY TO MAKE IT BRIEF.
THE COURT: ALL RIGHT. MR. HAMEL: YOUR HONOR, WE'RE DEALING WITH VERY

11: 30 AM 14 11: 30 AM 15 11: 30 AM 16 11:30 AM 17

SPECIFIC ISSUES RELATED TO ONE SINGLE PERSON. THE COURT: I UNDERSTAND THAT. MR. HAMEL: THAT'S HARDLY A CULTURAL ISSUE. THE COURT: I UNDERSTAND THAT. BUT THE CASE

11:30 AM 18 11: 30 AM 19 11: 30 AM 20

ISN'T OVER YET. MR. HAMEL: THANK YOU, YOUR HONOR. THE COURT: ALL RIGHT. AND ONE WITNESS IS NOT

11:30 AM 21 GOING TO SHOW A DISPARATE IMPACT, BUT A NUMBER OF THEM 11: 30 AM 22 COULD.

11: 30 AM 23 11: 30 AM 24

BY MR. GARRIGAN: Q. OKAY. MR. MCCLAIN, WHEN YOU WERE A QUALITY

11: 30 AM 25 ASSURANCE MANAGER --

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11: 30 AM 1 A.

YES, SIR.

11: 30 AM 2 Q.

DID YOU HAVE RESPONSIBILITY FOR PROMOTING HOURLY

11: 31 AM 3 EMPLOYEES?

11: 31 AM 4 A.

YES, SIR.

11: 31 AM 5 Q. AND WHAT SORTS OF PROMOTIONS WERE YOU CONCERNED

11:31 AM 6 WITH?

11: 31 AM 7 A. THE INSPECTOR, THE POSITION OF INSPECTOR.

11:31 AM 8 Q.

ALL RIGHT. AND YOU HELD THOSE RESPONSIBILITIES INTO

11: 31 AM 9 THE CLASS PERIOD HERE, UNTIL YOUR DEMOTION IN 196?

11:31 AM 10 A.

YES, SIR.

11:31 AM 11 Q.

WHAT KIND OF TRAINING DID YOU GET IN HOW TO MAKE

11: 31 AM 12 PROMOTION DECISIONS?

11:31 AM 13 A.

OTHER THAN THE FOUR-HOUR CLASS, NONE.

11:31 AM 14 Q.

WHAT KIND OF CRITERIA WERE YOU TRAINED TO USE TO

11: 31 AM 15 MAKE THESE DECISIONS?

11:31 AM 16 A.

NONE.

11:31 AM 17 Q.

WHAT WERE YOU SUPPOSED TO CONSIDER WHEN YOU MADE

11: 31 AM 18 PROMOTION DECISIONS?

11:32 AM 19 A.

IN THE FOUR-HOUR SEMINAR, I GUESS YOU WOULD CALL IT,

11:32 AM 20 THEY PROVIDED US WITH -- YOU WERE TOLD TO USE ATTENDANCE,

11:32 AM 21 ATTITUDE, ABILITY, FACTORS LIKE THAT.

11 : 32 AM 22 Q .

DID THEY TRAIN YOU TO MAKE THESE PROMOTIONS BASED ON

11:32 AM 23 SENIORITY?

11:32 AM 24 A. 11:32 AM 25 Q.

NO, SIR. WERE THERE OTHER SUPERVISORS AT THE SAME TRAINING

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11: 32 AM 1 YOU WENT TO?

11: 32 AM 2 A.

YES, SIR.

11: 32 AM 3 Q.

DID THEY TRAIN YOU HOW TO MEASURE ATTITUDE?

11: 32 AM 4 A.

NO, SIR.

11: 32 AM 5 Q.

DID THEY TELL YOU HOW TO MEASURE ATTENDANCE?

11:32 AM 6 A.

NO, SIR.

11: 32 AM 7 Q.

WHEN YOU MADE THESE DECISIONS --

11: 32 AM 8

HOW MANY SUCH DECISIONS DID YOU MAKE?

11: 32 AM 9 A. 11: 33 AM 10 Q.

PROBABLY FIFTEEN TO TWENTY. AND WHAT WAS YOUR GOAL WHEN YOU MADE THESE

11: 33 AM 11 DECISIONS?

11: 33 AM 12 A.

WELL, MY GOAL WAS TO BE FAIR, BUT I WAS TOLD TO USE

11: 33 AM 13 THESE FACTORS SUCH AS ATTITUDE AND ATTENDANCE IN MAKING A

11: 33 AM 14 DECISION TO CHOOSE THE BEST QUALIFIED MAN, AND, YOU KNOW,

11: 33 AM 15 FROM MY OWN SELF PERSONALLY, I WANTED TO BE AS FAIR AS

11: 33 AM 16 POSSIBLE, BUT I JUST DID THE BEST I COULD WITH WHAT I WAS

11: 33 AM 17 GIVEN TO WORK WITH.

11:33 AM 18 11: 33 AM 19

MR. GARRIGAN: MAY I APPROACH THE WITNESS? THE COURT: YOU MAY.

11: 33 AM 20 BY MR. GARRIGAN:

11: 33 AM 21 Q.

MR. MCCLAIN, I'M GIVING YOU ANOTHER BINDER OF

11: 33 AM 22 EXHIBITS, AND I WOULD LIKE TO ASK YOU TO LOOK AT EXHIBIT

11: 33 AM 23 110.

11:33 AM 24 A. 11: 34 AM 25

OKAY. MR. GARRIGAN: AND ONE FOR THE COURT.

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11: 34 AM 1

THE COURT: THANK YOU.

11: 34 AM 2

MR. GARRIGAN: IT'S AT TAB 110.

11: 34 AM 3 BY MR. GARRIGAN:

11: 34 AM 4 Q.

MR. MCCLAIN, DO YOU RECOGNIZE THE DOCUMENTS

11: 34 AM 5 CONTAINED IN EXHIBIT lID?

11: 34 AM 6 A.

YES, SIR, I DO.

11: 34 AM 7 Q.

WOULD YOU TELL THE COURT WHAT THOSE ARE?

11: 34 AM 8 A. WELL, THESE ARE DOCUMENTS THAT I WOULD USE IN THE

11: 34 AM 9 11:34 AM 10 11:34 AM 11

INTERVIEWS IN CONSIDERING WHAT PERSON TO PROMOTE TO THE PERSON OF INSPECTOR. Q. ALL RIGHT. AND, IN FACT, THOSE DOCUMENTS CONCERNED

11: 34 AM 12 A PROMOTION ULTIMATELY MADE IN AUGUST OF '95, AND IT WENT

11: 34 AM 13 TO A MAN NAMED HOLT?

11: 34 AM 14 A.

YES, SIR.

11:35 AM 15 Q.

NOW, WOULD YOU LOOK AT DOCUMENT 343 -- EXCUSE ME --

11: 35 AM 16 BATES-NUMBERED DOCUMENT 343 IN EXHIBIT lID?

11:35 AM 17 A.

OKAY.

11:35 AM 18 Q.

ALL RIGHT. THAT'S A LIST OF JOB REQUIREMENTS?

11:35 AM 19 A.

YES.

11:35 AM 20 Q.

OKAY. AND IS THAT SOMETHING YOU --

11: 35 AM 21

WHO CREATED THAT?

11:35 AM 22 A.

THIS WAS BASED ON WHAT I GOT IN THE FOUR HOURS. I

11: 35 AM 23 HAD NO TRAINING, BUT I JUST -- I TOOK IT FROM THE RED

11: 35 AM 24 BOOK, THIS PARTICULAR INFORMATION, AND APPLIED IT TO

11:35 AM 25 MAKING THE DECISION I DID ON THE PERSON I CHOSE INSPECTOR.

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11: 36 AM 1 Q.

OKAY. SO YOU CREATED THIS DOCUMENT?

11:36 AM 2 A.

YES.

11:36 AM 3 Q. ALL RIGHT. WERE YOU QUALIFIED IN ANY WAY TO BE

11: 36 AM 4 MAKING JOB DESCRIPTIONS?

11:36 AM 5 A.

NO.

11:36 AM 6 Q.

NOW, THESE DOCUMENTS IN 110, WERE THOSE PART OF YOUR

11: 36 AM 7 BUSINESS RECORDS AS QUALITY MANAGER?

11:36 AM 8 A.

YES.

11: 36 AM 9 Q. 11: 36 AM 10 A.

AND WHAT DID YOU DO WITH THOSE RECORDS? I TURNED ALL OF THE RECORDS OVER TO DOUG WILLIAMS

11:36 AM 11 ONCE I WAS DEMOTED.

11: 36 AM 12 Q •

ALL RIGHT.

11: 36 AM 13

MR. GARRIGAN: YOUR HONOR, WE OFFER EXHIBIT 110.

11:36 AM 14

MR. HAMEL: NO OBJECTION, YOUR HONOR.

11: 36 AM 15

THE COURT: BEG YOUR PARDON?

11:36 AM 16

MR. HAMEL: NO OBJECTION, YOUR HONOR.

11:36 AM 17

THE COURT: IT'S RECEIVED AS MARKED.

11: 36 AM 18 BY MR. GARRIGAN:

11:37 AM 19 Q.

MR. MCCLAIN, WOULD YOU LOOK AT DOCUMENT

11: 37 AM 20 BATES-NUMBERED 345?

11:37 AM 21 A.

IN 110?

11:37 AM 22 Q.

IN 110.

11:37 AM 23 A. 11:37 AM 24 Q.

OKAY. YES, SIR. WOULD YOU TELL US WHAT THAT IS?

11:37 AM 25 A.

WELL, AGAIN, THIS IS WHERE I RATED THE APPLICANTS

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11: 37 AM 1 BASED ON THE FACTORS THAT I WAS GIVEN BY LUFKIN

11:37 AM 2 INDUSTRIES, ATTENDANCE, ATTITUDE, PRODUCT KNOWLEDGE,

11: 37 AM 3 CUSTOMER ORDERS, BLUEPRINTS AND MERGER-INTOS.

11:37 AM 4 Q.

DID YOU GET ANY GUIDELINES OR TRAINING IN HOW TO

11:37 AM 5 MEASURE ATTENDANCE?

11:37 AM 6 A.

NO, SIR.

11:37 AM 7 Q.

WHO DECIDED WHAT ATTENDANCE WAS GOOD AND WHAT

11:37 AM 8 ATTENDANCE WAS BAD?

11:37 AM 9 A.

I DID.

11:37 AM 10 Q.

DID ANYBODY TRAIN YOU IN HOW TO DO THAT?

11:37 AM 11 A.

NO, SIR.

11:37 AM 12 Q.

HOW ABOUT ATTITUDE?

11:37 AM 13 A.

I DID.

11: 37 AM 14 Q.

YOU MADE THAT DECISION?

11:37 AM 15 A.

YES, SIR.

11:37 AM 16 Q.

DID THEY TRAIN YOU IN HOW TO MEASURE AN ATTITUDE?

11:37 AM 17 A.

NO, SIR.

11:37 AM 18 Q.

YOU JUST GOT TO USE YOUR OWN DISCRETION?

11:37 AM 19 A.

THAT IS CORRECT.

11:38 AM 20 Q.

HOW ABOUT PRODUCT KNOWLEDGE?

11: 38 AM 21 A.

NO, SIR.

11: 38 AM 22 Q.

DID YOU GET ANY TRAINING IN HOW TO MEASURE PRODUCT

11: 38 AM 23 KNOWLEDGE?

11:38 AM 24 A. 11:38 AM 25 Q.

NO, SIR. HOW ABOUT CUSTOMER ORDERS?

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11: 38 AM 1 A.

NO, SIR.

11:38 AM 2 Q.

DID YOU HAVE ANY TRAINING -- WERE THERE ANY

11:38 AM 3 GUIDELINES IN HOW TO MEASURE AN APPLICANT'S KNOWLEDGE OF

11:38 AM 4 CUSTOMER ORDERS?

11: 38 AM 5 A.

NONE.

11: 38 AM 6 Q.

OKAY. THE SAME THING WITH REGARD TO THE NEXT

11: 38 AM 7 FACTOR, BLUEPRINTS?

11: 38 AM 8 A.

NO, SIR. I JUST USED MY OWN SUBJECTIVE

11:38 AM 9
11:38 AM 10

DECISION-MAKING, AS DID OTHER SUPERVISORS, TO MAKE DECISIONS AS TO WHO I WAS GOING TO PROMOTE.

11: 38 AM 11

MR. HAMEL: OBJECTION AS TO THE FOUNDATION WITH

11: 38 AM 12 RESPECT TO OTHER SUPERVISORS.

11: 38 AM 13 BY MR. GARRIGAN:

11:38 AM 14 Q.

IS THAT WHAT YOU WERE TRAINED TO DO?

11: 38 AM 15

THE COURT: HE'S TOLD ME SEVERAL TIMES THE

11:38 AM 16 TRAINING HE HAD. IT'S REPETITIOUS, AND THE OBJECTION IS

11: 39 AM 17 SUSTAINED.

11: 39 AM 18 BY MR. GARRIGAN:

11:39 AM 19 Q.

OTHER THAN THE FOUR HOURS OF TRAINING THAT YOU HAD

11: 39 AM 20 WITH OTHER SUPERVISORS, DID YOU HAVE ANY TRAINING ON HOW

11: 39 AM 21 TO MAKE THESE SELECTION DECISIONS?

11:39 AM 22 A. 11 : 39 AM 23 Q .

NO, SIR. OR OTHER PERSONNEL DECISIONS?

11:39 AM 24 A. 11: 39 AM 25 Q.

NO, SIR. IF YOU WANTED TO, COULD YOU HAVE MADE THESE

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11: 39 AM 1 DECISIONS BASED ON RACE?

11: 39 AM 2 A.

YES, SIR.

11: 39 AM 3 Q.

COULD YOU HAVE JUST PICKED YOUR FAVORITE PERSON FOR

11: 39 AM 4 THEM?

11: 39 AM 5 A.

YES, SIR, I COULD HAVE.

11: 39 AM 6 Q.

ALL RIGHT.

11: 39 AM 7

THE COURT: IF YOU DID THAT, JUST PICKED YOUR

11:40 AM 8 FAVORITE PERSON, AND HE DIDN'T PERFORM WELL, YOU WOULDN'T

11:40 AM 9 HAVE THAT JOB VERY LONG, WOULD YOU?

11:40 AM 10

THE WITNESS: WELL, YOU KNOW, AS A SUPERVISOR OR

11:40 AM 11 MANAGER, YOU COULD COVER UP FOR AN INDIVIDUAL THAT WAS

11:40 AM 12 MAKING MISTAKES. THE ONLY REASON I DIDN'T DO THAT,

11:40 AM 13 BECAUSE I BELIEVED IN FAIRNESS, YOUR HONOR.

11:40 AM 14

THE COURT: THANK YOU.

11:40 AM 15

THE WITNESS: I JUST WOULDN'T -- I WOULDN'T DO

11:40 AM 16 THAT, BUT I COULD HAVE.

11:40 AM 17 BY MR. GARRIGAN:

11:40 AM 18 Q.

OKAY.

11 : 40 AM 19 A •

NO ONE EVER QUESTIONED ANY DECISION I MADE AS A

11:40 AM 20 MANAGER. I WAS NEVER QUESTIONED. I MADE FIFTEEN TO

11:40 AM 21 TWENTY.

11 : 40 AM 22 Q • OKAY. WERE YOU EVER AWARE OF ANY SCRUTINIZING OF

11:40 AM 23 YOUR PROMOTION DECISIONS?

11:40 AM 24 A.

NO.

11 : 40 AM 2 5 Q .

WERE YOU GIVEN ANY TRAINING IN HOW TO MAKE

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11:40 AM 1 PERFORMANCE APPRAISALS?

11:40 AM 2 A.

NO, SIR. OTHER THAN THE FOUR HOURS, NO, SIR. WE

11:40 AM 3 JUST GLOSSED OVER IT.

11:40 AM 4 Q.

NOW, ALSO, WHILE YOU WERE QUALITY ASSURANCE MANAGER

11:41 AM 5 DID YOU HAVE ACCESS TO THE CORPORATE OFFICE?

11:41 AM 6 A. THAT BRINGS A VERY PAINFUL EXPERIENCE. I WAS THE

11:41 AM 7 ONLY PERSON, I WAS THE ONLY SUPERVISOR, MANAGER THAT

11:41 AM 8 DIDNIT HAVE A KEY TO THE CORPORATE OFFICE, BUT ALL THE

11:41 AM 9 WHITE SUPERVISORS, ALL THE MANAGERS, ALL THE WHITE

11:41 AM 10 MANAGERS, EVEN THE SECRETARIES HAD ACCESS. SO WHEN I HAD

11:41 AM 11 TO GO TO WORK ON THE WEEKENDS TO TRY TO GET MY JOB DONE, I

11:41 AM 12 HAD TO GET THE KEY FROM THE GATE GUARD.

11:41 AM 13

MR. HAMEL: OBJECTION, YOUR HONOR, FOUNDATION.

11:41 AM 14 THIS WITNESS HAS NO FOUNDATION THAT HE KNOWS WHAT ALL

11:41 AM 15 MANAGERS AND SECRETARIES HAD OR HAD NOT.

11:41 AM 16

THE WITNESS: SIR, THEY GO THROUGH THE FRONT

11:41 AM 17 DOOR.

11:41 AM 18

THE COURT: IILL GIVE IT SUCH WEIGHT AND

11:41 AM 19 CONSIDERATION, IF ANY, I THINK IT DESERVES.

11:41 AM 20 BY MR. GARRIGAN:

11:42 AM 21 Q.

WERE YOU IN A POSITION TO OBSERVE WHETHER THE WHITE

11:42 AM 22
11:42 AM 23 11:42 AM 24

COLLEAGUES HAD ACCESS TO THE CORPORATE OFFICE? A. YES, SIR. I SAW THEM TAKE THEIR KEY AND COME IN. Q. ALL RIGHT. WERE YOU EVER RESTRICTED FROM GETTING

11:42 AM 25 THE KEY FROM THE GATE GUARD?

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11:42 AM 1 A.

YES, SIR. I WENT TO WORK ONE SATURDAY TO DO SOME

11:42 AM 2 WORK IN THE OFFICE. THE GATE GUARD INFORMED ME THAT HE

11:42 AM 3 WAS TOLD TO NO LONGER GIVE ME THE KEY TO GO INTO THE

11:42 AM 4 CORPORATE OFFICE.

11:42 AM 5 Q.

DID YOU ASK FOR AN EXPLANATION?

11:42 AM 6 A.

YES, SIR.

11:42 AM 7

MR. HAMEL: OBJECTION, YOUR HONOR, HEARSAY. WE

11:42 AM 8 DON'T EVEN KNOW WHO THIS GATE GUARD IS, BUT HE'S CERTAINLY

11:42 AM 9 11:42 AM 10

NOT HERE TO TESTIFY ABOUT WHAT MR. MCCLAIN SAYS HE WAS TOLD.

11:42 AM 11

MR. GARRIGAN: SO FAR I ONLY ASKED IF HE ASKED

11:42 AM 12 11:42 AM 13

FOR AN EXPLANATION. MR. HAMEL: WELL, YOUR HONOR, CLEARLY THE

11:42 AM 14 PURPOSE OF THE TESTIMONY IS FOR THE FACT THAT MR. MCCLAIN

11:42 AM 15 DIDN'T GET A KEY.

11:42 AM 16

THE COURT: I UNDERSTAND THAT. SUSTAINED.

11:42 AM 17 BY MR. GARRIGAN:

11:43 AM 18 Q.

WHO DID YOU ASK FOR AN EXPLANATION?

11:43 AM 19 A.

I ASKED THE GATE GUARD. AND I COMPLAINED IN WRITING

11:43 AM 20 THAT I DIDN'T GET A KEY TO BOTH MR. PEREZ AND TO MR.

11:43 AM 21 SMITH.

11:43 AM 22 Q. 11:43 AM 23 A.

DID YOU EVER GET AN EXPLANATION? NO, I DID NOT. WELL, I GOT ONE INDIRECT

11:43 AM 24 EXPLANATION. MY SUPERVISOR, ART JENKINS, TOLD ME THAT

11:43 AM 25 THERE HAD HAD BEEN SOME THEFT IN THE OFFICE SEVERAL YEARS

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11:43 AM 1 AGO, I DON IT KNOW WHEN, AND THAT FOR THAT REASON THEY

11:43 AM 2 WANTED TO LIMIT ACCESS TO THE OFFICE.

11:43 AM 3

MY QUESTION WAS, "WHY AM I, THE BLACK MANAGER,

11:43 AM 4 THE ONLY ONE WHO I S BEING RESTRICTED? ARE YOU SUSPECTING

11:43 AM 5 ME?"

11:43 AM 6

AND THEN EARL DOVER MADE A STATEMENT THAT

11:43 AM 7 MANAGEMENT HAD TO DECIDE, WHICH I FELT LIKE WAS AN ATTACK

11:43 AM 8 ON MY INTEGRITY, IF I AS A BLACK MANAGER WAS TRUSTWORTHY

11:44 AM 9
11:44 AM 10

ENOUGH TO GO INTO THE OFFICE WHERE I HAD BUSINESS TO DO.

Q.

NOW, THE MEN THAT YOU GOT THESE EXPLANATIONS FROM

11:44 AM 11 11:44 AM 12 11:44 AM 13

WERE WHITE SUPERVISORS, IS THAT CORRECT?

A.

YES.

Q.

NOW, MR. HAMEL MADE MENTION OF TESTING IN HIS

11:44 AM 14 OPENING STATEMENT. DO THEY USE ANY TESTING IN THE TRAILER

11:44 AM 15 DIVISION?

11:44 AM 16 A.

THEY HAVE USED SOME.

11 : 44 AM 17 Q •

ALL RIGHT. HAVE THEY USED TESTING FOR A POSITION

11:44 AM 18 KNOWN AS TRAILER BODY BUILDER "A"?

11:44 AM 19 A.

ONLY RECENTLY, AND I MEAN ONLY IN THE LAST SEVERAL

11:44 AM 20 YEARS. TESTS WERE NOT ORIGINALLY USED, BUT THEY HAVE USED

11:44 AM 21 SOME TESTING. IN FACT, THERE WAS A GRIEVANCE FILED

11:44 AM 22
11:44 AM 23 11:45 AM 24 11:45 AM 25

BECAUSE SOME PEOPLE TOOK THE TEST AND DIDN IT PASS IT AND

WERE DENIED POSITIONS THAT THEY HAD PREVIOUSLY HELD.

Q.

SO PEOPLE WHO HAD BEEN ALREADY PERFORMING

TRAILER BODY BUILDER "A" WORK WOULD HAVE TO TAKE THE TEST?

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11:45 AM 1 A.

YES.

11:45 AM 2 Q.

AND SOME OF THEM DIDN'T PASS IT?

11:45 AM 3 A.

YES.

11:45 AM 4 Q.

HAD THESE PEOPLE BEEN PERFORMING TRAILER BODY

11:45 AM 5 BUILDER "A" WORK SUCCESSFULLY?

11:45 AM 6 A.

YES, THEY HAD.

11:45 AM 7 Q.

DID THEY GET GOOD EVALUATIONS?

11:45 AM 8 A.

YES, SIR.

11:45 AM 9 Q.

AND THEN THEY COULDN'T PASS THIS TEST?

11:45 AM 10 A.

YES, SIR, AND THEY COMPLAINED TO ME ABOUT THAT.

11:45 AM 11 Q.

WAS THAT TEST IN ANY WAY RELATED TO THE JOB OF BEING

11:45 AM 12 A TRAILER BODY BUILDER "A"?

11 : 45 AM 13 A •

NO, SIR, BECAUSE

11:45 AM 14

MR. HAMEL: OBJECTION, YOUR HONOR, NO FOUNDATION

11:45 AM 15 THAT HE'S EVEN DONE THE TEST.

11:45 AM 16

THE COURT: DID YOU READ THE TEST?

11:45 AM 17

THE WITNESS: NO, SIR.

11:45 AM 18

THE COURT: DID YOU HAVE ANY IN INPUT AS TO WHAT

11:46 AM 19 THE TEST WAS?

11:46 AM 20

THE WITNESS: NO, SIR, I WAS JUST TOLD BY

11:46 AM 21 WORKERS WHO HAD TO TAKE THE TEST AS TO WHAT THE TEST

11:46 AM 22
11:46 AM 23 11:46 AM 24 11:46 AM 25

CONSISTED OF. THE COURT: YOU'VE NEVER SEEN THE TEST? THE WITNESS: NO, SIR. THE COURT: I'LL SUSTAIN IT.

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11:46 AM 1

MR. GARRIGAN: YOUR HONOR, I PASS THE WITNESS.

11:46 AM 2

MR. HAMEL: MAY I PROCEED, YOUR HONOR?

11:46 AM 3

THE COURT: YES, SIR.

11:46 AM 4

CROSS-EXAMINATION

11:46 AM 5 BY MR. HAMEL:

11:46 AM 6 Q.

MR. MCCLAIN

11:46 AM 7 A.

YES, SIR.

11:46 AM 8 Q.

LET ME LET YOU GET YOUR WATER, SIR. I DON'T WANT TO

11:46 AM 9 11:46 AM 10 11:46 AM 11

INTERRUPT. A. OKAY. Q. IT'S MY UNDERSTANDING THAT, ACCORDING TO YOUR

11:46 AM 12 TESTIMONY, YOU'VE WORKED IN THE TRAILER DIVISION

11:47 AM 13 CONTINUOUSLY SINCE 1972, IS THAT RIGHT?

11:47 AM 14 A.

THAT'S CORRECT, SIR.

11:47 AM 15 Q.

OKAY. AND YOU HAVE NOT IN FACT WORKED AT ANY

11:47 AM 16 DIVISION OTHER THAN TRAILER SINCE 1972, HAVE YOU?

11:47 AM 17 A.

NO, SIR.

11:47 AM 18 Q.

YOU HAVE BEEN INVOLVED IN SOME INTERNAL AUDITS AT

11:47 AM 19 OTHER DIVISIONS, RIGHT?

11:47 AM 20 A.

YES, SIR.

11:47 AM 21 Q.

AND THE WORK AS AN INTERNAL AUDITOR IS THE EXTENT OF

11:47 AM 22 YOUR FAMILIARITY WITH THOSE DIVISIONS, ISN'T THAT CORRECT?

11:47 AM 23 A.

NO, SIR, OTHER THAN I ALSO HAD TO MAKE VISITS FOR

11:47 AM 24 GETTING TOOLS CALIBRATED.

11:47 AM 25 Q.

OKAY. AND WHAT VISITS WOULD YOU --

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11:47 AM 1

WHERE WOULD YOU GO TO GET THE TOOLS CALIBRATED?

11:47 AM 2 A.

I BELIEVE THIS WAS -- IT'S PART OF OILFIELD, BUT IT

11:47 AM 3 WAS THE MACHINE PART OF THE OILFIELD DIVISION.

11:47 AM 4 Q. AND YOU WOULD HAVE A TOOL THAT YOU NEEDED TO HAVE

11:47 AM 5 CALIBRATED AND YOU WOULD TAKE IT TO HAVE IT CALIBRATED AND

11:47 AM 6 THEN YOU WOULD BRING IT BACK?

11:47 AM 7 A.

YES.

11:47 AM 8 Q. ALL RIGHT. WITH RESPECT TO YOUR TIME AS AN INTERNAL

11:47 AM 9 11:47 AM 10 11:48 AM 11

AUDITOR, AM I CORRECT THAT THE BEST ESTIMATE YOU HAD WAS THAT THE LAST AUDIT YOU DID WAS IN THE EARLY 1990s? A. I MAY HAVE SAID THAT. I DON'T EXACTLY REMEMBER.

11: 48 AM 12 11:48 AM 13 11:48 AM 14

BUT THAT PROBABLY IS ACCURATE. Q. AND AM I CORRECT THAT YOU CONDUCTED AUDITS ON FIVE OR SIX OCCASIONS ON THE -- DURING THE ALMOST TWENTY OR

11:48 AM 15 THIRTY YEARS THAT YOU HAVE BEEN EMPLOYED AT LUFKIN

11:48 AM 16 INDUSTRIES?

11:48 AM 17 A.

I THINK IT WOULD HAVE BEEN MORE THAN THAT, BUT

11:48 AM 18 PROBABLY EIGHT TO TEN.

11:48 AM 19 Q.

OKAY. AND THAT THE AUDIT PROCESS THAT WE'RE TALKING

11:48 AM 20 ABOUT TAKES FROM HALF A DAY TO ALL DAY, ISN'T THAT RIGHT?

11:48 AM 21 A.

NORMALLY IT TAKES ANYWHERE FROM A DAY TO A DAY AND A

11:48 AM 22 HALF.

11: 48 AM 23 Q .

OJKAY. SO LET'S ASSUME IT'S TEN AUDITS, AND LET'S

11:48 AM 24 ASSUME IT'S A DAY AND HALF. THAT'S FIFTEEN DAYS OF AUDIT

11:48 AM 25 EXPERIENCE IN THIRTY YEARS AT LUFKIN, CORRECT?

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11:48 AM 1 A.

INCLUDING FOLLOW-UPS. THERE WOULD BE AN ORIGINAL

11:48 AM 2 AUDIT, THERE WOULD BE A FOLLOW-UP. THERE WOULD BE A

11:49 AM 3 REPORT SUBMITTED AS TO THE PROBLEMS WE FOUND. THERE WOULD

11:49 AM 4 BE A REPORT SUBMITTED AS TO THE SOLUTIONS TO THE PROBLEMS

11:49 AM 5 WE FOUND. WE WOULD DO A FOLLOW-UP AUDIT.

11:49 AM 6 Q.

ALL RIGHT. THAT, PLUS YOUR TAKING EQUIPMENT TO BE

11:49 AM 7 CALIBRATED

11:49 AM 8 A.

YES.

11:49 AM 9 11:49 AM 10

Q.

-- IS YOUR EXPERIENCE WITH THE OTHER DIVISIONS AT

LUFKIN INDUSTRIES, POWER TRANSMISSION, OILFIELD AND

11:49 AM 11 FOUNDRY, CORRECT?

11:49 AM 12 A.

NO, SIR. NO, SIR. I ALSO VISITED WITH QUALITY

11:49 AM 13 PERSONNEL, SPECIFICALLY QUALITY MANAGERS. WE

11:49 AM 14 STRATEGICALLY DISCUSSED WAYS TO TRACK AND TO FIND

11:49 AM 15 SOLUTIONS AND TO IMPLEMENT SOLUTIONS.

11:49 AM 16

WE WERE ON THIS COMMITTEE OF AUDITORS, AND WE

11:49 AM 17 WOULD GO OVER THE DOCUMENTATION AND WE WOULD TRY TO FIGURE

11:49 AM 18 OUT WHAT WAS THE BEST SOLUTION TO PARTICULAR PROBLEMS THAT

11:49 AM 19
11:49 AM 20

WERE, SAY, IN COMMON WITH THE VARIOUS DIVISIONS.

Q.

AND SO AS A BLACK MANAGER, AS YOU HAVE PUT IT IN

11:49 AM 21 YOUR OTHER TESTIMONY, YOU HAD OCCASIONS WHEN YOU AND ALL

11:49 AM 22 THE OTHER QUALITY ASSURANCE MANAGERS WOULD GET TOGETHER

11: 50 AM 23 AND YOU WOULD WORK THROUGH COMMON PROBLEMS WITH RESPECT TO

11: 50 AM 24 11:50 AM 25

QUALITY ASSURANCE, CORRECT?

A.

WE WOULD WORK THROUGH THE PROBLEMS THAT WE FOUND AND

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11:50 AM 1 THE SOLUTIONS IN THAT DIVISION THAT THEY APPLIED TO THOSE

11: 50 AM 2 PROBLEMS, AND WE WOULD TRY TO SEE IF THAT WAS THE BEST

11: 50 AM 3 SOLUTION, YES, SIR.

11: 50 AM 4 Q. AND THOSE QUALITY MANAGERS WHO WERE WHITE BROUGHT

11: 50 AM 5 YOU INTO THAT GROUP AND WORKED PRODUCTIVELY WITH YOU, IS

11:50 AM 6 THAT CORRECT?

11: 50 AM 7 A.

NO, SIR. WHEN YOU SAY BROUGHT ME IN, THAT WAS MY

11: 50 AM 8 RESPONSIBILITY AS A QUALITY MANAGER AND AN AUDITOR TO DO

11: 50 AM 9 THIS.

11:50 AM 10 Q.

OKAY. WITH RESPECT TO YOUR DOING WORK AS A QUALITY

11: 50 AM 11 MANAGER, YOU WORKED WITH THESE OTHER QUALITY MANAGERS IN

11: 50 AM 12 PERFORMING THAT FUNCTION AND LEARNING WHAT NEEDED TO BE

11: 50 AM 13 LEARNED IN TERMS OF THE COMPANY'S PROCESSES AND WHETHER

11:50 AM 14 THEY WERE PROPERLY QUALITY ORIENTED, ISN'T THAT RIGHT?

11: 50 AM 15 A.

WE DIDN'T LOOK AT ALL THE PROCESSES, WE LOOKED AT

11: 50 AM 16 SPECIFIC PROCESSES.

11: 50 AM 17

AND, YES, WE DID WORK TOGETHER TO DO THE AUDITS

11: 50 AM 18 AND TO EXAMINE THE SOLUTIONS AND TO SEE IF THE SOLUTIONS

11: 51 AM 19
11:51 AM 20

WERE WORKING. Q. OKAY. AND YOUR DISCHARGE OF THESE RESPONSIBILITIES

11:51 AM 21 WAS AUTHORIZED BY THE TRAILER PLANT MANAGEMENT, WASN'T IT?

11:51 AM 22 A.

I'M ASSUMING THAT IT WAS APPROVED BY THE TRAILER

11: 51 AM 23 11:51 AM 24

PLANT MANAGEMENT. Q. NOBODY SAID THAT THEY DIDN'T WANT YOU TO BE DOING

11:51 AM 25 THAT, DID THEY?

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11: 51 AM 1 A.

NO. I WAS TRAINED TO DO IT.

11:51 AM 2 Q.

OKAY. AND YOU WERE TRAINED BY LUFKIN INDUSTRIES TO

11: 51 AM 3 DO IT, WEREN'T YOU?

11:51 AM 4 A.

YES, SIR, I WAS.

11: 51 AM 5 Q.

EVEN THOUGH -- YOU KNOW, WITH RESPECT TO SOME

11:51 AM 6 TRAINING, YOU WERE TRAINED TO DO THIS INTERNAL AUDIT

11: 51 AM 7 FUNCTION BY LUFKIN INDUSTRIES, RIGHT?

11:51 AM 8 A.

YES, SIR.

11:51 AM 9 Q. ALL RIGHT. LET ME TAKE YOU BACK, MR. MCCLAIN, AND

11: 51 AM 10 I'M ONLY GOING TO DO IT BRIEFLY, BUT I WANT TO TAKE YOU

11: 51 AM 11 BACK TO 1969, WHICH WAS SOME OF YOUR TESTIMONY WITH MR.

11: 51 AM 12 GARRIGAN. THAT'S THE FIRST TIME YOU WENT TO WORK FOR

11:51 AM 13 LUFKIN INDUSTRIES, ISN'T THAT RIGHT?

11:51 AM 14 A.

YES, SIR.

11:51 AM 15 Q.

AND YOU TESTIFIED HERE TODAY THAT LUFKIN INDUSTRIES

11: 51 AM 16 WAS THE FIRST JOB THAT YOU HAD OUT OF THE NAVY, CORRECT?

11:51 AM 17 A.

WELL, IT WAS ONE OF THE FIRST.

11:51 AM 18 Q.

IN FACT, WASN'T IT THE CASE THAT THE FIRST JOB YOU

11:52 AM 19 HAD WHEN YOU CAME BACK FROM THE NAVY IS THAT YOU WORKED

11: 52 AM 20 FOR THE TEXAS FOUNDRY IN LUFKIN?

11:52 AM 21 A.

WELL, I KNOW WHEN I GOT OUT OUT I WORKED FOR LUFKIN

11: 52 AM 22 INDUSTRIES AND I WORKED FOR TEXAS FOUNDRY. WHICH ONE WAS

11:52 AM 23 FIRST I REALLY DON'T -- I CAN'T SPECIFICALLY SAY. BUT I

11: 52 AM 24 DID WORK FOR BOTH OF THEM.

11:52 AM 25

MR. HAMEL: MAY I APPROACH THE WITNESS, JUDGE?

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11: 52 AM 1

THE COURT: YES.

11:52 AM 2 BY MR. HAMEL:

11: 52 AM 3 Q.

MR. MCCLAIN, I'M HANDING YOU DEFENDANT'S EXHIBIT

11: 52 AM 4 120, WHICH WAS THE DEPOSITION THAT YOU GAVE IN THIS CASE

11: 52 AM 5 IN JULY OF 19 -- OR 2003.

11: 52 AM 6 A.

OKAY.

11:52 AM 7 Q.

DO YOU RECALL THAT DEPOSITION, SIR?

11: 52 AM 8 A.

YES, SIR, I DO.

11: 52 AM 9 Q. OKAY. DO YOU RECALL TESTIFYING IN THAT DEPOSITION

11: 52 AM 10 THAT THE FIRST JOB YOU HAD WAS WITH THE TEXAS FOUNDRY?

11: 53 AM 11 A.

WELL, I MAY HAVE, BUT I KNOW THAT I WORKED FOR BOTH.

11: 53 AM 12 Q.

SO IT IS -- AT LEAST YOUR RECOLLECTION IN JULY WAS

11: 53 AM 13 THAT YOU HAD -- WHEN YOU APPLIED TO LUFKIN INDUSTRIES, YOU

11: 53 AM 14 HAD FOUNDRY EXPERIENCE, ISN'T THAT RIGHT?

11:53 AM 15 A.

IF IT WAS JULY OF '69, NO, SIR, I DID NOT, BECAUSE

11: 53 AM 16 THAT WAS THE FIRST JOB . JULY OF '69, WHETHER IT WAS AT

11: 53 AM 17 LUFKIN INDUSTRIES OR TEXAS FOUNDRY, IS THE FIRST JOB I HAD

11: 53 AM 18 WHEN I CAME OUT OF THE NAVY.

11: 53 AM 19 Q.

ALL RIGHT, SIR. IF YOU WOULD LOOK AT PAGE 11 OF

11: 53 AM 20 YOUR DEPOSITION. DO YOU SEE PAGE 11, SIR?

11:53 AM 21 A.

NOT YET. HANG ON JUST A MINUTE. OKAY. YES, I DO.

11:53 AM 22 Q.

YOU DO?

11:53 AM 23 A.

YES, SIR.

11: 53 AM 24 Q.

WAS IT YOUR TESTIMONY AT THAT TIME IN RESPONSE TO

11:53 AM 25

WAS YOUR TESTIMONY AS FOLLOWS: QUESTION:

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11:53 AM 1 "AFTER YOUR SERVICE IN THE NAVY, YOU RETURNED TO ANGELINA

11: 53 AM 2 COUNTY?"

11: 54 AM 3

ANSWER: "YES."

11: 54 AM 4

QUESTION: "DID YOU GO IMMEDIATELY TO WORK FOR

11: 54 AM 5 LUFKIN?"

11: 54 AM 6

ANSWER: "NO. THE FIRST JOB WAS WITH TEXAS

11: 54 AM 7 FOUNDRY, AND I BELIEVE I HIRED IN APPROXIMATELY JULY,

11: 54 AM 8 BECAUSE I HADN'T BEEN OUT THAT LONG."

11:54 AM 9

WAS THAT YOUR TESTIMONY AT THAT TIME?

11:54 AM 10 A.

IS THAT ON PAGE II?

11:54 AM 11 Q.

YES, SIR.

11: 54 AM 12 A .

I REMEMBER THE TESTIMONY, BUT I DON'T SEE IT ON

11: 54 AM 13 HERE.

11: 54 AM 14

MR. HAMEL: MAY I APPROACH, YOUR HONOR?

11: 54 AM 15

THE WITNESS: THAT'S PAGE II?

11:54 AM 16 BY MR. HAMEL:

11:54 AM 17 Q.

I'M SORRY. I SEE THE CONFUSION. THE PAGES OF THE

11: 54 AM 18 DEPOSITION--

11:54 AM 19 A.

OKAY.

11:54 AM 20 Q.

DO YOU SEE THE TESTIMONY?

11:54 AM 21 A.

YES, I DO.

11: 54 AM 22 Q.

SO, MR. MCCLAIN, AT LEAST AS TO YOUR RECOLLECTION IN

11: 54 AM 23 JULY OF 2003 WHEN YOU GAVE YOUR DEPOSITION, YOU HAD

11: 54 AM 24 FOUNDRY EXPERIENCE AT THE TIME YOU APPLIED TO LUFKIN

11:54 AM 25 INDUSTRIES?

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11:54 AM 1 A.

YES, SIR.

11: 54 AM 2 Q.

AND NOTWITHSTANDING THE FACT THAT YOU HAD FOUNDRY

11: 54 AM 3 ' EXPERIENCE, YOU APPLIED AS A HELPER AND YOU WERE HIRED AS

11: 54 AM 4 A HELPER, WEREN'T YOU?

11:55 AM 5 A.

NO, SIR, I DID NOT APPLY AS A HELPER. I APPLIED FOR

11:55 AM 6 WORK. THEY HIRED ME AS A HELPER.

11: 55 AM 7 Q. MR. MCCLAIN, HAVE YOU EVER PREVIOUSLY TESTIFIED TO

11:55 AM 8 THE QUESTION "YOU APPLIED FOR A HELPER AND YOU WERE HIRED

11:55 AM 9 AS A HELPER?"

11: 55 AM 10

ANSWER: "RIGHT. THAT IS THE -- AND THAT IS THE

11: 55 AM 11 ONLY POSITION. AT THE TIME THEY WILL HIRE YOU IN AS A

11: 55 AM 12 HELPER. THAT WAS THE ENTRY-LEVEL POSITION. THAT'S WHAT

11:55 AM 13 THE AD SAID, 'WE NEED HELPERS,' SO THAT'S WHAT I APPLIED

11: 55 AM 14 FOR. I APPLIED, AND THEN LUFKIN ASSIGNED ME TO THE HEAVY

11: 55 AM 15 WELDMENT. "

11:55 AM 16 A.

I APPLIED FOR WORK, SIR. IF THEY WERE HIRING

11: 55 AM 17 HELPERS, THAT'S WHAT THEY WERE HIRING, BUT I APPLIED FOR

11:55 AM 18 WORK. I DIDN'T APPLY AS A WELDER, I DIDN'T APPLY AS A

11:55 AM 19 TRAILER BODY BUILDER, I APPLIED FOR WORK.

11: 55 AM 20 Q.

AM I CORRECT THAT YOUR PRIOR TESTIMONY WAS THAT YOU

11: 55 AM 21 ANSWERED AN AD AND APPLIED FOR A HELPER?

11:55 AM 22 A.

I MAY HAVE SAID I SAW AN AD. THEY WERE HIRING, THEY

11: 55 AM 23 WERE NEEDING HELPERS, AND I APPLIED FOR WORK AND I GOT

11: 55 AM 24 HIRED.

11:55 AM 25 Q.

ALL RIGHT. THAT'S AT PAGE 13, LINE 15 THROUGH LINE

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11: 56 AM 1 21, IS IT NOT?

11:56 AM 2 A.

PAGE WHAT NOW?

11: 56 AM 3 Q.

13 OF YOUR DEPOSITION, LINE 15 THROUGH LINE 21.

11:56 AM 4 A.

YES.

11: 56 AM 5 Q.

NOW, NOTWITHSTANDING THE FACT THAT YOU HAD PRIOR

11: 56 AM 6 FOUNDRY EXPERIENCE, WHEN YOU WENT TO GET A JOB IN 1969

11: 56 AM 7 WITH LUFKIN INDUSTRIES, THEY DIDN'T PUT YOU IN THE

11: 56 AM 8 FOUNDRY, THEY PUT YOU IN AS A HELPER IN THE HEAVY WELDMENT

11:56 AM 9 DIVISION, ISN'T THAT RIGHT?

11: 56 AM 10 A.

YES.

11: 56 AM 11 Q. AND AM I CORRECT ALSO THAT YOUR FAMILY HAS FOUNDRY

11: 56 AM 12 EXPERIENCE?

11: 56 AM 13 A.

WHAT DO YOU MEAN, SIR?

11:56 AM 14 Q.

WELL, ISN'T IT IN FACT THE CASE THAT YOUR OLDER

11: 56 AM 15 BROTHER WORKED FOR TXAS FOUNDRY?

11:56 AM 16 A.

YES, SIR, PART-TIME AS A COLLEGE STUDENT.

11: 56 AM 17 Q.

ALL RIGHT. IS IT ALSO THE CASE THAT YOUR FATHER

11: 56 AM 18 WORKED FOR TEXAS FOUNDRY?

11: 56 AM 19 A.

YES, SIR.

11:56 AM 20 Q.

NOW, YOU CAME BACK TO LUFKIN AFTER A -- YOU LEFT

11: 56 AM 21 LUFKIN, AM I CORRECT IN THAT?

11:56 AM 22 A.

YES.

11:56 AM 23 Q.

OKAY.

11:56 AM 24 A.

I BELIEVE THAT'S CORRECT.

11:56 AM 25 Q.

AND THEN YOU CAME BACK TO LUFKIN ABOUT FIFTEEN

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11:56 AM 1 MONTHS LATER, AND YOU WENT TO WORK FOR A HOSPITAL, DIDN'T

11: 56 AM 2 YOU?

11: 57 AM 3 A.

NO, I WORKED FOR A HOSPITAL BEFORE -- WHENEVER I

11: 57 AM 4 CAME BACK TO LUFKIN.

11: 57 AM 5 Q.

YES, SIR.

11: 57 AM 6 A.

YES.

11: 57 AM 7 Q.

YOU LEFT LUFKIN AND YOU WENT TO WORK FOR A HOSPITAL,

11: 57 AM 8 RIGHT?

11: 57 AM 9 A.

YES. YES, SIR.

11:57 AM 10 Q.

OKAY. NOW, WHEN YOU WENT TO WORK FOR A HOSPITAL,

11: 57 AM 11 THAT WAS CONSISTENT WITH YOUR MEDICAL CORPSMAN TRAINING,

11: 57 AM 12 WASN'T IT?

11:57 AM 13 A.

YES, SIR, IT WAS.

11: 57 AM 14 Q.

ALL RIGHT. SO YOU LEFT BEING A HELPER, WHICH I

11:57 AM 15 BELIEVE YOU TESTIFIED TO MR. GARRIGAN CONSISTED OF

11: 57 AM 16 SWEEPING UP AND DOING THOSE SORT OF MENIAL TASKS, RIGHT?

11:57 AM 17 A.

YES.

11: 57 AM 18 Q.

AND YOU WENT TO WORK AT A HOSPITAL THAT WAS

11:57 AM 19 APPROPRIATE TO YOUR TRAINING IN THE NAVY?

11:57 AM 20 A.

YES, SIR.

11: 57 AM 21 Q.

ALL RIGHT. YOU DIDN'T STAY AT THAT JOB THOUGH, DID

11: 57 AM 22 YOU?

11:57 AM 23 A.

NO, SIR, I DID NOT.

11:57 AM 24 Q.

YOU CAME BACK TO ANGELINA COUNTY, RIGHT?

11:57 AM 25 A.

YES, SIR.

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11:57 AM 1 Q.

AND THE PLACE YOU APPLIED IN ANGELINA COUNTY WAS

11: 57 AM 2 LUFKIN INDUSTRIES, IS THAT RIGHT?

11:57 AM 3 A.

YES, SIR.

11:57 AM 4 Q.

NOW, WHEN YOU CAME BACK TO LUFKIN IN 1972, YOU WERE

11: 57 AM 5 HIRED AS A HELPER AGAIN, WERE YOU NOT?

11: 57 AM 6 A.

YES, SIR.

11:57 AM 7 Q. AND THEN YOU WERE PROMOTED TO A CLASS "c" WELDER,

11: 57 AM 8 WEREN'T YOU?

11:58 AM 9 A. 11: 58 AM 10 Q.

YOU'RE TALKING ABOUT 19727 YES, SIR.

11: 58 AM 11 A.

NO, SIR, THAT WAS IN HEAVY WELDMENT. THAT WAS IN

11:58 AM 12 '69. YOU HAVE YOUR DATES CONFUSED, SIR.

11:58 AM 13 Q.

I'M SORRY. THAT'S RIGHT. YOU WERE PROMOTED TO A

11: 58 AM 14 CLASS "c" WELDER IN 1969?

11:58 AM 15 A.

NO, SIR, I WAS ASSIGNED, I WASN'T PROMOTED. IT

11: 58 AM 16 WASN'T A PROMOTION. I WAS TOLD THEY NEEDED CLASS "c"

11:58 AM 17 TACKERS AND I WAS ASSIGNED TO DO IT.

11: 58 AM 18 Q.

WELL, SIR, IF YOU WILL LOOK AT PAGE 40 OF YOUR

11: 58 AM 19 DEPOSITION, LINE 12. MR. MCCLAIN, HAVE YOU PREVIOUSLY

11: 58 AM 20 11: 58 AM 21 11: 59 AM 22

TESTIFIED TO THE QUESTION: "SO YOU HIRED IN AS A HELPER
AND YOU WERE PROMOTED TO CLASS "c" WELDER?" ANSWER: "YES. CLASS "c" IS A TRAINEE, THAT'S

11:59 AM 23 WHAT IT WAS, WELDER TRAINEE. I HADN'T HAD ANY WELDING

11:59 AM 24 EXPERIENCE PRIOR TO THIS. THEY WERE TRAINING ME TO BE A

11:59 AM 25 WELDER."

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11: 59 AM 1

WAS THAT YOUR TESTIMONY, SIR?

11:59 AM 2 A.

YES.

11: 59 AM 3 11: 59 AM 4

Q.

SO IN 1969, WHEN YOU HAD FOUNDRY EXPERIENCE, YOU

CAME IN, THEY HIRED YOU AS A HELPER, AND THEN THEY

11: 59 AM 5 PROMOTED YOU TO CLASS "c" WELDER TO GIVE YOU WELDING

11:59 AM 6 11:59 AM 7

EXPERIENCE, ISN'T THAT RIGHT?

A.

AGAIN, SIR, THEY ASSIGNED ME.

I DID NOT BID ON THAT

11: 59 AM 8 JOB, I DID NOT ASK FOR THAT JOB.

11:59 AM 9 Q.

ALL RIGHT.

11:59 AM 10 A.

I WAS TOLD THAT "WE NEED A CLASS "c" TACKER, AND

11:59 AM 11 THAT'S WHAT WE NEED YOU TO DO."

11: 59 AM 12 Q.

ALL RIGHT. AND IT IS CORRECT, IS IT NOT, THAT YOU

11: 59 AM 13 WERE OFFERED TRAINING AS A WELDER IN THAT POSITION?

11:59 AM 14 A.

NO, SIR. BASICALLY THEY GIVE YOU A STICK AND THEY

11: 59 AM 15 SHOW YOU HOW TO TACK, AND THAT'S BASICALLY WHAT YOU'RE

11: 59 AM 16 DOING, YOU'RE TACK WELDING. NO FORMAL TRAINING. THEY

11: 59 AM 17 SHOW YOU HOW TO TAKE A STICK AND DO A TACK WELD. I REALLY

11:59 AM 18 DON'T CONSIDER THAT TRAINING. BUT IF THAT'S TRAINING,

11: 59 AM 19 THAT'S TRAINING.

11:59 AM 20 Q.

WELL, MR. MCCLAIN, DIDN'T YOU PREVIOUSLY TESTIFY AT

12 :00 PM 21 12:00 PM 22

PAGE 40, LINE 17, "THEY WERE TRAINING ME AS A WELDER"?

A.

I SAID I WAS A CLASS "c" TRAINEE. A TRAINEE IS

12:00 PM 23 WHEN A CLASS "c" WELDER MOVES UP, THAT MEANS HE WORKS

12:00 PM 24 WITH A CLASS "B" WELDER OR A CLASS "A" WELDER AND HE

12:00 PM 25 LEARNS HOW TO WELD, NOT TACK WELD. THERE'S A DIFFERENCE

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12:00 PM 1 BETWEEN TACK WELDING AND WELDING.

12:00 PM 2 Q. MR. MCCLAIN, LET ME SIMPLY ASK YOU TO LOOK AT YOUR

12:00 PM 3 DEPOSITION TESTIMONY AND TELL ME IF I'M CORRECTLY READING

12:00 PM 4 YOUR PRIOR TESTIMONY UNDER OATH.

12:00 PM 5 A.

OKAY.

12:00 PM 6 Q.

REFERRING TO YOUR DEPOSITION AT PAGE 40, LINE 12.

12:00 PM 7 A.

OKAY.

12 :00 PM 8 Q.

MY QUESTION TO YOU: "SO YOU HIRED IN AS A HELPER

12:00 PM 9 AND YOU WERE PROMOTED TO WELDER, CLASS "C"?"

12:00 PM 10

ANSWER: "YEAH. CLASS "c" IS A TRAINEE. THAT'S

12:00 PM 11 WHAT IT WAS, WELDER TRAINEE. I HADN'T HAD ANY WELDING

12:00 PM 12 EXPERIENCE PRIOR TO THIS. THEY WERE TRAINING ME AS A

12:00 PM 13 WELDER."

12:00 PM 14

THAT WAS YOUR TESTIMONY, WAS IT NOT?

12 : 00 PM 15 A .

YES, SIR.

12 : 00 PM 16 Q • THANK YOU. AND AFTER --

12:01 PM 17

THEY TAUGHT YOU HOW TO STICK AND TACK WELD,

12:01 PM 18 DIDN'T THEY?

12:01 PM 19 A.
12:01 PM 20 Q.

THEY TAUGHT ME HOW TO TACK WELD WITH A STICK, SIR. THEY TAUGHT YOU HOW TO TACK WELD WITH A STICK? SO

12:01 PM 21 IT'S JUST ONE PROCESS?

12 : 01 PM 22 A .

YES, SIR. YOU PUT A STICK IN THE ELECTRODE AND YOU

12:01 PM 23 STRIKE AN ARC AND YOU PUT A SMALL TACK WELD.

12:01 PM 24 Q.

ALL RIGHT, SIR. NOW, AFTER LEARNING HOW TO WELD,

12:01 PM 25 YOU HAD THE POSSIBILITY OF MOVING UP TO CLASS "B" WELDER,

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12:01 PM 1 DID YOU NOT?

12:01 PM 2 A.

NO, SIR. YOU MEAN WAS THERE A REMOTE POSSIBILITY?

12:01 PM 3 I GUESS SO. I COULDN'T SAY THERE WASN'T.

12:01 PM 4 Q.

WELL, SIR, DO YOU RECALL THIS TESTIMONY AT PAGE 41,

12:01 PM 5 BEGINNING AT LINE 15: QUESTION: "BUT DO YOU RECALL GOING

12:01 PM 6 INTO THE WELDING TRAINEE CLASSIFICATION?"

12:02 PM 7

ANSWER: "YES. AND IF I REMEMBER, THEY JUST --

12:02 PM 8 I THINK THEY WOULD GO OUT AND RANDOMLY ASK YOU AS FAR AS I

12:02 PM 9 REMEMBER IF YOU WANTED TO BE A CLASS "C," WHICH ALL THEY

12 :02 PM 10 DID, THEY TAUGHT YOU HOW TO STICK TACK WELD. AND THEN, OF

12:02 PM 11 COURSE, AFTER YOU WORK FOR A WHILE, YOU LEARN HOW TO WELD,

12:02 PM 12 AND YOU MIGHT HAVE THE POSSIBILITY TO MOVE UP TO CLASS

12 :02 PM 13 "B. " BUT AS FAR AS I REMEMBER, THAT'S WHAT IT WAS, A

12:02 PM 14 CLASS "C."

12:02 PM 15 A.

I SAID THERE WAS A POSSIBILITY.

12:02 PM 16 Q.

OKAY.

12:02 PM 17 A.

I DIDN'T DISPUTE THAT.

12 :02 PM 18 Q.

NOW, THAT WAS TRAINING THAT YOU GOT IN YOUR FIRST

12:02 PM 19 STINT WITH LUFKIN INDUSTRIES IN 1969, BEFORE YOU LEFT TO

12:02 PM 20 GO TO WORK FOR THE HOSPITAL, RIGHT?

12: 02 PM 21 A.

YES, SIR.

12:02 PM 22 Q.

AND WHEN YOU CAME BACK TO LUFKIN INDUSTRIES IN 1972,

12:02 PM 23 YOU CAME BACK INTO THE TRAILER DIVISION AS A HELPER, DID

12:02 PM 24 YOU NOT?

12: 02 PM 2 5 A •

YES, SIR.

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12 :02 PM 1 Q.

ALL RIGHT. AND IN THE HELPER DIVISION YOU HAVE

12:02 PM 2 RECEIVED OTHER TRAINING, HAVE YOU NOT?

12 :02 PM 3 A.

YOU MEAN THE TRAILER DIVISION?

12 :02 PM 4 Q.

I'M SORRY. IN THE TRAILER DIVISION, YES.

12:03 PM 5 A. OH, EXCUSE ME. IF YOU'RE TALKING ABOUT BEING

12:03 PM 6 ASSIGNED TO THE PAINT HOUSE AND TO PAINT, I DON'T CONSIDER

12:03 PM 7 THAT TRAINING. THEY SHOWED ME HOW TO DO WHAT YOU CALL

12:03 PM 8 TACK PAINTING. THAT'S WHERE YOU PUT ON A FIRST COAT. I'M

12:03 PM 9 NOT SAYING THAT'S ALL, BUT THAT'S WHAT I WAS SHOWED.

12 :03 PM 10

I DIDN'T WANT TO BE THERE, I DIDN'T LIKE IT

12 :03 PM 11 THERE, AND I TRIED TO GET OUT OF THERE BY REPEATEDLY

12 :03 PM 12 SIGNING THE BID SHEETS.

12 :03 PM 13 Q. WELL, MR. MCCLAIN, ISN'T IT IN FACT THE CASE THAT

12:03 PM 14 THE REASON THAT THEY ASKED YOU TO GO TO THE PAINT HOUSE

12 :03 PM 15 WAS TO KEEP YOU FROM HAVING TO GO ON SECOND SHIFT OR --

12:03 PM 16 A.

NO, SIR, NOT --

12 :03 PM 17

MR. GARRIGAN: I OBJECT TO THE FORM AND

12 :03 PM 18 FOUNDATION. THERE'S NO WAY MR. MCCLAIN CAN KNOW WHY

12:04 PM 19 12:04 PM 20

SOMEBODY SENT HIM TO THE PAINT HOUSE. THE COURT: IT'S CROSS-EXAMINATION.

I'M GOING

12 :04 PM 21 TO PERMIT IT.

12:04 PM 22 BY MR. HAMEL:

12:04 PM 23 Q.

MR. MCCLAIN

12 : 04 PM 24 A .

WOULD YOU REPEAT YOUR QUESTION, PLEASE?

12 :04 PM 2 5 Q • YES. ISN'T IT IN FACT THE CASE, MR. MCCLAIN, THAT

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12:04 PM 1 THEY ASSIGNED YOU TO THE PAINT HOUSE TO KEEP YOU FROM

12:04 PM 2 HAVING TO GO ON SECOND SHIFT OR BE CUT BACK?

12:04 PM 3 A.

NOT AT THAT TIME, SIR. YOU'VE GOT YOUR DATES

12:04 PM 4 CONFUSED. THAT WAS -- I WAS HIRED IN AS A HELPER. I WAS

12:04 PM 5 ASSIGNED FROM THE MAIN BUILDING AND TOLD TO GO TO THE

12:04 PM 6 PAINT HOUSE. THAT IS NOT -- THE EPISODE YOU'RE TALKING

12:04 PM 7 ABOUT IS NOT IN THAT TIME FRAME.

12:04 PM 8 Q.

WELL, THERE IS AT ONE TIME THAT YOU WENT TO THE

12:04 PM 9 PAINT HOUSE AND WERE TAUGHT HOW TO PAINT WHEN THEY PUT YOU

12 :04 PM 10 THERE TO AVOID YOU HAVING TO GO ON SECOND SHIFT, WHICH YOU

12:04 PM 11 DIDN'T WANT TO DO, OR TO BE LAID OFF?

12:04 PM 12 A.

NO, SIR. I WAS A CLASS "A" TRAILER BODY BUILDER AND

12 :04 PM 13 I WAS IN THE MAIN BUILDING, AND I PAINTED IN THE -- I

12 :04 PM 14 EITHER HAD TO PAINT OR GO ON THE NIGHT SHIFT, OR POSSIBLY

12 :05 PM 15 BE CUT BACK. THOSE WERE NOT THE SAME TIMES.

12:05 PM 16 Q.

OKAY. WELL, SIR, AT THIS TIME, WHEN YOU WENT THERE,

12:05 PM 17 YOU DIDN'T KNOW HOW TO PAINT, DID YOU?

12:05 PM 18 A.

NO, SIR, I DID NOT.

12:05 PM 19 Q.

AND THEY TAUGHT YOU HOW TO PAINT, DIDN'T THEY?

12:05 PM 20 A.

NOT REALLY, SIR. A CLASS "c" PAINTER BASICALLY

12:05 PM 21 THROWS IT ON.

12:05 PM 22 Q.

WELL, SIR, IF YOU'LL LOOK AT YOUR DEPOSITION AT PAGE

12 :05 PM 23 43, LINE 24, PLEASE. DID YOU PREVIOUSLY TESTIFY,

12:05 PM 24 QUESTION: "AND FROM THAT EXPERIENCE YOU WERE ASKED IF YOU

12:05 PM 25 WANTED TO BE CLASSIFIED AS PAINTER "A" AND YOU TOLD THEM

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12 :05 PM 1 NO?"

12 :05 PM 2

ANSWER: "WELL, HE CAME OUT AND TOLD ME I MISSED

12:05 PM 3 MY CALLING AND I SHOULD BE A PAINTER, AND I TOLD HIM, NO,

12:05 PM 4 I WASN'T INTERESTED. BUT I DID KNOW HOW TO PAINT, AND I

12:05 PM 5 LEARNED THAT FROM WORKING WITH THEM WHEN I WAS ASSIGNED TO

12:05 PM 6 THE PAINT HOUSE. I DIDN'T ASK FOR THAT, BUT I WAS

12:05 PM 7 ASSIGNED TO THE PAINT HOUSE. THEY TAUGHT ME HOW TO

12:05 PM 8 PAINT. "

12:05 PM 9 A.

OKAY.

12:05 PM 10 Q.

WAS THAT YOUR TESTIMONY?

12 :05 PM 11 A.

THOSE ARE TWO DIFFERENT INSTANCES.

12:05 PM 12

YES, I LEARNED HOW TO PAINT BY WORKING WITH

12:06 PM 13 OTHER PAINTERS, BUT IT WAS NOT BECAUSE OF ANY SPECIFIC

12 :06 PM 14 TRAINING THAT LUFKIN PROVIDED ME WITH.

12:06 PM 15

WHEN YOU'RE WORKING WITH A PAINTER, BASICALLY

12:06 PM 16 ALL YOU HAVE TO LEARN HOW TO DO IS HOW TO ADJUST THE AIR

12 :06 PM 17 OR ADJ UST THE FLOW OF THE PAINT AND THE STROKES. THAT'S

12 :06 PM 18 THE ESSENCE OF PAINTING. IT WAS NOT BECAUSE OF WHAT

12:06 PM 19 LUFKIN TAUGHT ME, IT WAS BECAUSE A PAINTER WORKING WITH A

12:06 PM 20 PAINTER, I LEARNED.

12 :06 PM 21 Q.

MR. MCCLAIN, THEY WANTED YOU TO BE A PAINTER "A,"

12 :06 PM 22 ISN'T THAT RIGHT?

12 : 06 PM 23 A • 12:06 PM 24 Q. 12 : 06 PM 25 A .

YES. YOU DID NOT WANT TO BE A PAINTER "A," DID YOU? NO, SIR, I DID NOT.

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12:06 PM 1 12:06 PM 2 12:06 PM 3 12:06 PM 4 12:06 PM 5 12:06 PM 6 12:06 PM 7

Q. AND THEY DID NOT FORCE YOU TO BECOME A PAINTER "A , "
DID THEY? A. THEY TRIED, SIR. Q. THEY DID NOT FORCE YOU TO BECOME A PAINTER "A," DID THEY? A. NO, SIR, THEY DID NOT. Q. ALL RIGHT. THE REASON YOU DIDN'T WANT TO GO TO THE

12:06 PM 8 PAINTER CLASSIFICATION IS, YOU THOUGHT THAT THAT WOULD BE

12 :06 PM 9 A DEAD-END JOB, ISN'T THAT RIGHT?

12:06 PM 10 A. ONE, I DIDN'T LIKE PAINTING.

12 :06 PM 11 Q.

OKAY.

12: 06 PM 12 A • I DIDN'T ASK FOR IT, I DIDN'T LIKE IT, AND I DIDN'T

12:06 PM 13 WANT TO STAY THERE, SIR.

12:06 PM 14 Q. OKAY. AND DIDN'T YOU ALSO THINK THAT IT WOULD BE A

12:06 PM 15 DEAD-END JOB?

12:06 PM 16 A. AT THE PAINT HOUSE AT THAT TIME?

12:06 PM 17 Q.

YES, SIR.

12:07 PM 18 A. I FELT LIKE I WAS AT A DEAD-END JOB AS A PAINTER. I

12:07 PM 19 FELT LIKE IT WAS VERY DIFFICULT TO GET OUT OF THERE.

12:07 PM 20 Q.

MR. MCCLAIN, AREN'T THERE CERTAIN CHOICES THAT

12:07 PM 21 EMPLOYEES MAKE IN THE TRAILER PLANT? IF THEY BID TO GET A

12:07 PM 22 JOB, SUCH AS PAINTER "A," THEN THEY CAN'T BID FOR OTHER

12:07 PM 23 JOBS BECAUSE PAINTER "A" IS A HIGHER-PAYING

12:07 PM 24 CLASSIFICATION, ISN'T THAT RIGHT?

12 :07 PM 2 5 A. THAT IS A PRACTICE THAT HAS NOT BEEN PRACTICED

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12 :07 PM 1 FAIRLY, BECAUSE THERE HAVE BEEN SOME WHITE EMPLOYEES THAT

12:07 PM 2 HAVE BEEN ABLE TO MAKE SUCH A MOVE BUT THE BLACK EMPLOYEES

12:07 PM 3 HAVE NOT, AND THAT WAS APPLIED TO THE PAINTING.

12:07 PM 4

USUALLY IF YOU BECAME A CLASS "A" PAINTER, YOU

12:07 PM 5 WERE LOCKED IN.

12:07 PM 6 Q. COULD YOU NAME FOR ME THE WHITE AND BLACK EMPLOYEES

12:07 PM 7 WHO WERE TREATED DIFFERENTLY?

12:07 PM 8 A. ALBERT DUFFIELD. THERE WERE NUMEROUS OTHER

12:07 PM 9 PAINTERS. I DON'T REMEMBER THEIR NAMES. BUT ALBERT 12:07 PM 10 DUFFIELD IS A PAINTER WHO WOULD HAVE LIKED TO HAVE COME

12 :08 PM 11 OUT OF BEING A PAINTER, AND THERE HAVE BEEN OTHERS.

12 :08 PM 12 Q.

NOW, MR. MCCLAIN, AFTER GOING BACK TO LUFKIN IN

12:08 PM 13 1972, YOU ALSO RECEIVED TRAINING ON BLUEPRINTS, DIDN IT

12: 08 PM 14 YOU?

12: 08 PM 15 A .

I TOOK AN INTERNAL --

12:08 PM 16

I DON IT THINK IT WAS IN 172, BUT -- I'M NOT SURE

12 :08 PM 17 OF THE DATE, BUT I DID TAKE BLUEPRINT READING.

12 : 08 PM 18 Q. ALL RIGHT. A COURSE OFFERED BY LUFKIN, AND YOU WERE

12 :08 PM 19 ABLE TO TAKE IT, ISN IT THAT RIGHT?

12:08 PM 20 A.

YES, SIR.

12 : 08 PM 21 Q. YOU RECEIVED BASIC EXCEL COMPUTER TRAINING?

12: 08 PM 22 A •

YES, SIR.

12 : 08 PM 23 Q.
12 : 08 PM 24 A •

YOU RECEIVED MICROSOFT WORD TRAINING, DIDN'T YOU? YES, SIR.

12 : 08 PM 2 5 Q.

AND IN FACT

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12:08 PM 1

YOU'RE RIGHT, MY QUESTION MAY HAVE BEEN A LITTLE

12:08 PM 2 CONFUSING. IT WAS AFTER YOU CAME BACK IN 1972. THESE

12:08 PM 3 COURSES WERE ACTUALLY COMPLETED BY YOU WHILE YOU WERE A

12:08 PM 4 CHIEF INSPECTOR OR QUALITY MANAGER, ISN'T THAT RIGHT?

12:08 PM 5 A.

I DON'T REMEMBER EXACTLY WHEN I COMPLETED THEM

12:08 PM 6 COURSES.

12:08 PM 7

THE COURT: DO YOU ANTICIPATE BEING MUCH LONGER?

12:09 PM 8

MR. HAMEL: YOUR HONOR, YES, PROBABLY ANOTHER

12:09 PM 9 12 :09 PM 10

HOUR.

THE COURT: WE'LL RESUME AT 1:30.

01: 28 PM 11

THE CSO: ALL RISE.

01:28 PM 12 01:29 PM 13

(RECESS FOR LUNCH) THE COURT: PLEASE CONTINUE, SIR.

01: 29 PM 14

MR. HAMEL: THANK YOU, YOUR HONOR.

01: 29 PM 15 BY MR. HAMEL:

01:29 PM 16 Q.

MR. MCCLAIN

01:29 PM 17 A.

YES, SIR.

01:29 PM 18 Q.

I BELIEVE WHEN WE BROKE WE HAD JUST FINISHED TALKING

01:30 PM 19 ABOUT THE TRAINING YOU RECEIVED AS A PAINTER AND YOUR NOT

01: 30 PM 20 WANTING TO BE IN A PAINTER CLASSIFICATION. I AM CORRECT,

01:30 PM 21 AM I NOT, THAT ONE OF THE REASONS THAT YOU DID NOT WANT TO

01:30 PM 22 BID FOR A PAINTER "A" POSITION WAS THAT YOU DIDN'T WANT TO

01:30 PM 23 GET LOCKED IN AS A PAINTER BECAUSE YOU WOULDN'T BE ABLE TO

01:30 PM 24 01: 30 PM 25

MAKE A LATERAL MOVE? A. WELL, I JUST SIR, I JUST WANTED OUT OF THE PAINT

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01:30 PM 1 HOUSE. I FELT LIKE I WAS IN A DEAD-END. AND YES. AND SO

01: 30 PM 2 THE ANSWER WOULD BE, YES, I DID NOT WANT TO BE A CLASS "A"

01: 30 PM 3 PAINTER. I DID NOT WANT TO WORK IN THE PAINT HOUSE.

01: 30 PM 4 Q.

WAS IT ALSO A RECOGNITION BY YOU AS AN EMPLOYEE OF

01:30 PM 5 LUFKIN INDUSTRIES THAT BY TAKING CERTAIN BIDS, YOU LIMIT

01:30 PM 6 YOUR OPPORTUNITIES OTHER PLACES?

01:30 PM 7 A.

COULD YOU REPEAT THAT?

01: 30 PM 8 Q.

YES, SIR. DIDN'T YOU ALSO RECOGNIZE AS AN EMPLOYEE

01: 30 PM 9 OF LUFKIN INDUSTRIES THAT IF YOU TOOK CERTAIN BIDS, THAT

01:30 PM 10 YOU COULD BE LIMITED IN YOUR OPPORTUNITIES IN OTHER

01:30 PM 11 PLACES? IF YOU WENT FOR A PAINTER "A" POSITION, YOU MIGHT

01:30 PM 12 NOT BE ABLE TO BID TO OTHERS BECAUSE IT WOULD BE A LATERAL

01:31 PM 13 MOVE, ISN'T THAT CORRECT?

01:31 PM 14 A.

NO, I DID NOT HAVE THE KNOWLEDGE THAT IT WAS --

01:31 PM 15 ABOUT YOU COULDN'T MAKE A LATERAL MOVE. I JUST KNEW THAT,

01: 31 PM 16 THE LIMITED TIME I HAD BEEN THERE, WHEN YOU -- THOSE THAT

01:31 PM 17 BECAME A PAINTER, THEY PRETTY MUCH WERE LOCKED IN. THAT'S

01: 31 PM 18 THE ONLY KNOWLEDGE I HAD.

01:31 PM 19 Q.

WELL, SIR, IF YOU WOULD LOOK AT YOUR DEPOSITION AT

01:31 PM 20 01: 31 PM 21 01: 31 PM 22 01:31 PM 23 01:31 PM 24 01:31 PM 25

PAGE 43 THAT'S IN FRONT OF YOU.

A.

PAGE WHAT NOW?

Q.

43, SIR.

A.

OKAY.

THE COURT: HE'S BASICALLY ASKING YOU, SIR, YOU

CAN'T HAVE MULTIPLE BIDS? IF YOU BID ONE, YOU CAN'T BID

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01: 31 PM 1 TWO OR THREE OTHERS AND WAIT FOR THE BEST ONE TO COME IN?

01: 31 PM 2

THE WITNESS: YES.

01: 31 PM 3 BY MR. HAMEL:

01: 31 PM 4 Q.

YOU UNDERSTAND THAT? YOU UNDERSTAND THAT TO BE THE

01:31 PM 5 CASE, DO YOU, MR. MCCLAIN?

01:31 PM 6 A. WELL, I UNDERSTOOD THAT IF YOU BID IT -- IF I HAD 01: 31 PM 7 BECOME A CLASS "A" PAINTER, WHICH I DIDN'T WANT TO, THAT'S

01:31 PM 8 THE REASON I DIDN'T BID ON IT.

01:31 PM 9 Q.

YOU DO UNDERSTAND IF YOU BECOME A CLASS "A" PAINTER,

01: 32 PM 10 THEN YOU CANNOT BID ON JOBS WHICH WOULD BE A LATERAL MOVE

01: 32 PM 11 01:32 PM 12

OR A DEMOTION, ISN'T THAT RIGHT? A. AT THAT TIME I JUST -- THE ONLY CLASSIFICATION THAT

01: 32 PM 13 I KNEW THAT SEEMED LIKE YOU WERE LOCKED IN WAS PAINTER

01:32 PM 14 "A." I DID NOT KNOW ANYTHING ABOUT LUFKIN'S POLICY OF NOT

01: 32 PM 15 BEING ABLE TO MAKE A LATERAL MOVE. THAT'S WHAT I'M

01:32 PM 16 SAYING. I DIDN'T HAVE THAT BROAD UNDERSTANDING.

01:32 PM 17 Q.

YOU KNEW AT LEAST THAT THAT WAS THE CASE WITH

01: 32 PM 18 RESPECT TO --

01:32 PM 19 A.

THAT'S WHAT I EXPECTED WAS THE CASE, YES.

01:32 PM 20 Q.

OKAY. NOW, SIR, WE WERE TALKING JUST AT THE BREAK

01:32 PM 21 ABOUT SOME TRAINING YOU RECEIVED AND WHEN YOU RECEIVED IT.

01: 32 PM 22 IF YOU WOULD LOOK IN YOUR DEPOSITION, PLEASE, SIR, TO THE

01:32 PM 23 EXHIBITS THAT ARE ATTACHED, AND I BELIEVE IT'S THE SECOND

01: 32 PM 24 OR THIRD PAGE. IF YOU WOULD FIRST LOOK AT THE PAGE THAT'S

01: 32 PM 25 BATES-STAMPED NUMBER L17972.

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01:32 PM 1 A.

IS THIS THE LOOSE -- IS THIS THE LOOSE PART IN THE

01: 32 PM 2 BEGINNING OF THE BOOK?

01:32 PM 3 Q.

LET ME SEE.

01:32 PM 4

MR. HAMEL: MAY I APPROACH, YOUR HONOR?

01:33 PM 5

THE COURT: YES.

01:33 PM 6

THE WITNESS: MAYBE YOU CAN SHOW ME WHAT YOU'RE

01:33 PM 7 TALKING ABOUT. OH, TORWARDS THE END OF THE BOOK. OKAY.

01:33 PM 8 BY MR. HAMEL:

01:33 PM 9 Q.

START RIGHT THERE.

01:33 PM 10 A.

OKAY.

01:33 PM 11 Q.

LOOKING FROM YOUR PERSONNEL FILE, MR. MCCLAIN, AT

01: 33 PM 12 BATES-STAMPED DOCUMENTS L17972, L17973 AND L17975, AM I

01: 33 PM 13 CORRECT THAT IT SHOWS THAT YOU RECEIVED CERTIFICATES OF

01:33 PM 14 COMPLETION FOR TRAINING COURSES FOR BLUEPRINT READING IN

01: 33 PM 15 MAY OF 1991, FOR BASIC EXCEL IN MAY OF 1990, AND FOR BASIC

01: 33 PM 16 MICROSOFT WORD TRAINING IN NOVEMBER OF 1989?

01:33 PM 17 A.

YES, SIR, AND THESE WERE JUST CLASSES THAT WOULD

01: 34 PM 18 HELP YOUR SKILLS WITHIN A PARTICULAR CLASSIFICATION YOU

01:34 PM 19 WERE IN. IT WAS NOT TRAINING THAT WOULD ENHANCE YOUR

01:34 PM 20 CAREER, SIR.

01: 34 PM 21 Q.

ALL RIGHT. THOSE WERE COURSES THAT YOU RECEIVED

01:34 PM 22 WHILE YOU WERE A CHIEF INSPECTOR OR QUALITY MANAGER, WERE

01:34 PM 23 THEY NOT?

01: 34 PM 24 A .

WHAT WERE THE YEARS?

01:34 PM 25 Q.

1989 THROUGH 1991, SIR.

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01:34 PM 1 A.

YES, SIR.

01: 34 PM 2 Q.

NOW, IN ADDITION TO TRAINING THAT YOU ACTUALLY

01:34 PM 3 RECEIVED AT LUFKIN, YOU'VE TAKEN GOOD ADVANTAGE OF

01:34 PM 4 LUFKIN'S TUITION REIMBURSEMENT PROGRAM, HAVEN'T YOU?

01: 34 PM 5 A.

YES, SIR, I HAVE.

01:34 PM 6 Q.

IN FACT, YOU STARTED IN THE MIDDLE TO LATE 90s AT

01: 34 PM 7 LUFKIN TO PURSUE A CAREER IN WELDING, DIDN'T YOU?

01: 34 PM 8 A.

I STARTED TO SCHOOL AT A.C. IN THE LATTER 70S, WHEN

01:34 PM 9 01: 34 PM 10 01: 34 PM 11 01:34 PM 12

I FIRST STARTED. Q. AND WASN'T THAT TO PURSUE A CAREER IN WELDING? A. YES. THAT WAS MY FIRST -- MY MAJOR WAS MACHINE SHOP, AND I COMPLETED A -- A CERTIFICATE OF WELDING, YES.

01:34 PM 13 Q.

AND YOU WERE ENCOURAGED TO DO THIS BY THE CHIEF

01: 34 PM 14 EXECUTIVE OFFICER OF LUFKIN, MR. STEVENSON, WEREN'T YOU?

01: 34 PM 15 A .

NO, SIR, I WAS NOT, NOT AT THAT TIME. I DID THAT ON

01: 35 PM 16 MY OWN. I WAS ENCOURAGED TO BETTER MYSELF, BUT WHEN I

01: 35 PM 17 WENT TO SCHOOL IN THE 70S, I MADE THAT DECISION.

01: 35 PM 18 Q.

DID MR. STEVENSON IN FACT ENCOURAGE YOU TO TAKE

01:35 PM 19 ADVANTAGE OF LUFKIN'S TUITION REIMBURSEMENT PROGRAM AT

01: 35 PM 20 SOME TIME?

01: 35 PM 21 A.

WELL, ALL EMPLOYEES ARE ENCOURAGED THAT, SIR.

01:35 PM 22 Q. 01: 35 PM 23 A.

ALL EMPLOYEES, BLACK, WHITE, HISPANIC? RIGHT, YES, SIR.

01:35 PM 24 Q.

ALL RIGHT. AND AS A RESULT OF THAT, YOU WERE WITHIN

01:35 PM 25 TWENTY HOURS OF RECEIVING YOUR ASSOCIATES DEGREE IN

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01:35 PM 1 01:35 PM 2 01:35 PM 3 01:35 PM 4 01:35 PM 5 01:35 PM 6 01:35 PM 7 01:35 PM 8 01:35 PM 9 01: 35 PM 10

BUSINESS MANAGEMENT, CORRECT? A. YES, SIR. Q. ALL RIGHT. AND YOU'VE BEEN TAKING THAT FOR QUITE SOME TIME, HAVEN'T YOU? A. YES, I HAVE, AND THE REASON IT'S TAKEN ME SO LONG IS, DEALING WITH THE DIFFERENT THINGS I'VE BEEN DEALING WITH, I HAVEN'T BEEN ABLE TO GO AS CONTINUOUS AS I WOULD HAVE LIKED. Q. ALL RIGHT. NOW, LUFKIN HAS PAID FOR THOSE COURSES, HAVEN'T THEY?

01:35 PM 11 A. YES, SIR, ONCE I PASSED IT WITH A PASSING GRADE. I

01: 35 PM 12 PAID INITIALLY, AND ONCE I PASSED IT, THEY REIMBURSED ME,

01:35 PM 13 YES, SIR.

01:35 PM 14 Q.

IN ADDITION TO THAT, LUFKIN MAKES AVAILABLE A

01: 35 PM 15 SCHOLARSHIP PROGRAM, DO THEY NOT?

01:35 PM 16 A.

YES, SIR.

01:35 PM 17 Q. AND YOUR CHILDREN HAVE TAKEN ADVANTAGE OF THAT

01:36 PM 18 SCHOLARSHIP PROGRAM, HAVEN'T THEY?

01: 36 PM 19 A.

YES, SIR, THEY HAVE.

01:36 PM 20 Q.

SO LUFKIN IS TRYING TO ENCOURAGE CHILDREN OF

01:36 PM 21 EMPLOYEES TO GET A COLLEGE EDUCATION, ISN'T THAT RIGHT?

01:36 PM 22 A. 01: 36 PM 23 Q.

I SUPPOSE. AND YOUR CHILDREN, WHO ARE BLACK, HAVE TAKEN

01:36 PM 24 ADVANTAGE OF IT, RIGHT?

01: 36 PM 25 A.

YES.

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01:36 PM 1 Q. AND THERE ARE MANY OTHER BLACK EMPLOYEES WHOSE

01: 36 PM 2 CHILDREN HAVE TAKEN ADVANTAGE OF THAT PROGRAM, ISN'T THAT

01:36 PM 3 CORRECT?

01:36 PM 4 A.

AND WHITE, YES, SIR.

01:36 PM 5 Q.

ABSOLUTELY, BLACK AND WHITE.

01:36 PM 6

NOW, YOU HAVE ALSO RECEIVED TRAINING AS A

01:36 PM 7 FACILITATOR, HAVEN'T YOU?

01:36 PM 8 A.

YES, SIR.

01:36 PM 9 Q. AND YOU HAVE, ALTHOUGH YOU TESTIFIED TO WHAT YOU

01: 36 PM 10 PERCEIVED AS DIFFICULTIES, YOU DID IN FACT GO TO THE

01: 36 PM 11 CROSBY QUALITY SCHOOL, DID YOU NOT?

01: 36 PM 12 A .

YES, SIR.

01:36 PM 13 Q. THAT WAS A COURSE THAT LASTED SEVERAL DAYS, WASN'T

01: 36 PM 14 IT?

01:36 PM 15 A.

I BELIEVE SO.

01:36 PM 16 Q.

ALL RIGHT. NOW, WHILE YOU'VE BEEN EMPLOYED AT

01: 36 PM 17 LUFKIN, NOTWITHSTANDING THAT YOU'RE AN AFRICAN-AMERICAN,

01: 36 PM 18 YOU'VE TAKEN ADVANTAGE OF ALL OF THESE TRAINING COURSES,

01: 36 PM 19 THE INTERNAL TRAINING, TUITION REIMBURSEMENT, TO GET

01:36 PM 20 TRAINING, NOTWITHSTANDING THE FACT THAT YOU'RE A BLACK

01:36 PM 21 MAN, ISN'T THAT RIGHT?

01: 36 PM 22 A. 01:37 PM 23 Q.

YES, SIR. AND AS FAR AS YOU KNOW, AFRICAN-AMERICANS HAVE HAD

01:37 PM 24 THE SAME OPPORTUNITY TO SIGN UP FOR COURSES OFFERED AT

01:37 PM 25 LUFKIN AS ANY OTHER EMPLOYEE, ISN'T THAT RIGHT?

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01: 37 PM 1 A.

YES, SIR, BUT NONE OF THIS TRAINING DOES ANYTHING TO

01: 37 PM 2 ENHANCE YOUR CAREER AT LUFKIN INDUSTRIES.

01:37 PM 3 Q.

OKAY. BUT WITH RESPECT TO THE TRAINING LUFKIN GIVES

01: 37 PM 4 TO ANYONE, AS FAR AS YOU KNOW, AFRICAN-AMERICANS HAVE HAD

01:37 PM 5 THE SAME OPPORTUNITY TO SIGN UP AS ANYONE ELSE, ISN'T THAT

01: 37 PM 6 RIGHT?

01:37 PM 7 A.

NO, THEY HAVE NOT BEEN AFFORDED THE SAME TRAINING

01:37 PM 8 THAT HAVE BEEN AFFORDED WHITES THAT ENHANCE THEIR CAREER.

01:37 PM 9 THEY HAVE BEEN ABLE TO GO TO THE SAME SCHOOLS, BLUEPRINT

01: 37 PM 10 READING, SHOP MATH, STUFF THAT WILL HELP YOU WITH YOUR

01:37 PM 11 BASIC JOB SKILLS, BUT IT'S NOTHING THAT WILL ENHANCE,

01: 37 PM 12 ENABLE YOU TO MOVE UP AT LUFKIN INDUSTRIES, NO, SIR.

01: 37 PM 13 Q •

MR. MCCLAIN, AT PAGE 51 OF YOUR DEPOSITION, LINE 17,

01: 37 PM 14 DID YOU TESTIFY, QUESTION: "DID AFRICAN-AMERICAN EMPLOYEES

01: 38 PM 15 OR AFRICAN-AMERICANS HAVE THE SAME OPPORTUNITY TO SIGN UP

01: 38 PM 16
01:38 PM 17
01:38 PM 18 01: 38 PM 19

FOR THESE AS ANY OTHER EMPLOYEE?"

ANSWER: "YES."

A.

YES, I ANSWERED THAT. YES, SIR. YES, SIR.

MR. GARRIGAN: YOUR HONOR, I NEED TO OBJECT.

01:38 PM 20 IT'S JUST IMPROPER IMPEACHMENT. IT WASN'T THE SAME

01: 38 PM 21 QUESTION HE HAD ASKED MR. MCCLAIN BEFORE HE CONFRONTED HIM

01: 38 PM 22 WITH HIS DEPOSITION. EVEN NOW WE DON'T KNOW WHAT "THESE"

01:38 PM 23 REFERS TO. AND THIS QUESTION ONLY CONCERNED WHETHER

01: 38 PM 24 PEOPLE COULD SIGN UP FOR THE TRAINING, NOT WHETHER THEY

01:38 PM 25 COULD GET THE TRAINING.

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01:38 PM 1

THE COURT: THE OBJECTION IS OVERRULED.

01:38 PM 2 BY MR. HAMEL:

01:38 PM 3 Q. WELL, LET'S GO ON A LITTLE FURTHER THEN.

01:38 PM 4

THE COURT: I'LL GIVE IT SUCH CONSIDERATION AS I

01:38 PM 5 DEEM IT'S ENTITLED TO RECEIVE.

01:38 PM 6

THE WITNESS: OKAY.

01:38 PM 7 BY MR. HAMEL:

01: 38 PM 8 Q.

AT LEAST AS OF JULY OF 2003, JUST A FEW MONTHS AGO,

01:38 PM 9 YOU COULD NOT REMEMBER EVER SIGNING UP FOR A TRAINING

01:38 PM 10 COURSE THAT YOU WERE NOT ALLOWED TO TAKE, ISN'T THAT

01:38 PM 11 CORRECT?

01: 38 PM 12 A.

COULD YOU REPEAT THE QUESTION, PLEASE?

01: 38 PM 13 Q.

YES, SIR. AT LEAST AS OF JULY, 2003, YOU COULD NOT

01: 38 PM 14 REMEMBER A SINGLE OCCASION WHEN YOU HAD SIGNED UP FOR A

01: 38 PM 15 TRAINING COURSE AT LUFKIN AND YOU WERE NOT ALLOWED TO TAKE

01: 38 PM 16 THAT COURSE?

01:38 PM 17 A.

I SAID I WAS DENIED THE OPPORTUNITY TO TAKE TRAINING

01:39 PM 18 COURSES THAT WHITE MANAGERS WERE SENT TO. THEY WERE

01: 39 PM 19 PICKED OUT, THEY WERE CHOSEN AND THEY WERE TRAINED, AND IT

01: 39 PM 20 WAS PAID FOR.

01:39 PM 21 Q.

I UNDERSTAND THAT'S YOUR TESTIMONY.

01:39 PM 22

THE COURT: WHEN YOU WERE SIGNED UP FOR ONE, YOU

01: 39 PM 23 01: 39 PM 24

WEREN I T EVER TURNED DOWN FOR IT, IS WHAT HE I S ASKING YOU? THE WITNESS: NO. NO, SIR.

01:39 PM 25 BY MR. HAMEL:

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01:39 PM 1 Q.

I'M CORRECT THAT YOU HAVE NEVER SIGNED UP FOR A

01:39 PM 2 COURSE THAT YOU WERE TURNED DOWN FOR, IS THAT CORRECT?

01:39 PM 3 A. THAT I HAD AN OPPORTUNITY TO TAKE, NO, SIR. A

01:39 PM 4 TRAINING THAT I HAD AN OPPORTUNITY TO SIGN UP FOR, NO,

01:39 PM 5 SIR, I'VE NOT BEEN TURNED DOWN.

01:39 PM 6 Q. ALL RIGHT. AND AS FAR AS YOU KNOW, EVERYBODY --

01: 39 PM 7 WELL, THERE ARE SOMETIMES COURSES THAT NOT EVERYBODY CAN

01:39 PM 8 TAKE THE CLASS EVEN THOUGH THEY SIGN UP, ISN'T THAT RIGHT?

01:39 PM 9 A. YEAH. IT WOULD DEPEND ON THE LOGISTICS OF SPACE. 01: 39 PM 10 BUT MOST OF THE TIME THEY WOULD OFFER THE CLASS AGAIN IN A

01: 39 PM 11 SHORT PERIOD OF TIME SO THAT THE REST OF THOSE WHO WANTED

01: 39 PM 12 TO TAKE IT COULD TAKE IT.

01:39 PM 13 Q.

OKAY. AND YOU CAN'T REMEMBER THAT AFRICAN EMPLOYEES

01:40 PM 14 WERE NOT ABLE TO TAKE CLASSES OFFERED BY LUFKIN IN ANY

01:40 PM 15 GREATER PROPORTION THAN OTHER EMPLOYEES, CAN YOU?

01: 40 PM 16 A .

WELL, IN THE WELDING TRAINING, THERE WERE -- THERE

01:40 PM 17 WERE -- THERE WERE TIMES THAT IN THAT PARTICULAR TRAINING

01:40 PM 18 THAT BLACKS WERE NOT, THEY WERE NOT ALLOWED TO -- GIVEN

01:40 PM 19 THAT TRAINING.

01:40 PM 20 Q.

MR. MCCLAIN, IF YOU WOULD TURN TO YOUR DEPOSITION,

01:40 PM 21 PLEASE.

01:40 PM 22

THE COURT: WELL, JUST A MOMENT. WHAT WAS THAT

01:40 PM 23 PERIOD OF TIME, MR. MCCLAIN?

01:40 PM 24

THE WITNESS: THIS WAS -- IT WAS IN THE 90S, AND

01:40 PM 25 LUFKIN HAD STATED THAT THEY HAD A NEED FOR WELDERS, AND A

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01:40 PM 1 LOT OF PEOPLE SIGNED IT, AND EVERYBODY THAT WAS CHOSEN TO

01:40 PM 2 GO TO THAT SCHOOL WAS WHITE. THERE WEREN'T ANY BLACKS AT

01:40 PM 3 THAT PARTICULAR TIME. THAT'S WHY I SAY, THERE WERE TIMES

01:40 PM 4 THAT BLACKS COULD GET THE TRAINING, BUT THERE HAVE BEEN

01:40 PM 5 TIMES WHEN BLACKS HAVE SIGNED UP THAT THEY HAVE NOT GOT

01:40 PM 6 THE TRAINING.

01:40 PM 7 BY MR. HAMEL:

01:40 PM 8 Q. AND WHEN WAS THIS, MR. MCCLAIN?

01:40 PM 9 A. IT WAS IN THE 90S. I DON'T REMEMBER EXACTLY WHEN IT 01:40 PM 10 WAS.

01:40 PM 11 Q.

DO YOU KNOW --

01:41 PM 12 A.

IT WAS SOMETIME DURING THE CLASS PERIOD. IT'S BEEN

01:41 PM 13 BETWEEN '94 AND 2003, BUT I DON'T REMEMBER THE EXACT TIME.

01:41 PM 14 Q. AND WHO IS THE PERSON WHO ARRANGES AND TEACHES THAT

01:41 PM 15 COURSE AND CHOOSES THE PEOPLE WHO GO TO IT?

01:41 PM 16 A. WELL, AS FAR AS RIGHT NOW, AND I'M NOT SURE HE'S

01:41 PM 17 BEEN THE ONLY ONE, LOUIS ROSS, HE DOES THE TRAINING.

01:41 PM 18 Q. 01:41 PM 19 A.

AND WHAT RACE IS MR. ROSS? HE'S BLACK. BUT NOW, HE DOES NOT MAKE THE CHOICE

01 :41 PM 20 01:41 PM 21 01:41 PM 22

FROM THE LIST, HE JUST DOES THE TRAINING. Q. HOW DO YOU KNOW THAT? A. I WAS TOLD THAT. THE PRODUCTION SUPERINTENDENT

01:41 PM 23 MAKES THAT DECISION.

01:41 PM 24 Q.

YOU WERE TOLD THAT?

01:41 PM 25 A.

I WAS TOLD THAT THE PRODUCTION -- THE PRODUCTION

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01:41 PM 1 01:41 PM 2 01:41 PM 3 01:41 PM 4 01:41 PM 5 01:41 PM 6 01:41 PM 7 01:41 PM 8 01:41 PM 9 01:41 PM 10 01:41 PM 11

132 SECRETARY POSTS IT, AND SHE PICKS IT UP, SHE TURNS IT IN TO HIM, AND HE MAKES THAT DECISION. Q. WHO TOLD YOU THAT? A. I DON'T REMEMBER. Q. IF YOU'LL TURN, PLEASE, TO PAGE 52 OF YOUR DEPOSITION. A. OKAY. Q. AM I CORRECT THAT YOU HAVE PREVIOUSLY TESTIFIED IN RESPONSE TO THE QUESTION "DO YOU HAVE ANY UNDERSTANDING THAT AFRICAN-AMERICAN EMPLOYEES WERE NOT ABLE TO TAKE THE CLASS IN A GREATER PROPORTION THAN ANY OTHER EMPLOYEES,"

01:41 PM 12 YOUR ANSWER WAS "NO, I DON'T, I MEAN, I DON'T REMEMBER IF

01:42 PM 13 THEY WERE"?

01:42 PM 14 A. WELL -- AND I JUST REMEMBERED

01:42 PM 15 Q. WAS THAT YOUR ANSWER, SIR?

01:42 PM 16 A. THAT WAS MY ANSWER, SIR. BUT THAT'S BEEN A LONG

01:42 PM 17 TIME, AND I JUST REMEMBERED ABOUT THE WELDING CLASS.

01:42 PM 18 AGAIN, THAT'S JUST ONE CLASS. I'M NOT SAYING THEY WERE

01:42 PM 19 DENIED EVERY CLASS. THAT'S JUST ONE INSTANCE WHERE I

01:42 PM 20 REMEMBER THAT NO BLACKS WERE CHOSEN.

01: 42 PM 21 Q. WELL, IT'S IN FACT THE CASE THAT YOU DON'T HAVE

01:42 PM 22 INFORMATION ONE WAY OR ANOTHER AS TO WHETHER BLACKS WERE

01:42 PM 23 NOT ABLE TO TAKE CLASSES IN A GREATER PROPORTION THAN

01:42 PM 24 OTHER EMPLOYEES, ISN'T THAT RIGHT?

01: 42 PM 25 A. WHAT TYPE OF CLASS ARE YOU TALKING ABOUT, SIR?

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01:42 PM 1 Q.

ANY CLASSES. THE CLASSES THAT YOU HAVE TO SIGN UP

01:42 PM 2 FOR.

01:42 PM 3 A.

ARE YOU SPEAKING OF TRAINING?

01:42 PM 4 Q. TRAINING CLASSES THAT YOU SIGN UP FOR, THAT'S

01:42 PM 5 01:42 PM 6 01:42 PM 7 01:42 PM 8 01:42 PM 9 01:42 PM 10

CORRECT. A. SIR, BUT THERE ARE TRAINING CLASSES THAT THEY DON'T POST THAT BLACKS HAVE NEVER BEEN OFFERED. Q. LET'S DEAL WITH THE ONES THAT THEY DO POST THAT PEOPLE SIGN UP FOR. A. OKAY.

01:42 PM 11 Q. OKAY. AM I CORRECT THAT YOU HAVE NO INFORMATION ONE

01:42 PM 12 WAY OR OTHER AS TO WHETHER BLACKS ARE NOT ALLOWED TO TAKE

01:42 PM 13 THOSE COURSES IN ANY GREATER PROPORTION THAN WHITE

01:43 PM 14 EMPLOYEES?

01:43 PM 15 A.

OTHER THAN THAT ONE INSTANCE, NO, SIR, I DO NOT.

01:43 PM 16 Q.

ALL RIGHT. NOW, LET'S -- I WANT TO RUN THROUGH THIS

01:43 PM 17 JUST SO WE ARE SURE ON TIME FRAMES.

01:43 PM 18

YOU FIRST WERE EMPLOYED AS A HELPER, AND YOU

01:43 PM 19 REPORTED TO WELDER "C," AND THAT WAS IN 1969, RIGHT?

01:43 PM 20 A.

NO, SIR, I DID NOT REPORT AS A WELDER, I REPORTED AS

01:43 PM 21 A HELPER, AND THEY ASSIGNED ME AS A CLASS "C" WELDER.

01:43 PM 22 THAT WAS IN '69.

01:43 PM 23 Q. YOU WERE PROMOTED FROM CLASS -- FROM HELPER IN 1972

01:43 PM 24 TO CLASS "B" BODY BUILDER "B," ISN'T THAT RIGHT?

01: 43PM 25 A.

I WAS ASSIGNED, YES, SIR.

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01:43 PM 1 Q.

YOU WERE ASSIGNED?

01:43 PM 2 A.

YES, SIR, AS FAR AS I KNOW.

01:43 PM 3 Q.

WELL, ISN'T IT A FACT THAT YOU BID FOR THAT JOB?

01:43 PM 4 A.

I DON'T REMEMBER. I MEAN, I COULD HAVE. THAT WAS

01:43 PM 5 ONE OF THE QUESTIONS THAT YOU ASKED ME ON A DEPOSITION,

01:43 PM 6 AND I DON'T KNOW IF I SAID I WAS PROMOTED, I DON'T

01:43 PM 7 REMEMBER IF I SAID I BID ON IT, BUT I JUST REMEMBER THAT I

01:43 PM 8 WAS COMPLAINING ABOUT GETTING OUT OF THE PAINT HOUSE, AND

01:43 PM 9 I MADE CLASS "B."

01:43 PM 10

I DON'T PARTICULARLY REMEMBER BIDDING ON THAT

01:44 PM 11 JOB. I MAY HAVE, BUT I JUST DON'T REMEMBER.

01:44 PM 12 Q. WELL, ISN'T IT A FACT THAT YOU PREVIOUSLY TESTIFIED

01:44 PM 13 THAT YOU ASSUMED THAT YOU BID ON THAT JOB?

01: 44 PM 14 A.

YEAH, I SAID I ASSUMED, BUT I DIDN'T KNOW.

01:44 PM 15 Q.

OKAY. AND DIDN'T YOU ALSO ASSUME THAT YOU BID ON

01:44 PM 16 THE TRAILER BODY BUILDER "A" JOB?

01:44 PM 17 A.

I DIDN'T ASSUME. I KNOW I BID ON IT.

01:44 PM 18 Q.

YOU KNOW YOU BID ON IT?

01:44 PM 19 A.
01:44 PM 20 Q.

YES, SIR. AND YOU WERE AWARDED THAT JOB, WERE YOU NOT?

01:44 PM 21 A.

AND THE REASON I KNOW I BID IT, BECAUSE I SIGNED IT

01:44 PM 22 MANY, MANY TIMES, TRYING TO GET OUT OF THE PAINT HOUSE AND

01:44 PM 23 01:44 PM 24

THEN TRYING TO MOVE UP IN THE MAIN BUILDING. Q. OKAY. AND YOU ALSO BID ON AN INSPECTOR JOB FROM

01:44 PM 25 TRAILER BODY BUILDER "A," ISN'T THAT RIGHT?

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01:44 PM 1 A.

YES, SIR, THAT'S CORRECT.

01:44 PM 2 Q. OKAY. NOW, AS TO THE CHIEF INSPECTOR JOB, YOU MADE

01:44 PM 3 KNOWN YOUR INTEREST IN THAT JOB, AND WHEN THE CHIEF

01:44 PM 4 INSPECTOR WHO WAS IN THE JOB RETIRED, YOU WERE ASSIGNED

01:44 PM 5 THAT POSITION, ISN'T THAT RIGHT?

01:44 PM 6 A.

NO, SIR, HE DID NOT RETIRE, HE MADE A LATERAL

01:44 PM 7 TRANSFER, AND I ONLY GOT THE OPPORTUNITY TO GET THAT JOB

01:44 PM 8 AFTER REPEATEDLY COMPLAINING, MAKING KNOWN MY INTEREST,

01:44 PM 9 AND THAT I AS A BLACK WAS QUALIFIED. AND THEN I HAD TO

01:44 PM 10 APPEAL TO THE PRESIDENT AFTER NO ONE ELSE WOULD HEAR ME.

01:45 PM 11

AND THEN MR. STEVENSON INTERVENED, AND THAT'S

01:45 PM 12 HOW I GOT THE JOB.

01:45 PM 13 Q.

THAT'S HOW YOU GOT THE JOB AS CHIEF INSPECTOR?

01:45 PM 14 A.

YES, SIR.

01:45 PM 15 Q.

IS THAT ALSO HOW YOU GOT THE JOB AS QUALITY MANAGER?

01:45 PM 16 A.

YES, SIR.

01:45 PM 17 Q.

ALL RIGHT. NOW, WHEN IS IT THAT YOU WENT -- FIRST

01:45 PM 18 BECAME AN INSPECTOR?

01:45 PM 19 A.

IT WAS IN THE, I THINK THE MIDDLE 80s. I DON'T

01:45 PM 20 REMEMBER THE DATE. BUT IT WAS FROM THE EARLY TO MIDDLE

01:45 PM 21 80s.

01:45 PM 22 Q.

ALL RIGHT. SO ALL OF THE DISCUSSION ABOUT

01:45 PM 23 PROMOTIONS THAT YOU BID FOR PRIOR TO INSPECTOR WERE

01:45 PM 24 DISCUSSIONS THAT INVOLVED EVENTS THAT WERE OCCURRING IN

01:45 PM 25 THE 70s AND EARLY 80S, AM I CORRECT?

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01:45 PM 1 A.

REPEAT YOUR QUESTION.

01:45 PM 2 Q.

WELL, YOU'VE NOT -- YOU DIDN'T --

01:45 PM 3

ONCE YOU BECAME INSPECTOR, THE NEXT JOB YOU BID

01:45 PM 4 ON OR THE NEXT JOB YOU WANTED WAS CHIEF INSPECTOR, ISN'T

01:45 PM 5 THAT RIGHT?

01:45 PM 6 A.

WELL, IT WASN'T REALLY THE NEXT JOB I WANTED,

01:45 PM 7 BECAUSE I DIDN'T KNOW THE JOB WAS COMING OPEN. WHAT I WAS

01:45 PM 8 COMPLAINING ABOUT, A LACK OF OPPORTUNITY FOR BLACKS TO

01:45 PM 9 01:45 PM 10

MOVE UP. THERE WERE NO BLACKS IN MANAGEMENT. Q. MR. MCCLAIN

01:45 PM 11 A.

YES, SIR.

01:45 PM 12 Q.

WHEN YOU WERE INSPECTOR, YOU LIKED THAT JOB, AND YOU

01:46 PM 13 WEREN'T BIDDING ON OTHER JOBS, ISN'T THAT RIGHT?

01: 46 PM 14 A .

REPEAT YOUR QUESTION, PLEASE.

01:46 PM 15 Q.

WHEN YOU WERE INSPECTOR, YOU LIKED THAT JOB, AND YOU

01:46 PM 16 WERE NOT BIDDING ON OTHER JOBS, CORRECT?

01:46 PM 17 A.

YES, SIR, I WAS BIDDING ON SALARIED JOBS. YES, SIR,

01:46 PM 18 I WAS.

01:46 PM 19 Q.

OKAY. OTHER THAN SALARIED JOBS, NO OTHER JOBS?

01:46 PM 20 A.

WELL, BECAUSE THAT WAS REALLY ABOUT THE HIGHEST I

01:46 PM 21 COULD GO AS FAR AS HOURLY.

01:46 PM 22 Q.

SO WITH RESPECT TO YOUR TESTIMONY THAT YOU SIGNED

01:46 PM 23 HUNDREDS OF BIDS, THOSE ARE EVENTS THAT WERE PRIOR TO THE

01:46 PM 24 MID-1980S, ISN'T THAT RIGHT?

01:46 PM 25 A.

SOME OF THEM, AS FAR AS IF YOU MEAN -- YOU'RE

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01:46 PM 1 TALKING ABOUT HOURLY JOBS?

01:46 PM 2 Q.

WELL --

01:46 PM 3 A.

OR SALARIED?

01:46 PM 4 Q.

I'M TALKING ABOUT HOURLY JOBS.

01:46 PM 5 A.

YES, SIR.

01:46 PM 6 Q.

THOSE WERE ALL BEFORE THE MID-1980S, ISN'T THAT

01: 46 PM 7 RIGHT?

01:46 PM 8 A.

WELL, NO, SIR, BECAUSE I MADE INSPECTOR THREE -- IT

01:46 PM 9 TOOK ME THREE SHOTS TO MAKE IT PERMANENT THE FIRST TIME.

01:46 PM 10 Q.

WHEN DID YOU FINALLY BECOME A PERMANENT INSPECTOR?

01: 46 PM 11 A.

SOMETIME IN THE MID-80s.

01:46 PM 12 Q.

ALL RIGHT. AND ONCE YOU BECAME A PERMANENT

01:47 PM 13 INSPECTOR, YOU DIDN'T BID ON ANY OTHER --

01:47 PM 14 A.

YES, SIR, I DID.

01:47 PM 15 Q.

ISN'T THAT RIGHT?

01:47 PM 16 A.

NO, SIR, IT'S NOT. I BID ON --

01:47 PM 17 Q.

MR. MCCLAIN --

01:47 PM 18

THE COURT REPORTER: ONE AT A TIME, PLEASE.

01:47 PM 19 BY MR. HAMEL:

01:47 PM 20 Q.

ALL RIGHT. MY APOLOGIES. PLEASE CONTINUE, MR.

01:47 PM 21 MCCLAIN.

01:47 PM 22 A.

GO AHEAD WITH YOUR QUESTION.

01:47 PM 23 Q.

WHAT HOURLY JOBS DID YOU BID ON AFTER YOU BECAME A

01:47 PM 24 PERMANENT INSPECTOR?

01:47 PM 25 A.

WELL, THERE WERE JOBS LIKE TECHNICIANS, AND THEy'RE

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01:47 PM 1 HOURLY, THEY IRE NOT SALARY. WE HAVE TECHNICIANS IN

01:47 PM 2 MAINTENANCE, WE HAVE TECHNICIANS -- WE HAVE MACHINE

01:47 PM 3 TECHNICIANS. SO I DID BID ON THOSE JOBS. AND NOT JUST IN

01:47 PM 4 THE TRAILER PLANT BUT IN SOME OF THE OTHER DIVISIONS.

01:47 PM 5 Q.

HOW MANY SUCH BIDS DID YOU MAKE?

01:47 PM 6 A.

I HAVE NO IDEA, SIR.

01:47 PM 7 Q.

CAN YOU GIVE ME ANY ESTIMATE?

01:47 PM 8 A.

NO, SIR.

01:47 PM 9 Q.

NOW, AFTER YOU BECAME CHIEF INSPECTOR, YOU WERE

01:47 PM 10 PROMOTED TO QUALITY MANAGER, CORRECT?

01:47 PM 11 A.

YES, SIR, AFTER MUCH EFFORT IN 1990.

01:47 PM 12 Q.

AND IN 1996 YOU WERE BUMPED BACK FROM QUALITY

01:48 PM 13 MANAGER TO AN INSPECTOR, ISN IT THAT RIGHT?

01:48 PM 14 A.

YES, SIR, I WAS DEMOTED.

01:48 PM 15 Q.

NOW, AT THE TIME YOU WERE CHIEF INSPECTOR, THERE

01:48 PM 16 WERE FOURTEEN INSPECTORS UNDER YOU, ISN IT THAT RIGHT?

01:48 PM 17 A.

AT ONE TIME THERE WERE FOURTEEN. I DON'T REMEMBER

01:48 PM 18 IF IT WAS WHEN I WAS CHIEF INSPECTOR. PROBABLY SO,

01:48 PM 19 BECAUSE WE PROBABLY HAD TWO SHIFTS THEN.

01:48 PM 20 Q.

OKAY. AND THERE WERE ALSO FOURTEEN INSPECTORS WHEN

01:48 PM 21 YOU WERE A QUALITY MANAGER, ISN IT THAT --

01:48 PM 22 A.

PROBABLY IN THE BEGINNING. AND THAT NUMBER HAS

01:48 PM 23 FLUCTUATED, BECAUSE WHEN THEY WOULD CUT -- WHEN THEY WOULD

01:48 PM 24 DELETE THE SECOND SHIFT, THEN, OF COURSE, WE DIDN IT HAVE

01:48 PM 25 ANY NEED FOR INSPECTORS ON THE SECOND SHIFT.

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01:48 PM 1 Q. AND WHILE YOU WERE QUALITY MANAGER YOU REPORTED TO

01:48 PM 2 THE QUALITY WARRANTY MANAGER, ISN'T THAT RIGHT?

01:48 PM 3 A.

NO, SIR, HE WAS NOT THE QUALITY, HE WAS -- HIS TITLE

01:48 PM 4 WAS WARRANTY MANAGER. EVERY DIVISION, THE DIVISION'S

01:48 PM 5 01:48 PM 6 01:48 PM 7 01:48 PM 8 01:48 PM 9

QUALITY MANAGER REPORTED TO THE VICE PRESIDENT OVER THE DIVISION.
DURING MY TENURE I HAD -- I REPORTED TO SEVEN OR EIGHT DIFFERENT ONES. Q. MR. MCCLAIN, LET ME ASK YOU, PLEASE, SIR --

01:48 PM 10

AS YOU MAY UNDERSTAND IN THIS CASE, THE COURT

01:48 PM 11 HAS LIMITED OUR TIME FOR EXAMINATION, AND I WOULD LIKE TO

01:49 PM 12 ASK YOU IF YOU WOULD TRY TO JUST ADDRESS MY QUESTION, AND

01:49 PM 13 I'M SURE IF YOUR COUNSEL HAS SOMETHING THAT THEY WANT TO

01:49 PM 14 TALK TO YOU ABOUT, THEY WILL. BUT IF YOU'LL JUST TRY TO

01:49 PM 15 STICK TO MY QUESTIONS.

01:49 PM 16 A.

YES, SIR.

01:49 PM 17 Q. WHEN YOU WERE QUALITY MANAGER YOU REPORTED TO THE

01:49 PM 18 WARRANTY MANAGER, ISN'T THAT RIGHT?

01:49 PM 19 A.

YES, IN THE BEGINNING.

01:49 PM 20 Q. AND AT SOME POINT IN TIME THE TRAILER DEPARTMENT

01:49 PM 21 BEGAN -- OR THE TRAILER DIVISION WENT ON HARD TIMES, ISN'T

01:49 PM 22 THAT RIGHT?

01: 49 PM 23 A.

YES, ON NUMEROUS OCCASIONS.

01:49 PM 24 Q.

AND THERE WERE LAYOFFS IN WHICH SEVENTY-FIVE TO A

01:49 PM 25 HUNDRED PEOPLE LOST THEIR JOB, ISN'T THAT CORRECT?

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01:49 PM 1 A. 01:49 PM 2 Q.

I HAVE NO IDEA HOW MANY LOST THEIR JOB. A LOT OF PEOPLE?

140

01:49 PM 3 A.

WELL, THERE WAS A REDUCTION IN FORCE, THAT'S

01: 49 PM 4 CORRECT.

01:49 PM 5 Q.

OKAY. AND THE QUALITY MANAGER -- AND THE WARRANTY

01:49 PM 6 MANAGER CAME AND SAID THAT YOU WERE GOING TO BE BUMPED

01:49 PM 7 BACK TO AN INSPECTOR, AND HE WAS GOING TO TAKE OVER AND BE

01: 49 PM 8 BOTH QUALITY AND WARRANTY MANAGER, ISN'T THAT RIGHT?

01:49 PM 9 A.
01:49 PM 10 Q. 01:49 PM 11 A.

WHAT YEAR ARE YOU TALKING ABOUT, SIR?
1996, SIR.
YES, HE DID. HE DID TELL ME THAT CONDITIONS WERE

01:49 PM 12 WORSE, AND THAT THERE WAS A DOWNTURN IN BUSINESS, AND THAT

01: 50 PM 13 THEY DID NOT WANT -- OUR JOBS WAS DUPLICATING

01: 50 PM 14 01:50 PM 15

RESPONSIBILITIES, WHICH I DIFFERED WITH HIM ON THAT.

Q.

I UNDERSTAND THAT YOU DIFFERED WITH HIM. IT IS THE

01: 50 PM 16 CASE THAT BY THAT TIME THE NUMBER OF INSPECTORS HAD BEEN

01: 50 PM 17 REDUCED FROM A HIGH OF FOURTEEN TO ONLY FOUR INSPECTORS,

01:50 PM 18 ISN'T THAT RIGHT?

01:50 PM 19 A.

NO, SIR, WE'VE NEVER HAD JUST FOUR INSPECTORS. I

01:50 PM 20 BELIEVE WE'VE HAD

WE WENT FROM FOURTEEN TO NINE AND

01:50 PM 21 FROM NINE TO SIX. I DON'T KNOW HOW MANY WE HAVE NOW, BUT

01:50 PM 22 01: 50 PM 23 01:50 PM 24 01: 50 PM 2 5

I DON'T REMEMBER US BEING AS LOW AS FOUR.

Q.

DO YOU RECALL TESTIFYING THAT THERE WERE FOUR?

A.

WELL, I COULD HAVE, BUT I DON'T REMEMBER EXACTLY HOW

MANY.

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01:50 PM 1 Q.

OKAY. WELL, THERE ARE NO MORE THAN FIVE RIGHT NOW,

01:50 PM 2 01: 50 PM 3 01:50 PM 4 01:50 PM 5 01:50 PM 6 01:50 PM 7 01: 50 PM 8 01:51 PM 9

ARE THERE? A. YES. Q. CERTAINLY FAR FEWER THAN THERE USED TO BE WHEN YOU WERE QUALITY MANAGER, ISN'T THAT RIGHT? A. AGAIN, WE REDUCED FROM NINE -- DURING MY TENURE WE DID REDUCE TO SIX INSPECTORS. Q. OKAY. AND THE REDUCTION CONTINUED, DID IT NOT? A. WELL, THAT WAS THE LAST REDUCTION WE HAD. WE WENT

01: 51 PM 10 FROM FOURTEEN TO NINE, BECAUSE WE HAD ONE SHIFT, AND WE

01:51 PM 11 WENT FROM NINE TO SIX, AS FAR AS I REMEMBER.

01: 51 PM 12 Q.

SO AT THE TIME YOU WERE PROMOTED TO QUALITY MANAGER,

01: 51 PM 13 THE QUALITY MANAGER SUPERVISED THE ACTIVITIES OF FOURTEEN

01: 51 PM 14 INSPECTORS, RIGHT?

01:51 PM 15 A.

YES, SIR.

01:51 PM 16 Q.

AT THE TIME THE JOB WAS CONSOLIDATED WITH THE

01: 51 PM 17 WARRANTY MANAGER JOB, THE NUMBER OF INSPECTORS WAS DOWN TO

01: 51 PM 18 SIX, CORRECT?

01:51 PM 19 A.

IT WAS SIX. IT WAS ACTUALLY SIX BEFORE THE

01: 51 PM 20 DOWNTURN.

01:51 PM 21 Q.

ALL RIGHT.

01:51 PM 22 A.

BEFORE MY DEMOTION.

01: 51 PM 23 Q. ALL RIGHT. AND SINCE THAT TIME THE NUMBER OF

01:51 PM 24 INSPECTORS HAS CONTINUED TO DECLINE?

01:51 PM 25 A.

NOT NECESSARILY. I THINK THERE'S FIVE. I THINK IT

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01:51 PM 1 01: 51 PM 2 01:51 PM 3 01: 51 PM 4 01: 51 PM 5 01: 51 PM 6 01:51 PM 7 01:52 PM 8 01: 52 PM 9 01: 52 PM 10

142 HAS DECLINED BY ONE. Q. ALL RIGHT. NOW, I BELIEVE YOUR TESTIMONY ON DIRECT EXAMINATION, MR. MCCLAIN, WAS THAT THE REASON -- THAT YOU HAVE NEVER BID FOR ANY JOB SINCE THE TIME OF YOUR DEMOTION, RIGHT? A. WOULD YOU RESTATE THE QUESTION, PLEASE? Q. DID YOU NOT TESTIFY ON YOUR DIRECT EXAMINATION THAT FROM THE TIME OF YOUR DEMOTION IN 1996, YOU HAVE NOT SINCE BID ON ANY JOB? A. OH, THAT IS CORRECT, SIR.

01: 52 PM 11 Q. ALL RIGHT. AND YOU TESTIFIED THAT THE REASON YOU 01: 52 PM 12 DIDN'T DO SO WAS BECAUSE DOUG WILLIAMS, YOUR MANAGER, TOLD

01: 52 PM 13 YOU THAT YOU SHOULD NOT, AND YOU WOULD NEVER GET ANOTHER

01:52 PM 14 JOB AT LUFKIN, ISN'T THAT RIGHT?

01:52 PM 15 A.

HE -- EXACTLY WHAT -- WHAT I TESTIFIED IS THAT HE

01:52 PM 16 TOLD ME I WAS GOING TO BE AN INSPECTOR, THERE WAS NO NEED

01: 52 PM 17 IN ME SIGNING ANY MORE JOBS, THAT I WOULD NOT GET ANOTHER

01:52 PM 18 JOB IN MANAGEMENT. YES, SIR, THAT'S WHAT I TESTIFIED.

01:52 PM 19 Q.

DO YOU RECALL BEING ASKED ABOUT THIS SITUATION IN

01: 52 PM 20 YOUR DEPOSITION, SIR?

01:52 PM 21 A. 01:52 PM 22 Q.

NOT SPECIFICALLY. OKAY. AND HAVE YOU PREVIOUSLY TESTIFIED THAT THE

01:52 PM 23 REASON THAT YOU HAVEN'T SIGNED ANY OTHER BIDS WAS "I HAVE

01: 52 PM 24 NOT SIGNED A BID BECAUSE I FELT I SHOULD NOT HAVE BEEN

01:52 PM 25 DEMOTED, AND I CERTAINLY FELT THAT I SHOULD NOT -- I WAS

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01:52 PM 1 GOING -- I WASN'T GOING BACKWARDS"? DID YOU TESTIFY TO

01:52 PM 2 THAT?

01: 52 PM 3 A.

I MAY HAVE TESTIFIED TO THAT, SIR. BUT THE TRUTH OF

01: 52 PM 4 THE MATTER IS THAT HE TOLD ME THAT THERE WAS NO NEED FOR

01:53 PM 5 ME TO SIGN, BECAUSE I WAS LOCKED IN AS AN INPECTOR AND

01:53 PM 6 THAT WAS IT.

01:53 PM 7 Q.

AM I CORRECT, SIR, THAT IN YOUR DEPOSITION IN JULY

01: 53 PM 8 OF 2003 YOU NEVER SAID ANYTHING ABOUT MR. WILLIAMS SAYING

01: 53 PM 9 THAT TO YOU? IS THAT RIGHT?

01:53 PM 10 A.

WELL, YES, SIR, THAT IS CORRECT. THAT'S BEEN A LONG

01: 53 PM 11 TIME. BUT I HAVE NOW REMEMBERED THAT HE DID TELL ME THAT.

01:53 PM 12 Q.

ALL RIGHT. WELL, SIR, DON'T YOU ALSO RECALL

01: 53 PM 13 TESTIFYING ABOUT YOUR DEMOTION IN THE CLASS HEARING BEFORE

01: 53 PM 14 JUDGE HEARTFIELD?

01: 53 PM 15 A.

I DON'T REMEMBER. YOU WOULD HAVE TO REMIND ME WHAT

01: 53 PM 16 I SAID.

01: 53 PM 17

MR. HAMEL: CAN I APPROACH THE WITNESS, YOUR

01: 53 PM 18 HONOR?

01: 53 PM 19

THE COURT: YES.

01: 53 PM 20 BY MR. HAMEL:

01: 53 PM 21 Q.

MR. MCCLAIN, I'M GOING TO READ FROM THE TRANSCRIPT

01: 53 PM 22 OF THE THE TRANSCRIPT OF HEARING ON CLASS CERTIFICATION

01:53 PM 23 BEFORE THE HONORABLE THAD HEARTFIELD, UNITED STATES

01:53 PM 24 DISTRICT JUDGE, 10:00 A.M., FEBRUARY 18, 1998.

01: 53 PM 25

AND THE SUBJ ECT AT PAGE 226 WAS THAT YOU HAD NOT

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01:53 PM 1 BID ON ANY JOBS, AND YOUR ANSWER, SIR, "WHY SHOULD I BID

01:54 PM 2 FOR A LOWER-LEVEL JOB THAT I'M GOING TO BE DEMOTED, WHEN

01: 54 PM 3 THERE'S NO OTHER -- WHEN THERE'S ANOTHER DOWNTURN IN

01:54 PM 4 BUSINESS, WHEN I WAS UNFAIRLY DEMOTED FROM MY JOB THAT I

01:54 PM 5 HAVE TENURE IN, THAT I WOULD NOT BE DEMOTED BECAUSE OF THE

01:54 PM 6 DOWNTURN? WHY WOULD I DO THAT, SIR?"

01: 54 PM 7

THAT WAS YOUR ANSWER, WAS IT NOT?

01:54 PM 8 A.

I'M NOT DENYING THAT I GAVE THAT, SIR.

01:54 PM 9 Q. AND IN THE TESTIMONY BEFORE JUDGE HEARTFIELD YOU DID

01: 54 PM 10 NOT SAY ANYTHING ABOUT MR. WILLIAMS TELLING YOU THAT YOU

01: 54 PM 11 WOULD NEVER BE CONSIDERED FOR ANOTHER JOB, DID YOU?

01: 54 PM 12 A.

NO, SIR, I DID NOT, BUT THAT'S BEEN A LONG TIME AND

01: 54 PM 13 I'VE BEEN THROUGH A LOT SINCE THEN.

01:54 PM 14 Q.

WELL, YOUR TESTIMONY BEFORE JUDGE HEARTFIELD WAS IN

01: 54 PM 15 1998, JUST TWO YEARS AFTER THE EVENTS, AND NOW YOU'RE

01: 54 PM 16 TELLING THE COURT TODAY THAT SIX YEARS LATER YOU REMEMBER

01: 54 PM 17 ABOUT MR. WILLIAMS?

01: 54 PM 18

MR. GARRIGAN: WELL, YOUR HONOR --

01: 54 PM 19

THE COURT: IT'S CROSS-EXAMINATION. HE'S GOT A

01: 54 PM 20 CERTAIN AMOUNT OF TIME.

01: 54 PM 21 01:54 PM 22

MR. GARRIGAN: ALL RIGHT. THE WITNESS: WHAT I'M TELLING YOU, SIR, IS THAT

01:54 PM 23 I WAS ASKED A LOT OF QUESTIONS. I'VE BEEN THROUGH A LOT.

01: 54 PM 24 IT IS POSSIBLE THAT THE ANSWER I GAVE TO JUDGE HEARTFIELD

01:55 PM 25 OR IN A DEPOSITION WASN'T ALL OF THE ANSWER, BECAUSE AS I

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01: 55 PM 1 HAVE THOUGHT ABOUT THIS AND AS I HAVE REVISITED WHAT HAS

01: 55 PM 2 HAPPENED TO ME AT DIFFERENT TIMES, THINGS HAVE CAME TO ME

01: 55 PM 3 THAT HAPPENED TO ME.

01:55 PM 4

I'M NOT SAYING I DIDN'T GIVE THAT ANSWER, BUT

01:55 PM 5 I'M SAYING THAT MR. WILLIAMS DID TELL ME THAT.

01: 55 PM 6 BY MR. HAMEL:

01: 55 PM 7 Q.

LET ME TURN TO YOUR EXPERIENCE WITH PROMOTING

01:55 PM 8 EMPLOYEES, MR. MCCLAIN.

01:55 PM 9 A.

YES, SIR.

01: 55 PM 10 Q .

YOU'VE NOT BEEN PERSONALLY INVOLVED IN ANY PROMOTION

01: 55 PM 11 OTHER THAN THE PROMOTION TO THE JOB CLASSIFICATION OF

01:55 PM 12 INSPECTOR, ISN'T THAT RIGHT?

01:55 PM 13 A.

THOSE WERE THE WORKERS I SUPERVISED, YES, SIR.

01:55 PM 14 Q.

ALL RIGHT. AND BASED ON YOUR EXPERIENCE, WHEN YOU

01: 55 PM 15 WOULD GO TO PROMOTE SOMEBODY IN THE INSPECTOR

01:55 PM 16 CLASSIFICATION, ONE OF THE ADMINISTRATIVE PEOPLE AT THE

01:55 PM 17 PLANT WOULD GIVE YOU A LIST WITH, SAY, THE TWELVE TO

01: 55 PM 18 FIFTEEN MOST SENIOR PEOPLE ON THE BID LIST, ISN'T THAT

01: 55 PM 19 RIGHT?

01:55 PM 20 A.

THE SECRETARY WOULD DO THAT.

01:55 PM 21 Q.

OKAY. BUT YOU WOULD GET A LIST OF THE MOST SENIOR

01:55 PM 22
01: 55 PM 23

PEOPLE TO CONSIDER, IS THAT RIGHT?

A.

AND THAT IS WHAT I REQUESTED FROM HER. THAT IS WHAT

01:55 PM 24 01: 56 PM 25

SHE PROVIDED ME WITH, YES.

Q.

FROM THE BID LIST YOU WOULD DETERMINE WHO IS THE

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01: 56 PM 1 MOST QUALIFIED PERSON USING -- WOULD YOU NOT?

01: 56 PM 2 A.

SAY IT AGAIN, PLEASE.

01:56 PM 3 Q.

YOU WOULD TRY TO DETERMINE WHO WAS THE MOST SENIOR

01:56 PM 4 QUALIFIED PERSON, WOULD YOU NOT?

01: 56 PM 5 A.

NO, SIR, WHO WAS THE -- I WAS TOLD TO DECIDE WHO WAS

01: 56 PM 6 THE MOST QUALIFIED PERSON. SENIORITY WAS IMPORTANT TO ME

01: 56 PM 7 BECAUSE, SIR, I HAD BEEN A UNION MEMBER, AND SENIORITY IS

01:56 PM 8 01:56 PM 9

A PART OF THE CONTRACT. MR. HAMEL: WILL YOU TURN ON THE SCREEN FOR ME,

01:56 PM 10 PLEASE?

01: 56 PM 11

GOOD. THANK YOU.

01: 56 PM 12 BY MR. HAMEL:

01:56 PM 13 Q.

WELL, YOU DO RECALL, SIR, DO YOU NOT, THAT YOU ASKED

01: 56 PM 14 PEOPLE WHO YOU WERE EVALUATING CERTAIN QUESTIONS ABOUT

01:56 PM 15 WHAT THEY COULD DO, ISN IT THAT RIGHT?

01:56 PM 16 A.

YES, SIR.

01:56 PM 17 Q.

YOU ASKED THEM SPECIFIC QUESTIONS ABOUT BUILDING A

01:56 PM 18 VAN, DIDNIT YOU?

01:57 PM 19 A.

THE QUESTIONS I ASKED THEM HAD TO DO WITH JOB

01: 57 PM 20 SKILLS, CUSTOMER AND PRODUCT KNOWLEDGE, AS I RECOLLECT,

01: 57 PM 21 THEIR ABILITY TO READ A TAPE MEASURE, WHICH IS A

01: 57 PM 22 TRI-SQUARE.

01:57 PM 23 01: 57 PM 24

I MADE A DECISION AS TO IF THEY HAD A GOOD ATTITUDE.

01:57 PM 25

I MADE A SUBJECTIVE DECISION AS TO WHETHER OR

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01: 57 PM 1 NOT THEIR ATTENDANCE WAS ACCEPTABLE. I DECIDED THAT.

01: 57 PM 2

AND THAT I S WHAT I WAS TOLD TO USE IN MAKING

01: 57 PM 3 THOSE PROMOTIONS.

01:57 PM 4

BUT ON MY OWN, BECAUSE I WANTED TO BE FAIR, I

01:57 PM 5 USED SENIORITY AS THE MOST DETERMINING FACTOR. IF THE

01: 57 PM 6 SENIOR QUALIFIED MAN WAS THE PERSON THAT I INTERVIEWED,

01: 57 PM 7 THEN HE WAS THE PERSON THAT GOT THE JOB. BUT THAT

01: 57 PM 8 SENIORITY WAS NOT A FACTOR THAT LUFKIN INDUSTRIES TOLD ME

01: 58 PM 9 01: 58 PM 10

TO USE OR TRAINED ME.

Q.

MR. MCCLAIN, AS I UNDERSTAND IT, YOU SAY THAT IN

01: 58 PM 11 YOUR SUPERVISOR TRAINING YOU GOT INFORMATION AS TO WHO

01: 58 PM 12 WOULD BE QUALIFIED OR ON WHAT CRITERIA PEOPLE WOULD BE

01: 58 PM 13 QUALIFIED?

01: 58 PM 14 A.

I SAID IN THE -- YOUIRE TALKING ABOUT THE FOUR-HOUR

01:58 PM 15 TRAINING COURSE?

01: 58 PM 16 Q. 01:58 PM 17 A.

YES, SIR. SIR, I SAID IN THE FOUR HOURS WE SIMPLY GOT

01: 58 PM 18 INFORMATION OF DIFFERENT FACTORS TO USE. THEY DIDN IT TELL

01:58 PM 19
01:58 PM 20

US HOW TO USE IT.

Q.

ARE YOU TELLING ME THAT THEY DIDN1T SAY ANYTHING

01: 58 PM 21 ABOUT THE UNION CONTRACT REQUIREMENT THAT YOU MUST TAKE

01: 58 PM 22
01: 58 PM 23 01:58 PM 24 01: 58 PM 25

THE SENIOR PERSON?

A.

NO, SIR. NO, SIR, NOT IN MEETING.

Q.

OKAY.

A.

NOT ABOUT SENIORITY.

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01:58'PM 1 Q.

148 LET'S TALK ABOUT SOME OF THESE FACTORS. WHAT YOU'RE

01: 58 PM 2 SAYING IS THAT YOU HAD NO GUIDANCE ON HOW TO GET

01: 58 PM 3 ATTENDANCE CRITERIA?

01:58 PM 4 A.

I'M SAYING I DIDN'T HAVE -- I WASN'T SHOWN HOW TO

01:58 PM 5 MEASURE IF IT'S A GOOD ATTENDANCE, BECAUSE IN OUR

01: 58 PM 6 ATTENDANCE YOU CAN MANIPULATE THE SYSTEM.

01:58 PM 7 Q. 01:58 PM 8 A.

OKAY. WOULD YOU PUT UP L22023, PLEASE? NOW, IF THEY HAD A PLUS, SAY A PLUS TWO, OR IF THEY

01: 59 PM 9 HAD A MINUS TWO, THEY COULD HAVE BEEN ABSENT MANY TIMES,

01: 59 PM 10 AND SOME COULD HAVE BEEN LEGIT AND SOME WERE NOT. SO,

01:59 PM 11 AGAIN, I WASN'T TRAINED AS TO EXTENUATING CIRCUMSTANCES TO

01: 59 PM 12 MEASURE HOW A PERSON HAS A GOOD ATTENDANCE RECORD.

01: 59 PM 13 Q.

WELL, MS. MCCLAIN, LET ME SHOW YOU A DOCUMENT FROM

01: 59 PM 14 THE DAVID ACKERMAN GRIEVANCE FILE. THIS IS A DOCUMENT

01: 59 PM 15 THAT WAS PREPARED BY YOU, WAS IT NOT?

01: 59 PM 16 A.

IT'S HARD TO SEE THAT, BUT

01:59 PM 17 Q. 01: 59 PM 18 A. 01: 59 PM 19 Q.

THERE'S MR. ACKERMAN'S NAME, RIGHT? CAN I COME CLOSER? BECAUSE I CAN'T SEE IT. CERTAINLY. CAN YOU BLOW IT UP A LITTLE BIT MORE FOR

01: 59 PM 20 US, PLEASE?

01: 59 PM 21 01:59 PM 22 A. 01:59 PM 23 Q.

CAN YOU SEE THAT ANY BETTER, MR. MCCLAIN? YEAH, A LITTLE BIT BETTER. ALL RIGHT. AND WHAT IS -- THIS IS THE SENIORITY

02:00 PM 24 LIST THAT WAS GIVEN TO YOU, ISN'T IT? CORRECT?

02:00 PM 25 A.

YES, I BELIEVE SO.

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02:00 PM 1 02:00 PM 2 02:00 PM 3 02:00 PM 4 02:00 PM 5 02:00 PM 6 02:00 PM 7 02:00 PM 8

149 Q. AND THIS IS THE ATTENDANCE CREDITS -A. NO. NO, I CREATED THAT. Q. OKAY. A. THAT'S NOT WHAT SHE GAVE ME. Q. OKAY. A. SHE GAVE ME ANOTHER LIST SHOWING THE SENIOR MAN. I CREATED THAT. Q. BUT YOU WENT TO SOME RECORDS AND YOU WERE ABLE TO

02:00 PM 9 COMPUTE IN NUMERICAL FASHION WHAT THE PERSON'S ATTENDANCE

02: 00 PM 10 WAS AS TO ABSENTEEISM AND EARLY OUT AND TARDY, WERE YOU

02 :00 PM 11 NOT?

02 :00 PM 12 A. WELL, THE COMPUTER PRINTOUT SHOWS EVERYTHING THAT I

02:00 PM 13 PUT UP THERE.

02:00 PM 14 Q. THAT'S BECAUSE THE COMPUTER IS TIED INTO THE

02 :00 PM 15 ATTENDANCE CONTROL PROGRAM WHICH IS AT LUFKIN INDUSTRIES,

02:00 PM 16 ISN'T THAT RIGHT?

02:00 PM 17 A. 02: 00 PM 18 Q .

RIGHT. RIGHT. AND YOU GET A PRINTOUT THAT SPECIFICALLY TELLS YOU

02:00 PM 19 HOW A PERSON STANDS IN THE ATTENDANCE CONTROL PROGRAM WITH

02:00 PM 20 RESPECT TO ABSENTEEISM AND EARLY OUT AND TARDINESS, ISN'T

02 :00 PM 21 THAT RIGHT?

02:00 PM 22 A.

WELL, SIR, IF I WANTED TO, I COULD MANIPULATE THAT

02: 00 PM 23 SYSTEM AND BE ABSENT MANY DAYS THAT WAS UNJUSTIFIED, AND

02:00 PM 24 EVERY HOURLY EMPLOYEE WILL TELL YOU THE SAME THING. 02 : 00 PM 2 5 Q • OKAY. NOW, WITH RESPECT TO THE SAMPLE JOB ORDER

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02 :01 PM 1 THAT YOU ASKED PEOPLE TO BE EVALUATED ON OR YOU EVALUATED

02 :01 PM 2 PEOPLE ON --

02:01 PM 3 A.

YES.

02 :01 PM 4 Q.

YOU WOULD ACTUALLY GIVE THEM A SAMPLE ORDER AND ASK

02:01 PM 5 THEM QUESTIONS ABOUT IT, WOULDN'T YOU?

02:01 PM 6 A.

YES, I WOULD ASK THEM QUESTIONS AS TO TRY TO FIND

02 :01 PM 7 OUT WHAT GENERAL KNOWLEDGE THEY HAD --

02:01 PM 8 Q.

OKAY.

02:01 PM 9 A.

-- AS FAR AS SPECIFICATION GOES.

02 :01 PM 10 Q.

YOU WOULD GIVE THEM A BLUEPRINT AND ASK THEM TO READ

02:01 PM 11 THE BLUEPRINT TO YOU, WOULDN'T YOU?

02 : 01 PM 12 A •

I WOULD GIVE -- YES, A SIMPLE BLUPRINT, RIGHT.

02:01 PM 13 Q.

OKAY. YOU WOULD ASK THEM SPECIFIC QUESTIONS BASED

02 :01 PM 14 ON THE BLUEPRINT, SUCH AS IIHOW WOULD YOU INSTALL THIS

02:01 PM 15 WINDOW? II

02: 01 PM 16 A.

I'M NOT REALLY SURE WHAT QUESTIONS I ASKED THEM, BUT

02 :01 PM 17 I KNOW THAT IT WAS NOTHING COMPLICATED, BECAUSE, YOU KNOW,

02: 01 PM 18 I DIDN'T KNOW WHO KN EW HOW TO READ A BLU EPRINT, SO I WOU LD

02:01 PM 19 CHOOSE SOMETHING THAT WAS FAIRLY SIMPLE. AND I THINK IT

02 :01 PM 20 WOULD BE SOMETHING LIKE IF YOU WERE INSTALLING A PLACARD

02:01 PM 21 ON THE SIDE OF A TRAILER, AND FOR THEM TO LOOK AT THE

02:01 PM 22 PRINT AND TELL ME WHAT DIMENSIONS WENT WHERE, SOMETHING

02:01 PM 23 02:01 PM 24

LIKE THAT.

Q.

NOW, SIR, WHILE YOU SAY THAT THE PROCESS CAN BE

02:02 PM 25 SUBVERTED, YOU AGREE --

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02:02 PM 1

YOU CAN'T REMEMBER ANY SUPERVISOR WHO HAD A MIND

02: 02 PM 2 TO SUBVERT THE PROCESS WITH RESPECT TO THE ABILITY

02:02 PM 3 DETERMINATION, CAN YOU?

02 :02 PM 4

MR. GARRIGAN: OBJECTION, CALLS FOR HIM TO

02:02 PM 5 SPECULATE ON OTHER PEOPLE'S MOTIVATIONS. THAT'S

02:02 PM 6 IMPOSSIBLE.

02:02 PM 7

THE COURT: I THINK THAT'S A VALID OBJECTION.

02:02 PM 8

IF YOU KNOW OF ANYBODY, TELL ME, AND IF YOU

02:02 PM 9 DON'T, TELL ME THAT, TOO.

02 :02 PM 10

THE WITNESS: YOU MEAN THAT --

02 :02 PM 11

THE COURT: WELL, THAT ACTUALLY YOU SAY

02:02 PM 12 SUBVERTED

02:02 PM 13

THE WITNESS: WELL, WHAT I WAS TALKING ABOUT WAS

02:02 PM 14 THE ATTENDANCE PROGRAM.

02:02 PM 15 02 :02 PM 16

THE COURT: THAT'S THE ATTENDANCE PROGRAM? THE WITNESS: YEAH. YOU'RE TALKING ABOUT

02:02 PM 17 SOMETHING ELSE. I'M SAYING THE ATTENDANCE PROGRAM --

02 :02 PM 18

BECAUSE I HAVE A PLUS FOUR IS NO INDICATION OF

02:02 PM 19 WHAT TYPE OF ATTENDANCE RECORD I HAVE, BECAUSE THERE MAY

02 :02 PM 20 HAVE BEEN REASONS THAT I WAS ABSENT THAT WERE VALID AND

02 :02 PM 21 SOME WERE NOT.

02:02 PM 22 BY MR. HAMEL:

02:02 PM 23 Q.

NOW, MR. MCCLAIN, YOU HAVE TESTIFIED THAT YOU COULD

02:03 PM 24 CHOOSE A PERSON BASED ON RACE AND NOBODY WOULD CHALLENGE

02:03 PM 25 THAT DETERMINATION?

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02:03 PM 1 A.

liM JUST SAYING I COULD.

02:03 PM 2 Q.

YOU COULD?

02:03 PM 3 A.

BUT I WOULDN'T HAVE.

02:03 PM 4 Q.

WELL, ISN'T IT IN FACT THE CASE, SIR, THAT THE UNION

02:03 PM 5 WOULD STEP FORWARD AND CHALLENGE SITUATIONS IN WHICH A

02:03 PM 6 PROMOTION WAS MADE OUTSIDE OF THE ORDER OF SENIORITY?

02:03 PM 7 A.

ABILITY -- WHEN ABILITY WAS USED, VERY RARELY

02:03 PM 8 CHALLENGED, I MEAN, VERY.

02:03 PM 9 Q.

WOULD YOU PUT UP L22026, PLEASE?

02 :03 PM 10

MR. MCCLAIN, DO YOU RECALL THIS LETTER FROM THE

02:03 PM 11 BOILERMAKER LOCAL WITH RESPECT TO THE ACKERMAN SITUATION

02 :03 PM 12 IN WHICH THEY CHALLENGED THAT YOU HAD PASSED OVER DAVID

02:03 PM 13 BURRIS AND KENNETH SANCHEZ AS INSPECTORS IN FAVOR OF

02: 03 PM 14 ANOTHER EMPLOYEE? OR, I IM SORRY, YOU HAD PROMOTED BURRIS

02:04 PM 15 AND SANCHEZ, WHO WERE JUNIOR TO MR. ACKERMAN?

02 : 04 PM 16 A • OKAY. I CAN'T SEE IT, AND I CAN'T REMEMBER. IF YOU

02 :04 PM 17 COULD SHOW ME THE PAPERWORK. I DON IT WANT TO TALK FROM

02 :04 PM 18 SOMETHING THAT I IM READING WHAT I DID, BECAUSE THESE

02:04 PM 19 DECISIONS WERE MADE A LONG TIME AGO.

02:04 PM 20

MR. HAMEL: MAY I APPROACH, YOUR HONOR?

02 :04 PM 21

THE WITNESS: NOW, DO YOU HAVE THE PAGE WHERE I

02:04 PM 22 GAVE MY EXPLANATION?

02:04 PM 23 BY MR. HAMEL:

02:04 PM 24 Q.

YES, SIR, I DO. WE'RE ABOUT TO DO THAT.

02:04 PM 25

AM I CORRECT THAT THIS WAS A SITUATION IN WHICH

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02:04 PM 1 YOU -- THE UNION CHALLENGED THE DECISION THAT HAD BEEN

02: 04 PM 2 MADE?

02:05 PM 3 A. 02:05 PM 4 Q.

YES. AND YOU HAD TO JUSTIFY THE DECISION THAT YOU MADE IN

02:05 PM 5
02:05 PM 6
02:05 PM 7

ORDER TO RESPOND TO THE GRIEVANCE, DID YOU NOT?

A.

YES, BUT THAT1S AS FAR AS IT WENT.

Q.

WOULD YOU PUT UP L22028, PLEASE? AND BLOW UP THE

02 :05 PM 8 FIRST FEW LINES.

02 :05 PM 9

THIS IS YOUR RESPONSE TO MR. WILLIAMS, IN WHICH

02:05 PM 10 YOU

YOU TELL MR. WILLIAMS WHAT THE INTERVIEW PROCESS --

02:05 PM 11 A.

RIGHT.

02:05 PM 12 Q.

-- YOU WENT THROUGH WAS?

02:05 PM 13 A.

RIGHT.

02:05 PM 14 Q. 02 :06 PM 15

AND IF YOU COULD MOVE DOWN A FEW LINES. OKAY. "THE INTERVIEWING PROCESS FOR THE

02:06 PM 16 02:06 PM 17

INSPECTOR OPENINGS POSTED WAS A VERY IN-DEPTH EVALUATION OF EACH APPLICANT 1S EXPERIENCE, PRODUCT KNOWLEDGE, SKILLS,

02:06 PM 18 DEPENDABILITY AND TEMPERAMENT TO DETERMINE THE BEST

02:06 PM 19 QUALIFIED PERSONS ABLE TO GET THE JOB DONE RIGHT AND TO BE

02 :06 PM 20 A COMPETENT INSPECTOR."

02:06 PM 21

"IN ORDER TO BE COMPLETELY FAIR, THE

02:06 PM 22 INTERVIEWING PROCESS FOR ALL APPLICANTS CONSISTED OF THE

02:06 PM 23 SAME GUIDELINES, AND AFFORDED EACH APPLICANT THE SAME

02:06 PM 24 OPPORTUNITY, AND WITH SUFFICIENT TIME ALLOCATED FOR EACH

02: 06 PM 2 5 INTERVIEW, OF WHICH LASTED FOR AT LEAST AN HOUR FOR THE

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02:06 PM 1 INITIAL AND FINALIST INTERVIEWS IN ORDER TO DETERMINE THE

02:06 PM 2 SENIOR QUALIFIED PERSONS FOR THE INSPECTOR OPENINGS."

02:06 PM 3 A. 02:06 PM 4 Q. 02:06 PM 5 A.

RIGHT. YES, SIR. I DID -- I CONSIDERED SENIORITY. THAT'S WHAT YOU -I'VE ALREADY SAID THAT.

02:06 PM 6
02:06 PM 7
02:06 PM 8 02 :06 PM 9

Q.

I UNDERSTAND. BUT THIS IS WHAT YOU WROTE IN

JUSTIFICATION TO YOUR BOSS?

A.

RIGHT.

Q.

SO THEY COULD DEFEND THE UNION GRIEVANCE, ISN'T THAT

02:06 PM 10 RIGHT?

02:06 PM 11 A.

YES.

02 : 06 PM 12 Q.

"DAVID BURRIS, CLOCK NUMBER 1965, AT A STARTING RATE

02:06 PM 13 OF PAY OF TEN TWENTY-FIVE PER HOUR EFFECTIVE FEBRUARY

02 :06 PM 14 27TH, AND KENNETH SANCHEZ, CLOCK NUMBER 00729, AT A

02:07 PM 15 STARTING RATE OF PAY OF ELEVEN DOLLARS AND FOUR PER HOUR

02:07 PM 16 EFFECTIVE FEBRUARY 28TH, WERE THE SENIOR QUALIFIED PERSONS

02:07 PM 17 SELECTED TO FILL THE INSPECTOR POSITIONS ON THE SECOND

02:07 PM 18 SHIFT."

02: 07 PM 19

"DAVID BURRIS, A WELDER, WITH EXPERIENCE OF

02:07 PM 20 WORKING ON VANS, FLOATS AND DUMPS, AND KENNETH SANCHEZ, A

02 :07 PM 21 WELDER SPECIALIST, WITH EXPERIENCE OF WORKING ON VANS,

02:07 PM 22 BOTH DURING THE INTERVIEWING PROCESS EXHIBITED POSITIVE

02: 07 PM 23 ATTITUDES, GOOD PRODUCT KNOWLEDGE, JOB SKILLS, TEMPERAMENT

02:07 PM 24 AND DEPENDABILITY REQUIRED AND NECESSARY TO INSPECT THE

02: 07 PM 25 TRAILERS RIGHT ACCORDING TO THE CORRECT SPECIFICATIONS."

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02:07 PM 1

YOU WROTE THAT AS WELL, DID YOU NOT?

02 :07 PM 2 A.

YES.

02:07 PM 3 Q. AND THEN YOU WENT ON, "LINDLEY HAMM, CLOCK NUMBER

02:07 PM 4 1932, DECLINED FROM BEING CONSIDERED BECAUSE OF CHURCH

02:07 PM 5 COMMITMENTS. II

02:07 PM 6

"DAVID ACKERMAN, CLOCK NUMBER 1952, WAS FOUND TO

02:07 PM 7 BE LACKING THE EXPERIENCE, PRODUCT KNOWLEDGE, JOB SKILLS,

02:07 PM 8 TEMPERAMENT AND DEPENDABILITY NECESSARY TO COMPETENTLY

02:07 PM 9 PERFORM THE RESPONSIBILITIES REQUIRED OF AN INSPECTOR."

02:07 PM 10

"JAMES DAVIS, CLOCK NUMBER 1974, WARREN GILES,

02 :08 PM 11 CLOCK NUMBER 0148, AND BUDDY MCKINNEY, CLOCK NUMBER 3180,

02 :08 PM 12 DECLINED BECAUSE OF THE SECOND SHIFT."

02:08 PM 13 A.

AND THAT DECISION -- I USED MY SUBJECTIVE

02:08 PM 14 DECISION-MAKING TO MAKE A DECISION BASED ON THE CRITERIA

02 :08 PM 15 THAT WAS GIVEN ME BY LUFKIN INDUSTRIES.

02:08 PM 16 Q. WELL, MR. MCCLAIN, ACCORDING TO YOU, YOU DID A VERY

02 :08 PM 17 CAREFUL AND THOROUGH JOB OF EVALUATING THESE PEOPLE,

02:08 PM 18 DIDN IT YOU?

02:08 PM 19 A.

WHEN I WROTE THAT, THAT'S WHAT I THOUGHT.

02:08 PM 20 Q. ALL RIGHT, SIR. AND YOU DON'T THINK THAT ANY MORE,

02:08 PM 21 AFTER YOU'VE TALKED TO THE PLAINTIFFS I EXPERTS I TAKE IT?

02 :08 PM 22 A • I DON'T THINK SO, BECAUSE I REALIZED THAT I DID NOT

02:08 PM 23 RECEIVE THE TRAINING. EVEN AT THAT TIME, WHEN I

02 :08 PM 24 CONTINUALLY ASKED FOR TRAINING, I DIDN IT GET IT.

02 : 08 PM 2 5 Q.

OKAY. IT IS THE CASE, IS IT NOT, THAT YOU DIDN'T

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02:08 PM 1 HAVE TO MAKE A DECISION AT ALL WITH RESPECT TO MR. LINDLEY

02 :08 PM 2 HAMM? HE SAID HE DIDN IT WANT TO BE CONSIDERED BECAUSE HE

02:08 PM 3 HAD CHURCH COMMITMENTS?

02 :08 PM 4 A.
02 :08 PM 5 Q.

YES, SIR. AND THREE OTHER PEOPLE WHO HAD SIGNED THE BID TOOK

02:08 PM 6 THEMSELVES OUT OF THE RUNNING BECAUSE THEY DIDN IT WANT TO

02 :08 PM 7 02 :08 PM 8

GO ON THE SECOND SHIFT, ISN IT THAT RIGHT?

A.

YES, SIR, AND THAT HAPPENED QUITE A BIT.

02:08 PM 9 Q.

AND ISNIT IT IN FACT THE CASE THAT WHAT YOU NEEDED

02: 08 PM 10 WAS AN INS PECTOR TO INS PECT WELDING, RIGHT?

02 :08 PM 11 A • 02 :08 PM 12 Q.

YES. AND THAT MR. ACKERMAN DIDNIT HAVE ANY WELDING

02:09 PM 13 EXPERIENCE, RIGHT?

02 :09 PM 14 A. 02:09 PM 15 Q. 02: 09 PM 16 A.

I SUPPOSE. AND WHAT RACE IS MR. ACKERMAN?

02:09 PM 17 Q.

ITIS TRUE THAT YOU ALWAYS TRIED TO SELECT THE SENIOR

02:09 PM 18 02: 09 PM 19
02:09 PM 20

MAN EXCEPT IF THEY DECLINED THE JOB, IS IT NOT?

A.

I TRIED TO SELECT THE SENIOR QUALIFIED PERSON. THAT

WAS MY UTMOST CRITERIA. I WAS THE ONE THAT SENIORITY WAS

02:09 PM 21 IMPORTANT TO. THAT FACTOR WAS INTERJECTED BY ME,

02:09 PM 22
02 : 09 PM 23

QUALIFIED BY THE COMPANY.

Q .

OKAY. AND OTHER THAN THE SITUATION THAT WAS

02 :09 PM 24 02:09 PM 25

ADDRESSED BY MR. GARRIGAN AND THIS SITUATION WITH MR. ACKERMAN, YOU CANIT RECALL A SINGLE SITUATION IN WHICH YOU

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04:19 PM 1 ALL -- EVERYBODY THAT WORKS FOR YOUR FIRM AND EVERYBODY

04:19 PM 2 THAT WORKS FOR YOUR TWO FIRMS.

04:19 PM 3

MR. HAMEL: YOUR HONOR

04:20 PM 4

THE COURT: AND I'M NOT IMPRESSED BY THE VERY

04:20 PM 5 UNLAWYERLIKE ATTITUDES.

04:20 PM 6

I GOT LETTERS YESTERDAY ON IT. YESTERDAY WAS

04:20 PM 7 SUNDAY. NO, I GUESS IT WAS SATURDAY I GOT THEM.

04:20 PM 8

MR. GARRIGAN: NO, WEDNESDAY. WE'RE STARTING ON

04:20 PM 9 THURSDAY.

04:20 PM 10

THE COURT: WEDNESDAY. ALL RIGHT. OH, THAT'S

04:20 PM 11 RIGHT. I WAS OUT MOST OF YESTERDAY. IT WAS MONDAY I GOT

04:20 PM 12 THEM.

04:20 PM 13

MR. GARRIGAN: THE ONLY POINT I'M TRYING TO

04:20 PM 14 RAISE IS, I WOULD LIKE TO BE ABLE TO SEE WHAT DOCUMENTS

04:20 PM 15 THIS WITNESS IS BEING QUESTIONED ABOUT.

04:20 PM 16

THE COURT: WELL, YOU CAN.

04:20 PM 17

MR. GARRIGAN: THANK YOU.

04:20 PM 18

MR. HAMEL: YOUR HONOR, THIS IS FROM EXHIBIT 89,

04: 20 PM 19 THE PERSONNEL FILE OF CALVIN DWAYNE DEASON, BATES NUMBERS

04:20 PM 20 L36123 TO L36153 AND L39290 TO L39291, EXHIBT 89.

04:21 PM 21

THE COURT: DO YA'LL HAVE IT? DOES YOUR SIDE

04:21 PM 22 HAVE IT?

04:21 PM 23

MR. GARRIGAN: WE DON'T HAVE IT HERE, SIR, NO.

04:21 PM 24 THAT EXHIBIT I BELIEVE REFERS TO ALL PERSONNEL FILES.

04:21 PM 25

MR. HAMEL: NO, THAT'S MR. DEASON'S PARTICULAR

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04:21 PM 1 PERSONNEL FILE.

04:21 PM 2

MR. GARRIGAN: DO YOU HAVE A COpy I CAN LOOK AT?

04: 21 PM 3

MR. HAMEL: YES.

04:21 PM 4

MR. GARRIGAN: THANK YOU.

04: 21 PM 5

MR. HAMEL: THERE YOU GO.

04:21 PM 6

YOUR HONOR, WE WOULD MOVE FOR THE ADMISSION OF

04:21 PM 7 EXHIBIT 89, THE PERSONNEL FILE OF MR. DEASON.

04:21 PM 8

THE COURT: WELL, TO THE EXTENT THAT IT WAS MADE

04:21 PM 9 BY HIM, YES. I DON'T KNOW WHETHER THERE'S OTHER THINGS IN

04:21 PM 10 THE PERSONNEL FILE MADE BY OTHER PEOPLE, AND I I M NOT

04:21 PM 11 PRIVILEGED TO HAVE A COpy OF IT.

04:21 PM 12

MR. HAMEL: YOUR HONOR

04: 21 PM 13 BY MR. HAMEL:

04:21 PM 14 Q.

MR. DEASON, IS THAT YOUR APPLICATION?

04: 21 PM 15 A.

YES.

04:21 PM 16 Q.

OKAY.

04:21 PM 17

MR. HAMEL: I'LL MARK THAT AS 89-A, OUR HONOR,

04: 21 PM 18 SO WE CAN ADMIT THAT.

04:21 PM 19

THE COURT: ALL RIGHT, SIR.

04:22 PM 20 BY MR. HAMEL:

04:22 PM 21 Q.

NOW, MR. DEASON, IN YOUR APPLICATION, IS THERE

04:22 PM 22 ANYPLACE THERE THAT YOU HAVE INDICATED THAT YOU HAVE ANY

04:22 PM 23 COLLEGE?

04 : 22 PM 24 A. NO. I TOLD MR. GARRIGAN I DIDN'T TELL HIM.

04: 22 PM 2 5 Q. OKAY. AND IS THERE ANYPLACE THAT YOU INDICATE THAT

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04:22 PM 1 YOU HAVE SPECIALIZED TRAINING IN THE MILITARY?

04:22 PM 2 A.

NO.

04:22 PM 3 Q. OKAY. THERE IS A PLACE TO PUT COLLEGE, ISN'T THERE?

04:22 PM 4 A.

YES.

04:22 PM 5 Q. AND THERE IS A PLACE TO PUT SPECIALIZED TRAINING

04:22 PM 6 THAT YOU GET, ISN'T THERE? LET ME SHOW YOU.

04:22 PM 7

THE COURT: WHEN WERE YOU IN THE MILITARY?

04:22 PM 8

THE WITNESS: '85, 1985, YOUR HONOR, TO '88.

04:22 PM 9 04:22 PM 10 04:22 PM 11 04:22 PM 12 04:22 PM 13 04:23 PM 14

THE COURT: I DON'T REMEMBER ANY WAR IN '85. THE WITNESS: NO, IT WASN'T A WAR. THE COURT: WHAT BRANCH WERE YOU IN? THE WITNESS: THE ARMY. BY MR. HAMEL: Q. MR. DEASON, DO YOU SEE AT THE THIRD PAGE OF YOUR

04:23 PM 15 EMPLOYMENT APPLICATION THERE'S A SPACE THAT SAYS

04:23 PM 16 "SUMMARIZE SPECIAL SKILLS AND QUALIFICATIONS ACQUIRED FROM

04:23 PM 17
04:23 PM 18 04:23 PM 19 04 : 23 PM 20

EMPLOYMENT OR OTHER EXPERIENCE," AND IT GIVES YOU TWO LINES, AND YOU LEFT THAT BLANK? A. I PUT IT ON MY WORKFORCE APPLICATION. Q. BUT IT WASN'T THE APPLICATION YOU GAVE TO LUFKIN?

04:23 PM 21 A. 04 : 23 PM 22 Q.

RIGHT. OKAY. SO MR. BARBAY -- YOU DIDN'T TELL HIM ABOUT

04:23 PM 23 IT, AND IT WASN'T ON YOUR APPLICATION, SO HE WOULDN'T KNOW

04:23 PM 24
04 : 23 PM 2 5

ABOUT THAT, WOULD HE? A • I SUPPOSE.

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04:23 PM 1 Q.

OKAY. THANK YOU, SIR.

04:23 PM 2 A.

UH-HUH.

04:23 PM 3

MR. HAMEL: THAT'S ALL THE QUESTIONS I HAVE,

04: 23 PM 4 YOUR HONOR.

04:23 PM 5

MR. GARRIGAN: WE HAVE NO MORE QUESTIONS.

04:23 PM 6

WE WOULD CALL VIVIAN CRAIN.

04:24 PM 7
04:24 PM 8 04:24 PM 9

THE COURT: THANK YOU, MR. DEASON. THE WITNESS: YES, SIR.

04:24 PM 10
04: 24 PM 11

VIVIAN CRAIN, PLAINTIFF WITNESS, SWORN

04:24 PM 12 04:24 PM 13

THE COURT: PROCEED. DIRECT EXAMINATION

04: 24 PM 14 04 : 24 PM 15 04: 24 PM 16 04: 24 PM 17 04:24 PM 18 04:24 PM 19
04: 24 PM 20 04 : 24 PM 21 04:24 PM 22
04:24 PM 23 04:24 PM 24
04: 24 PM 25

BY MR. GARRIGAN: Q. WOULD YOU PLEASE STATE YOUR NAME FOR THE RECORD? A. VIVIAN CRAIN.
THE COURT: VIVIAN? THE WITNESS: CRAIN, C-R-A-I-N. THE COURT: OH, OKAY. BY MR. GARRIGAN: Q. AND WHAT IS YOUR RACE? A. I'M SORRY? Q. WHAT IS YOUR RACE? A. AFRICAN-AMERICAN. Q. OKAY. AND I'M ASKING THAT BECAUSE THIS WILL BE

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04:24 PM 1 REDUCED TO A WRITTEN RECORD THAT SOMEONE MIGHT BE READING

04:24 PM 2 IN THE FUTURE.

04:25 PM 3

WHERE DO YOU WORK, MS. CRAIN?

04:25 PM 4 A.

LUFKIN INDUSTRIES.

04:25 PM 5 Q.

HOW LONG HAVE YOU WORKED THERE?

04:25 PM 6 A.

TWENTY-THREE YEARS.

04:25 PM 7 Q.

AND WHAT IS YOUR JOB?

04: 25 PM 8

THE COURT: WHEN DID YOU START? WHEN YOU WERE

04:25 PM 9 04:25 PM 10

TEN?

(LAUGHTER)

04:25 PM 11

THE COURT: GO AHEAD.

04:25 PM 12 BY MR. GARRIGAN:

04: 25 PM 13 Q.

WELL, WHAT IS YOUR CURRENT POSITION?

04:25 PM 14 A. 04:25 PM 15 Q.

ACCOUNTING VOUCHER CLERK I THINK. AND WHAT OTHER JOBS HAVE YOU HELD THERE?

04:25 PM 16 A.

HR ASSISTANT, SENIOR INSURANCE CLERK AND BENEFITS

04:25 PM 17 SUPERVISOR.

04:25 PM 18 Q.

OKAY. AND HAVE THOSE -- HAVE SOME OF THOSE JOBS

04:25 PM 19 INVOLVED WORKING IN THE CORPORATE OFFICE? 04: 25 PM 20 A • THE ONLY TIME WE WORKED IN THE CORPORATE OFFICE IS

04:25 PM 21 04:26 PM 22 04:26 PM 23

WHEN WE MOVED OVER THERE. Q. WHEN DID THAT HAPPEN, ROUGHLY? A. I GUESS MAYBE FIVE YEARS AGO. I'M NOT SURE.

MAYBE

04:26 PM 24 FIVE YEARS AGO, MAYBE.

04:26 PM 25 Q.

ALL RIGHT. HOW DID YOU BECOME INVOLVED IN THIS

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04: 26 PM 1 LAWSUIT?

04: 26 PM 2 A.

I GOT A PHONE CALL ONE DAY, AND IT WAS YOU, AND YOU

04: 26 PM 3 ASKED ME, STARTED ASKING ME QUESTIONS. I MEAN, YOU ASKED

04: 26 PM 4 ME ABOUT IT, AND I DIDN'T - - I HAD NO ID EA WHAT WAS GOING

04: 26 PM 5 ON.

04:26 PM 6 Q.

BUT I CALLED YOU?

04: 26 PM 7 A.

YES.

04:26 PM 8 Q.

YOU DIDN'T CALL ME, RIGHT?

04:26 PM 9 A.

NO. HUH-UH.

04: 26 PM 10 Q. YOU HAD NOTHING TO DO WITH FILING THIS LAWSUIT, DID

04:26 PM 11 YOU?

04:26 PM 12 A.

NO. THE FIRST TIME -- WELL, THE FIRST I HEARD ABOUT

04:26 PM 13 IT WAS, I THINK IT WAS RIGHT BEFORE FATHER'S DAY.

04:26 PM 14 Q. WHAT ARE YOUR THOUGHTS ABOUT BEING INVOLVED IN THIS

04:26 PM 15 CASE EVEN AS A WITNESS?

04: 26 PM 16 A.

IT'S NOT MY CHOICE.

04:26 PM 17 Q.

I HAD TO SERVE YOU?

04:26 PM 18 A.

I MEAN, I'M NOT HERE BY CHOICE.

04:26 PM 19 Q.

OKAY. YOU'RE UNDER SUBPOENA, CORRECT?

04:27 PM 20 A.

YES.

04: 27 PM 21 Q.

TELL ME

04:27 PM 22
04:27 PM 23 04:27 PM 24 04: 27 PM 25

THE COURT: DID YOU SEE THE OPT-OUT NOTICE? THE WITNESS: I'M SORRY? THE COURT: DID YOU SEE THE OPT-OUT NOTICE? THE WITNESS: NO.

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04: 27 PM 1

THE COURT: DID YOU GET A COpy OF ONE IN THE

04:27 PM 2 MAIL?

04:27 PM 3

THE WITNESS: DID I?

04: 27 PM 4 BY MR. GARRIGAN:

04:27 PM 5 Q.

DID YOU RECEIVE A NOTICE IN THE MAIL?

04:27 PM 6 A.

YES.

04:27 PM 7 Q.

ABOUT THIS CASE?

04:27 PM 8 A.

UH-HUH. I JUST READ THE DEMAND. THAT'S AS FAR AS I

04:27 PM 9
04:27 PM 10 04:27 PM 11

GOT.
Q.

OKAY. THE COURT:

ALL RIGHT.

YOU JUST READ THE

04:27 PM 12 04: 27 PM 13 04: 27 PM 14

DEMAND?

THE WITNESS: UH-HUH. THE COURT: ALL RIGHT. PROCEED.

04:27 PM 15 BY MR. GARRIGAN:

04: 27 PM 16 Q.

AND WHEN YOU SAY FATHER'S DAY, THAT WAS JUST EARLIER

04:27 PM 17 THIS YEAR, WASN'T IT?

04:27 PM 18 A. 04: 27 PM 19 Q.

YES, THE LAST -- YES. IT'S JUST BEEN REALLY THE LAST FEW MONTHS THAT WE'VE

04:27 PM 20 TALKED?

04:27 PM 21 A. 04:27 PM 22 Q.

YES. NOW, I CONTACTED YOU, SEVERAL PEOPLE HAVE CONTACTED

04:27 PM 23
04:27 PM 24

YOU AND ASKED YOU TO COME AND TESTIFY TODAY, IS THAT RIGHT?

04: 27 PM 2 5 A .

NO, ONLY YOU TO MY KNOWLEDGE.

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04:28 PM 1 Q. NONE OF THE OTHER CLASS REPRESENTATIVES HAVE

04:28 PM 2 CONTACTED yOU?

04:28 PM 3 A.

NO.

04:28 PM 4 Q. OKAY. YOU DIDNIT WANT TO BE HERE THOUGH, DID YOU?

04:28 PM 5 A.

NO.

04:28 PM 6 Q. WOULD YOU TELL THE COURT WHY YOU DIDNIT WANT TO BE

04: 28 PM 7 HERE?

04: 28 PM 8 A.

PERSONALLY, I THINK ITIS A WASTE OF TIME, BECAUSE I

04: 28 PM 9 THINK -- THATIS MY PERSONAL THOUGHT, ITIS A WASTE OF TIME, 04:28 PM 10 BECAUSE I THINK THEylRE JUST -- WHATEVER THE RULING IS,

04:28 PM 11 THEylRE GOING TO DO WHAT THEY WANT TO DO.

04:28 PM 12 Q.

TELL ME WHETHER OR NOT YOU IRE AFRAID TO TESTIFY.

04:28 PM 13 A.

NOT REALLY AFRAID, I JUST --

04:28 PM 14 04: 28 PM 15

THE COURT: CONCERNED, WORRIED, ANYTHING? THE WITNESS: EXACTLY.

04:28 PM 16 BY MR. GARRIGAN:

04 : 28 PM 17 Q. DO YOU THINK IT MIGHT HAVE SOME EFFECT ON YOUR JOB?

04:28 PM 18 A.

POSSIBLY.

04:28 PM 19 Q.
04 : 28 PM 20 A •

"AFRAID" MIGHT BE TOO STRONG A WORD. 11M SORRY. YES.

04: 28 PM 21 Q.

NOW, DURING YOUR TENURE AT LUFKIN HAVE YOU WORKED IN

04:29 PM 22 04: 29 PM 23

HUMAN RESOURCES? A • YES, THATIS WHERE I STARTED OUT, UNTIL ABOUT THREE

04:29 PM 24 YEARS AGO.

04:29 PM 25 Q. ALL RIGHT. AND WHAT WAS YOUR JOB AS OF THREE YEARS

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04:29 PM 1 AGO?

04:29 PM 2 A. I WAS SENT TO THE ACCOUNTING DEPARTMENT.

04:29 PM 3 Q.

ALL RIGHT. AND BEFORE THAT WHAT DID YOU DO?

04:29 PM 4 A.

BEFORE ACCOUNTING I DID -- I WAS H.R. ASSISTANT I

04 : 29 PM 5 TH INK.

04:29 PM 6 Q.

IN THE HUMAN RESOURCES OFFICE?

04:29 PM 7 A.

YES.

04:29 PM 8 Q. OKAY. DO YOU KNOW A MAN NAMED VIRON BARBAY?

04:29 PM 9 A.

YES.

04:29 PM 10 Q.

HOW DO YOU KNOW HIM?

04:29 PM 11 A.

WE WORKED IN THE SAME OFFICE.

04:29 PM 12 Q.

DID YOU KNOW HIM BEFORE THAT?

04: 29 PM 13 A. YEAH, WE ALL CAME FROM THE SAME -- WE WERE ALL OVER

04:29 PM 14 IN THE OLD BUILDING TOGETHER, YES.

04:29 PM 15 Q. OKAY. DID YOU KNOW ANYTHING ABOUT MR. BARBAY BEFORE

04:29 PM 16 YOU MOVED TO THE NEW BUILDING?

04 :30 PM 17 A. YEAH. WE ALL WORKED TOGETHER EVERY DAY, YEAH.

04: 30 PM 18 Q. WHAT WAS MR. BARBAY'S JOB WHEN YOU FIRST MET HIM?

04: 30 PM 19 A.

I THINK HE WAS A PHOTOGRAPHER.

04 : 30 PM 20 Q .

MS. CRAIN, DO YOU LIKE MR. BARBAY?

04 :30 PM 21 A.

NO.

04:30 PM 22 Q.

WHY NOT?

04 : 30 PM 23 A. MY -- PERSONALLY, JUST MY PERSONAL, I THINK HE'S A

04: 30 PM 24 RACIST, AND I THINK HE THINKS OTHER PEOPLE ARE BELOW HIM.

04:30 PM 25 Q.

WHY DO YOU THINK THAT?

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04:30 PM 1

MS. MAHONY: OBJECTION, YOUR HONOR, TO THAT

04:30 PM 2 RESPONSE AS SPECULATION.

04:30 PM 3

THE WITNESS: I JUST SAID IT WAS MY PERSONAL.

04:30 PM 4

MS. MAHONY: WELL, OBJECTION TO THE PART THAT

04:30 PM 5

THE COURT: WHAT'S THAT BASED ON?

04:30 PM 6

THE WITNESS: THE WAY HE ACTS, THE THINGS I'VE

04:30 PM 7 HEARD HIM SAY.

04:30 PM 8

THE COURT: I'M GOING TO ALLOW HER TO MAKE --

04:30 PM 9 THAT'S HER PERSONAL OPINION AND OPINION ONLY. OUTSIDE OF

04: 30 PM 10 THAT --

04: 30 PM 11

MS. MAHONY: WELL, THAT'S FINE. I WOULD OBJECT

04: 30 PM 12 TO IT THOUGH AS TO OTHER PEOPLE.

04: 30 PM 13

THE COURT: WELL, ALL RIGHT. THAT PART OF IT IS

04:31 PM 14 OVERRULED, SINCE SHE'S HAD CONTACT WITH HIM DAILY.

04: 31 PM 15

IN THAT DAILY CONTACT, YOU'VE HAD OCCASION TO

04: 31 PM 16 OBSERVE WHAT HE SAYS, DOES AND THE WAY HE ACTS?

04: 31 PM 17

THE WITNESS: EXACTLY.

04: 31 PM 18

THE COURT: AND--

04: 31 PM 19
04: 31 PM 20

MR. GARRIGAN: DID THE COURT: EXCUSE ME. I WANTED TO FINISH THAT

04: 31 PM 21 NOTE.

04: 31 PM 22
04: 31 PM 23 04: 31 PM 24

ARE YOU FROM LU FKIN? THE WITNESS: YES. THE COURT: DO YOU THINK YOU WOULD KNOW SOMEONE

04: 31 PM 25 WHO HAD RACIST TENDENCIES IF YOU WORKED WITH THEM?

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04:31 PM 1 04:31 PM 2

257
THE WITNESS: I THINK SO, YES. THE COURT: IT'S NOT LIMITED TO EAST TEXAS?

04:31 PM 3

THE WITNESS: NO, IT'S NOT, DEFINITELY NOT. NO.

04:31 PM 4

THE COURT: I MEAN, IT'S THROUGHOUT THE UNITED

04: 31 PM 5 STATES?

04:31 PM 6 04:31 PM 7

THE WITNESS: YES. THE COURT: ALL RIGHT. THE OBJECTION IS

04: 31 PM 8 OVERRULED. I'M GOING TO CONSIDER IT FOR WHAT IT --

04:31 PM 9 04:32 PM 10 04: 32 PM 11 04:32 PM 12 04:32 PM 13

BY MR. GARRIGAN: Q. CAN YOU --
WELL, HAVE YOU EVER HEARD MR. BARBAY SAY ANYTHING THAT WAS SPECIFICALLY RACIST? A. I DID ONCE, COMING FROM LUNCH, I DID ONCE. HE WAS

04:32 PM 14 04:32 PM 15 04: 32 PM 16

TELLING BLACK JOKES. Q. OKAY. A. AND I DIDN'T THINK IT WAS FUNNY AT ALL.

THEY DID

04:32 PM 17 04: 32 PM 18 04: 32 PM 19 04: 32 PM 20 04: 32 PM 21 04:32 PM 22
04: 32 PM 23 04:32 PM 24

NOT KNOW I HEARD THEM. MS. MAHONY: OBJECTION, CALLS FOR SPECULATION. THE COURT: DID YOU HEAR THEM? THE WITNESS: YES. THE COURT: DID YOU HEAR HIM? THE WITNESS: YES. THE COURT: YOU SAY IT CALLS FOR SPECULATION? MS. MAHONY: I WITHDRAW THE OBJECTION, YOUR

04: 32 PM 25 HONOR. I DIDN'T HEAR HER ENTIRE ANSWER. I APOLOGIZE.

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04: 32 PM 1

THE COURT: THANK YOU, MA'AM.

04: 32 PM 2

PROCEED.

04:32 PM 3 BY MR. GARRIGAN:

04:32 PM 4 Q.

DO YOU REMEMBER ANY PARTICULAR WORDS HE USED?

04:32 PM 5 A.

HE WAS TALKING ABOUT "THOSE NIGGERS." I MEAN, I

04: 32 PM 6 CAME IN ON THE LAST PART, AND I JUST KIND OF STOOD THERE,

04:33 PM 7 AND JUST WALKED AWAY.

04: 33 PM 8 Q.

NOW, WHEN WAS THIS THAT YOU HEARD THIS CONVERSATION?

04: 33 PM 9 A.

THIS WAS WHEN WE WERE IN THE OLD BUILDING, AND WHEN

04: 33 PM 10 WE WOULD COME BACK FROM LUNCH, WE WOULD HAVE TO GO AROUND

04: 33 PM 11 TO A SIDE DOOR TO COME IN, AND THERE WAS AN OFFICE RIGHT

04:33 PM 12 THERE AS YOU OPEN THE SIDE DOOR, AND THEY WOULD ALWAYS

04: 33 PM 13 HAVE LUNCH IN THAT OFFICE. SOME OF THE GUYS WOULD STAY.

04:33 PM 14 AND I JUST HAPPENED TO, YOU KNOW, COME BACK FROM LUNCH,

04:33 PM 15 AND THERE WAS A WATER FOUNTAIN RIGHT THERE IN THE HALLWAY,

04:33 PM 16 AND

04 : 33 PM 17 Q.

WHO WAS HE TELLING THIS TO?

04:33 PM 18 A.

WHOEVER WAS IN THERE WITH HIM.

04 : 33 PM 19 Q •
04:33 PM 20 A.

DO YOU KNOW WHO THAT WAS? IT WAS JARED SATTERWHITE'S OFFICE, SO I'M ASSUMING

04:33 PM 21 HE WAS IN THERE WITH HIM. BUT ANYONE ELSE I DON'T KNOW.

04 : 33 PM 22 Q • CAN YOU DESCRIBE FOR US ANY OTHER CONDUCT IN YOUR

04:33 PM 23 EXPERIENCE WITH MR. BARBAY THAT INDICATES THAT HE'S A

04: 34 PM 24 RACIST?

04: 34 PM 25 A.

I WOULD HEAR HIM WHEN HE WOULD COME BACK FROM

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04:34 PM 1 INTERVIEWING PEOPLE TALK ABOUT -- HE WOULD CALL THEM

04: 34 PM 2 IDIOTS OR STUPID OR SOMETHING OF THAT NATURE.

04:34 PM 3 Q.

OKAY. WHEN YOU SAY HE WOULD COME BACK FROM

04:34 PM 4 INTERVIEWING PEOPLE --

04:34 PM 5 A.

HE WOULD GO TO TEC.

04:34 PM 6 Q.

THAT'S FOR THE HIRING PROCESS?

04:34 PM 7 A.

YES.

04:34 PM 8 Q. AND HE WOULD COME BACK AND REFER TO THE APPLICANTS

04:34 PM 9 04: 34 PM 10

THAT WAY? A. YES.

I MEAN, HE WAS NOT TALKING TO ME, I JUST WOULD

04:34 PM 11 04: 34 PM 12

HEAR HIM TALKING.

Q.

OKAY.

04: 34 PM 13

THE COURT: WHO WOULD HE BE TALKING TO?

04: 34 PM 14

THE WITNESS: JUST WHOEVER WAS IN THE OFFICE, OR

04:34 PM 15 WHOEVER WAS BACK THERE TALKING TO HIM, OR ANYONE THAT CAME

04:34 PM 16 04: 34 PM 17

UP, YOU KNOW, TO TALK TO HIM, OR MAYBE EVEN JOHN. THE COURT: PROCEED.

04: 34 PM 18 BY MR. GARRIGAN:

04:34 PM 19 Q.

WHEN HE WOULD USE THESE NEGATIVE TERMS TO REFER TO

04:34 PM 20 PEOPLE--

04 : 35 PM 21 A •

UH-HUH.

04: 35 PM 22 Q.

DO YOU KNOW WHETHER HE WAS REFERRING TO WHITE

04:35 PM 23 PEOPLE?

04: 35 PM 24 A •

I DOUBT IT.

04 : 35 PM 2 5 Q •

WHY NOT?

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04: 35 PM 1 A.

BECAUSE MOST OF THE TIME AFTER, YOU KNOW, I WOULD

04:35 PM 2 HEAR HIM SAY THINGS LIKE THAT, THEN THE APPLICANTS WOULD

04:35 PM 3 USUALLY COME IN, AND THEY WEREN'T WHITE. THEY WERE MOSTLY

04:35 PM 4 BLACKS AND MOSTLY MEXICAN.

04:35 PM 5 Q.

OKAY. NOW, IS -- WHEN WERE YOU IN A POSITION TO

04:35 PM 6 OBSERVE OR OVERHEAR THESE CONVERSATIONS?

04:35 PM 7 A. WHEN WE MOVED TO THE NEW OFFICE, IN THE CORPORATE

04:35 PM 8 THAT WE'RE IN NOW, THE CORPORATE OFFICE.

04:35 PM 9 Q. 04: 35 PM 10 A.

AND THAT WOULD HAVE BEEN SOMETIME SINCE 1994? I'M NOT SURE WHAT YEAR WE MOVED OVER THERE. I'M NOT

04:35 PM 11 SURE. I THINK WE'VE BEEN THERE FIVE YEARS. I THINK

04: 35 PM 12 PERSONNEL HAS BEEN OVER THERE FIVE -- I'M NOT SURE.

04:36 PM 13 Q.

SO YOU THINK THAT PART WAS IN THE LAST FIVE YEARS?

04:36 PM 14 A.

YES.

04: 36 PM 15 Q.

THE INITIAL RACIAL JOKES THAT YOU OVERHEARD, THAT

04: 36 PM 16 HAD BEEN MUCH EARLIER?

04:36 PM 17 A.

THAT'S WHEN WE WERE IN THE OLD BUILDING, BEFORE THEY

04: 36 PM 18 TORE IT DOWN.

04 : 36 PM 19 Q. OKAY. NOW, DID YOU EVER COMPLAIN TO ANYBODY ABOUT

04: 36 PM 20 MR. BARBAY USING THE "N" WORD WHEN HE WAS TELLING JOKES?

04: 36 PM 21 A .

NO, I NEVER DID.

04 : 36 PM 22 Q • DID YOU EVER COMPLAIN OR REPORT TO ANYONE THAT YOU

04:36 PM 23 04: 36 PM 24 04: 36 PM 2 5

THOUGHT MR. BARBAY WAS RACIALLY PREJUDICED? A. YES, I DID. Q. WHO DID YOU REPORT THAT TO?

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04:36 PM 1 A.

I HAD SAID IT ONCE TO MY SUPERVISOR, WHICH IS JENNY

04:36 PM 2 RUSSELL AT THE TIME. SHE HAD ASKED ME WHY I DIDN'T LIKE

04:37 PM 3 VIRON OR WHY I NEVER TALKED TO HIM, AND I JUST TOLD HER I

04:37 PM 4 THOUGHT HE WAS A RACIST.

04:37 PM 5

AND THEN I HAD AN OPPORTUNITY ONCE TO TALK TO

04:37 PM 6 MR. PEREZ BECAUSE HE WANTED ME TO WORK WITH HIM FOR

04:37 PM 7 SOMETHING. I TOLD HIM THAT I HAD A PROBLEM WITH IT

04:37 PM 8 BECAUSE OF THAT.

04:37 PM 9

THE COURT: DID MR. PEREZ TRANSFER YOU ANYHOW?

04: 37 PM 10

THE WITNESS: I'M SORRY?

04: 37 PM 11 04: 37 PM 12 04: 37 PM 13

THE COURT: DID MR. PEREZ TRANSFER YOU ANYHOW? THE WITNESS: HE WANTED ME TO DO SOME WORK WITH HIM, WORK WITH HIM DOING SOMETHING. I DON'T KNOW. BUT,

04: 37 PM 14 NO, I DID IT.

04: 37 PM 15

THE COURT: DID YOU HAVE TO

04: 37 PM 16

THE WITNESS: I HAD TO WORK WITH HIM.

04:37 PM 17 04: 37 PM 18

THE COURT: YOU HAD TO WORK WITH HIM? THE WITNESS: UH-HUH.

04: 37 PM 19

THE COURT: OKAY.

04: 37 PM 20 BY MR. GARRIGAN:

04 : 37 PM 21 Q •

BUT YOU TOLD MR. PEREZ YOU DIDN'T WANT TO WORK WITH

04: 37 PM 22 HIM?

04 : 37 PM 23 A • YES. I DIDN'T TELL HIM I DIDN'T WANT TO, I TOLD HIM

04:37 PM 24 I HAD A PROBLEM WITH IT.

04 : 37 PM 2 5 Q .

ALL RIGHT. AND DID HE ASK YOU WHAT THE PROBLEM WAS?

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262

04:37 PM 1 A.

I'M NOT SURE IF HE DID, BUT I DID TELL HIM WHY I

04:38 PM 2 DIDN'T.

04:38 PM 3

THE COURT: WHAT DID YOU TELL HIM?

04:38 PM 4

THE WITNESS: I TOLD HIM THAT I THOUGHT HE WAS A

04:38 PM 5 RACIST, AND WHAT I HAD HEARD HIM SAY, AND THAT'S IT.

04:38 PM 6

THE COURT: THANK YOU.

04:38 PM 7 BY MR. GARRIGAN:

04:38 PM 8 Q.

DID MR. PEREZ ASK YOU TO DOCUMENT THAT IN ANY WAY?

04:38 PM 9 A.

NO.

04:38 PM 10 Q.

DID HE ASK YOU ANY FOLLOW-UP QUESTIONS ABOUT IT?

04: 38 PM 11 A.

NO.

04:38 PM 12 Q.

DID HE TAKE ANY ACTION TO YOUR KNOWLEDGE IN RESPONSE

04: 38 PM 13 TO YOUR REPORT?

04:38 PM 14 A.

I DON'T KNOW.

04:38 PM 15 Q.

WHAT WERE -- WHEN WAS IT THAT YOU WOULD HAVE HAD

04:38 PM 16 THAT CONVERSATION WITH MR. PEREZ?

04:38 PM 17 A.

WHEN?

04:38 PM 18 Q.

YEAH, YOUR BEST ESTIMATE.

04:38 PM 19 A.

MAYBE -- IT WAS BEFORE I WENT TO ACCOUNTING. I

04:38 PM 20 THINK I'VE BEEN IN ACCOUNTING ALMOST THREE YEARS OR THREE

04:38 PM 21 YEARS. SO IT HAD TO BE THREE YEARS AGO.

04: 38 PM 22 Q.

ABOUT THREE?

04:38 PM 23 A.

APPROXIMATELY.

04: 38 PM 24 Q.

ABOUT THREE YEARS AGO?

04:39 PM 25 A.

MAYBE, YES.

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04:39 PM 1 Q. AND AT THAT TIME WAS MR. BARBAY INVOLVED IN THE

04:39 PM 2 HIRING PROCESS AT LUFKIN INDUSTRIES?

04:39 PM 3 A.

UH-HUH.

04:39 PM 4 Q. WAS THERE ANY CHANGE IN HIS DUTIES IN THAT REGARD TO

04:39 PM 5 YOUR KNOWLEDGE?

04:39 PM 6 A.

NOT TO MY KNOWLEDGE.

04:39 PM 7 Q.

OKAY. THANK YOU VERY MUCH.

04:39 PM 8

MR. GARRIGAN: I'LL PASS THE WITNESS.

04:39 PM 9

CROSS-EXAMINATION

04: 39 PM 10 BY MS. MAHONY:

04:39 PM 11 Q.

GOOD AFTERNOON, MS. CRAIN.

04: 39 PM 12

WE MET A COUPLE OF MONTHS AGO, I'M MICHELLE

04:39 PM 13 MAHONY, AT YOUR DEPOSITION.

04: 39 PM 14 A.

UH-HUH.

04 : 40 PM 15 Q. MS. CRAIN, I THINK YOU'VE TESTIFIED YOU'VE WORKED AT

04:40 PM 16 LUFKIN FOR TWENTY-THREE YEARS, IS THAT CORRECT?

04 : 40 PM 17 A .

YES.

04:40 PM 18 Q.

YOU'VE ALSO HAD NUMEROUS RELATIVES THAT HAVE WORKED

04:40 PM 19 AT LUFKIN?

04 : 40 PM 20 A •

YES.

04:40 PM 21 Q.

IS THAT CORRECT?

04 : 40 PM 22 A •

YES.

04 : 40 PM 23 Q• YOU'VE HAD A FIRST COUSIN, FRETA THOMAS RAMSEY, WHO

04:40 PM 24 WORKED AT LUFKIN?

04:40 PM 25 A.

YES.

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04:40 PM 1 Q.

264 AND SHE WORKED IN THE CORPORATE DIVISION IN THE

04:40 PM 2 INSURANCE DEPARTMENT WITH YOU FOR A LITTLE WHILE, CORRECT?

04:40 PM 3 A.

YES.

04:40 PM 4 Q. AND YOU HAD ANOTHER FIRST COUSIN, LAURA CALLAWAY?

04:40 PM 5 A.

YES.

04:40 PM 6 Q. AND MS. CALLAWAY ALSO WORKED IN THE CORPORATE

04:40 PM 7 DIVISION IN INSURANCE AND INFORMATION SYSTEMS, IS THAT

04:40 PM 8 CORRECT?

04:40 PM 9 A.

UH-HUH.

04 :40 PM 10 Q. AND YOU HAVE A HALFSISTER, BARBARA SUMLIN?

04:40 PM 11 A.

SHE'S MY SISTER.

04: 40 PM 12 Q • YOUR SISTER? WHO'S WORKED AT LUFKIN INDUSTRIES IN

04:40 PM 13 THE POWER TRANSMISSION DIVISION, IS THAT CORRECT?

04 : 40 PM 14 A •

IT WAS CALLED MACHINE SHOP THEN, YEAH.

04 : 40 PM 15 Q • MACHINE SHOP? OKAY. AND HENRY SUMLIN, IS THAT

04:40 PM 16 YOUR

04:40 PM 17 A.

MY FATHER.

04:40 PM 18 Q.

YOUR FATHER? AND HE ALSO WORKED IN THE POWER

04:40 PM 19 TRANSMISSION DIVISION IN SHIPPING AND RECEIVING, IS THAT

04:40 PM 20 CORRECT?

04: 41 PM 21 A.

UH-HUH.

04:41 PM 22 Q.
04: 41 PM 23 A. 04:41 PM 24 Q.

AND YOUR UNCLE IS BUFORD THOMAS? HE'S MY COUSIN. HE'S YOUR COUSIN? I'M SORRY. HE'S ONE OF THE

04:41 PM 25 PLAINTIFFS IN THIS LAWSUIT, CORRECT?

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265

04:41 PM 1 A.

YES.

04:41 PM 2 Q.

AND BUFORD THOMAS WORKED IN POWER TRANSMISSION IN A

04:41 PM 3 SUPERVISOR JOB, CORRECT?

04:41 PM 4 A.

.
I THINK -- I'M NOT -- I THINK IT WAS MACHINE SHOP.

04:41 PM 5 I'M NOT SURE.

04:41 PM 6 Q.

OKAY. AND YOU HAVE AN UNCLE OR MAYBE -- EARL

04:41 PM 7 THOMAS?

04:41 PM 8 A.

HE'S DECEASED.

04:41 PM 9 Q.

HE'S DECEASED? HE ALSO WORKED AT LUFKIN INDUSTRIES,

04:41 PM 10 IS THAT CORRECT?

04:41 PM 11 A.

YES.

04:41 PM 12 Q.

AND HE ALSO WORKED IN THE MACHINE SHOP?

04:41 PM 13 A.

HE WORKED AT BUCK CREEK.

04:41 PM 14 Q.

AT BUCK CREEK IN THE OILFIELD DIVISION?

04:41 PM 15 A.

UH-HUH.

04 : 41 PM 16 Q. OKAY. AND YOU HAD ANOTHER UNCLE, JAMES THOMAS?

04:41 PM 17 A.

YES.

04:41 PM 18 Q.

AND HE WORKED IN THE MACHINERY DIVISION?

04:41 PM 19 A.

I THINK SO, OR WELDING, ONE OF THEM. I'M NOT SURE.

04:41 PM 20 Q.

IN FINAL ASSEMBLY AND SHIPPING?

04:41 PM 21 A.

UH-HUH.

04:41 PM 22 Q.
04:41 PM 23 A. 04:41 PM 24 Q.

AND YOU HAVE AN AUNT, SHIRLEY THOMAS, CORRECT? YES. AND SHIRLEY THOMAS WORKS IN THE CORPORATE DIVISION

04:41 PM 25 AS AN HR CLERK, IS THAT CORRECT?

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266

04:41 PM 1 A.

UH-HUH.

04:41 PM 2 Q. AND FINALLY, YOU HAVE AN UNCLE, CURTIS THOMAS?

04:42 PM 3 A.

UH-HUH.

04:42 PM 4 Q.

CORRECT?

04:42 PM 5 A.

CORRECT.

04:42 PM 6 Q.

HE ALSO WORKS AT LUFKIN INDUSTRIES?

04:42 PM 7 04:42 PM 8 04:42 PM 9

A. YES. Q. AND HE IS A SUPERVISOR IN FINAL ASSEMBLY AND SHIPPING IN THE OILFIELD DIVISION?

04:42 PM 10 A.

UH-HUH.

04:42 PM 11 Q.

CORRECT?

04: 42 PM 12 A.

YES.

04:42 PM 13 Q.

SO I THINK liVE JUST GONE THROUGH ONE, TWO, THREE,

04:42 PM 14 FOUR, FIVE, SIX, SEVEN, EIGHT, NINE, INCLUDING YOURSELF,

04:42 PM 15 TEN OF YOUR RELATIVES, AND NONE OF THEM HAVE EVER WORKED

04:42 PM 16 IN THE FOUNDRY DIVISION OF LUFKIN INDUSTRIES, CORRECT?

04:42 PM 17 A. TO MY KNOWLEDGE, NO.

04:42 PM 18 Q. SINCE YOUIVE WORKED AT LUFKIN, YOUIVE ALWAYS BEEN A

04:42 PM 19 SALARIED EMPLOYEE, IS THAT CORRECT?

04:42 PM 20 A.

NO. I STARTED OUT HOURLY.

04:42 PM 21 Q.

STARTED OUT HOURLY WHEN YOU STARTED OUT IN THE FILE

04:42 PM 22 ROOM, IS THAT RIGHT?

04: 42 PM 23 A. 04:42 PM 24 Q.

UH-HUH. OKAY. AND YOU DID, YOU STARTED OUT IN THE FILE ROOM

04:42 PM 25 TWENTY-THREE YEARS AGO, CORRECT?

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267

04:42 PM 1 A.

YES.

04:42 PM 2 Q.

AND BASICALLY -- AND YOU WORKED YOUR WAY UP?

04:42 PM 3 A.

YES.

04:42 PM 4 Q.

AFTER YOU LEFT THE FILE ROOM, YOU WENT TO THE

04:42 PM 5 INSURANCE DEPARTMENT, CORRECT?

04:42 PM 6 A.

UH-HUH.

04:42 PM 7 Q.

YOU WERE AN INSURANCE CLERK, CORRECT?

04:42 PM 8 A.

YES.

04:42 PM 9 Q. AND YOU WERE PROMOTED TO SENIOR INSURANCE CLERK?

04:43 PM 10 A.

UH-HUH.

04:43 PM 11 Q.

AND AFTER THAT YOU WERE PROMOTED TO EMPLOYEE

04:43 PM 12 BENEFITS SUPERVISOR?

04:43 PM 13 A.

UH-HUH.

04:43 PM 14 Q.

AND YOU ACTUALLY GOT THAT JOB OVER YOUR COUSIN,

04:43 PM 15 FRETA THOMAS, AND A WHITE EMPLOYEE NAMED ANNA KING?

04:43 PM 16 A.

RIGHT.

04: 43 PM 17 Q.

IS THAT CORRECT?

04:43 PM 18 A.

UH-HUH.

04:43 PM 19 Q.

AND YOU WERE SELECTED BY JENNY RUSSELL?

04 : 43 PM 20 A •

YES.

04:43 PM 21 Q.

WHO IS YOUR SUPERVISOR FOR --

04 : 43 PM 22 A •

EVER SINCE I'VE BEEN THERE.

04 : 43 PM 23 Q.
04:43 PM 24 A. 04:43 PM 25 Q.

EVER SINCE YOU'VE BEEN THERE? YES. OKAY. AND YOU GOT THAT SUPERVISORY JOB THROUGH

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268

04:43 PM 1 TRAINING AND A JOB POSTING, ISN'T THAT CORRECT?

04:43 PM 2 A.

UH-HUH.

04:43 PM 3 Q.

I THINK YOU TESTIFIED -- WAS IT WHILE YOU WERE IN

04:43 PM 4 INSURANCE THAT YOU ALL MOVED OVER TO THE CORPORATE

04:43 PM 5 BUILDING?

04:43 PM 6 A.

YES.

04:43 PM 7 Q. SO YOU WERE STILL IN INSURANCE FOR A LITTLE WHILE?

04:43 PM 8 A.

UH-HUH.

04:43 PM 9 Q.

AND YOU THINK THAT'S FOUR OR FIVE YEARS AGO?

04 :44 PM 10 A.

I'M THINKING FIVE. IT MAY BE MORE, BUT I'M THINKING

04:44 PM 11 FIVE.

04:44 PM 12 Q.

ABOUT '98, '99, SOMEWHERE AROUND THERE?

04: 44 PM 13 A .

UH-HUH.

04 : 44 PM 14 Q. OKAY. AND DID YOU ALWAYS OFFICE IN THE HR SUITES

04:44 PM 15 WHEN YOU MOVED OVER?

04:44 PM 16 A.

I'M SORRY?

04 : 44 PM 17 Q.

DID YOU ALWAYS OFFICE IN THE HUMAN RESOURCES SUITE

04:44 PM 18 EVEN WHEN YOU WERE STILL IN THE INSURANCE DEPARTMENT?

04:44 PM 19 A.
04: 44 PM 20 Q.

YES. NOW, AT SOME POINT IN TIME YOUR JOB IN INSURANCE

04:44 PM 21 BASICALLY BECAME OBSOLETE, CORRECT?

04 : 44 PM 22 A . 04:44 PM 23 Q.

UH-HUH. BECAUSE LUFKIN INDISTRIES BEGAN OUTSOURCING THEIR

04:44 PM 24 INSURANCE?

04 : 44 PM 2 5 A .

RIGHT.

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269

04:44 PM 1 Q.

IS THAT CORRECT?

04:44 PM 2 A.

UH-HUH.

04:44 PM 3 Q.

AND AT THAT POINT YOUR JOB AS AN INSURANCE CLERK OR

04:44 PM 4 BENEFITS SUPERVISOR, WHERE YOU WERE PROCESSING CLAIMS,

04:44 PM 5 AMONG OTHER THINGS, BASICALLY DIDN'T EXIST ANY MORE?

04:44 PM 6 A.

RIGHT.

04:44 PM 7 Q.

AND YOU WEREN'T LAID OFF --

04:44 PM 8 A.

NO.

04:44 PM 9 Q.

-- AT THE TIME?

04:44 PM 10 A.

NO.

04:44 PM 11 Q.

IN FACT, YOU -- LUFKIN FOUND YOU ANOTHER JOB?

04:44 PM 12 A.

UH-HUH.

04 : 44 PM 13 Q. AND AT THAT POINT, THAT'S WHEN YOU MOVED TO THE

04:44 PM 14 HUMAN RESOURCES DEPARTMENT, CORRECT, AS AN HR CLERK?

04 : 44 PM 15 A • WELL, WE WERE ALREADY THERE, I JUST -- THE TITLE

04:44 PM 16 JUST CHANGED.

04 : 44 PM 17 Q.

AND YOUR JOB DUTIES CHANGED?

04:44 PM 18 A.

YES.

04 : 44 PM 19 Q.

CORRECT?

04 : 45 PM 20 A .

YES.

04:45 PM 21 Q.

AS YOU WERE IN A SUPPORT ROLE IN HUMAN RESOURCES,

04:45 PM 22 CORRECT?

04 : 45 PM 23 A •
04:45 PM 24 Q.

UH-HUH. FILING, ANSWERING PHONES, AND YOU WERE STILL DOING

04:45 PM 25 SOME INSURANCE WORK, PROCESSING COBRA, IS THAT CORRECT?

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04:45 PM 1 04:45 PM 2 04:45 PM 3

270

A.

UH-HUH.

Q.

AND YOU WERE AN HR ASSISTANT FOR TWO, THREE YEARS

MAYBE?

04:45 PM 4
04:45 PM 5

A.

I DON'T THINK IT WAS THREE.

MAYBE. I'M NOT SURE.

IT MAY HAVE BEEN TWO

04:45 PM 6 Q.

AND AT SOME POINT IN TIME YOU TALKED TO YOUR

04:45 PM 7
04:45 PM 8
04:45 PM 9
04:45 PM 10

SUPERVISOR, JENNY RUSSELL, ABOUT FINDING YOU ANOTHER JOB

IN THE COMPANY, IS THAT CORRECT?

A.

YES.

Q.

AND IT WAS AFTER THAT THAT YOU MOVED TO ACCOUNTS

04:45 PM 11 04: 45 PM 12 04 : 45 PM 13 04:45 PM 14
04:46 PM 15

PAYABLE, WHERE YOU ARE NOW, CORRECT?

A.

YES.

Q .

AND YOU'RE HAPPY IN ACCOUNTS PAYABLE, CORRECT?

A.

I AM.

Q.

YOU DON'T BELIEVE THAT YOU WERE MOVED TO ACCOUNTS

04:46 PM 16 04 : 46 PM 17

PAYABLE BECAUSE OF YOUR RACE, CORRECT?

A .

I WAS TOLD THAT I WAS GOING. THEY DIDN'T GIVE ME A

04:46 PM 18 CHOICE. I WAS TOLD THAT -- I HAD WENT TO HER AND ASKED

04:46 PM 19 HER, TOLD HER THAT I WANTED TO GO TO ANOTHER DEPARTMENT OR

04:46 PM 20 ANOTHER JOB, AND SHE TOLD ME THAT WHEN SOMETHING CAME

04:46 PM 21 AVAILABLE, SHE WOULD LET ME KNOW. THE NEXT THING I KNEW,

04:46 PM 22 THEY WERE TELLING ME I WAS GOING TO ACCOUNTING, TO A JOB

04:46 PM 23 THAT SHE HAD ALREADY TOLD ME THAT I DIDN'T WANT TO TAKE

04:46 PM 24 BECAUSE IT WAS LESS PAY.

04 : 46 PM 2 5 Q.

BUT YOU DON'T HAVE ANY REASON TO BELIEVE --

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04:46 PM 1

THE COURT: WAS WHAT?

04:46 PM 2

THE WITNESS: LESS PAY.

04:46 PM 3

THE COURT: OKAY.

04:46 PM 4 BY MS. MAHONY:

04:46 PM 5 Q. 11M SORRY. SO YOU DONIT HAVE ANY REASON TO BELIEVE

04:46 PM 6 THAT YOU WERE MOVED TO ACCOUNTS PAYABLE BECAUSE OF YOUR

04:46 PM 7 RACE?

04:46 PM 8 A.

NO.

04:46 PM 9 Q.

OKAY. MS. CRAIN, YOUIVE ATTENDED NUMEROUS TRAINING

04:46 PM 10 COURSES WHILE EMPLOYED AT LUFKIN, CORRECT?

04:46 PM 11 A.

YES.

04:46 PM 12 Q.

AT ONE POINT I THINK YOU AND MS. RUSSELL ACTUALLY

04:47 PM 13 WENT OUT TO EITHER NORTH OR SOUTH CAROLINA FOR A WEEK-LONG

04:47 PM 14 TRAINING SEMINAR, CORRECT?

04:47 PM 15 A.

YES.

04:47 PM 16 Q.

YOUIVE ATTENDED A LOT OF COMPUTER TRAINING?

04:47 PM 17 A.

UH-HUH.

04:47 PM 18 Q.

IN FACT, YOU HAD VERY LITTLE COMPUTER TRAINING

04:47 PM 19
04 : 47 PM 20

BEFORE YOU CAME TO LUFKIN?

A •

EXACTLY.

04 : 47 PM 21 Q. AND YOU FEEL LIKE YOUIVE RECEIVED SUFFICIENT

04:47 PM 22 04:47 PM 23 04 : 47 PM 24 04 : 47 PM 2 5

TRAINING WHILE AT LUFKIN TO DO YOUR JOB AT LUFKIN

INDUSTRIES?

A .

YES.

Q. IN FACT, WHILE YOUIVE BEEN EMPLOYED AT LUFKIN

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04:47 PM 1 THERE'S NOT ANY TRAINING OPPORTUNITY OR SEMINAR OR COURSE

04:47 PM 2 THAT YOU'VE ASKED TO TAKE OR TO ATTEND WHERE THE COMPANY

04:47 PM 3 SAID NO, ISN'T THAT CORRECT?

04:47 PM 4 A. 04:47 PM 5 Q.

THAT'S CORRECT. SO EVER SINGLE TRAINING OPPORTUNITY THAT YOU'VE

04:47 PM 6 ASKED FOR, YOU'VE GOTTEN THE TRAINING? YOU'VE ATTENDED A

04:47 PM 7 LOT OF TRAINING COURSES AND YOU'VE DEVELOPED, YOU KNOW,

04:47 PM 8 COMPUTER SKILLS, AMONG OTHER THINGS?

04:47 PM 9 A.

UH-HUH.

04:47 PM 10 Q.

AND LUFKIN INDUSTRIES IS THE ONE THAT AFFORDED YOU

04:47 PM 11 THOSE TRAINING OPPORTUNITIES?

04:47 PM 12 A.

I'M SORRY?

04:47 PM 13 Q.

LUFKIN INDUSTRIES WAS THE ONE WHO MADE THOSE

04:48 PM 14 TRAINING OPPORTUNITIES AVAILABLE?

04:48 PM 15 A.

UH-HUH.

04:48 PM 16 Q.

NOW, MS. CRAIN, YOU TESTIFIED THAT YOU HEARD MR.

04:48 PM 17 BARBAY MAKE A SINGLE RACIAL JOKE --

04:48 PM 18 A. 04:48 PM 19 Q.
04:48 PM 20 A.

YES. -- WHILE YOU WERE IN THE OLD BUILDING? UH-HUH.

04:48 PM 21 Q.

AND WHILE YOU WERE IN HUMAN RESOURCES, HE WOULD SAY

04:48 PM 22
04:48 PM 23 04:48 PM 24 04:48 PM 25

THAT, YOU KNOW, APPLICANTS WERE LAZY OR IDIOTS, I THINK

WAS THE WORDS THAT YOU USED?

A.

UH-HUH.

Q.

OTHER THAN THOSE TWO COMMENTS, ONE WHICH YOU SAID

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04:48 PM 1 04:48 PM 2

273
HAD A RACIAL REMARK IN IT, AND THE OTHER, WHICH I THINK YOU'LL AGREE THERE WAS NO MENTION OF RACE

04:48 PM 3 A. 04:49 PM 4 Q. 04:49 PM 5 A. 04:49 PM 6 Q. 04:49 PM 7 A. 04:49 PM 8 Q.

YES. -- IN WHAT YOU HEARD UH-HUH. CORRECT? CORRECT. YOU CAN'T RECALL -- THERE HAVE BEEN NO OTHER RACIAL

04:49 PM 9 REMARKS THAT HAVE BEEN MADE IN YOUR PRESENCE, IS THAT

04: 49 PM 10 CORRECT?

04: 49 PM 11 A.

NOT IN MY PRESENCE, NO.

04:49 PM 12 Q. AND YOU'VE WORKED IN A NUMBER OF, WITH A NUMBER OF

04:49 PM 13 PEOPLE IN THE HUMAN RESOURCES SUITE BESIDES MR. BARBAY,

04:49 PM 14 ISN IT THAT CORRECT?

04:49 PM 15 A.

YES.

04:49 PM 16 Q.

YOU'VE WORKED WITH MR. PEREZ?

04:49 PM 17 A.

YES.

04:49 PM 18 Q.

CORRECT?

04:49 PM 19 A.

CORRECT.

04:49 PM 20 Q.

AND HE WAS THE VICE PRESIDENT OVER HUMAN RESOURCES

04:49 PM 21 FOR MUCH OF THE TIME THAT YOU WERE IN HUMAN RESOURCES,

04:49 PM 22 CORRECT?

04: 49 PM 2 3 A.

UH-HUH.

04:49 PM 24 Q. AND YOU'VE NEVER HEARD MR. PEREZ MAKE A RACIAL

04:49 PM 25 REMARK OR COMMENT, HAVE YOU?

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04:49 PM 1 04:49 PM 2 04:49 PM 3 04:49 PM 4 04:49 PM 5 04:49 PM 6 04:49 PM 7 04:49 PM 8 04:49 PM 9 04:49 PM 10 04:49 PM 11 04: 49 PM 12

274

A.

NO.

Q. AND YOU'VE WORKED WITH JOHN HAVARD?

A. UH-HUH.

Q. WHO IS THE HUMAN RESOURCES MANAGER?

A. UH-HUH.

Q. AND YOU'VE NEVER HEARD JOHN HAVARD MAKE A RACIAL

REMARK OR COMMENT, HAVE YOU?

A.

NO.

Q. AND YOU'VE WORKED WITH JENNY RUSSELL, WHO IS THE

BENEFITS MANAGER, AND MS. RUSSELL, SHE'S WHITE, CORRECT?

A. UH-HUH.

Q • AND I THINK YOU SAID MS. RUSSELL -- SHE'S BEEN YOUR

04:49 PM 13 SUPERVISOR FOR --

04:49 PM 14 A.

SINCE I'VE BEEN THERE.

04 : 50 PM 15 Q • SINCE YOU'VE BEEN THERE? AND YOU'VE NEVER HEARD

04:50 PM 16 04: 50 PM 17 04: 50 PM 18

JENNY RUSSELL MAKE A RACIAL REMARK OR COMMENT? A. NO. Q. YOU'VE ALSO WORKED WITH DWAYNE COLLINS IN HUMAN

04: 50 PM 19
04: 50 PM 20
04 : 50 PM 21

RESOURCES AS WELL, CORRECT? A. UH-HUH. Q • AND YOU'VE NEVER HEARD DWAYNE COLLINS MAKE A RACIAL

04: 50 PM 22 04 : 50 PM 2 3 04 :50 PM 24 04 : 50 PM 2 5

REMARK OR COMMENT, CORRECT? A. NO. Q • FINALLY, YOU'VE WORKED WITH SUSAN CAMPBELL? A. UH-HUH.

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04: 50 PM 1 Q. WHO IS A SECRETARY IN HUMAN RESOURCES, IS THAT

04:50 PM 2 CORRECT?

04:50 PM 3 A.

CORRECT.

04:50 PM 4 Q. AND YOU'VE NEVER HEARD SUSAN CAMPBELL MAKE A RACIAL

04:50 PM 5 REMARK OR COMMENT?

04: 50 PM 6 A.

NO.

04:50 PM 7 Q.

SO BASICALLY, IN THE LAST TEN-PLUS YEARS YOU'VE

04: 50 PM 8 HEARD ONE RACIAL JOKE, A SINGLE RACIAL JOKE, AND A

04:50 PM 9 STATEMENT MADE BY MR. BARBAY THAT DIDN'T REFER TO ANYONE'S

04: 50 PM 10 RACE?

04: 50 PM 11 A.

WELL, IT'S NOT LIKE THEy'RE GOING TO SAY IT WITH ME

04: 50 PM 12 RIGHT THERE. I'M SURE THEY DO, BUT THEy'RE NOT GOING TO

04:50 PM 13 DO IT WITH ME THERE.

04:50 PM 14 Q. 04 : 51 PM 15 A • 04 : 51 PM 16 Q .

YOU HAVEN'T HEARD ANYONE SAY THAT? NO, I HAVEN'T. AND NO ONE HAS REPORTED TO YOU THAT THEy'VE HEARD

04: 51 PM 17 THOSE COMMENTS?

04: 51 PM 18 A.

I MEAN, THEY WOULDN'T.

04: 51 PM 19 Q.

I THINK YOU TESTIFIED IN THE OLD BUILDING THAT YOU

04:51 PM 20 04 : 51 PM 21 04 : 51 PM 22 04 : 51 PM 2 3 04 : 51 PM 24

WORKED GENERALLY WITH MR. BARBAY?

A • NO, IN THE NEW BUILDING.

Q • IN THE NEW BUILDING?

A •

YES.

Q • OKAY. BUT HE ALSO OFFICED IN THE OLD BUILDING, SO

04: 51 PM 25 YOU HAD AN OFFICE TOGETHER?

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04:51 PM 1 A.

OH, YEAH. YES.

04: 51 PM 2 Q.

AND IN THE NEW BUILDING YOU WORKED WITH HIM?

04:51 PM 3 A.

NO, I DIDN'T WORK WITH HIM, I JUST -- SOMETIMES, NOT

04:51 PM 4 ACTUALLY JUST EVERY DAY TO DAY, NO, JUST SOMETIMES.

04: 51 PM 5 Q.

OKAY. SO WHEN YOU TESTIFIED THAT, YOU KNOW, YOU

04:51 PM 6 WERE REQUIRED TO WORK WITH HIM, WHAT THAT REALLY WAS, YOU

04:51 PM 7
04: 51 PM 8 04: 51 PM 9

WOULD ANSWER HIS PHONES IF HE WAS ON THE OTHER LINE, CORRECT? A. YES.

04: 51 PM 10 Q.

AND YOU WOULD DO SOME FILING FOR HIM, JOB

04: 51 PM 11 DESCRIPTIONS BASICALLY, IS THAT CORRECT?

04: 51 PM 12 A •

UH-HUH.

04: 51 PM 13 Q. AND YOU MIGHT FAX SOMETHING, AN ADVERTISEMENT TO,

04: 51 PM 14 YOU KNOW, A NEWSPAPER OR --

04:52 PM 15 A. WELL, I DID ALL THE -- SUSAN WOULD DO THEM UP AND I

04: 52 PM 16 WOULD ACTUALLY SEND THEM TO THE NEWSPAPER.

04:52 PM 17 Q.

BUT THAT'S REALLY ABOUT ALL THE WORK YOU DID WITH

04: 52 PM 18 MR. BARBAY, CORRECT, IN HUMAN RESOURCES?

04:52 PM 19 A.
04: 52 PM 20 Q.

YES. SO IT DIDN'T REQUIRE YOU ALL WORKING TOGETHER?

04: 52 PM 21 A.

NO. HUH-UH.

04: 52 PM 22 Q.

OKAY. YOU WERE IN A SUPPORT ROLE?

04: 52 PM 23 A.

UH-HUH.

04: 52PM 24 Q. 04: 52 PM 25 A.

IS THAT A FAIR COMMENT? UH-HUH.

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04:52 PM 1 Q.

BUT YOU DID WORK IN ONE BIG OFFICE SUITE?

04: 52 PM 2 A.

YES.

04:52 PM 3 Q.

AND DURING THAT ENTIRE TIME HE NEVER MADE ANY RACIAL

04: 52 PM 4 REMARKS OR COMMENTS TO YOU?

04: 52 PM 5 A.

NO.

04:52 PM 6 Q.

CORRECT?

04: 52 PM 7 A.

NO.

04: 52 PM 8 Q.

HE NEVER YELLED AT YOU?

04:52 PM 9 A.

WE NEVER TALKED. WE NEVER SPOKE.

04: 52 PM 10 Q. 04: 52 PM 11 A.

AND YOU NEVER HEARD HIM CALL YOU DUMB OR LAZY? NOT TO MY FACE.

04:52 PM 12 Q.

WELL, YOU'VE REFERRED TO MR. BARBAY AS LAZY BEFORE,

04: 52 PM 13 CORRECT?

04: 52 PM 14 A. 04:52 PM 15 Q.

OH, YEAH. EVERYBODY IN THE OFFICE HAVE. AND YOU'VE ALSO CALLED HIM OTHER NAMES?

04: 52 PM 16 A.

YES, JUST LIKE EVERYBODY ELSE IN THE OFFICE HAVE. I

04: 53 PM 17 TAKE -- ALL THE WOMEN.

04: 53 PM 18 Q.

OKAY. MS. CRAIN, YOU'VE TESTIFIED -- AGAIN, LET'S

04: 53 PM 19 TALK ABOUT THE JOKE THAT YOU SAY YOU OVERHEARD MR. BARBAY

04: 53 PM 20 SAY IN THE OLD BUILDING.

04 : 53 PM 21 A . 04 : 53 PM 22 Q.

YES. THIS WAS THE FIRST TIME YOU HAD EVER HEARD MR.

04:53 PM 23 04:53 PM 24

BARBAY MAKE ANY KIND OF JOKE WITH A RACIAL COMMENT IN IT, CORRECT?

04 : 53 PM 2 5 A • THEY WOULD TELL -- THEY TOLD BLACK JOKES ALL THE

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04:53 PM 1 TIME, BUT THAT'S THE FIRST TIME I EVER ACTUALLY HEARD THEM

04:53 PM 2 SAY NIGGERS.

04: 54 PM 3

MS. MAHONY: YOUR HONOR, MAY I APPROACH THE

04:54 PM 4 WITNESS?

04: 54 PM 5

THE COURT: MA'AM?

04: 54 PM 6 BY MS. MAHONY:

04: 54 PM 7 Q.

MS. CRAIN, I'M HANDING YOU WHAT IS YOUR DEPOSITION

04: 54 PM 8 THAT YOU GAVE IN THIS CASE, AND IF YOU'LL TURN TO PAGE 65

04: 55 PM 9 IN THAT DEPOSITION AND START READING AT LINE 1.

04: 55 PM 10

"YOU'VE JUST SAID THAT WHILE YOU WERE IN THE OLD

04: 55 PM 11 BUILDING YOU HEARD MR. BARBAY USE THE "N" WORD IN A

04:55 PM 12 CONVERSATION WITH MR. SATTERWHITE. IS THIS THE FIRST TIME

04: 55 PM 13 YOU HEARD MR. BARBAY USE A RACIAL SLUR OR COMMENT?"

04: 55 PM 14

ANSWER: "IN THE OLD BUILDING, YES."

04: 55 PM 15

THE COURT: IS THAT SUPPOSED TO BE IN

04: 55 PM 16 CONTRADICTION TO SOMETHING SHE SAID BEFORE?

04: 55 PM 17

MS. MAHONY: WELL, I THINK THAT SHE HAD

04: 55 PM 18 04: 55 PM 19
04: 55 PM 20

TESTIFIED THAT SHE HEARD HIM TELL BLACK JOKES. THE COURT: BLACK STORIES, YES. THE WITNESS: I MEAN, THEY ALL -- THEY ALWAYS

04:55 PM 21 TOLD BLACK JOKES ALL THE TIME, BUT THAT'S THE FIRST TIME

04:55 PM 22 I'VE HEARD HIM ACTUALLY SAY "NIGGERS."

04:55 PM 23

I MEAN, I DIDN'T HAVE A PROBLEM WITH THE BLACK

04:55 PM 24
04: 55 PM 2 5

JOKES, I DEALT WITH IT, BUT THAT, NO. THE COURT: IF YOU'RE GOING TO USE IT TO

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04: 56 PM 1 IMPEACH, USE IT TO IMPEACH, BUT NOT JUST TO READ HER

04:56 PM 2 TESTIMONY.

04:56 PM 3 BY MS. MAHONY:

04: 56 PM 4 Q. MS. CRAIN, YOU'VE TOLD JOKES IN THE OFFICE BEFORE,

04:56 PM 5 HAVEN'T YOU?

04:56 PM 6 A.

YES.

04:56 PM 7 Q. AND YOU MIGHT HAVE REFERRED TO SOMEONE'S RACE IN

04:56 PM 8 THOSE JOKES AS WELL?

04:56 PM 9 A. 04:56 PM 10 Q.

I'M NOT SURE. NOW, WHEN YOU HEARD MR. BARBAY MAKE, USE THE "N"

04:56 PM 11 WORD IN THIS JOKE, HE WASN'T IN HUMAN RESOURCES AT THE

04:56 PM 12 TIME, CORRECT?

04:56 PM 13 A.

NO. I DON'T KNOW IF HE WAS CONSIDERED -- I'M NOT

04: 56 PM 14 SURE WHAT HE WAS CONSIDERED.

04:56 PM 15 Q.

BUT HE WASN'T IN HUMAN RESOURCES, HE WAS A

04: 56 PM 16 PHOTOGRAPH ER, CORRECT?

04:56 PM 17 A.

YES.

04:56 PM 18 Q.

OKAY. I'LL REPRESENT TO YOU THAT MR. BARBAY MOVED

04: 56 PM 19 FROM PHOTOGRAPHER TO HUMAN RESOURCES IN EARLY 1994. SO

04: 56 PM 20 THIS ONE -- THIS JOKE YOU OVERHEARD HAD TO HAVE HAPPENED

04: 56 PM 21 BEFORE 1994, CORRECT?

04:56 PM 22 A.

ALL I KNOW IS, WE WERE IN THE OLD BUILDING. I DON'T

04:56 PM 23 04:56 PM 24 04: 57 PM 25

KNOW THE YEAR, THE DATE OR ANYTHING. I DON'T KNOW. Q. BUT YOU KNOW HE WAS A PHOTOGRAPHER? A. I THINK HE WAS A PHOTOGRAPHER.

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04: 57 PM 1 Q.

OKAY. NOW, YOU SAID YOU OVERHEARD THIS COMMENT.

04: 57 PM 2 YOU DIDN'T STOP TO LISTEN --

04: 57 PM 3 A.

NO.

04:57 PM 4 Q.

-- AT THE OFFICE DOOR, DID YOU?

04:57 PM 5 A.

NO.

04: 57 PM 6 Q.

AND ACTUALLY, YOU HEARD MR. BARBAY USE THE "N" WORD

04: 57 PM 7 IN THE COUPLE OF SECONDS IT TOOK YOU TO WALK PASSED HIS

04: 57 PM 8 OFFICE DOOR?

04: 57 PM 9 A.

UH-HUH.

04:57 PM 10 Q.

I BELIEVE YOUR TESTIMONY IN THIS CASE HAS BEEN THAT

04: 57 PM 11 YOU NEVER HEARD MR. BARBAY USE THE "N" WORD AGAIN AFTER

04: 57 PM 12 THAT?

04: 57 PM 13 A.

NO.

04 : 57 PM 14 Q .

NOW, YOU DON'T BELIEVE THAT THEY SAW YOU WHEN YOU

04: 57 PM 15 WALKED BY THE DOOR?

04: 57 PM 16 A.

OH, NO. YOU CAN'T SEE PEOPLE WHEN THEY WERE COMING

04: 57 PM 17 UNLESS THEY PASSED BY THE DOOR.

04: 57 PM 18 Q.

AND YOU CAN'T RECALL THAT ANYONE ELSE WAS AROUND?

04:57 PM 19 A. 04 : 57 PM 20 Q .

NO, I WAS COMING FROM LUNCH BY MYSELF. AND YOU DIDN'T WRITE ANYTHING DOWN ABOUT WHAT YOU

04: 57 PM 21 OVERHEARD?

04 : 57 PM 22 A •
04: 57 PM 23 Q.

NO. AND YOU UNDERSTAND LUFKIN INDUSTRIES HAS A POLICY

04: 58 PM 24 FOR REPORTING SOMETHING THAT, YOU KNOW, YOU THINK IS

04:58 PM 25 DISCRIMINATORY OR --

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04:58 PM 1 A.

UH-HUH.

04:58 PM 2 Q.

AND YOU DIDN'T REPORT THIS INCIDENT TO ANYONE AT THE

04: 58 PM 3 TIME, DID YOU?

04:58 PM 4 A.

BECAUSE NOTHING WOULD HAVE BEEN DONE. IT WOULD HAVE

04:58 PM 5 BEEN A WASTE OF TIME. SO I KEPT IT TO MYSELF.

04:58 PM 6 Q.

BOTTOM LINE, MS. CRAIN, YOU DIDN'T REPORT THE

04:58 PM 7 INCIDENT TO ANYONE?

04: 58 PM 8 A.

NO, I DIDN'T.

04: 58 PM 9 Q.

IN FACT, YOU NEVER EVEN BROUGHT IT UP AGAIN UNTIL

04: 58 PM 10 MANY YEARS --

04: 58 PM 11 A.

EXACTLY.

04:58 PM 12 Q.

-- LATER, IS THAT CORRECT?

04: 58 PM 13 A.

THAT'S CORRECT.

04:58 PM 14 Q.

AND EVEN THEN YOU DIDN'T GO TO MR. PEREZ --

04 : 58 PM 15 A •

NO.

04: 58PM 16 Q.

-- AND COMPLAIN, DID YOU?

04:58 PM 17 A.

NO.

04: 58 PM 18 Q.

ACTUALLY, MR. PEREZ HAD COME TO YOU AND TOLD YOU

04: 58 PM 19 THAT YOUR JOB DUTIES WERE GOING TO BE CHANGING, IS THAT

04: 58 PM 20 CORRECT?

04:58 PM 21 A.

UH-HUH.

04:58 PM 22 Q.

NOW, THE NEXT TIME YOU HEARD MR. BARBAY MAKE ANY

04:58 PM 23 SORT OF A COMMENT, YOU SAID CALLING PEOPLE HE INTERVIEWED

04: 58 PM 24 04: 58 PM 25

DUMB OR LAZY I THINK, WAS IN THE CORPORATION BUILDING? A. YES.

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04: 58 PM 1

282
THE COURT: THIS IS REPETITIVE, COUNSEL.

04:59 PM 2
04: 59 PM 3

MS. MAHONY: OKAY. WELL, I JUST -THE COURT: I'M GLAD IT'S OKAY, BUT IT'S

04: 59 PM 4 REPETITIVE. YOU CAN ASK IT ONE MORE TIME AND THEN QUIT.

04: 59 PM 5 BY MS. MAHONY:

04:59 PM 6 Q.

NOW, THESE COMMENTS THAT MR. BARBAY MADE IN THE NEW

04:59 PM 7 BUILDING WHEN HE WOULD REFER TO PEOPLE HE INTERVIEWED,

04: 59 PM 8 AGAIN, HE DIDN'T REFER TO ANYONE'S RACE, IS THAT CORRECT?

04:59 PM 9
04:59 PM 10 04:59 PM 11

A. CORRECT. Q. AND YOU DON'T KNOW THE RACE OF PEOPLE HE INTERVIEWED?

04:59 PM 12 A. MOST OF THE TIME I DID BECAUSE OF THE ADS I WOULD

04: 59 PM 13 SEND. SO MOST OF THE TIME I DID KNOW WHAT RACE THEY WOULD

04:59 PM 14 04:59 PM 15 04:59 PM 16 04: 59 PM 17 04: 59 PM 18 04:59 PM 19
04: 59 PM 20

BE BECAUSE OF THE ADS.

Q. BUT YOU DIDN'T GO TO TWC WITH HIM, DID YOU?

A.

NO.

Q. YOU DIDN'T MAKE OUT THE INTERVIEW LIST, DID YOU?

A •

NO.

Q. YOU DIDN'T TYPE UP THE JOB REQUISITION FORM, DID

YOU?

04: 59 PM 21 A.

NO, THOSE CAME FROM THE DEPARTMENT HEADS I GUESS. I

04: 59 PM 22
04:59 PM 23 04: 59 PM 24

DON'T KNOW. Q. SO THIS IS JUST SOMETHING YOU JUST BELIEVE? A. NO. WHEN THE APPLICANTS WOULD COME IN, SOMETIMES I

05:00 PM 25 WOULD HELP SUSAN PROCESS THEM, GET THEM READY FOR

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05:00 PM 1 05: 00 PM 2 05:00 PM 3 05 :00 PM 4 05 :00 PM 5 05:00 PM 6 05 :00 PM 7 05:00 PM 8 05 :00 PM 9

283 ORIENTATION, TELL THEM ABOUT THEIR BENEFITS. SO, YES, YOU KNOW, IF THEY CAME IN, I KNEW, YOU KNOW. Q. AND YOU KNEW THAT THIS APPLICANT WAS THE ONE THAT MR. BARBAY WAS REFERRING TO, EVEN THOUGH -A. OR THIS GROUP. NOT JUST PARTICULARLY ONE PERSON, THIS GROUP. Q. AND WERE SOME OF THESE APPLICANTS WHITE? A. VERY SELDOM. IF THEY WERE, THEY WERE LIKE I GUESS YOU WOULD CONSIDER LOW.

05 :00 PM 10 Q. AND MS. CRAIN, YOU'VE NEVER MADE ANY COMPLAINTS TO

05 :00 PM 11 ANYONE, ABOUT THESE COMMENTS, TO ANYONE AT LUFKIN

05:00 PM 12 INDUSTRIES, CORRECT?

05:00 PM 13 A.

HUH-UH.

05 :00 PM 14 Q.

IS THAT CORRECT?

05:00 PM 15 A.

THAT'S CORRECT.

05:00 PM 16 Q. AND YOU NEVER EVEN BROUGHT THESE ALLEGED COMMENTS TO

05:00 PM 17 THE ATTENTION OF MR. PEREZ WHEN YOU COMPLAINED TO HIM, DID

05:00 PM 18 YOU?

05 :00 PM 19 A •

NO.

05:01 PM 20 Q. MS. CRAIN, YOU KEPT A JOURNAL AT WORK, DIDN'T YOU?

05 :01 PM 21 A.

YES.

05:01 PM 22 Q. AND YOU RECORDED IN YOUR JOURNAL THINGS THAT YOU DID

05 :01 PM 23 NOT THINK WERE RIGHT, IS THAT CORRECT?

05 :01 PM 24 A. I JUST WROTE THINGS THAT I FELT AT THE TIME.

05:01 PM 25 Q.

FOR EXAMPLE, YOU WROTE IN YOUR JOURNAL THAT ONE DAY

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05:01 PM 1 YOU WERE UPSET YOU DIDN'T GET FLOWERS FOR SECRETARIES

05:01 PM 2 WEEK?

05:01 PM 3 A.

YEAH.

05:01 PM 4 Q.

BUT YOU NEVER WROTE IN YOUR JOURNAL ANYTHING ABOUT

05:01 PM 5 MR. BARBAY USING THE "N" WORD, DID YOU?

05:01 PM 6 A.

NO. I DIDN'T WRITE EVERY DAY IN IT.

05:01 PM 7 Q.

AND YOU DIDN'T WRITE --

05:01 PM 8 A.

IT REALLY WAS NOT A JOURNAL, IT WAS JUST WHEN I HAD

05:01 PM 9 TIME I WOULD JOT THINGS DOWN, MY THOUGHTS OR SOMETHING IF

05:01 PM 10 SOMETHING HAD HAPPENED. IT REALLY WAS NOT A JOURNAL.

05:01 PM 11 Q.

AND YOU NEVER WROTE IN THERE ABOUT MR. BARBAY MAKING

05:01 PM 12 A COMMENT THAT

05:01 PM 13 A.

NO.

05:01 PM 14 Q.

-- APPLICANTS WERE DUMB OR LAZY?

05:01 PM 15 A.

NO.

05:01 PM 16 Q.

YOU NEVER WROTE IN YOUR JOURNAL THAT YOU THOUGHT MR.

05:01 PM 17 BARBAY WAS A RACIST?

05:01 PM 18 A.

NO.

05 :02 PM 19

THE COURT: SHE SAYS THAT SHE DIDN'T KEEP IT AS

05:02 PM 20 A JOURNAL, MAlAM. YOU KEEP REFERRING TO IT. I GUESS IT

05:02 PM 21 WILL BECOME ONE NOW.

05:02 PM 22
05:02 PM 23

THE WITNESS: I MEAN, IT WAS NOT A JOURNAL. THE COURT: BECAUSE YOU CALL IT A JOURNAL, YOU

05:02 PM 24 CALL IT A JOURNAL, IT IS A JOURNAL IN YOUR MIND AND WILL

05:02 PM 25 BE IN THIS RECORD.

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05 :02 PM 1

MS. MAHONY: OKAY.

05:02 PM 2 BY MS. MAHONY:

05 :02 PM 3 Q.

WELL, IT'S A NOTEBOOK YOU KEPT?

05:02 PM 4 A.

YES.

05:02 PM 5 Q. AND YOU MADE DAILY ENTRIES, OR NOT DAILY, BUT DATE

05:02 PM 6 ENTRIES IN IT, CORRECT?

05:02 PM 7 A.

SOMETIMES, YES.

05 :02 PM 8 Q.

OKAY. ONE MOMENT MS. CRAIN.

05:03 PM 9

THE COURT: IF YOU HAVE NOTHING FURTHER, WE'RE

05:03 PM 10 GOING TO ADJOURN UNTIL 9:00 O'CLOCK IN THE MORNING.

05 :03 PM 11

MS. MAHONY: OKAY, YOUR HONOR. I DO HAVE

05 :03 PM 12 NOTHING FURTHER.

05:03 PM 13

THE COURT: OH, I ASSUMED YOU WERE THROUGH. YOU

05:03 PM 14 WERE JUST

05 :03 PM 15

MS. MAHONY: I WAS JUST LOOKING THROUGH MY

05:03 PM 16 NOTES, YOUR HONOR.

05 :03 PM 17

THE COURT: WELL, I WILL WAIT FOR YOU.

05:03 PM 18

MS. MAHONY: I'LL PASS THE WITNESS.

05 :03 PM 19

THE COURT: THANK YOU. THEN WE'LL ADJOURN.

05:03 PM 20

THE MARSHAL: ALL RISE.

05:03 PM 21

THE COURT: DO YOU WANT TO ASK ANY MORE

05:03 PM 22 QUESTIONS OF THIS WITNESS?

05 :03 PM 23

MR. GARRIGAN: IF I COULD HAVE FIVE MINUTES, WE

05:03 PM 24 CAN LET HER GO HOME TO LUFKIN.

05 :03 PM 25

THE COURT: WELL, IT WILL JUST PING-PONG BACK

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05 :03 PM 1 AND FORTH.

05 :03 PM 2

BUT SEE IF YOU CAN LIVE UP TO YOUR PROMISE OF

05:03 PM 3 FIVE MINUTES.

05 :03 PM 4

MR. GARRIGAN: ALL RIGHT.

05 :03 PM 5

REDIRECT EXAMINATION

05 :03 PM 6 BY MR. GARRIGAN:

05:03 PM 7 Q.

NOW, WERE YOU TREATED FAIRLY ALL THE TIME?

05 :04 PM 8 A.

I DON'T THINK I WAS MISTREATED, BUT I DON'T THINK I

05 :04 PM 9 WAS GIVEN THE OPPORTUNITIES THAT I COULD HAVE BEEN GIVEN.

05:04 PM 10 Q.

WERE YOU LEFT OUT OF OFFICE ACTIVITIES?

05:04 PM 11 A.

I DON'T THINK SO. I'M NOT SURE, BUT I DON'T THINK

05:04 PM 12 SO.

05:04 PM 13 Q. WELL, WEREN'T THERE OFFICE LUNCHEONS AND STUFF?

05 :04 PM 14

MS. MAHONY: OBJECTION, LEADING.

05:04 PM 15

THE COURT: YES, MA'AM, YOU'RE CORRECT. I

05 :04 PM 16 OVERRULE YOUR OBJECTION.

05 :04 PM 17

THE WITNESS: THERE WAS ONCE. THAT I ACTUALLY

05 :04 PM 18 KNEW OF, THERE WAS ONCE.

05:04 PM 19 BY MR. GARRIGAN:

05:04 PM 20 Q.

WERE THERE OTHER TIMES WHEN YOU FELT SORT OF LEFT

05:04 PM 21 OUT?

05 : 04 PM 22 A •

YEAH.

05: 04 PM 23 Q.

DID YOU THINK IT HAD TO DO WITH YOUR RACE?

05:04 PM 24 A.

I WONDERED.

05 : 04 PM 2 5 Q . WAS THERE A TIME WHEN YOU DIDN'T GET FLOWERS AND ALL

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05 :04 PM 1 THE OTHER WOMEN IN THE OFFICE DID?

05:04 PM 2 A.

UH-HUH.

05:04 PM 3 Q.

WAS THERE EVER ANY EXPLANATION FOR WHY YOU WERE LEFT

05:05 PM 4 OUT OF THAT?

05 :05 PM 5 A.

NOBODY SAID A WORD.

05 :05 PM 6 Q. WERE THE WOMEN WHO DID GET FLOWERS, WERE THEY ALL

05 :05 PM 7 WHITE?

05:05 PM 8 A.

YES.

05:05 PM 9 Q.

NOW, THIS -- WHEN YOU REPORTED TO MR. PEREZ THE

05:05 PM 10 PROBLEMS YOU HAD WITH MR. BARBAY, THAT WAS BECAUSE MR.

05:05 PM 11 PEREZ HAD COME TO YOU TO TELL YOU YOUR DUTIES WERE GOING

05:05 PM 12 05:05 PM 13

TO CHANGE? THE COURT:

THIS IS REPETITIOUS.

YOU ALREADY

05:05 PM 14 PROVED THIS ON YOUR OPENING EXAMINATION.

05:05 PM 15

MR. GARRIGAN: ALL RIGHT. I DID NOT KNOW IT WAS

05:05 PM 16 CLEAR.

05:05 PM 17

THE COURT: IT WAS CLEAR.

05:05 PM 18

MR. GARRIGAN: ALL RIGHT.

05:05 PM 19

THE COURT: SHE WENT TO HIM TO DO A JOB WITH

05:05 PM 20 BARBAY, AND SHE SAID, "I'M GOING TO HAVE A PROBLEM WITH

05:05 PM 21 THAT. II II WHAT , S THE PROBLEM?II SHE TOLD HIM THE PROBLEM

05:05 PM 22 AND SHE HAD TO DO THE WORK ANYHOW.

05:05 PM 23

NOW, IF YOU WANT TO MAKE IT LONGER, YOU CAN DO

05: 05 PM 24 SO.

05:05 PM 25

MR. GARRIGAN: I'M NOT TRYING TO. YOUR MEMORY

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05:06 PM 1 IS BETTER THAN MINE. I'LL SKIP TO SOMETHING ELSE.

05:06 PM 2 BY MR. GARRIGAN:

05:06 PM 3 Q.

THE TRAINING THAT YOU RECEIVED --

05:06 PM 4 A.

UH-HUH.

05 :06 PM 5 Q.

WAS THAT TRAINING SO THAT YOU COULD PERFORM THE JOB

05:06 PM 6 YOU WERE ALREADY DOING, OR WAS IT TRAINING SO THAT YOU

05:06 PM 7 COULD ADVANCE YOUR CAREER?

05:06 PM 8 A.

I WOULD THINK IT WOULD BE TO ADVANCE.

05:06 PM 9 Q.

OKAY. WHEN YOU HAD THAT CONVERSATION WITH MR. PEREZ

05:06 PM 10 ABOUT MR. BARBAY, WHAT WAS MR. PEREZ'S RESPONSE?

05:06 PM 11 A.

HE EITHER SAID "I UNDERSTAND" OR I THINK THAT'S

05:06 PM 12 WHAT HE SAID, "I UNDERSTAND." THAT'S ALL HE SAID, JUST "I

05: 06 PM 13 UNDERSTAND. "

05:06 PM 14 Q.

OKAY. NOW, YOU WERE NOT INVOLVED IN THE HIRING AND

05:06 PM 15 THE INITIAL ASSIGNMENTS, IS THAT CORRECT?

05:06 PM 16 A.

NO.

05:06 PM 17 Q.

EXCEPT YOU DID HAVE SOME ACTIVITY WITH THE

05 :06 PM 18 ORIENTATION?

05:06 PM 19 A.

YES.

05:06 PM 20 Q.

WERE YOU ABLE TO OBSERVE ANY PATTERNS IN THE WAY

05 :06 PM 21 PEOPLE WERE HIRED INTO THE DIFFERENT DIVISIONS AT LUFKIN?

05 :06 PM 22
05:07 PM 23 05:07 PM 24

MS. MAHONY: OBJECTION, LEADING. THE COURT: SUSTAINED. THE WITNESS: WHAT DO YOU MEAN, PATTERNS?

05: 07 PM 25 BY MR. GARRIGAN:

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05:07 PM 1 Q.

WOULD YOU TELL US WHETHER YOU OBSERVED ANY RACIAL

05:07 PM 2 PATTERNS?

05:07 PM 3

MS. MAHONY: OBJECTION, YOUR HONOR.

05:07 PM 4

THE COURT: NOW, THAT'S THE LEADING PART.

05:07 PM 5

BUT ANYHOW, GO AHEAD AND ANSWER IT.

05:07 PM 6

THE WITNESS: USUALLY WHEN I WENT TO

05 :07 PM 7 ORIENTATION, I COULD -- I COULD TELL IF --

05:07 PM 8

YOU KNOW, THIS WAS -- THIS WOULD BE BEFORE I

05:07 PM 9 05:07 PM 10

WAS --

IF I DIDN'T PROCESS THEM, I WOULD KNOW BASICALLY

05 :07 PM 11 05 :07 PM 12 05:07 PM 13

WHERE THEY WERE GOING, WHAT DEPARTMENT THEY WERE GOING TO. BY MR. GARRIGAN: Q. HOW?

05:07 PM 14 A.

JUST WHO WAS THERE. THE PEOPLE THAT WERE THERE.

05:07 PM 15 Q.

DID RACE HAVE ANYTHING TO DO WITH IT?

05:07 PM 16 A.

I THINK SO.

05:07 PM 17 Q.

AND WHAT WERE YOU ABLE TO OBSERVE ABOUT THAT? DID

05:07 PM 18 05:07 PM 19

RACE HAVE ANYTHING TO DO WITH THE INITIAL ASSIGNMENTS? MS. MAHONY: OBJECTION.

05:07 PM 20 05:07 PM 21 05:07 PM 22

THE WITNESS: I THINK SO. MS. MAHONY: SPECULATION. THE COURT: YOU'RE RIGHT. THE OBJECTION IS

05:07 PM 23 SUSTAINED.

05:08 PM 24 05:08 PM 25

YOU'VE USED YOUR TIME, AND YOU HAVE -MR. GARRIGAN: THANK YOU.

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05:08 PM 1

THE COURT: -- REPEATED YOURSELF.

05:08 PM 2

I HAVE --

05:08 PM 3

THIS COURT'S IN RECESS UNTIL 9:00 O'CLOCK IN THE

05:08 PM 4 MORNING.

05:08 PM 5

THE CSO: ALL RISE.

05:08 PM 6

THE COURT: WAIT JUST A MOMENT. I'M GOING TO

05:08 PM 7 WRITE DOWN THE TIME.

8

9

10

11

CERTIFICATE

12

I CERTIFY THAT THE FOREGOING IS A CORRECT

13 TRANSCRIPT FROM THE RECORD OF PROCEEDINGS IN THE

14 ABOVE-ENTITLED MATTER.

15

16
'C/
17 WENDELL R. PARKS, CP CM

DATE

18

19

20

21

22

23

24

25

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02:09 PM 1 DID NOT CHOOSE THE SENIOR QUALIFIED PERSON, ISN'T THAT

02 :09 PM 2 RIGHT?

02 :09 PM 3 A. NO, SIR, BECAUSE I TRIED TO BE FAIR.

02: 10 PM 4 02:10 PM 5 02:10 PM 6 02:10 PM 7 02:10 PM 8 02:10 PM 9 02: 10 PM 10

Q. OKAY. A. BY THE WAY, THE TWO GENTLEMEN I CHOSE, ONE WAS HISPANIC AND ONE WAS WHITE. Q. IN WHAT -- ONE WAS HISPANIC AND ONE WAS WHITE? A. THE TWO INSPECTORS I MADE, ONE WAS HISPANIC AND ONE WAS WHITE. Q. AND THE ONLY PERSON WHO WANTED THE JOB --

02:10 PM 11 A.

HE WAS WHITE.

02:10 PM 12 Q.

-- WHO WAS DISQUALIFIED

02:10 PM 13 A.

HE WAS WHITE.

02:10 PM 14 Q.

OKAY. NOW, MR. MCCLAIN, AM I CORRECT THAT YOU, AS

02: 10 PM 15 PART OF YOUR COMMUNITY SERVICE, YOU SERVED AS THE NAACP

02: 10 PM 16 PRESIDENT?

02:10 PM 17 A.

YES, SIR.

02:10 PM 18 Q. 02:10 PM 19 A.

AND THAT WAS FROM 1983 TO 1990 IN LUFKIN, TEXAS? YES, BUT I SERVED IN WELLS, TEXAS, FROM 1981 TO

02:10 PM 20 1983.

02 :10 PM 21 Q.

ALL RIGHT. SO YOU HAVE SIGNIFICANT EXPERIENCE IN

02: 10 PM 22 LEADERSHIP POSITIONS WITH THE NAACP?

02: 10 PM 23 A. 02:10 PM 24 Q. 02 :10 PM 25 A.

YES. ALL RIGHT. NOW, AGAIN, I LEARNED FROM EXPERIENCE. OTHER THAN

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02: 11 PM 1 BEING A MINISTER, I'VE NEVER BEEN TRAINED TO BE A LEADER,

02:11 PM 2 SO I LEARNED -- AS I OFTEN SAY, I WENT TO HARD-KNOCK

02:11 PM 3 SCHOOL. I LEARNED IT THE HARD WAY. WHATEVER I WOULD GO

02:11 PM 4 THROUGH AND EXPERIENCE, ASK QUESTIONS, READ, THAT'S HOW I

02:11 PM 5
02:11 PM 6

GAINED WHATEVER KNOWLEDGE I ACQUIRED.

Q.

NOW, MR. MCCLAIN, THE KNOWLEDGE THAT YOU GAINED AS

02: 11 PM 7 NAACP PRESIDENT FOR A PERIOD OF A DECADE IN THE 80S, IS IT

02:11 PM 8 FAIR TO SAY THAT THAT HAS MADE YOU PARTICULARLY SENSITIVE

02:11 PM 9 TO RACIAL COMMENTS OR RACIAL EPITHETS?

02: 11 PM 10 A .

NO, SIR, BECAUSE AS THE NAACP PRESIDENT, I DEFENDED

02: 11 PM 11 02 : 11 PM 12

WHITES, BLACKS AND HISPANICS.

Q .

WELL, AREN'T YOU PARTICULARLY SENSITIVE TO THE IDEA

02: 11 PM 13 02:11 PM 14

OF PEOPLE MAKING A RACIAL SLUR?

A.

WELL, I DON'T WANT ANYONE CALLING ME A NIGGER,

02:11 PM 15 BECAUSE A NIGGER IS TRASH AND I'M NOT TRASH, SIR.

02:11 PM 16 Q.

ABSOLUTELY, SIR, AND I COULDN'T AGREE WITH YOU MORE.

02:11 PM 17 THAT IS A COMMENT THAT SHOULD NEVER BE MADE. I'M JUST

02:11 PM 18 ASKING IF YOU IN PARTICULAR, BECAUSE YOU HAVE BEEN A

02:11 PM 19 LEADER IN THE NAACP, ARE SENSITIVE TO IT AND KNOW WHAT TO

02: 11 PM 20 DO ABOUT IT?

02:12 PM 21 A.

YES, I'M SENSITIVE, BUT NO MORE THAN ANY OTHER BLACK

02:12 PM 22 02: 12 PM 23

PERSON WOULD BE.

Q .

FAIR ENOUGH, MR. MCCLAIN.

02:12 PM 24

AND AM I CORRECT THAT YOU CANNOT RECALL WHEN YOU

02:12 PM 25 LAST HEARD ANY RACIAL COMMENT AT LUFKIN INDUSTRIES?

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02 :12 PM 1 A.

YES, SIR, I CAN.

02: 12 PM 2 Q. AND WHEN WAS THAT, SIR?

02:12 PM 3 02:12 PM 4 02:12 PM 5 02:12 PM 6 02:12 PM 7 02:12 PM 8

A. I CAN'T TELL YOU THE DATE, BUT JUST THIS YEAR A WHITE WORKER THAT WORKS WHERE I WORK IN THE PAINT HOUSE MADE A COMMENT TO ANOTHER MAN, A BLACK MAN, THAT BLACK FOLK COULDN'T GO TO HEAVEN. ONLY WHITE FOLK CAN GO TO HEAVEN.
AND I ASKED HIM WHY, AND WHAT HE SAID WAS,

02:12 PM 9 BECAUSE WE WERE SUBHUMAN, WE'RE INFERIOR.

02: 12 PM 10 Q. 02: 12 PM 11 A.

AND WHEN WAS THAT? THAT WAS THIS YEAR, SIR.

02: 12 PM 12 Q. 02 :12 PM 13 A.

WHEN WAS THAT STATEMENT MADE? THAT WAS THIS YEAR.

02:12 PM 14 Q. 02:12 PM 15 A. 02: 12 PM 16 Q.

WHEN? I DON'T KNOW THE EXACT DATE. WELL, I ASSUME IT WAS AFTER JULY 8, 2003, ISN'T THAT

02:12 PM 17 RIGHT, SIR?

02: 12 PM 18 A.

I DON'T REMEMBER. I DON'T REMEMBER EXACTLY WHEN IT

02: 12 PM 19 WAS MADE.

02 :12 PM 20 Q. WELL, DO YOU RECALL AS OF YOUR DEPOSITION, I ASKED

02:13 PM 21 YOU WHEN YOU -- WHEN WAS THE LAST TIME THAT YOU HEARD ANY

02:13 PM 22 RACIAL COMMENTS MADE AT LUFKIN INDUSTRIES, AND YOU TOLD ME

02:13 PM 23 THAT YOU COULDN'T REMEMBER, ISN'T THAT CORRECT? 02: 13 PM 24 A. WELL, SIR, AS I SAID, IT'S BEEN A LONG TIME. IT'S

02:13 PM 25 POSSIBLE THAT I REMEMBERED IT SINCE THEN. I'M NOT GOING

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02: 13 PM 1 02:13 PM 2 02: 13 PM 3 02:13 PM 4 02: 13 PM 5 02: 13 PM 6 02: 13 PM 7

TO TELL YOU ANY PARTICULAR TIME THAT I CAN REMEMBER EVERYTHING THAT HAPPENED OVER YEARS, FIFTEEN YEARS. Q. OKAY. AM I ALSO CORRECT THAT, OTHER THAN THE TESTIMONY THAT YOU GAVE ABOUT MR. ADAMS AND MR. OLDS, YOU DON'T KNOW PERSONALLY A SINGLE PERSON WHO HAS USED RACIAL SLURS OR COMMENTS ABOUT BLACK EMPLOYEES AT LUFKIN INDUSTRIES?

02:13 PM 8 A. 02: 13 PM 9 Q. 02:13 PM 10 A.

WHAT NAMES DID YOU GIVE? MR. ADAMS AND MR. OlDS. YOU MUST BE FORGETTING MR. DOVER. I MEAN, HE DIDN'T

02:13 PM 11 MAKE THE COMMENT, BUT HE LISTENED.

02: 13 PM 12 Q. OKAY. LET'S INCLUDE MR. DOVER, WHO DIDN'T MAKE A

02: 13 PM 13 COMMENT.

02: 13 PM 14 A •

RIGHT.

02: 13 PM 15 Q.

BUT OTHER THAN

02:13 PM 16 A.

BUT HE CONDONED IT.

02: 13 PM 17 Q. I APOLOGIZE. AT LEAST AS OF JULY, 2003, OTHER THAN

02: 13 PM 18 MR. ADAMS AND MR. OLDS, WHO MADE COMMENTS, AND MR. DOVER,

02:14 PM 19 WHO YOU SAY HEARD A COMMENT, YOU DON'T KNOW PERSONALLY A

02: 14 PM 20 SINGLE PERSON WHO HAS USED RACIAL SLURS OR COMMENTS ABOUT

02:14 PM 21 BLACK EMPLOYEES, DO YOU?

02 :14 PM 22 A. SIR, I HEAR SLANG OR INFERENCES TO RACE. THEY DON'T

02:14 PM 23 USE THE WORD "NIGGER," BUT THERE ARE DEGRADING REMARKS

02:14 PM 24 THROUGHOUT THE SHOP THAT'S BEEN MADE ON PARTICULAR

02:14 PM 25 OCCASIONS. EVEN SINCE THE LAST TIME I GAVE MY DEPOSITION

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02:14 PM 1 I'VE HEARD DEGRADING REMARKS MADE ABOUT BLACKS.

02 :14 PM 2 Q. MR. MCCLAIN, IF YOU WOULD LOOK AT YOUR DEPOSITION AT

02:14 PM 3 PAGE 183, PLEASE.

02: 14 PM 4 A.

OKAY.

02:14 PM 5

MR. GARRIGAN: WHICH DEPOSITION?

02:14 PM 6

MR. HAMEL: THE JULY 8, 2003, DEPOSITION.

02:14 PM 7

THE WITNESS: 83. OKAY.

02:14 PM 8

THE COURT: I THINK IT'S 183.

02:14 PM 9

MR. HAMEL: 183, SIR.

02:14 PM 10

THE WITNESS: OKAY.

02:14 PM 11 BY MR. HAMEL:

02:14 PM 12 Q.

IN THAT DEPOSITION, YOU TESTIFIED PREVIOUSLY TO THE

02:14 PM 13 QUESTION "AND OTHER THAN MR. ADAMS AND MR. OLDS, CAN YOU

02: 14 PM 14 NAME A SINGLE PERSON WHO YOU BELIEVE USED RACIAL SLURS OR

02:15 PM 15 COMMENTS ABOUT BLACK EMPLOYEES?"

02:15 PM 16

ANSWER: "I HEARD ABOUT IT, BUT I DON'T KNOW OF

02: 15 PM 17 IT PERSONALLY."

02:15 PM 18 A.

AND I'M SPEAKING OF THE WORD "NIGGER" OR SOMETHING

02:15 PM 19 THAT THEY PERSONALLY CALLED A NAME. I WASN'T SPEAKING OF

02:15 PM 20 SLANGS THAT ARE DEGRADING TO THE BLACK RACE. THAT WAS

02:15 PM 21 JUST -- I WAS JUST TALKING ABOUT INDIVIDUALS.

02:15 PM 22 Q.

THAT WAS YOUR TESTIMONY AT THAT TIME, WAS IT NOT?

02: 15 PM 23 A. 02:15 PM 24

YES, SIR, AND -- THAT'S WHAT I TESTIFIED, YES, SIR. MR. GARRIGAN: YOUR HONOR, I WOULD LIKE TO ASK

02:15 PM 25 FOR -- MAKE AN OBJECTION BASED ON OPTIONAL COMPLETENESS

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02: 15 PM 1 AND ASK THAT THE WITNESS BE ABLE TO READ HIS ANSWER

02: 15 PM 2 THROUGH LINE 16.

02: 15 PM 3

THE COURT: YOU CAN COME BACK TO IT ON YOUR

02: 15 PM 4 TIME.

02:15 PM 5

MR. GARRIGAN: THANK YOU.

02:15 PM 6 BY MR. HAMEL:

02:15 PM 7 Q. NOW, MR. MCCLAIN, NOTWITHSTANDING THE CONDITIONS

02:15 PM 8 THAT YOU'VE TESTIFIED ABOUT, AND YOUR EXPERIENCE AS THE

02:15 PM 9 NAACP PRESIDENT, YOU DID NOT FILE ANY CHARGE OF

02:15 PM 10 DISCRIMINATION WITH THE EEOC AGAINST LUFKIN UNTIL,

02:15 PM 11 ACCORDING TO YOUR TESTIMONY, JANUARY OF 1995?

02: 16 PM 12 A. YES, SIR, ACCORDING TO MY TESTIMONY AND ACCORDING TO

02:16 PM 13 THE DOCUMENTATION.

02:16 PM 14 Q. OKAY. YOU DIDN'T FILE ONE IN THE 70S, DIDN'T FILE

02:16 PM 15 ONE IN THE 80S, DIDN'T FILE ONE IN THE EARLY 90s?

02: 16 PM 16 A.

I FILED A DISCRIMINATORY GRIEVANCE, SIR.

02 : 16 PM 17 Q. WITH THE COMPANY, NOT WITH THE EEOC?

02 : 16 PM 18 A •

YES, SIR.

02:16 PM 19 Q. AND THAT GRIEVANCE THAT YOU FILED WAS PRIMARILY

02: 16 PM 20 ABOUT MR. DIXON, WASN'T IT?

02 : 16 PM 21 A • NO, SIR, IT WAS ABOUT THE DISCRIMINATION THAT WAS

02:16 PM 22 WIDESPREAD OVER THE SHOP, AND TOLERATED BY MANAGEMENT,

02:16 PM 23 THAT CONTINUED INTO THE 90S, WHICH HAS BECOME A PART OF

02:16 PM 24 THE LUFKIN CULTURE.

02: 16 PM 25

MR. HAMEL: MAY I APPROACH THE WITNESS, YOUR

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02: 16 PM 1 HONOR?

02: 16 PM 2

THE COURT: YOU MAY.

02:16 PM 3

MR. HAMEL: YOUR HONOR, WE WOULD MOVE FOR

02:16 PM 4 ADMISSION OF DEFENDANT'S EXHIBIT 45, WHICH IS A CERTIFIED

02:16 PM 5 COpy OF MR. MCCLAIN'S EEOC FILE FROM THE UNITED STATES

02:16 PM 6 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION.

02:16 PM 7

THE WITNESS: OKAY.

02: 16 PM 8

MR. HAMEL: I DON'T KNOW THAT YOU'VE NECESSARILY

02: 16 PM 9 SEEN IT, EXCEPT IN DISCOVERY, MR. MCCLAIN. BUT IT IS

02:17 PM 10 AUTHENTICATED BY CERTIFICATION, YOUR HONOR.

02: 17 PM 11
02: 17 PM 12 02:17 PM 13

THE COURT: ANY OBJECTION? MR. GARRIGAN: NO OBJECTION, YOUR HONOR. THE COURT: IT'S ADMITTED AS MARKED WITHOUT

02: 17 PM 14 OBJ ECTION .

02: 17 PM 15 BY MR. HAMEL:

02:17 PM 16 Q.

ALL RIGHT. MR. MCCLAIN, LET ME HAND YOU WHAT IS

02: 17 PM 17 MARKED AS EXHIBIT 46. CAN YOU IDENTIFY THIS DOCUMENT AS

02: 17 PM 18 02:17 PM 19 02:17 PM 20

YOUR INTAKE QUESTIONNAIRE AND INFORMATION SHEET? A. WHAT IS THE DATE ON THIS SHEET? Q. IT APPEARS THAT --

02:17 PM 21 A.

1-8-96?

02:17 PM 22 Q.

1-8-96.

02:17 PM 23 A. 02:17 PM 24

OKAY. MR. GARRIGAN: YOUR HONOR, EXCUSE ME. BEFORE

02:17 PM 25 THEY GO ON WITH THAT, I WOULD LIKE TO LIMIT

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02: 17 PM 1

WE HAVE MADE A MOTION IN LIMINE, INDICATING THAT

02: 17 PM 2 EVIDENCE REGARDING THE TIMELINESS AND SCOPE OF THE

02:18 PM 3 EXHAUSTION OF EEOC ADMINISTRATIVE REMEDIES HAS ALREADY

02: 18 PM 4 BEEN DECIDED BY THE COURT. WE DON'T BELIEVE THIS EVIDENCE

02:18 PM 5 IS RELEVANT TO THAT ISSUE ANY MORE. IT'S ALREADY BEEN

02:18 PM 6 DECIDED.

02:18 PM 7

MR. HAMEL: WELL, YOUR HONOR, I THOUGHT WE WERE

02:18 PM 8 IN TRIAL HERE TODAY TO --

02:18 PM 9

THE COURT: WE ARE, AND I'M GOING TO OVERRULE

02:18 PM 10 IT, BECAUSE I'M GOING TO LET HIM DEFEND HIS CASE.

02:18 PM 11

MR. HAMEL: YOUR HONOR, RATHER THAN -- BECAUSE I

02:18 PM 12 REALLY HAVE NO QUESTIONS ABOUT THIS. WE'LL MOVE TO ADMIT

02:18 PM 13 EXHIBITS 45, 46, 47, 48 AND 49. IF THERE'S NO OBJECTION,

02: 18 PM 14 THEY CAN BE ADMITTED. OTHERWISE, I CAN HAVE MR. MCCLAIN

02: 18 PM 15 IDENTIFY THEM, SINCE THEY ARE ALL HIS --

02:18 PM 16

MR. GARRIGAN: SUBJECT TO OUR MOTIONS IN LIMINE,

02:18 PM 17 WE HAVE NO OTHER OBJECTIONS.

02:18 PM 18

THE COURT: ALL RIGHT.

02:18 PM 19

MR. HAMEL: THANK YOU, YOUR HONOR.

02:18 PM 20

THE COURT: SUBJECT TO YOUR OBJECTION

02:18 PM 21

IF I OVERRULED THE MOTION IN LIMINE, OR IF I

02:18 PM 22 GRANTED ONE, YOU WOULD STILL HAVE TO OBJECT IN TRIAL. THE

02:18 PM 23 LIMINE ISN'T APPEALABLE, IT'S ONLY WHETHER IT COMES IN

02: 19 PM 24 EVIDENCE OR NOT.

02: 19 PM 25

MR. GARRIGAN: THAT'S CORRECT, YOUR HONOR. AND

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02:19 PM 1 WE WOULD OBJECT ON THE GROUNDS OF RELEVANCE. THIS

02: 19 PM 2 ISSUE -- THE ISSUE OF EXHAUSTION OF ADMINISTRATIVE

02:19 PM 3 REQUIREMENTS HAS ALREADY BEEN DETERMINED BY THE COURT.

02:19 PM 4 BY MR. HAMEL:

02:19 PM 5 Q.

MR. MCCLAIN

02:19 PM 6

THE COURT: I'LL TAKE IT ALONG WITH THE CASE,

02:19 PM 7 AND IF IT'S VALID, I'LL SUSTAIN IT, IF IT'S INVALID, I'LL

02: 19 PM 8 OVERRULE IT.

02: 19 PM 9

MR. GARRIGAN: THANK YOU.

02: 19 PM 10 BY MR. HAMEL:

02:19 PM 11 Q.

I'M CORRECT, AM I NOT, MR. MCCLAIN, THAT YOU DON'T

02:19 PM 12 THINK THAT YOU HAVE EVER FILED A COMPLAINT WITH THE OFCCP?

02:19 PM 13 ISN'T THAT RIGHT?

02:19 PM 14 A.

I DON'T THINK SO.

02 : 19 PM 15 Q. ALL RIGHT. NOW, SIR, AM I CORRECT THAT YOU HAVE --

02:19 PM 16 YOU HAVE NOT HAD ANY FIRSTHAND ACKNOWLEDGE OF THE HIRING

02: 19 PM 17 PROCESS SINCE 1990?

02:19 PM 18 A.

SAY AGAIN NOW.

02: 19 PM 19 Q.

YOU HAVE NOT HAD ANY FIRSTHAND EXPERIENCE WITH THE

02: 19 PM 20 HIRING PROCESS SINCE 1990?

02:19 PM 21 A.

NOT EXCEPT WHAT I'VE BEEN TOLD, NO.

02:19 PM 22 Q.

ALL RIGHT. AND YOU HAVE NO INFORMATION CONTRARY TO

02:19 PM 23 THE TESTIMONY THAT LUFKIN PROVIDES TO THE TEXAS WORKFORCE

02: 20 PM 24 COMMISSION A SPECIFIC JOB THAT THEY NEED TO HAVE FILLED,

02:20 PM 25 ISN'T THAT RIGHT?

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02 :20 PM 1 A. EVERYONE I'VE TALKED TO HAS TOLD ME THAT LUFKIN

02:20 PM 2 MAKES THAT DECISION.

02:20 PM 3 Q. DO YOU HAVE ANY -- YOU HAVE NO INFORMATION FROM

02: 20 PM 4 PERSONAL KNOWLEDGE CONTRARY TO THAT, DO YOU, SIR?

02:20 PM 5 02:20 PM 6 02:20 PM 7 02:20 PM 8 02:20 PM 9

A. NO, SIR. Q. ALL RIGHT. AND YOU HAVE NO PERSONAL KNOWLEDGE WITH RESPECT TO WHAT LUFKIN ASKS OF THE TEXAS WORKFORCE COMMISSION, ISN'T THAT RIGHT? A. THAT'S CORRECT.

02: 20 PM 10 Q. AND YOU DON'T HAVE ANY IDEA OF HOW MANY

02: 20 PM 11 AFRICAN-AMERICANS HAVE APPLIED TO WORK AT THE FOUNDRY, DO

02: 20 PM 12 YOU?

02: 20 PM 13 A.

NO, SIR.

02:20 PM 14 Q. NOR DO YOU HAVE ANY INFORMATION TO SUGGEST THAT

02:20 PM 15 LUFKIN'S FOUNDRY IS SOMEHOW DIFFERENT IN THE WAY THAT IT

02:20 PM 16 IS HOTTER OR DIRTIER OR MORE DIFFICULT THAN ANY OTHER

02: 20 PM 17 FOUNDRY OPERATION, DO YOU?

02 :20 PM 18 A • STATE THAT AGAIN NOW.

02:20 PM 19 Q. YOU DON'T HAVE ANY INFORMATION TO SUGGEST THAT

02:20 PM 20 LUFKIN'S FOUNDRY IS SOMEHOW DIFFERENT IN THE WAY THAT IT

02:20 PM 21 IS HOT OR DIRTY OR MORE DIFFICULT THAN WOULD BE FOUND IN

02: 20 PM 22 ANY OTH ER FOUNDRY, DO YOU?

02: 20 PM 23 A. WELL, WHEN I WORKED IN TEXAS FOUNDRY, THE CONDITIONS

02: 20 PM 24 THAT I ENCOUNTERED AND I SAW AT LUFKIN INDUSTRIES WERE

02:21 PM 25 THOSE WERE NOT PRESENT WHEN I WORKED AT TEXAS FOUNDRY. I

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02: 21 PM 1 WAS A CORE MAKER.

02:21 PM 2 Q. MR. MCCLAIN, DID YOU PREVIOUSLY TESTIFY IN YOUR

02 :21 PM 3 DEPOSITION AT PAGE 37 TO THE QUESTION "DO YOU HAVE ANY

02: 21 PM 4 REASON TO THINK THAT THE LUFKIN FOUNDRY OPERATION IS

02:21 PM 5 DIFFERENT IN ANY SIGNIFICANT RESPECT FROM THE FOUNDRY

02:21 PM 6 OPERATIONS OF OTHER COMPANIES?"

02:21 PM 7

AND YOUR ANSWER "I HAVE NO IDEA."

02:21 PM 8

QUESTION: "IS IT REASONABLE TO ASSUME, MR.

02:21 PM 9 MCCLAIN, THAT ALL FOUNDRIES ARE HOT, DIRTY, DIFFICULT 02:21 PM 10 ENVIRONMENTS?"

02: 21 PM 11

AND YOUR ANSWER

02:21 PM 12

WELL, WAIT. THEN THERE WAS AN OBJECTION, THEN

02: 21 PM 13 THE NEXT QUESTION: "DO YOU HAVE ANY INFORMATION TO

02:21 PM 14 SUGGEST THAT LUFKIN'S FOUNDRY IS SOMEHOW DIFFERENT IN THE

02:21 PM 15 WAY THAT IT IS HOTTER OR DIRTIER OR MORE DIFFICULT THAN

02:21 PM 16 WOULD BE FOUND IN ANY OTHER FOUNDRY OPERATION?

02:21 PM 17

ANSWER: "WELL, BEING THAT -- BEING THAT -- NO,"

02: 21 PM 18 WAS YOUR ANSWER, WAS IT NOT?

02:21 PM 19 A.

SIR, YOU ASKED ME MANY EVASIVE AND MULTIPLE

02:21 PM 20 QUESTIONS, AND I MAY HAVE AGREED WITH YOU. BUT I

02: 22 PM 21 AGAIN, WHEN I WORKED AT TEXAS FOUNDRY, THE CONDITIONS

02: 22 PM 22 THAT -- WHEN I WENT TO LUFKIN INDUSTRIES' FOUNDRY, I DID

02:22 PM 23 02: 22 PM 24 02:22 PM 25

NOT SEE THE SAME CONDITIONS. THE COURT: TELL ME THE DIFFERENCE. THE WITNESS: WELL, I WAS A CORE MAKER, YOUR

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02:22 PM 1 HONOR, AND WE FED THE SAND INTO A HOPPER, A MACHINE, AND

02:22 PM 2 IT HAD A PATTERN FOR SIXTY MILLIMTEER MORTAR AND

02: 22 PM 3 EIGHTY-TWO, LIKED WE USED IN VIETNAM, AND YOU WOULD

02:22 PM 4 MAKE -- IT WOULD COOK THE SAND, AND THE ONLY THING I HAD

02:22 PM 5 TO DEAL WITH WAS THE HEAT ON MY HANDS, AND I WORE ABOUT

02:22 PM 6 FOUR PAIR OF GLOVES. BUT THE ATMOSPHERE WAS NOT DUSTY.

02:22 PM 7
02:22 PM 8

THE COURT: DID THEY HAVE ANY FURNACES IN IT? THE WITNESS: WELL, THEY HAD HEAT, BUT IT WASN'T

02:22 PM 9 POURING LIKE HOT STEAL, AND IT WASN'T

02:22 PM 10

THE COURT: MOLTEN STEAL?

02 :22 PM 11

THE WITNESS: YES. YES, SIR.

02 :22 PM 12

THE COURT: THEY DIDN'T POUR THAT?

02 :22 PM 13

THE WITNESS: NO, SIR. THE BOX -- MOST OF THE

02: 22 PM 14 HEAT WAS IN THE BOX, AND WHERE YOU FELT MOST OF THE HEAT

02: 22 PM 15 WAS WHEN YOU OPENED THE BOX AND TOOK THE COAL OUT, AND THE

02:22 PM 16 ONLY THING I HAD TO DEAL WITH WAS HEAT ON MY HANDS.

02: 22 PM 17

THE COURT: AND IT WASN'T -- IT WASN'T MOLTEN

02: 23 PM 18 STEAL POURED INTO FORMS?

02:23 PM 19

THE WITNESS: NO, SIR. NO, SIR, THIS WAS SAND

02: 23 PM 20 THAT WAS COOKED.

02:23 PM 21

THE COURT: ALL RIGHT. THANK YOU.

02:23 PM 22

THE WITNESS: YES, SIR.

02:23 PM 23 BY MR. HAMEL:

02:23 PM 24 Q.

MR. MCCLAIN, IT'S TRUE THAT YOU HAVE NEVER YOURSELF

02: 23 PM 25 WORKED IN THE LUFKIN FOUNDRY, RIGHT?

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02 :23 PM 1 A.

THAT'S TRUE.

02 :23 PM 2 Q.

OKAY. YOU HAVE PREVIOUSLY TESTIFIED UNDER OATH

02:23 PM 3 THOUGH THAT YOU HAVE OBSERVED PEOPLE LEAVING THE LUFKIN

02:23 PM 4 FOUNDRY AND THAT THEY WERE ALL BLACKS, ISN'T THAT RIGHT?

02:23 PM 5 A.

I'VE OBSERVED THEM LEAVING, AND I'VE OBSERVED THEM

02:23 PM 6 ACTUALLY WORKING IN THE FOUNDRY WHEN I WAS THERE AS AN

02:23 PM 7 AUDITOR.

02:23 PM 8 Q.

OKAY. AND ACCORDING TO YOUR TESTIMONY, THEY ARE ALL

02:23 PM 9 02:23 PM 10 02:23 PM 11

BLACK, ISN'T THAT RIGHT?

A.

THE ONES I SAW WERE BLACKS. I WAS TOLD THERE WERE

SEVERAL WHITES THERE. I DON'T REMEMBER -- WHAT I REMEMBER

02:23 PM 12 WAS THE BLACKS IN THE FOUNDRY AND I REMEMBER WHITES IN THE

02: 23 PM 13 OFFICES.

02: 23 PM 14 Q.

OKAY. PUT UP 354.

02:23 PM 15 A.

AND THAT'S WHAT I REMEMBER. NOW, WHETHER I SEEN ANY

02: 23 PM 16 WHITES, WHETHER I TESTIFIED I SEEN WHITES, MAYBE I DID. I

02:23 PM 17 DON'T REMEMBER. BUT I KNOW IT WAS MOSTLY BLACK.

02:23 PM 18 Q.

ALL RIGHT, SIR. THIS IS A TABLE FROM THE EXPERT

02:24 PM 19 REPORT FOR THE PLAINTIFFS' STATISTICIAN. WOULD YOU ZOOM

02:24 PM 20 ON THAT TABLE, PLEASE?

02:24 PM 21

AND YOU SEE IN YOUR EXPERT'S REPORT IN THE WORK

02:24 PM 22
02:24 PM 23

FORCE DISTRIBUTION BY DEPARTMENT THAT THE LUFKIN FOUNDRY HAD A HUNDRED AND TWENTY-FIVE WHITE EMPLOYEES AND

02:24 PM 24 02 : 24 PM 2 5

EIGHTY-EIGHT BLACK EMPLOYEES, ISN'T THAT RIGHT?

A .

THAT'S WHAT IT SAYS.

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02:24 PM 1 Q.

OKAY. AND THAT'S MR. -- THAT'S DR. DROGIN'S REPORT,

02:24 PM 2 ISN'T THAT RIGHT?

02:24 PM 3 A. 02: 24 PM 4 Q.

I SUPPOSE. I DON'T KNOW WHOSE REPORT IT IS. NOW, PUT UP LUF0397, PLEASE.

02:24 PM 5

NOW I'M SHOWING YOU WHAT IS -- IF YOU'LL ZOOM ON

02:24 PM 6 THAT.

02: 24 PM 7

THIS IS APPENDIX 5-A OF DR. DROGIN' S REPORT, AND

02: 24 PM 8 THIS APPENDIX LISTS THE WORK FORCE AS OF THE END OF 1994

02:24 PM 9 IN THE CATEGORIES, EEOC CATEGORIES SIX THROUGH EIGHT,

02 :24 PM 10 WHICH I'LL REPRESENT TO YOU ARE THE PRODUCTION CATEGORIES.

02: 24 PM 11 A.

OKAY.

02:24 PM 12 Q.

EEO CATEGORY EIGHT IS UNSKILLED, EEO CATEGORY SEVEN

02: 24 PM 13 IS SEMISKILLED, AND EEO CATEGORY SIX IS CRAFT.

02:24 PM 14

IN THIS REPORT, AT THE END OF 1994, THERE WERE

02:25 PM 15 MORE WHITE EMPLOYEES THAN THERE ARE BLACK EMPLOYEES, ISN'T

02:25 PM 16 THAT RIGHT?

02: 25 PM 17 A.

I CAN'T SEE THAT. THAT'S WHAT YOU SAY IT SAYS.

02:25 PM 18 Q. 02:25 PM 19 02:25 PM 20

A HUNDRED AND THIRTEEN TO A HUNDRED AND ONE. PUT UP LUF0399. OKAY. ZOOM ON THE DATE THERE, PLEASE.

02:25 PM 21

THIS IS APPENDIX 5-A FOR 1995.

02:25 PM 22

GO TO THE TITLE OF THIS APPENDIX, WOULD YOU,

02:25 PM 23 PLEASE?

02: 25 PM 24

THIS IS DR. DROGIN' S REPORT, SUMMARY OF WORK

02:25 PM 25 FORCE AND AVERAGE PAY RATES.

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02:25 PM 1

DO YOU SEE THAT, SIR?

02:25 PM 2

NOW IF YOU WOULD GO TO THE ONE THAT HAS SIX

02:25 PM 3 THROUGH EIGHT.

02:25 PM 4 A.

I CAN'T SEE IT, SO YOU'LL JUST HAVE TO READ IT. I

02:25 PM 5 CAN'T SEE IT.

02:25 PM 6 Q.

ALL RIGHT, SIR. IN 1995 --

02:25 PM 7

MR. GARRIGAN: YOUR HONOR, I NEED TO OBJECT TO

02:25 PM 8 THIS WHOLE LINE OF QUESTIONING. THIS WITNESS HAS NO

02:26 PM 9 02:26 PM 10

KNOWLEDGE ABOUT THESE DOCUMENTS. SIMPLY READING FROM THEM.

DEFENSE COUNSEL IS

02:26 PM 11

THE WITNESS: THAT'S RIGHT, SIR. I HAVE -- THE

02 :26 PM 12 ONLY KNOWLEDGE I HAVE OF THE FOUNDRY IS WHEN I WENT UP

02:26 PM 13 THERE AND WHAT I SAW, BUT THAT'S ALL.

02: 26 PM 14

THE COURT: BUT YOU HAVE NO KNOWLEDGE ABOUT

02:26 PM 15 THESE TABLES?

02:26 PM 16

THE WITNESS: NO. NO, SIR.

02:26 PM 17

THE COURT: THEN YOU'RE ASKING HIM TO COMMENT ON

02:26 PM 18 THE TESTIMONY OF ANOTHER WITNESS, AND THE TABLES ATTACHED

02:26 PM 19 TO THAT TESTIMONY, AND I THINK IT'S INAPPROPRIATE.

02:26 PM 20

MR. HAMEL: YOUR HONOR, LET ME MOVE TO THE

02:26 PM 21 QUESTION THAT I WANT TO ASK, MR. MCCLAIN

02:26 PM 22 BY MR. HAMEL:

02:26 PM 23 Q.

WHICH IS, LET'S ASSUME, MR. MCCLAIN, THAT THE

02: 26 PM 24 PLAINTI FFS I EXPERT IS CORRECT, AND I ILL REPRESENT FOR YOU,

02:26 PM 25 ALTHOUGH WEILL PUT IT ON IN EVIDENCE, THAT IN EACH YEAR IN

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02:26 PM 1 HIS REPORT, THAT EVEN IN THE PRODUCTION JOBS, CATEGORIES

02:26 PM 2 SIX THROUGH EIGHT, THERE ARE MORE WHITES WORKING IN THE

02:26 PM 3 FOUNDRY THAN BLACKS. CAN YOU EXPLAIN TO ME HOW IT IS

02:26 PM 4 THAT, WHEN YOU WENT AND LOOKED IN THE FOUNDRY, YOU DIDN'T

02:26 PM 5 SEE ANYTHING BUT BLACK PEOPLE?

02: 26 PM 6 A.

IT MAY HAVE BEEN THE AREA THAT I WENT IN, SIR. THE

02:26 PM 7 AREA THAT I WENT IN, THE CLEANING ROOM, WHERE THEY WAS

02:27 PM 8 POURING, WHERE IT WAS HOT, DIRTY AND DUSTY, I SEEN ALL

02:27 PM 9 BLACKS. AND IN THE OFFICE, WHERE IT WAS AIR-CONDITIONED

02 :27 PM 10 AND CLEAN, I SEEN ALL WHITES. THAT'S ALL I CAN TELL YOU.

02: 27 PM 11 Q.

IS IT POSSIBLE, MR. MCCLAIN, THAT YOU COULD HAVE

02: 27 PM 12 BEEN MISTAKEN?

02:27 PM 13 A.

COULD HAVE BEEN MISTAKEN?

02:27 PM 14 Q.

YES, SIR.

02:27 PM 15 A.

IS IT POSSIBLE I DIDN'T SEE SOME WHITES? I SAID

02:27 PM 16 THAT.

02:27 PM 17 Q.

OKAY. AND POSSIBLE YOU DIDN'T SEE SOME HISPANICS?

02:27 PM 18 A.

IT'S POSSIBLE.

02:27 PM 19 Q.

ALL RIGHT. NOW, WITH RESPECT TO YOUR INVOLVEMENT IN

02:27 PM 20 THE PROMOTION SITUATION, MR. MCCLAIN, I'M CORRECT, AM I

02:27 PM 21 NOT, THAT YOU'VE NEVER BEEN INVOLVED IN PROMOTIONS IN THE

02: 27 PM 22
02:27 PM 23 02:27 PM 24

OILFIELD DIVISION, HAVE YOU?

A.

NO, SIR.

Q. NEVER BEEN INVOLVED IN PROMOTIONS IN POWER

02:27 PM 25 TRANSMISSION?

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02:27 PM 1 A.

NO, SIR.

02:27 PM 2 Q.

NEVER BEEN INVOLVED IN PROMOTIONS IN THE FOUNDRY?

02:27 PM 3 A.

NO, SIR.

02:27 PM 4 Q.

YOU DON'T KNOW WHAT INSTRUCTIONS THE SUPERVISORS AND

02:27 PM 5 MANAGERS IN THOSE DIVISIONS GET WITH RESPECT TO

02:27 PM 6 PROMOTIONS, DO YOU?

02:27 PM 7 A.

ALL I KNOW IS WHAT WE WERE TOLD IN THE FOUR-HOUR

02: 27 PM 8 CLASS THAT WE ALL ATTENDED, AND WE ALL GOT THE SAME MANUAL

02:27 PM 9 THAT SAID THE SAME THING.

02:27 PM 10 Q.

AND AM I CORRECT, SIR, THAT YOU HAVE NO PERSONAL

02: 27 PM 11 KNOWLEDGE OF ANYBODY WHO WAS NOT TOLD TO SIGN A BID, WHO

02: 28 PM 12 WAS TOLD NOT TO SIGN A BID I MEAN?

02:28 PM 13 A.

I HAVE -- YES, ONE OF THE CLASS MEMBERS, AND I DON'T

02: 28 PM 14 KNOW HIS NAME. I KNOW OF CLASS MEMBERS THAT WERE -- THAT

02 :28 PM 15 TOLD ME, AND I BELIEVE HAVE TESTIFIED, THAT THEY WERE

02:28 PM 16 DISCOURAGED FROM SIGNING A BID.

02:28 PM 17 Q.

MR. MCCLAIN, DO YOU HAVE ANY PERSONAL KNOWLEDGE OF

02:28 PM 18 THAT HAPPENING?

02:28 PM 19 A. 02:28 PM 20 Q.

YOU MEAN DID I HEAR ANYONE TELL SOMEONE? NO, SIR. YOU ACTUALLY OBSERVED IT HAPPENING, NOT

02:28 PM 21 WHAT SOMEBODY HAS TOLD YOU.

02:28 PM 22

THE COURT: WELL, WHAT EXPERIENCE -- WHAT

02:28 PM 23 EXPERIENCE DID YOU HAVE IN THAT, THAT YOU WERE, QUOTE,

02:28 PM 24 02: 28 PM 25

DISCOURAGED OR TOLD NOT TO -THE WITNESS: WELL, THE ONLY THING, THE ONLY

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02:28 PM 1 PERSONAL EXPERIENCE I HAVE IS THE WAY BLACKS WERE TREATED,

02: 28 PM 2 AND WHAT I WAS --

02:28 PM 3

IN THE TRAILER PLANT, WHAT WE WAS PERSONALLY

02:28 PM 4 TOLD, WE WERE TOLD -- WE WERE DISCOURAGED FROM SIGNING

02:28 PM 5 THEM, AND WE --

02:28 PM 6

CERTAINLY THE MAJORITY OF BLACKS WAS NOT GOING

02:28 PM 7 TO SIGN THE BID LIST BECAUSE THEY SAW THAT SENIORITY WAS

02:28 PM 8 BYPASSED WITH LESS SENIOR WHITES ON NUMEROUS OCCASIONS.

02:29 PM 9 IT DIDN'T ALWAYS HAPPEN, BUT IT HAPPENED, AND IT SHOULD

02:29 PM 10 HAVE NEVER HAPPENED.

02:29 PM 11

THEY DIDN'T USE ABILITY, THEY JUST PROMOTED

02:29 PM 12 THEY PUT IN THE JOB WHO WAS -- WHO THEY WANTED IN THE JOB,

02: 29 PM 13 AND THEY GAVE TWO EXPLANATIONS. HE GOT THE JOB OR HE WAS

02:29 PM 14 MOST QUALIFIED.

02: 29 PM 15

AND WE HAD A UNION CONTRACT, AND TH EY TOTAL LY

02: 29 PM 16 DISREGARDED IT.

02:29 PM 17

THE COURT: WHO'S "THEY"?

02:29 PM 18

THE WITNESS: WHITE MANAGERS.

02 :29 PM 19

THE COURT: PROCEED, SIR.

02:29 PM 20 BY MR. HAMEL:

02:29 PM 21 Q. MR. MCCLAIN, I AM CORRECT, AM I NOT, THAT YOU HAVE

02:29 PM 22 NO PERSONAL KNOWLEDGE OF ANYBODY WHO WAS TOLD NOT TO SIGN

02:29 PM 23 A BID?

02:29 PM 24 A.

LET ME THINK. LET ME THINK ABOUT THAT. I CAN'T

02: 29 PM 25 THINK OF ANYBODY. IT DOESN'T MEAN I DON'T KNOW OF ANY,

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02: 30 PM 1 BUT I CAN'T REMEMBER RIGHT NOW.

02:30 PM 2 Q. OKAY. AND YOU CANNOT GIVE AN ESTIMATE, AT LEAST YOU

02:30 PM 3 COULD NOT AS OF JULY, OF HOW MANY JOBS SINCE 1994 HAVE

02:30 PM 4 BEEN FILLED IN A SITUATION IN WHICH THE PERSON HAS BEEN

02:30 PM 5 TRAINED FOR THE JOB AND THEY RECEIVED THE JOB OVER A

02:30 PM 6 SENIOR PERSON?

02:30 PM 7 A. NO, BECAUSE THERE'S NO DATA KEPT ON THAT. THERE'S

02:30 PM 8 NO DATA KEPT ON THAT.

02:30 PM 9 Q. WELL, YOU CAN'T GIVE ME AN ESTIMATE, CAN YOU?

02 : 30 PM 10 A. NO, SIR, I CAN'T GIVE YOU AN ESTIMATE, BUT I CAN

02:30 PM 11 TELL YOU IT'S HAPPENED. IT HAPPENED MOST RECENTLY WHEN A

02: 30 PM 12 WELDER WAS PROMOTED TO PLANT SUPERINTENDENT AND WAS

02:30 PM 13 TRAINED FOR A WHOLE YEAR.

02: 30 PM 14 Q. AM I CORRECT, MR. MCCLAIN, THAT AT LEAST AS OF JULY

02: 30 PM 15 OF THIS YEAR YOU DON'T REMEMBER ANY PERSON BEING GROOMED

02: 30 PM 16 FOR A POSITION OR BEING GIVEN -- OR NOT BEING GIVEN

02: 30 PM 17 TRAINING -- OR BEING GIVEN TRAINING SINCE 1994?

02 : 30 PM 18 A •

SINCE 1994?

02: 30 PM 19 Q.

YES, SIR.

02:30 PM 20 A. YES, SIR, I DO HAVE, IF I'M UNDERSTANDING YOUR

02: 30 PM 21 QUESTION.

02 : 30 PM 22 Q . WELL, WHAT I'M ASKING IS, DO YOU KNOW OF ANYBODY

02:31 PM 23 BEING GROOMED FOR A BETTER -- BEING GROOMED BY GIVING

02: 31 PM 24 TRAINING FOR A BETTER POSITION?

02 : 31 PM 2 5 A • SIR, SINCE 1994, YES. I CAN'T TELL YOU WHO, BUT,

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02: 31 PM 1 YES, THIS PRACTICE HAS CONTINUED.

02: 31 PM 2 Q.

OKAY. DIDN'T YOU PREVIOUSLY TESTIFY IN YOUR

02:31 PM 3 DEPOSITION THAT YOU COULDN'T REMEMBER OR YOU COULDN'T

02: 31 PM 4 RECOLLECT THAT?

02:31 PM 5 A. WELL, I MAY HAVE, BUT I RECOLLECT IT NOW.

02: 31 PM 6 Q. ALL RIGHT, SIR. NOW, IT WOULD BE POSSIBLE, WOULD IT

02:31 PM 7 NOT, TO LOOK AT THE BID SHEETS IN THE TRAILER DIVISION AND

02:31 PM 8 SEPARATE OUT THOSE JOBS WHERE BIDS ARE ROUTINELY AWARDED

02: 31 PM 9 ON SENIORITY?

02:31 PM 10 A.

BASED ON EXPERIENCE I'VE HAD WITH THE BID SHEETS, I

02: 31 PM 11 DON'T HAVE ANY CONFIDENCE IN LOOKING AT THE BID SHEETS,

02: 31 PM 12 AND THE REASON I DON'T, BECAUSE -- YOU MAY HAVE FOUND

02: 31 PM 13 THEM, BUT THE ORIGINAL BID SHEETS THAT YOU PROVIDED WERE

02: 31 PM 14 ABSENT SEVERAL PROMOTIONS THAT I MADE TO INSPECTOR.

02:32 PM 15 Q.

MR. MCCLAIN, DO YOU RECALL YOUR TESTIMONY AT PAGE

02: 32 PM 16 201 OF YOUR DEPOSITION?

02 : 32 PM 17 A •

LET ME LOOK AND SEE.

02 : 32 PM 18 Q.

LINE 3, QUESTION: "AM I CORRECT IN

02: 32 PM 19 UNDERSTANDING"--

02: 32 PM 20 A.

LET ME GO TO IT, SIR, PLEASE.

02 : 32 PM 21 Q .

CERTAINLY.

02:32 PM 22 A.

YOU'RE ASKING ME MULTIPLE QUESTIONS AND YOU'RE

02:32 PM 23 JUMPING TIME PERIODS, SO I'M GOING TO HAVE TO TAKE MY TIME

02: 32 PM 24 TO LISTEN TO YOUR QUESTION AND ANSWER VERY CAREFULLY.

02 : 32 PM 2 5 Q.

DO YOU HAVE THE PAGE, SIR?

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02: 32 PM 1 A.

YES, SIR, 201.

02: 32 PM 2 Q.

AM I CORRECT YOUR TESTIMONY AT THAT TIME WAS WITH

02:32 PM 3 RESPECT TO THE QUESTION: "AM I CORRECT IN UNDERSTANDING,

02: 32 PM 4 FOR EXAMPLE, AT THE TRAILER DIVISION, IF YOU LOOKED AT ALL

02: 32 PM 5 THE BID SHEETS, YOU WOULD BE ABLE TO SEPARATE ALL THOSE

02:32 PM 6 JOBS WHERE THE BIDS ARE ROUTINELY AWARDED ON THE BASIS OF

02: 32 PM 7 SENIORITY VERSUS THOSE BIDS IN WHICH THERE IS SOME

02: 32 PM 8 DETERMINATION OF A BID THAT WAS MADE?"

02: 32 PM 9

ANSWER: "ITIS POSSIBLE."

02: 32 PM 10

THAT WAS YOUR ANSWER, WAS IT NOT?

02:33 PM 11 A.

WELL -- (READING TO HIMSELF) -- SEE, YOU KNOW, I

02:33 PM 12 DIDNIT--

02: 33 PM 13

THERE WERE A LOT OF QUESTIONS THAT I WAS ASKED

02: 33 PM 14 DURING THE DEPOSITION. SOME OF THEM, YOU KNOW, I AGREED

02: 33 PM 15 WITH YOU OR GAVE YOU THE ANSWER. BUT LOOKING AT THAT

02:33 PM 16 QUESTION THERE, I DONIT EVEN UNDERSTAND THE QUESTION, NOT

02: 33 PM 17 ESPECIALLY BASED ON THE LAST, THE FINAL SENTENCE.

02:33 PM 18 Q.

ALL RIGHT, SIR. AM I CORRECT THAT IF YOU LOOKED AT

02: 33 PM 19 THE BID SHEETS, YOU WOULD CERTAINLY BE ABLE TO -- IT WOULD

02: 33 PM 20 02:33 PM 21

ALLOW YOU TO SEE WHO SIGNED UP FOR A PARTICULAR JOB?

A.

YEAH, IF YOU HAD ALL THE BID SHEETS AVAILABLE. THE

02:33 PM 22
02:33 PM 23 02: 33 PM 24

POINT IS THAT WHEN WE WERE -- IN THIS CASE THERE WAS A TIME WHEN WE DIDN IT HAVE --
I LOOKED THROUGH ALL THE BID SHEETS AND I MADE

02:33 PM 25 FIFTEEN TO TWENTY PROMOTIONS I BELIEVE, AND A SIGNIFICANT

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02: 33 PM 1 AMOUNT OF THOSE PROMOTIONS, THOSE BIDS SHEETS WERE NOT

02: 34 PM 2 PRESENT WHERE I MADE THOSE PROMOTIONS. AND I RAISED THAT

02: 34 PM 3 QU ESTION AT THAT TIME.

02: 34 PM 4 Q. AM I CORRECT, SIR, THAT YOU CANNOT RECALL, OR AT

02: 34 PM 5 LEAST YOU COULD NOT RECALL AS OF JULY, 2003, ANY BLACK

02:34 PM 6 EMPLOYEE OTHER THAN YOURSELF WHO HAS BEEN DISCOURAGED FROM

02:34 PM 7 TAKING A JOB THAT IS BID OR THAT A JOB WAS OPENING UP,

02:34 PM 8 THAT WAS OPENING Up?

02:34 PM 9 A. WELL, I THINK BLACKS ARE DISCOURAGED ALL THE TIME 02: 34 PM 10 BECAUSE OF THE ENVIRONMENT OR THE CULTURE. THEY DON'T

02: 34 PM 11 THINK THEy'RE GOING TO GET THE JOB.

02: 34 PM 12 Q.

MR. MCCLAIN, IF YOU WOULD LOOK AT PAGE 162 OF YOUR

02: 34 PM 13 DEPOSITION, LINE 24, PLEASE.

02:34 PM 14 A.

OKAY. WHAT'S THE PAGE?

02: 34 PM 15 Q.

162, SIR.

02: 34 PM 16 A.

OKAY. ALL RIGHT.

02:34 PM 17 Q.

BEGINNING AT LINE 24. YOUR PRIOR TESTIMONY WAS TO

02: 34 PM 18 THE QUESTION: "DO YOU KNOW OF ANY BLACK EMPLOYEES AT

02:35 PM 19 LUFKIN INDUSTRIES SINCE JANUARY 1, 1994, TO PRESENT, WHO

02: 35 PM 20 HAVE, OTHER THAN YOURSELF, WHO HAVE BEEN DISCOURAGED FROM

02: 35 PM 21 TAKING A JOB THAT HAS BEEN BID OR A JOB THAT WAS OPENING 02:35 PM 22 up?"

02:35 PM 23

YOUR ANSWER WAS "AT THIS TIME "I CAN'T RECALL"?

02:35 PM 24 A. 02: 35 PM 25 Q.

AND I COULDN'T RECALL. ALL RIGHT. AT LEAST AS OF JULY, 2003, YOU COULDN'T

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02: 35 PM 1 RECALL ON WHAT BASIS YOU HAD -- ANY BASIS YOU HAD TO

02: 35 PM 2 BELIEVE THAT BLACK EMPLOYEES HAD BEEN DISCRIMINATED

02:35 PM 3 AGAINST IN CAREER ADVANCEMENT BECAUSE OF THEIR RACE, ISN'T

02:35 PM 4 THAT RIGHT?

02:35 PM 5

MR. GARRIGAN: YOUR HONOR, I NEED TO OBJECT.

02:35 PM 6 THE WHOLE WAY HE'S ASKING THE QUESTIONS, HE'S ESSENTIALLY

02:35 PM 7 QUESTIONING MR. MCCLAIN ON HOW WELL HE CAN RECALL HIS

02:35 PM 8 DEPOSITION.

02:35 PM 9

THE COURT: I UNDERSTAND THAT, AND HE'S ENTITLED

02:35 PM 10 TO DO SO ON CROSS-EXAMINATION.

02: 35 PM 11

MR. GARRIGAN: OKAY. IT SEEMS TO ME TO BE

02: 35 PM 12 IMPROPER IMPEACHMENT.

02:35 PM 13

THE COURT: WELL, IN CROSS-EXAMINATION

02:35 PM 14 CREDIBILITY IS ALWAYS A KEY, AND THE DIFFERENCE OF AN

02: 36 PM 15 ANSWER OR THE UNKNOWING STATE OF MIND OF AN ANSWER, AND

02: 36 PM 16 SINCE SOME FIVE MONTHS LATER HE CAN'T RECALL ALL OF THAT

02:36 PM 17 IS OF SOME CONSEQUENCE, OR HE SEEMS TO THINK SO, AND HE'S

02: 36 PM 18 ENTITLED TO USE THAT AS IMPEACHMENT.

02:36 PM 19 02: 36 PM 20

MR. GARRIGAN: ALL RIGHT. THE COURT: MR. MCCLAIN MAY OR MAY NOT HAVE A

02:36 PM 21 GOOD MEMORY. IT MAY BE AFFECTED BY VARIOUS THINGS. I

02: 36 PM 22 02:36 PM 23 02:36 PM 24

DON'T KNOW. HE'S ENTITLED TO FIND OUT. MR. HAMEL: MAY I PROCEED, YOUR HONOR? THE COURT: YES, SIR, PLEASE DO.

02: 36 PM 25 BY MR. HAMEL:

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02: 36 PM 1 Q.

MR. MCCLAIN, AM I CORRECT THAT AT LEAST AS OF JULY,

02:36 PM 2 2003, YOU COULDN'T THINK OF ANY SITUATION SINCE JANUARY 1,

02: 36 PM 3 1994, IN WHICH AN EMPLOYEE DIDN'T GET THEIR CONTRACT

02:36 PM 4 RAISED TWENTY-FIVE CENTS PER HOUR?

02:37 PM 5 A.

THAT'S CORRECT.

02:37 PM 6 Q. AND YOU HAVE NO FACTUAL INFORMATION THAT BLACK

02:37 PM 7 EMPLOYEES MORE FREQUENTLY THAN WHITES DID NOT GET A

02:37 PM 8 CONTRACTUAL INCREASE, DO YOU?

02:37 PM 9 A. 02:37 PM 10 Q.

I BELIEVE THAT'S CORRECT. YOU CAN'T RECALL ANY INSTANCE OF DISCRIMINATION

02:37 PM 11 AGAINST BLACK EMPLOYEES, OTHER THAN YOURSELF AND PERHAPS

02: 37 PM 12 CLIFFORD DURDEN, WITH RESPECT TO COMPENSATION SINCE

02:37 PM 13 JANUARY 1, 1994, EITHER, CAN YOU?

02:37 PM 14 A.

WELL, COMPENSATION, WHAT DO YOU MEAN?

02:37 PM 15

THE COURT: DOLLARS.

02: 37 PM 16 BY MR. HAMEL:

02:37 PM 17 Q.

MONEY, PAY.

02:37 PM 18 A.

WELL, I MEAN, ARE YOU TALKING ABOUT A PAY RAISE?

02:37 PM 19

THE COURT: YEAH. COMPENSATION IS MONEY,

02: 37 PM 20 VACATION.

02:37 PM 21 02:37 PM 22 02: 37 PM 23

THE WITNESS: I GUESS NOT. THE COURT: PAID VACATION. THE WITNESS: I GUESS NOT.

02:37 PM 24 BY MR. HAMEL:

02:37 PM 25 Q.

AND YOU COULDN'T RECALL THE NAME OF ANY PERSON, ANY

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02: 37 PM 1 BLACK PERSON, WHO WAS EMPLOYED BY LUFKIN WHO YOU THINK DID

02:37 PM 2 NOT GET THE TWENTY-FIVE-CENTS-PER-HOUR INCREASE AS

02: 37 PM 3 REQUIRED BY THE COLLECTIVE BARGAINING AGREEMENT?

02: 37 PM 4 A.

NO, I DON'T THINK SO.

02:37 PM 5 Q.

MR. MCCLAIN, IT IS ALSO THE CASE, IS IT NOT, THAT

02:38 PM 6 OTHER THAN THE -- OTHER THAN THE DIXON SITUATION, YOU

02:38 PM 7 CAN'T THINK OF ANY OTHER SITUATION IN WHICH THE TRAILER

02:38 PM 8 BODY BUILDER "B" OR "A" JOBS WERE NOT AWARDED ON THE BASIS

02:38 PM 9 02:38 PM 10

OF SENIORITY? A. YES, SIR, IN MY CASE.

02: 38 PM 11 Q.

OTHER THAN THOSE TWO CASES, CAN YOU RECALL ANY?

02:38 PM 12 A.

YES, SIR. ON MANY OCCASIONS BLACKS ARE PASSED OVER,

02: 38 PM 13 AND THERE'S NOTHING WRONG WITH MY MEMORY.

02: 38 PM 14 Q.

WELL --

02: 38 PM 15 A.

ON MANY OCCASIONS.

02:38 PM 16 Q.

MR. MCCLAIN, IF YOU'LL LOOK AT PAGE 102 --

02: 38 PM 17 A.

WHAT PERIOD ARE YOU TALKING ABOUT? WHAT ARE YOU

02: 38 PM 18 TALKING ABOUT?

02:38 PM 19 Q.

IF YOU'LL LOOK AT PAGE 102 OF YOUR DEPOSITION, SIR.

02: 38 PM 20 A •

100 WHAT NOW?

02:38 PM 21 Q. 02:38 PM 22

102. THE COURT: 102.

02: 38 PM 23

THE WITNESS: OKAY. ALL RIGHT.

02: 38 PM 24 BY MR. HAMEL:

02: 38 PM 25 Q.

AND DO YOU SEE THAT'S THE PART OF YOUR DEPOSITION IN

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02: 38 PM 1 WHICH YOU WERE RELATING TO ME THE GRIEVANCE THAT YOU FILED

02: 38 PM 2 ABOUT MR. DIXON?

02:38 PM 3 A.

YES, SIR.

02:38 PM 4 Q. AM I CORRECT THAT YOUR TESTIMONY BEGINNING AT

02:38 PM 5 WITH RESPECT TO THE QUESTION AT LINE 20 WAS -- THE

02:39 PM 6 QUESTION WAS: "MR. MCCLAIN, OTHER THAN THIS SITUATION,

02:39 PM 7 REFERRING TO MR. DIXON, CAN YOU THINK OF ANY OTHER

02:39 PM 8 SITUATION IN WHICH THE TRAILER BODY BUILDER "B" OR "A"

02:39 PM 9
02: 39 PM 10

JOBS WERE NOT AWARDED ON THE BASIS OF SENIORITY?" ANSWER: "I'M -- I DON'T REMEMBER AT THIS TIME.

02: 39 PM 11 WITHOUT LOOKING AT THE DOCUMENTATION I CANNOT SAY FOR

02: 39 PM 12 SURE."

02: 39 PM 13 A.

THE ANSWER SPEAKS FOR ITSELF.

02: 39 PM 14 Q.

ALL RIGHT.

02: 39 PM 15

MR. GARRIGAN: I THINK IN FAIRNESS MR. HAMEL

02:39 PM 16 OUGHT TO COMPLETE THE ANSWER.

02: 39 PM 17

THE COURT: SIR, YOU WILL HAVE AN OPPORTUNITY TO

02: 39 PM 18 HAVE HIM ON REDIRECT. IN VIEW OF THE FACT OF A TIME

02: 39 PM 19 LIMITATION, I'M NOT GOING TO USE UP HIS TIME FOR YOUR

02: 39 PM 20 QUESTIONS OR YOUR ANSWERS.

02:39 PM 21

MR. GARRIGAN: YOUR HONOR, I WASN'T SUGGESTING

02: 39 PM 22 HE GO ON TO ANOTHER QUESTION, I WAS JUST SUGGESTING THAT

02:39 PM 23 02: 39 PM 24

THE NEXT SENTENCE BE READ. IT WAS PART OF THE ANSWER. THE COURT: WELL, YOU HAVE A RIGHT TO DO THAT

02: 39 PM 25 UNDER THE OPTIONAL COMPLETENESS RULE.

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02: 39 PM 1 BY MR. HAMEL:

02 :40 PM 2 Q.

MR. MCCLAIN, JUST A COUPLE MORE QUESTIONS.

02:40 PM 3

THE COURT: OH, IF THAT WASN'T THE COMPLETE

02:40 PM 4 ANSWER, MR. HAMEL --

02:40 PM 5

THE WITNESS: IT WASN'T, SIR.

02:40 PM 6

MR. HAMEL: WELL, LET ME READ THE COMPLETE

02:40 PM 7 ANSWER, YOUR HONOR. I DIDN'T MEAN TO BE IN ANY WAY

02:40 PM 8

THE COMPLETE ANSWER IS: "I'M -- I DON'T

02:40 PM 9 REMEMBER AT THIS TIME. WITHOUT LOOKING AT THE

02 :40 PM 10 DOCUMENTATION, I CANNOT SAY FOR SURE. AND IF WE'RE HERE

02 :40 PM 11 ALL DAY, IF I THINK OF SOMETHING, IS IT OKAY IF I BRING IT

02 :40 PM 12 UP?"

02 :40 PM 13

THE COURT: ALL RIGHT.

02 :40 PM 14 BY MR. HAMEL:

02:40 PM 15 Q.

MR. MCCLAIN, IT IS THE FACT THAT YOU COULD HAVE

02:40 PM 16 RECOMMENDED LUFKIN TO OTHER PEOPLE AS A PLACE TO WORK,

02:40 PM 17 ISN'T THAT RIGHT?

02 : 40 PM 18 A •

IT'S POSSIBLE.

02:40 PM 19 Q.

OKAY. AND YOU DON'T THINK THAT YOU'VE EVER ADVISED

02 :40 PM 20 ANYONE AGAINST GOING TO WORK OR CONTINUING TO WORK FOR

02 :40 PM 21 LUFKIN, DO YOU?

02 : 40 PM 22 A •

I DON'T REMEMBER, JUST TO BE HONEST WITH YOU. AT

02:40 PM 23 02:40 PM 24 02:40 PM 25

THIS TIME I JUST DON'T REMEMBER. Q. THAT'S BLACK INDIVIDUALS OR BLACK EMPLOYEES AS WELL? A. ALL I KNOW IS THAT WHAT WE FACED AS BLACK EMPLOYEES,

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02:41 PM 1 IT WAS WRONG, IT WAS BLATANT, AND WHETHER OR NOT I

02:41 PM 2 RECOMMENDED SOMEBODY NOT APPLY FOR A JOB, I DON'T

02:41 PM 3 REMEMBER.

02:41 PM 4

MR. HAMEL: THANK YOU, YOUR HONOR. THAT

02:41 PM 5 CONCLUDES MY EXAMINATION.

02:41 PM 6

REDIRECT EXAMINATION

02:41 PM 7 BY MR. GARRIGAN:

02:41 PM 8 Q.

I WOULD JUST LIKE TO CLARIFY A COUPLE OF THINGS.

02:41 PM 9

IN FACT, WHEN YOU WERE QUALITY ASSURANCE

02:41 PM 10 MANAGER, WERE THERE TIMES THAT YOU SOUGHT TRAINING THAT

02:41 PM 11 YOU DID NOT GET?

02: 41 PM 12 A. 02:41 PM 13 Q.

YES. YES, SIR. OKAY. WAS THERE SOMEPLACE WHERE YOU COULD JUST GO

02:41 PM 14 02:41 PM 15 02:41 PM 16

SIGN UP FOR THAT TRAINING? A. NO, SIR, AND IT WAS NOT AVAILABLE AT THE COLLEGE. Q. OKAY. IT WAS -- ALL RIGHT. WAS IT TRAINING THAT

02 :42 PM 17 OTHER MANAGERS RECEIVED?

02:42 PM 18 A.

YES, SIR.

02:42 PM 19 Q.
02:42 PM 20 A. 02 :42 PM 21
02 :42 PM 22

IS THAT WHERE YOU LEARNED ABOUT IT? YES, SIR.
THE COURT: WHAT KIND OF TRAINING WAS IT? THE WITNESS: TRAINING LIKE STATISTICAL PROCESS

02:42 PM 23 CONTROL, STATISTICAL DATA CONTROL, PROBLEM SOLVING, SBC,

02:42 PM 24 ALL THE TRAINING IN TOOLS THAT HELP A MANAGER TO BE ABLE 02:42 PM 25 TO DO HIS JOB EFFECTIVELY AND MAKE GOOD DECISIONS.

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02:42 PM 1

THE COURT: AND I SUPPOSE THAT ENHANCES HIS

02:42 PM 2 ABILITY TO ADVANCE IN THE COMPANY?

02:42 PM 3

THE WITNESS: YES, SIR, VERSUS THE OTHER ONES,

02:42 PM 4 THEY DON'T.

02:42 PM 5 BY MR. GARRIGAN:

02:42 PM 6 Q. ALSO, MR. MCCLAIN, YOU TESTIFIED ABOUT CONDITIONS IN

02:42 PM 7 THE FOUNDRY AND OTHER DIVISIONS, EVEN WHERE YOU DID NOT

02:42 PM 8 WORK?

02 :42 PM 9 A.

YES, SIR.

02:42 PM 10 Q.

AND I BELIEVE YOU SAID THAT YOU VISITED THOSE PARTS

02 :42 PM 11 OF THE COMPANY AS A -- DOING AN AUDIT?

02:43 PM 12 A.

YES, SIR.

02:43 PM 13 Q.

OR SEVERAL AUDITS?

02:43 PM 14 A.

YES, SIR.

02:43 PM 15 Q. WEREN'T YOU ALSO PRESENT OR WERE YOU ALSO PRESENT

02 :43 PM 16 WHEN THE COURT TOURED LUFKIN INDUSTRIES?

02:43 PM 17 A.

YES, SIR.

02:43 PM 18 Q.

OKAY. THAT WAS AFTER THE CLASS CERTIFICATION

02 :43 PM 19 HEARING?

02:43 PM 20 A.

YES, SIR.

02:43 PM 21 Q.

ALL RIGHT. WERE YOUR OBSERVATIONS DURING THAT TOUR

02:43 PM 22 02:43 PM 23 02:43 PM 24

CONSISTENT WITH WHAT YOU'VE TESTIFIED TO TODAY? A. YES, SIR. Q. ARE YOU AWARE OF ANY SITUATIONS WHERE THE UNIONS,

02 :43 PM 25 WHERE YOUR UNION HAS FILED GRIEVANCES TO CHALLENGE

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02:44 PM 1 DECISIONS BY WHITE MANAGERS FAVORING WHITE EMPLOYEES BASED

02:44 PM 2 02 :44 PM 3 02 :44 PM 4

ON THE ABILITY CLAUSE?

A.

STATE THAT AGAIN.

Q.

OKAY. ARE YOU AWARE OF THE UNIONS, OR THE UNION IN

02: 44 PM 5 THE TRAILER DIVISION, THAT WOULD BE THE BOILERMAKERS,

02:44 PM 6 PURSUING A GRIEVANCE CHALLENGING A WHITE MANAGER'S

02:44 PM 7 DECISION BASED ON THE ABILITY CLAUSE THAT FAVORED

02 :44 PM 8 EXCUSE ME -- THAT FAVORED A BLACK -- EXCUSE ME -- THAT

02 :44 PM 9 FAVORED A WHITE EMPLOYEE OVER A MORE SENIOR BLACK

02 :44 PM 10 EMPLOYEE?

02 : 44 PM 11 A.

I JUST -- I DON'T RECALL AT THIS TIME.

02: 44 PM 12 Q.

OKAY. AND MAYBE I JUST GOT THE WRONG IMPRESSION,

02:45 PM 13 BUT I THOUGHT YOU SAID YOU COULDN'T THINK OF ANY WHITE

02:45 PM 14 EMPLOYEES BEING GROOMED FOR PROMOTIONS DURING THE CLASS

02 :45 PM 15 PERIOD, AND I WANTED TO ASK YOU, YOU DID DISCUSS BEFORE

02:45 PM 16 MR. GILLEY BEING GROOMED TO RUN THE TRAILER PLANT?

02:45 PM 17 02:45 PM 18 02:45 PM 19 02:45 PM 20 02 :45 PM 21 02:45 PM 22 02:45 PM 23 02 :45 PM 24 02 :45 PM 25

A.

YES.

Q.

DID THAT HAPPEN DURING THE CLASS PERIOD?

A.

YES, SIR.

Q.

ALL RIGHT. THANK YOU.

MR. GARRIGAN: THAT'S ALL.

THE COURT: ANYTHING FURTHER, MR. HAMEL?

MR. HAMEL: NO, YOUR HONOR.

THE COURT: THANK YOU VERY MUCH. YOU'RE

EXCUSED.

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02:45 PM 1

THE WITNESS: ALL RIGHT. THANK YOU.

02:45 PM 2

THE COURT: WHO DO YOU HAVE NEXT?

02:45 PM 3

MR. GARRIGAN: CALVIN DEASON.

4

5

CALVIN DEASON, PLIAINTIFF WITNESS, SWORN

6

7

DIRECT EXAMINATION

8 BY MR. GARRIGAN:

02 :46 PM 9 Q.

WOULD YOU PLEASE STATE YOUR NAME FOR THE RECORD?

02:46 PM 10 A.

CALVIN DEASON.

02:46 PM 11 Q.

AND MR. DEASON, FOR THE RECORD, YOU'RE AN

02:46 PM 12 AFRICAN-AMERICAN?

02:46 PM 13 A.

YES.

02 :46 PM 14 Q.

YOU'RE NOT ACTIVELY INVOLVED IN THIS LITIGATION IN

02:46 PM 15 ANY WAY, ARE YOU?

02: 46 PM 16 A. 02:46 PM 17 Q.

YES. YOU ARE?

02:47 PM 18 A. 02:47 PM 19 Q.
02:47 PM 20 A.

YES. WELL, I GUESS YOU ARE. YOU'RE A WITNESS? YES.

02:47 PM 21 Q.

ARE YOU A CLASS REPRESENTATIVE?

02:47 PM 22 A.
02:47 PM 23 Q. 02:47 PM 24 A. 02:47 PM 25 Q.

YES. I DON'T BELIEVE YOU ARE A CLASS REPRESENTATIVE. WELL -YOU ARE A MEMBER OF THE CLASS?

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188

02:47 PM 1 A.

A MEMBER OF THE CLASS.

02:47 PM 2 Q.

YOU DIDN'T HAVE ANYTHING TO DO WITH INITIATING THIS

02:47 PM 3 LAWSUIT, DID YOU?

02:47 PM 4 A.

NO.

02:47 PM 5 Q.

YOU HAVEN'T HAD TO SIGN ANY PAPERS TO PURSUE THIS

02:47 PM 6 LITIGATION, HAVE YOU?

02:47 PM 7 A.

NO.

02:47 PM 8 Q.

WHERE DO YOU WORK, MR. DEASON?

02:47 PM 9 A.

AT LUFKIN INDUSTRIES, IN THE CLEANING ROOM IN THE

02 :47 PM 10 FOUNDRY DEPARTMENT.

02:47 PM 11 Q. 02:47 PM 12 A. 02:47 PM 13 Q. 02:47 PM 14 A.

ALL RIGHT. WHERE DO YOU LIVE? IN LUFKIN, TEXAS. WHO DO YOU LIVE WITH? MY WIFE AND MY TWO KIDS.

02:47 PM 15 Q. 02 :47 PM 16 A.

HOW OLD A MAN ARE YOU? FORTY YEARS OLD.

02:47 PM 17

THE COURT: WAS IT A BIG SHOCK TO YOU WHEN YOU

02:47 PM 18 TURNED THE BIG 4-0?

02:47 PM 19 02 :47 PM 20

THE WITNESS: YEAH. THE COURT: WELL, IT'S GOING TO BE EVERY TEN

02:47 PM 21 YEARS THAT THAT HAPPENS TO YOU.

02:47 PM 22

(LAUGHTER)

02 :48 PM 23

THE WITNESS: ALL RIGHT.

02: 48 PM 24 BY MR. GARRIGAN:

02 : 48 PM 2 5 Q.

WELL, MR. DEASON, WHEN IS THE FIRST TIME THAT YOU

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02:48 PM 1 BEGAN WORKING FOR LUFKIN INDUSTRIES?

02 :48 PM 2 A.

SEPTEMBER OF 194.

02 :48 PM 3 Q.

OKAY. DID YOU WORK THERE BEFORE THEN?

02:48 PM 4 A.

NO.

02:48 PM 5 Q.

OKAY. DID YOU EVER WORK THERE AS A HIGH SCHOOL

02: 48 PM 6 STUDENT?

02:48 PM 7 A.

YES, BACK IN -- BACK IN -- I MIGHT HAVE BEEN

02 :48 PM 8 SIXTEEN. IT WAS A WHILE AGO WHEN I FIRST WORKED THERE.

02 :48 PM 9 Q.

ALL RIGHT. AND THEN WHERE DID YOU WORK?

02:48 PM 10 A.

I WORKED FOR MR. THOMAS OVER ACROSS THE STREET, BY

02 :48 PM 11 THE GEAR SHOP, RIGHT ACROSS THE STREET.

02 : 48 PM 12 Q.

ALL RIGHT. AND YOU SAY YOU WERE ABOUT SIXTEEN THEN?

02:48 PM 13 A.

YES, I WAS IN HIGH SCHOOL.

02 :48 PM 14 Q. WHEN YOU WENT BACK, YOUR CURRENT TENURE AT LUFKIN

02:49 PM 15 INDUSTRIES BEGAN WHEN?

02:49 PM 16 A.

02:49 PM 17 Q.

ALL RIGHT. HOW DID YOU COME TO BE WORKING AT LUFKIN

02:49 PM 18 INDUSTRIES STARTING IN 1994?

02:49 PM 19 A.

A FRIEND OF MINE ASKED ME TO RIDE WITH HIM TO THE

02 :49 PM 20 WORKFORCE TO FILL OUT AN APPLICATION, AND WE WENT IN AND

02:49 PM 21 FILLED OUT ONE AND I GOT AN INTERVIEW.

02:49 PM 22 Q.

DID THEY CALL?

02 :49 PM 23

THE COURT: WHO WITH? DO YOU REMEMBER HIS NAME

02:49 PM 24 OR HER NAME?

02 :49 PM 25

THE WITNESS: THE GUylS NAME WAS BARBAY.

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02:49 PM 1

THE COURT: BARBAY?

02:49 PM 2

THE WITNESS: YES, SIR.

02:49 PM 3 BY MR. GARRIGAN:

02:49 PM 4 Q.

BARBAY GAVE YOU THE INTERVIEW?

02:49 PM 5 A.

YES, SIR.

02:49 PM 6 Q.

ALL RIGHT. WHO SET UP THE INTERVIEW WITH MR.

02:49 PM 7 BARBAY?

02:49 PM 8 A.

I GUESS THE WORKFORCE. I MEAN, I WENT IN AND FILLED

02:50 PM 9 OUT THE APPLICATION WITH THEM, AND THEN THEY CALLED AND 02: 50 PM 10 SAID I HAD AN INTERVIEW WITH MR. BARBAY.

02: 50 PM 11 Q.

ALL RIGHT. AND DID YOU GO TO KEEP THAT APPOINTMENT?

02 : 50 PM 12 A.

YES.

02: 50 PM 13 Q.

DID MR. BARBAY TELL YOU WHERE, WHERE THEY WERE

02: 50 PM 14 HIRING?

02: 50 PM 15 02: 50 PM 16 02: 50 PM 17

MR. HAMEL: OBJECTION, YOUR HONOR, LEADING. THE COURT: OVERRULED. THE WITNESS: HE SAID AT THE FOUNDRY.

02: 50 PM 18 BY MR. GARRIGAN:

02:50 PM 19 Q.
02: 50 PM 20 A.

DID HE SAY ANYPLACE IN PARTICULAR AT THE FOUNDRY? NO.

02 : 50 PM 21 Q. 02: 50 PM 22 A •
02 : 50 PM 23 Q. 02:50 PM 24 A. 02 : 50 PM 2 5 Q .

DID HE MENTION THE CLEANING ROOM? NO. OKAY. DID HE OFFER YOU A JOB THERE? IN THE CLEANING ROOM? OR IN THE FOUNDRY, YES.

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02: 50 PM 1 A. HE JUST TOLD ME TO GO OVER TO GATE THIRTEEN, THE

02: 50 PM 2 PERSONNEL BUILDING, AND WHEN I GOT THERE, LOUIS

02: 50 PM 3 KILLINGSWORTH WAS WAITING ON ME, THE MANAGER OVER THE

02:50 PM 4 CLEANING ROOM.

02:51 PM 5 Q. 02:51 PM 6 A. 02:51 PM 7 Q. 02:51 PM 8 A. 02: 51 PM 9 Q.

OKAY. NOW, MR. BARBAY, WHAT IS HIS RACE? WHITE. ALL RIGHT. AND HOW ABOUT MR. KILLINGSWORTH? A WHITE MAN. ALL RIGHT. AND WHO DID YOU --

02: 51 PM 10

WHAT WAS MR. KILLINGSWORTH'S JOB?

02:51 PM 11 A.

HE WAS THE MANAGER OVER THE CLEANING ROOM AT THAT

02: 51 PM 12 TIME.

02:51 PM 13 Q.

OF THE CLEANING ROOM?

02:51 PM 14 A.

YES, SIR.

02:51 PM 15 Q. AND HE'S THE ONE THAT MR. BARBAY SENT YOU TO?

02:51 PM 16 A.

YES.

02: 51 PM 17 Q. ALL RIGHT. AND DID -- WHO OFFERED YOU A JOB?

02: 51 PM 18 A.

LEWIS DID, MR. KILLINGSWORTH.

02:51 PM 19 Q. 02:51 PM 20 A.

AND DID YOU TAKE IT? YES.

02:51 PM 21 Q.

DID THEY OFFER

02: 51 PM 22

AND WHERE WAS THAT JOB?

02: 51 PM 23 A. 02: 51 PM 24 Q.

IN THE CLEANING ROOM. DID THEY OFFER YOU ANY OTHER JOBS?

02: 51 PM 25 A.

NO.

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02: 51 PM 1 Q.

DID THEY TELL YOU ABOUT OTHER EMPLOYMENT

02: 51 PM 2 OPPORTUNITIES AT LUFKIN?

02: 51 PM 3 A.

NO.

02:51 PM 4 Q.

DID THEY DESCRIBE TO YOU THE DIFFERENCE IN WORK

02:51 PM 5 CONDITIONS BETWEEN THE FOUNDRY, POWER TRANSMISSION,

02:51 PM 6 TRAILER AND THE OILFIELD DIVISION?

02:51 PM 7 A.

NO.

02:51 PM 8 Q.

WHY DID YOU TAKE THAT JOB?

02:52 PM 9 A.

I NEEDED A JOB TO SUPPORT MY FAMILY.

02: 52 PM 10 Q.

DID ANYBODY STEER YOU INTO THE FOUNDRY OR CHANNEL

02: 52 PM 11 YOU INTO THE FOUNDRY?

02: 52 PM 12

MR. HAMEL: OBJECTION, YOUR HONOR.

02:52 PM 13

THE COURT: SUSTAINED.

02: 52 PM 14

YOU WERE OFFERED A JOB, YOU WERE TOLD IT WAS IN

02: 52 PM 15 THE CLEANING ROOM IN THE FOUNDRY, AND YOU WERE ASSIGNED

02: 52 PM 16 THERE?

02: 52 PM 17

IS THAT CORRECT?

02: 52 PM 18 02:52 PM 19

THE WITNESS: YES, SIR. YES, SIR. THE COURT: SO NO ONE STEERED YOU THERE, YOU HAD

02:52 PM 20 THE OPPORTUNITY TO ACCEPT IT OR REJECT IT, IS THAT TRUE?

02:52 PM 21

THE WITNESS: YES.

02:52 PM 22

THE COURT: THANK YOU.

02: 52 PM 23 BY MR. GARRIGAN:

02: 52 PM 24 Q. 02: 52 PM 25 A.

WELL, WERE YOU OFFERED ANY OTHER JOB OPTIONS THERE? NO.

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02:52 PM 1

THE COURT: HAVE YOU EVER SINCE YOU'VE BEEN

02:52 PM 2 THERE?

02:52 PM 3

THE WITNESS: I'VE BIDDED ON JOBS, BUT I WAS --

02: 52 PM 4 DIDN'T GET THEM.

02:52 PM 5

THE COURT: OKAY.

02:52 PM 6 BY MR. GARRIGAN:

02:52 PM 7 Q.

AND HAVE YOU BEEN WORKING IN THE FOUNDRY EVER SINCE?

02:52 PM 8 A.

YES.

02: 52 PM 9 Q.

TELL ME, WOULD YOU RECOMMEND TO ANYBODY TO WORK IN

02: 53 PM 10 THE FOUNDRY?

02 : 53 PM 11 A •

NO. NO.

02:53 PM 12

THE COURT: WHAT'S YOUR RATE OF PAY?

02:53 PM 13

THE WITNESS: TWELVE EIGHTY-THREE.

02:53 PM 14

THE COURT: IS THAT A MONTH, A YEAR, AN HOUR OR

02: 53 PM 15 WHAT?

02:53 PM 16 02:53 PM 17

THE WITNESS: AN HOUR. THE COURT: ALL RIGHT.

02: 53 PM 18 BY MR. GARRIGAN:

02:53 PM 19 Q.

TELL US ABOUT THE CLEANING ROOM, WILL YOU, MR.

02: 53 PM 20 DEASON? WHAT'S IT LIKE?

02:53 PM 21 A.

IT'S DIRTY, IT'S HARD, HOT, COLD IN THE WINTER.

02:53 PM 22
02:53 PM 23

IT'S JUST A PHYSICAL "GRUISING" JOB. Q. ALL RIGHT. WELL, PHYSICALLY, HOW BIG IS THE

02: 53 PM 24 02: 53 PM 25

CLEANING ROOM?

A.

IT'S NOT REALLY THAT BIG.

I MEAN, IT'S -- IT'S NOT

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02:53 PM 1 BIG AT ALL.

02:53 PM 2 Q.

IS IT BIGGER THAN THIS ROOM?

02:53 PM 3 A.

JUST A LITTLE BIT BIGGER.

02:53 PM 4 Q.

HOW MANY PEOPLE WORK THERE ON A TYPICAL SHIFT?

02:53 PM 5 A.

ON MY SHIFT IT'S FIFTY-FIVE.

02:53 PM 6 Q.

AND WHAT DO YOU DO THERE? WHAT IS THE PROCESS GOING

02: 54 PM 7 ON IN THE CLEANING ROOM?

02:54 PM 8 A.

WE CHIP AND GRIND. WHAT IT IS, WE FIX CASTINGS THAT

02:54 PM 9 02: 54 PM 10

HAVE GOT "BURN-IN" ON THEM, KNOTS, SORT OF GRIND IT DOWN, MAKE IT SMOOTH, MAKE IT PRETTY.

02: 54 PM 11 Q.

OKAY. THESE ARE IRON CASTINGS?

02: 54 PM 12 02: 54 PM 13 02: 54 PM 14

A. VERY HEAVY IRON CASTINGS. Q. AND BY CHIPPING AND GRINDING, YOU CHIP AND YOU GRIND TO REMOVE IMPERFECTIONS?

02: 54 PM 15 A.

RIGHT.

02:54 PM 16 Q.

AND THIS IS RIGHT AFTER THE METAL COMES OUT OF THE

02: 54 PM 17 MOLD?

02: 54 PM 18 A.

YEAH. THEY ALLOW A TWENTY-FOUR-HOUR COOLING PERIOD

02:54 PM 19 AND THEN WE WORK ON IT.

02: 54 PM 20

THE COURT: WHAT PIECES WERE IN THE MOLD, I

02:54 PM 21 MEAN--

02: 54 PM 22

THE WITNESS: YOU'VE GOT COUNTERWEIGHTS, YOU'VE

02: 54 PM 23 GOT HOUS ES, COVERS, YOU'VE GOT CRANKS, YOU'VE GOT SADDLES,

02: 54 PM 24 YOU'VE GOT --

02: 54 PM 25

THE COURT: WELL, I MEAN WHAT DIVISION DO THEY

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02: 54 PM 1 GO TO? IS THIS OILFIELD?

02: 55 PM 2

THE WITNESS: MOST -- WELL, CRANKS AND SADDLES

02: 55 PM 3 AND HOUSES I SUPPOSE GO TO THE OILFIELD, YOU KNOW.

02: 55 PM 4 BY MR. GARRIGAN:

02:55 PM 5 Q.

HOW BIG ARE THESE PIECES OF METAL, THESE CASTINGS?

02:55 PM 6 A. OH, THE CRANKS ARE LARGE. YOU HAVE LARGE ONES, YOU

02:55 PM 7 HAVE MEDIUM ONES, YOU HAVE SMALL ONES, BUT THEy'RE VERY

02:55 PM 8 HEAVY.

02:55 PM 9 Q. 02:55 PM 10 A.

THEy'RE SOLID CHUNKS OF METAL? YES.

02:55 PM 11 Q.

DO THEY WEIGH AS MUCH AS A CAR?

02 : 55 PM 12 A.

PROBABLY MORE.

02:55 PM 13

THE COURT: HOW ARE THEY TRANSPORTED?

02: 55 PM 14

THE WITNESS: WE USE A CRANE.

02:55 PM 15

THE COURT: THEy'RE TRANSPORTED BY AN OVERHEAD

02: 55 PM 16 CRANE?

02: 55 PM 17

THE WITNESS: YEAH. WE USE A FORKLIFT TO BRING

02: 55 PM 18 THEM IN, AND THEN WE PICK THEM UP BY A CRANE AND MOVE THEM

02: 55 PM 19 02:55 PM 20

AROUND WITH A CRANE, AN OVERHEAD CRANE. THE COURT: ALL RIGHT, SIR.

02: 55 PM 21 BY MR. GARRIGAN:

02: 55 PM 22 Q.

OKAY. AND WHAT DO THESE CASTINGS LOOK LIKE BEFORE

02: 55 PM 23 YOU CLEAN THEM?

02:55 PM 24 A.

OH, THEy'RE IN BAD SHAPE BEFORE THEY GET TO US. I

02:56 PM 25 MEAN, YOU'VE GOT "BURN-IN" ON THEM, I MEAN, YOU'VE GOT

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02: 56 PM 1 KNOTS.

02:56 PM 2 Q.

WELL, WHAT IS "BURN-INS"?

02: 56 PM 3 A.

WHERE SAND JUST DONE BURNED INTO THE CASTING AND

02: 56 PM 4 IT'S JUST STUCK, AND YOU HAVE TO GET IT OFF.

02:56 PM 5 Q.

HOW DO YOU GET IT OFF?

02:56 PM 6 A.

WITH A CHIPPING GUN.

02:56 PM 7 Q.

AND THE CHIPPING GUN -- EXPLAIN HOW A CHIPPING GUN

02:56 PM 8 WORKS.

02:56 PM 9 A.

IT'S SORT OF LIKE A JACKHAMMER IN A SENSE, BUT IT'S

02: 56 PM 10 JUST SMALLER, AND WHAT IT DOES IS, IT CHIPS, IT CHIPS OFF

02: 56 PM 11 THE "BURN-IN" THAT'S BURNED IN ON THE CASTING. YOU COULD

02: 56 PM 12 USE IT TO REMOVE IT WHEREVER YOU ARE CHIPPING AND IT WILL

02: 56 PM 13 REMOVE IT OFF.

02: 56 PM 14 Q.

SO IT'S GOT LIKE A JACKHAMMER WITH A CHISEL ON IT?

02: 56 PM 15 A.

EXACTLY.

02: 56 PM 16 Q.

BUT IT'S SOMETHING THAT YOU HOLD IN YOUR HANDS?

02: 56 PM 17 A.

YES.

02:56 PM 18 Q.

IT'S NOT LIKE A JACKHAMMER THAT YOU CAN JUST REST ON

02:56 PM 19 THE

02:57 PM 20 A.

NO, IT'S NOT LIKE THAT.

02:57 PM 21 Q.

WHAT OTHER TOOLS DO YOU USE?

02:57 PM 22 A.

WE HAVE A LONG SQUEEZER, WE HAVE A TWO-INCH. WE

02: 57 PM 23 HAVE A CONE GRINDER AND A GRINDER. THAT'S PRETTY MUCH

02: 57 PM 24 02: 57 PM 25

WHAT WE USE. THE COURT:

ARE THEY PNEUMATIC OR ELECTRIC?

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02:57 PM 1

THE WITNESS: AIR, THEy'RE RUN BY AIR.

02:57 PM 2

THE COURT: AIR?

02:57 PM 3

THE WITNESS: YES.

02: 57 PM 4 BY MR. GARRIGAN:

02:57 PM 5 Q.

YOU TALK ABOUT A SQUEEZER?

02:57 PM 6 A.

UH-HUH.

02:57 PM 7 Q.

IS THAT A KIND OF GRINDING MACHINE?

02:57 PM 8 A.

YES, IT'S JUST A LONG, A LONG GRINDER THAT'S GOT AN

02:57 PM 9 EXTENSION ON IT. WE JUST CALL IT A LONG SQUUEZER GRINDER.

02: 57 PM 10 Q.

OKAY. HOW -- YOU SAID IT WAS DIRTY IN THERE. TELL

02:57 PM 11 US HOW DIRTY IT IS IN THE CLEANING ROOM.

02:57 PM 12 A.

IT'S SO DIRTY YOU CAN'T SEE THE FLOOR. I MEAN, YOU

02:57 PM 13 LOOK UP OVERHEAD, YOU'VE GOT DIRT LAYING ON BEAMS, YOU'VE

02:57 PM 14 GOT DIRT LAYING ON THE HEATER BLOWERS. IT'S THICK, YOU

02:57 PM 15 KNOW.

02:58 PM 16 Q.

HOW THICK?

02: 58 PM 17 A.

IF THIS IS THE BEAM, YOU'VE GOT DIRT STANDING UP

02: 58 PM 18 THIS HIGH, YOU KNOW. I MEAN --

02:58 PM 19 Q. 02:58 PM 20 A.

FIVE, SIX, EIGHT INCHES? AT LEAST.

02: 58 PM 21 Q.

HOW ABOUT THE FLOOR? IS IT COVERED WITH --

02: 58 PM 22 A.
02:58 PM 23 Q. 02: 58 PM 24 A.

IT'S COVERED. HOW DEEP IS IT ON THE FLOOR? ABOUT THREE, FOUR OR SO. IT'S DEEP ENOUGH FOR YOU

02:58 PM 25 TO MAKE A PRINT AND IT COME UP ON YOUR BOOT A LITTLE BIT.

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02:58 PM 1 Q.

IT COMES UP OVER THE TOP OF YOUR BOOT?

02:58 PM 2 A.

OVER THE SOLE OF IT, THE HEEL AND STUFF. IT'S

02:58 PM 3 PRETTY DEEP.

02:58 PM 4 Q. AND THIS DIRT THAT WE'RE TALKING ABOUT, IS IT HEAVY,

02:58 PM 5 PACKED DIRT? IS IT -- WHAT IS ITS CONSISTENCY?

02:58 PM 6 A.

OH, IT'S SORT OF LIKE POWDER. YOU GRIND, SO IT

02:58 PM 7 TURNS INTO LIKE A FINE LITTLE POWDER LIKE DIRT.

02:58 PM 8 Q.

IS IT JUST LYING ON THE GROUND OR --

02:58 PM 9 A. 02: 58 PM 10 Q.

IT'S JUST LYING THERE. DO YOU SEE IT ANYWHERE ELSE?

02: 58 PM 11 A.

EVERYWHERE YOU LOOK IN THE CLEANING ROOM IT'S DIRTY.

02: 59 PM 12 I MEAN, THE MAIN BAY, THE FLOOR IS COVERED. I MEAN,

02: 59 PM 13 EVERYWHERE YOU LOOK IT'S DIRTY.

02:59 PM 14 Q.

IS IT IN THE AIR?

02:59 PM 15 A.

DEFINITELY.

02: 59 PM 16

THE COURT: DO YOU WEAR MASKS?

02: 59 PM 17

THE WITNESS: YES, SIR.

02: 59 PM 18 BY MR. GARRIGAN:

02:59 PM 19 Q.

WHAT KIND OF MASKS DO YOU WEAR?

02:59 PM 20 A.

WE WEAR THE -- I THINK THEY ARE 3M MASKS THAT ARE

02: 59 PM 21 SUPPOSED TO FIT YOUR NOSE AND COVER THIS PART OF YOUR

02:59 PM 22 CHIN.

02:59 PM 23

WE WEAR A RESPIRATOR, A HELMET, BUT -- IT'S

02:59 PM 24 SUPPOSED TO SEAL, BUT IT DON'T.

02: 59 PM 2 5 Q • OKAY. SO YOU WEAR THE SORT OF PAPER-LIKE DUST

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02: 59 PM 1 MASKS?

02: 59 PM 2 A.

RIGHT.

02:59 PM 3 Q.

THAT COVERS YOUR NOSE DOWN TO BELOW YOUR CHIN?

02:59 PM 4 A.

RIGHT.

02:59 PM 5 Q.

AND IT'S GOT A PIECE OF ELASTIC TO GO BEHIND YOUR

02:59 PM 6 HEAD?

02: 59 PM 7 A.

EXACTLY. IT'S GOT TWO PIECES OF ELASTIC, ONE THAT

02:59 PM 8 FITS HERE AND ONE THAT FITS ON THE TOP.

02: 59 PM 9 Q. 03:00 PM 10 A.

AND ON THE TOP OF ALL THAT YOU WEAR A RESPIRATOR? RIGHT.

03:00 PM 11 Q.

DOES THAT PROTECT YOU FROM THE DUST?

03:00 PM 12 A.

NO.

03:00 PM 13 Q.

IS THE FRONT OF YOUR CHIN COVERED BY BOTH THE

03:00 PM 14 RESPIRATOR AND THE DUST MASK?

03:00 PM 15 A.

YES. THE RESPIRATOR HAS GOT ANOTHER LITTLE FITTING

03:00 PM 16 THAT FITS OVER THE RESPIRATOR, AND WHAT IT IS, IT'S

03:00 PM 17 DESIGNED TO JUST SEAL OFF. AND OUR POLICY IS TO BE

03:00 PM 18 CLEAN-SHAVEN FOR IT TO FIT FLUSH, BUT AT THE END OF THE

03:00 PM 19 DAY YOU'VE STILL GOT DUST IN YOUR NOSE, I MEAN --

03:00 PM 20 Q.

TELL ME, AFTER YOU'RE DONE WORKING, IF YOU TOOK OFF

03:00 PM 21 THE RESPIRATOR, IF YOU TOOK OFF THE DUST MASK AND YOU

03:00 PM 22
03:00 PM 23 03:00 PM 24 03:00 PM 25

WIPED OFF THE FRONT OF YOUR CHIN WITH A TISSUE --

A.

IT WOULD BE BLACK.

Q. AND THAT'S THE MOST PROTECTED PART OF YOUR FACE?

A. SUPPOSED TO BE.

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03:01 PM 1 Q.

WHEN YOU BLOW YOUR NOSE, WHAT COLOR IS YOUR TISSUE?

03:01 PM 2 A.

WELL, IT'S GOT -- THE DUST THAT YOU DONE INHALED

03:01 PM 3 WOULD COME UP IF YOU BLOW YOUR NOSE.

03:01 PM 4

IF I WAS TO WIPE MY NOSE RIGHT NOW, IT WOULD BE

03:01 PM 5 BLACK. YOU COULD SEE DUST PARTICLES COMING OUT OF THE

03:01 PM 6 DUST THAT I HAVE BREATHED IN.

03:01 PM 7 Q.

OKAY. HAS THAT BEEN TRUE SINCE YOU STARTED WORKING

03:01 PM 8 THERE IN '94?

03:01 PM 9 A. 03:01 PM 10 Q.

YES. WHAT'S THE LONGEST VACATION YOU CAN TAKE?

03 :01 PM 11 A.

HERE RECENTLY THEy'VE BEEN PUTTING UP A SIGN SAYING

03:01 PM 12 THAT YOU CAN ONLY GO ON VACATION WHEN THE WORKLOAD SLOWS

03:01 PM 13 DOWN. WHEN WORK IS -- WHEN WE'VE GOT A LOT OF WORK, THEY

03:01 PM 14 PUT UP A SIGN "NO VACATION."

03 :01 PM 15 Q •

BUT WHEN YOU DO TAKE A VACATION, HOW LONG ARE YOUR

03:01 PM 16 VACATIONS?

03:01 PM 17 A.

MAYBE FOUR DAYS OR SO.

03:02 PM 18 Q.

SO AT THE END OF FOUR DAYS, WHEN YOU HAVEN'T BEEN

03:02 PM 19 WORKING FOR FOUR DAYS, AND YOU GO BACK TO WORK, IF YOU

03:02 PM 20 BLOW YOUR NOSE, WHAT COLOR IS THE TISSUE?

03: 02 PM 21 A.

BLACK DUST WOULD COME OUT.

03:02 PM 22 Q.

PLEASE TELL THE COURT, WOULD YOU, HOW PHYSICALLY

03:02 PM 23 DEMANDING THE WORK IS TO BE A CHIPPER/GRINDER?

03:02 PM 24 A.

IT'S VERY DEMANDING. IT'S -- IT BREAKS -- IT BREAKS

03:02 PM 25 DOWN YOUR LEGS, YOUR KNEES, YOUR HANDS, YOUR SHOULDERS,

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03:02 PM 1 03:02 PM 2 03:02 PM 3 03:02 PM 4 03:02 PM 5 03:02 PM 6 03:03 PM 7 03:03 PM 8 03:03 PM 9 03 :03 PM 10 03 :03 PM 11 03 :03 PM 12 03:03 PM 13 03:03 PM 14 03:03 PM 15

201

YOUR ARMS, EVERYTHING. IT'S PHYSICAL.

Q. DO YOU HAVE ANY INJURIES?

A. YES.

Q.

WHAT?

A. MY WRIST IS SO SORE RIGHT NOW UNTIL I CAN'T STAND

ANYTHING TO TOUCH IT.

Q. WHAT'S THE TEMPERATURE LIKE IN THERE, IN THE

CLEANING ROOM?

A. WELL, IT ALL DEPENDS ON WHAT IT IS OUTSIDE. IF

IT'S -- SAY IT'S NINETY OUTSIDE, IT'S WELL OVER A HUNDRED

IN THERE BECAUSE OF THE IRON HOLDING THE HEAT.

AND IF IT'S COLD, I MEAN, IT'S COLD, YOU KNOW,

BECAUSE YOU'VE GOT SO MUCH METAL IN THE BUILDING, IT JUST

HOLDS THE COLD, AND IT HOLDS THE HEAT.

Q. IT'S NOT INSULATED IN THERE?

03:03 PM 16 A.

I HAVEN'T SEEN ANY.

03:03 PM 17 Q. THE CHIPPER GUN THAT YOU TALKED ABOUT, IT'S GOT A

03:03 PM 18 CHISEL ON THE FRONT OF IT?

03:03 PM 19 A. 03:03 PM 20 Q. 03:03 PM 21 A. 03:03 PM 22 Q. 03:03 PM 23 A. 03:03 PM 24 Q.

RIGHT. THAT POUNDS BACK AND FORTH? EXACTLY. HOW MUCH DOES THE CHIPPER GUN WEIGH? I WOULD SAY TWENTY POUNDS. AND IS IT LIKE A JACKHAMMER, WHERE IT BASICALLY

03: 03 PM 25 WORKS AGAINST ITS OWN WEIGHT?

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03:03 PM 1 A.

NO, IT WORKS AGAINST YOUR HANDS AND YOUR WRISTS.

03:04 PM 2 WHAT IT IS, YOU'RE HOLDING IT, AND IT'S PUSHING FORWARD,

03:04 PM 3 BUT THE IMPACT OF IT IS COMING BACK.

03:04 PM 4 Q.

IS IT POSSIBLE TO USE IT WHERE YOU CAN JUST HOLD IT

03:04 PM 5 VERTICALLY SO THAT ITS WEIGHT IS WHAT HOLDS IT DOWN?

03:04 PM 6 A.

IF IT IS A WAY, I HAVEN'T FOUND IT YET. I HAVEN'T

03:04 PM 7 SEEN THAT DONE YET.

03:04 PM 8 Q.

DO YOU HAVE TO USE IT AT DIFFERENT ANGLES?

03:04 PM 9 A.

SOMETIMES.

03:04 PM 10 Q.

NOW, I'VE NEVER USED ONE OF THOSE, AND I DON'T KNOW

03:04 PM 11 IF THE COURT HAS, BUT LET ME --

03:04 PM 12

THE COURT: I CAN ASSURE YOU I HAVEN'T.

03: 04 PM 13 BY MR. GARRIGAN:

03: 04 PM 14 Q.

ONE OF THE MORE OBNOXIOUS TOOLS THAT I HAVE COME

03:04 PM 15 ACROSS, AND A LOT OF PEOPLE HAVE, IS A CHAINSAW.

03: 04 PM 16 A.

UH-HUH.

03 : 04 PM 17 Q •

HOW DOES A CHAINSAW

03:04 PM 18

THE COURT: I'M SCARED OF THOSE, TOO. I'VE

03:04 PM 19 GRADUATED TO A WHEELBARROW.

03:05 PM 20

MR. GARRIGAN: WELL, THE ONLY THING I CAN THINK

03: 05 PM 21 TO COMPARE THIS TO IS A CHAIN SAW . BUT

03:05 PM 22

THE COURT: WELL, IT'S GOT A LOT OF MOVING

03:05 PM 23 PARTS. A WHEELBARROW HAS ONE MOVING PART. A RAKE HAS

03:05 PM 24 NONE. SO I CAN OPERATE A RAKE OR A SHOVEL OR A

03:05 PM 25 WHEELBARROW IF NECESSARY, BUT IF YOU GET A LOT MORE MOVING

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19

09:30 AM 1 IT RUNS A TRAILER OPERATION, IT RUNS AN OILFIELD

09:30 AM 2 MANUFACTURING PLANT, IT RUNS A POWER TRANSMISSION PLANT,

09:30 AM 3 AND IT'S THAT FOUR BUSINESSES PLUS THEIR CORPORATE ENTITY

09:30 AM 4 THAT REQUIRE US TO PUT ON A SUBSTANTIAL AMOUNT OF EVIDENCE

09:30 AM 5 WITH RESPECT TO THE EMPLOYMENT PRACTICES IN EACH OF THOSE

09:30 AM 6 DIVISIONS SO THE COURT CAN FULLY UNDERSTAND HOW THEY

09:30 AM 7 INTERRELATE AND HOW THEY RELATE WITH RESPECT TO THE

09:30 AM 8 ALLEGATIONS MADE BY THE PLAINTIFFS THAT BLACKS ARE

09:30 AM 9 DISCRIMINATED AGAINST AND THAT LUFKIN'S EMPLOYMENT 09: 30 AM 10 PRACTICES CREATE A DISPARATE IMPACT.

09: 30 AM 11

LET ME BEGIN BY SAYING THOUGH THAT

09: 30 AM 12

YOUR HONOR MAY RECALL THAT THE CLASS

09: 31 AM 13 CERTIFICATION IN THIS CASE INDICATED THAT THE PLAINTIFFS

09:31 AM 14 WERE GOING TO PROVE A CASE OF DISPARATE IMPACT IN

09: 31 AM 15 EVALUATIONS, DEMOTIONS, TERMINATIONS, LAYOFFS, RECALLS AND

09: 31 AM 16 REHIRES, AND AS THE EVIDENCE HAS DEVELOPED, AND AS THE

09: 31 AM 17 PLAINTIFF I THINK CONCEDES ON OPENING STATEMENT, THEY

09:31 AM 18 DON'T INTEND TO INTRODUCE ANY OF THAT EVIDENCE. THEY

09: 31 AM 19 DON'T HAVE A CASE TO SHOW THAT THERE IS A DISPARATE IMPACT

09: 31 AM 20 WITH RESPECT TO THOSE EMPLOYMENT PRACTICES. THEIR

09: 31 AM 21 LIMITATION OF THEIR CASE IS TO INITIAL ASSIGNMENTS, TO

09: 31 AM 22 TEMPORARY TRAINING OPPORTUNITIES AND TO PROMOTIONAL

09: 31 AM 23 OPPORTUNITIES.

09:31 AM 24

IT IS IMPORTANT FOR THE COURT TO KNOW THAT

r

09:31AM 25 LUFKIN'S BUSINESSES ARE QUITE SIGNIFICANTLY DIFFERENT, AND

WENDELL R. PARKS, OFFICIAL COURT REPORTER 409-654-2834

 
 Case 9:97-cv-00063-HC Document 387 Filed 12/16/2003 Page 1 217 TRANSCRIPT OF PROCEEDINGS

FIIt r!:.". D - ',.-.-.I.f."~",:";f)\ rr~\ 1 U.S. L1STRICT r·[jU~T

1

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF T£9aA~C 16 Pl·1 1= 10

2

LUFKIN DIVISION

3 SYLVESTER MCCLAIN, ET AL, ) CIVIL DOCKET NO.

PLAINTIFFS 4

) )

9: 97-CV-~~ _._.. -+~~---

)

5 VS

) BEAUMONT, TEXAS

)

6

)

)

7 LUFKIN INDUSTRIES, INC., ) DECEMBER 5, 2003

DEFENDANT

) 9:00 A.M.

8

********************************************************

9

TRANSCRIPT OF BENCH TRIAL

10

DAY 2

BEFORE THE HONORABLE HOWELL COBB

11

UNITED STATES DISTRICT JUDGE

12 *******************************************************

13 APPEARANCES:

14 FOR THE PLAINTIFFS: 15 16 17 18 19 20

TIMOTHY GARRIGAN
STUCKEY, GARRIGAN & CASTETTER
P.O. BOX 631902 NACOGDOCHES, TX 75963-1902
TERESA DEMCHAK DARCI BURRELL JOSHUA KONECKY MORRIS BALLER
SAPERSTEIN GOLDSTEIN DEMCHAK &
BALLER 300 LAKESIDE DRIVE, SUITE 1000 OAKLAND, CA 94612

21
22
23
24
.- ~
1 25
31

FOR THE DEFENDANT:

DOUGLAS HAMEL
CHRISTOPHER BACON MICHELLE MAHONY
VINSON & ELKINS
1001 FANNIN STREET, SUITE 2300 HOUSTON, TX 77002-6760

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1 COURT REPORTER: 2 3

WENDELL R. PARKS CSR/CP/CM
FEDERAL COURT REPORTER ROOM 103 FEDERAL COURTHOUSE 300 WILLOW BEAUMONT, TX 77701

4

5

PROCEEDINGS RECORDED BY MECHANICAL STENOGRAPHY;

6

TRANSCRIPT PRODUCED BY COMPUTER

7

8

9

10

11

12

13

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15

16

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18

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3

1

INDEX

2 WITNESSES FOR THE
3 PLAINTIFF: TAMI POULAN
4 LISA DUNGAN KELVIN POPE
5

DIRECT CROSS REDIR REC RED REC

4

40 64 73 77 80

81 134 183

185 202 214 217

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

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4

1 DECEMBER 5, 2003

9:03 A.M.

09:03 AM 2

THE COURT: WHAT DO YOU HAVE NEXT, SIR?

09:03 AM 3

MR. GARRIGAN: TAMI POULAN. I THINK SHE'S

09:03 AM 4 OUTSIDE.

09:04 AM 5

THE MARSHAL: I'LL GET HER, SIR.

6

7

TAMI POULAN, PLAINTIFF WITNESS, SWORN

8

9

DIRECT EXAMINATION

10 BY MR. GARRIGAN:

09:06 AM 11 Q. WOULD YOU PLEASE STATE YOUR NAME FOR THE RECORD?

09: 06 AM 12 A • 09:06 AM 13 Q. 09:06 AM 14 A.

TAMI POULAN. MS. POULAN, WHERE DO YOU WORK? I WORK AT THE -- IT'S NOW CALLED ANGELINA COUNTY

09:06 AM 15 WORKFORCE SOLUTIONS FOR THE TEXAS WORKFORCE COMMISSION. 09:06 AM 16 Q. AND I GUESS WITH ONE HIATUS YOU'VE WORKED FOR THE

09:06 AM 17 TEXAS WORKFORCE COMMISSION SINCE '93?

09:06 AM 18 A. YES. THERE WAS A BREAK THERE BETWEEN '96 AND 197,

09:06 AM 19 BUT OFF AND ON SINCE THEN. 09:06 AM 20 Q. ALL RIGHT. THE FIRST THING I WOULD LIKE TO ASK YOU

09:06 AM 21 ABOUT IS SOME OF THE EXHIBITS IN FRONT OF YOU. DO YOU SEE

09:06 AM 22 THOSE TWO BINDERS?

09:06 AM 23 A. 09:06 AM 24 Q. 09: 07 AM 25 A.

UH-HUH. WOULD YOU TRY TO LOCATE PLAINTIFF'S EXHIBIT 10? OKAY.

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09:07 AM 1 Q. ALL RIGHT. WOULD YOU DESCRIBE THAT EXHIBIT, PLEASE?

09:07 AM 2 A.

IT IS FROM LUFKIN INDUSTRIES, THEIR ENTRY-LEVEL

09:07 AM 3 EMPLOYMENT QUALIFICATIONS FOR GENERAL FOUNDRYMEN, HELPERS

09:07 AM 4 AND LABORERS.

09:07 AM 5 Q. ALL RIGHT. AND IS THAT ONE OF THE DOCUMENTS YOU USE

09:07 AM 6 IN YOUR WORK?

09:07 AM 7 A.

YES.

09:07 AM 8 Q.

IN PARTICULAR, DOES THAT HELP YOU TO GUIDE YOUR

09:07 AM 9 SELECTION OF REFERRALS FOR LUFKIN INDUSTRIES?

09:07 AM 10 A.

A GUIDE IN WRITING THE JOB ORDERS, YES.

09:07 AM 11 Q.

ALL RIGHT.

09: 07 AM 12

MR. GARRIGAN: WE WOULD ASK THAT PLAINTIFF'S

09:08 AM 13 EXHIBIT 10 BE ADMITTED.

09:08 AM 14

THE COURT: ANY OBJECTION?

09:08 AM 15

MR. HAMEL: NO OBJECTION, YOUR HONOR.

09:08 AM 16

THE COURT: IT'S ADMITTED AS MARKED.

09:08 AM 17 BY MR. GARRIGAN:

09:08 AM 18 Q.

WOULD YOU LOOK NOW AT PLAINTIFF'S EXHIBIT II?

09:08 AM 19 A.

OKAY.

09:08 AM 20 Q.

OKAY. NOW, THAT'S CONSIDERABLY BIGGER, SOMEWHERE

09:08 AM 21 BETWEEN A HUNDRED AND TWO HUNDRED PAGES. IS THAT WHAT

09:08 AM 22 YOU I RE LOOKING AT?

09:08 AM 23 A.

YES.

09:08 AM 24 Q.

OKAY. AND WOULD YOU DESCRIBE THOSE RECORDS FOR THE

09:08 AM 25 RECORD?

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09:08 AM 1 A. THIS ARE PURGED FILES THAT CAME OFF THE HISTORY FILE

09:08 AM 2 AT THE TEXAS WORKFORCE COMMISSION IN AUSTIN.

09:08 AM 3 Q. OKAY. AND I BELIEVE WE'VE REFERRED TO THESE IN YOUR

09:08 AM 4 DEPOSITION AND THROUGHOUT THIS CASE AS TWC JOB ORDERS?

09:08 AM 5 A.

YES. PURGED ORDERS, YES.

09:08 AM 6 Q.

IS THAT A FAIR WAY FOR US TO REFER TO THEM?

09:08 AM 7 A.

YES.

09:08 AM 8 Q. ALL RIGHT. NOW, DO THESE DOCUMENTS IN PLAINTIFF'S

09:09 AM 9 EXHIBIT 11, DO THOSE REFLECT THE ACTIVITIES OF YOUR

09:09 AM 10 AGENCY?

09:09 AM 11 A.

YES.

09: 09 AM 12 Q.

ALL RIGHT.

09:09 AM 13

MR. GARRIGAN: I WOULD ASK THAT PLAINTIFF'S

09:09 AM 14 EXHIBIT 11 BE ADMITTED.

09:09 AM 15

THE COURT: ANY OBJECTION?

09:09 AM 16

MR. HAMEL: YOUR HONOR, MAY I TAKE THIS WITNESS

09:09 AM 17 ON VOIR DIRE?

09:09 AM 18

THE COURT: NO. YOU CAN TAKE HER ON CROSS. BUT

09:09 AM 19 IF THERE'S AN OBJECTION, STATE IT.

09:09 AM 20

MR. HAMEL: YOUR HONOR, WE HAVE AN OBJECTION.

09:09 AM 21 NO FOUNDATION. THIS WITNESS IS NOT FAMILIAR WITH THESE

09:09 AM 22 DOCUMENTS. SHE USES A COMPUTER SCREEN, WHICH IS VERY

09:09 AM 23 09:09 AM 24

DIFFERENT FROM THESE DOCUMENTS. THE COURT: TELL ME WHAT THESE DOCUMENTS ARE AND

09:09 AM 25 HOW THEy'RE KEPT AND HOW YOU HAPPENED TO BE ABLE TO

WENDELL R. PARKS, OFFICIAL COURT REPORTER 409-654-2834

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09:09 AM 1 IDENTIFY THEM, PLEASE, MA'AM.

09:09 AM 2

THE WITNESS: OKAY. WELL, ALL OF THE

09:09 AM 3 INFORMATION IT LOOKS LIKE BASICALLY IS INFORMATION THAT

09:09 AM 4 I --

09:09 AM 5

AND I DO WORK OFF A COMPUTER SCREEN, LIKE HE

09:09 AM 6 SAID. I MEAN, I DO NOT SEE IT IN THIS FORM, BUT THIS IS

09:09 AM 7 WHAT IT TURNS OUT TO BE WHEN IT GETS TO AUSTIN INTO THE

09:09 AM 8 PURGED FILE.

09:09 AM 9 09:09 AM 10 09:09 AM 11

HONOR.

MR. HAMEL: WE WITHDRAW OUR OBJECTION, YOUR THE COURT: THE OBJECTION IS WITHDRAWN. EXHIBIT

09:10 AM 12 11 IS ADMITTED.

09:10 AM 13 BY MR. GARRIGAN: 09:10 AM 14 Q. ALL RIGHT. WOULD YOU TURN NOW TO PLAINTIFF'S

09:10 AM 15 EXHIBIT 127

09:10 AM 16

WOULD YOU DESCRIBE THAT RECORD FOR THE COURT?

09:10 AM 17 A. THIS RECORD I THINK CAME FROM AN EMPLOYMENT

09:10 AM 18 SERVICE'S MANUAL ON PROBABLY TRAINING THAT'S GIVEN MAYBE

09:10 AM 19 TO SOME EMPLOYEES WHEN THEY FIRST START AT THE WORKFORCE

09: 10 AM 20 CENTER.

09: 10 AM 21 Q. ALL RIGHT. AND DOES PLAINTIFF'S EXHIBIT 12 DESCRIBE

09:10 AM 22 THE DIFFERENT CODES THAT APPEAR ON THE JOB ORDERS IN

09:10 AM 23 09:10 AM 24 09: 10 AM 2 5

PLAINTIFF'S EXHIBIT 117

A.

YES.

Q. ALL RIGHT.

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09:10 AM 1

MR. GARRIGAN: I WOULD ASK THAT PLAINTIFF'S

09:11 AM 2 EXHIBIT 12 BE ADMITTED.

09:11 AM 3

THE COURT: ANY OBJECTION?

09: 11 AM 4

MR. HAMEL: NO, YOUR HONOR.

09: 11 AM 5

THE COURT: IT'S ADMITTED AS MARKED.

09:11 AM 6 BY MR. GARRIGAN:

09: 11 AM 7 Q. WOULD YOU TURN NOW TO PLAINTIFF'S EXHIBIT 13?

09:11 AM 8

DO YOU HAVE THAT IN FRONT OF YOU?

09:11 AM 9 A.

YES.

09:11 AM 10 Q.

A FEW PAGES BEHIND THAT IS EXHIBIT 15. DO YOU SEE

09:11 AM 11 THAT ALSO?

09:11 AM 12 A.

YES.

09:11 AM 13 Q.

OKAY. WOULD YOU DESCRIBE THOSE EXHIBITS FOR THE

09:11 AM 14 COURT?

09:11 AM 15 A.

THE FIRST ONE, 13, IS THE WORKFORCE CENTER

09:12 AM 16 APPLICATION I BELIEVE THAT WE USED WHEN OUR OFFICE WAS

09: 12 AM 17 IDENTIFIED AS THE TEXAS WORKFORCE COMMISSION, AND THEN NOW

09: 12 AM 18 THAT WE HAVE BEEN PRIVATIZED, WE'RE USING THIS CUSTOMER

09:12 AM 19 INFORMATION DEEP EAST TEXAS WORKFORCE APPLICATION.

09:12 AM 20 Q.

OKAY. AND THAT'S THE ONE MARKED AS EXHIBIT IS?

09:12 AM 21 A.

YES. IT REPLACED 13.

09: 12 AM 22 Q .

ALL RIGHT. AND TOGETHER EXHIBITS 13 AND 15 ARE THE

09:12 AM 23 PAPER RECORDS YOU USE TO GATHER APPLICANT DATA FROM THE

09:12 AM 24 PEOPLE WHO COME IN TO THE WORKFORCE COMMISSION LOOKING FOR

09: 12 AM 25 WORK?

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09:12 AM 1 A.

YES.

09:12 AM 2 Q.

AND YOU GATHER THAT DATA IN ORDER TO ENTER IT ONTO

09:12 AM 3 THE -- INTO YOUR COMPUTER SYSTEM?

09:12 AM 4 A.

YES.

09:12 AM 5

MR. GARRIGAN: I WOULD ASK THAT EXHIBITS 13 AND

09:12 AM 6 15 BE ADMITTED.

09:12 AM 7

THE COURT: ANY OBJECTION?

09:12 AM 8

MR. HAMEL: NO. NO, YOUR HONOR.

09:12 AM 9 09:12 AM 10

THE COURT: THEy'RE ADMITTED AS MARKED. MR. GARRIGAN: THANK YOU.

09:12 AM 11 BY MR. GARRIGAN:

09: 12 AM 12 09:12 AM 13 09:13 AM 14 09:13 AM 15 09:13 AM 16 09:13 AM 17

Q. OKAY. NOW THAT WE HAVE THAT OUT OF THE WAY, MS. POULAN, WHERE DO YOU LIVE? A. IN ETOILE, TEXAS.
THE COURT: WHERE? THE WITNESS: ETOILE. THE COURT: OKAY. THANK YOU.

09: 13 AM 18 BY MR. GARRIGAN:

09:13 AM 19 Q.

WHERE IS THAT IN RELATION TO LUFKIN?

09 : 13 AM 20 A .

IT'S ABOUT TWENTY MILES FROM LUFKIN, ON THE LAKE.

09 : 13 AM 21 Q . 09 : 13 AM 22 A •

ALL RIGHT. WHICH LAKE? SAM RAYBURN.

09: 13 AM 23 Q .

AND YOU LIVE WITH YOUR HUSBAND AND KIDS?

09 : 13 AM 24 A •
09 : 13 AM 2 5 Q .

YES. AND WHAT IS YOUR CURRENT POSITION?

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09:13 AM 1 A.

WORKFORCE DEVELOPMENT SPECIALIST II.

09:13 AM 2 Q. AND HOW LONG HAVE YOU BEEN IN THAT POSITION, JUST

09: 13 AM 3 YOUR BEST ESTIMATE?

09:13 AM 4 A.

I THINK MAYBE SINCE 2001, MAYBE.

09:13 AM 5 Q. ALL RIGHT. WHAT WAS YOUR POSITION BEFORE THEN?

09:13 AM 6 A.

WORKFORCE DEVELOPMENT SPECIALIST I.

09: 13 AM 7 Q.

AND HOW LONG WERE YOU IN THAT POSITION?

09:13 AM 8 A.

PROBABLY ABOUT A YEAR.

09:14 AM 9 Q.

WHAT WAS YOUR POSITION BEFORE WORKFORCE DEVELOPMENT

09:14 AM 10 SPECIALIST I?

09:14 AM 11 A.

I BELIEVE IT WAS AN ADMIN TECH.

09: 14 AM 12

THE COURT: A WHAT?

09:14 AM 13

THE WITNESS: ADMIN TECH, ADMINISTRATIVE --

09:14 AM 14

THE COURT: TECHNICIAN?

09:14 AM 15

THE WITNESS: TECHNICIAN, UH-HUH.

09:14 AM 16 09:14 AM 17

THE COURT: THANK YOU. THE WITNESS: UH-HUH.

09:14 AM 18 BY MR. GARRIGAN:

09: 14 AM 19 Q. AND HOW LONG WERE YOU AN --

09:14 AM 20

THE COURT: I'M NOT FAMILIAR WITH THESE

09:14 AM 21 ABBREVIATIONS.

09: 14 AM 22

THE WITNESS: OKAY.

09: 14 AM 23 BY MR. GARRIGAN:

09 : 14 AM 24 Q• HOW LONG WERE YOU AN ADMINISTRATIVE TECHNICIAN?

09 : 14 AM 2 5 A •

FROM WHEN I RETURNED TO THE AGENCY IN MARCH OF '97

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09:14 AM 1 09:14 AM 2 09:14 AM 3 09:14 AM 4 09:14 AM 5 09:14 AM 6 09:14 AM 7 09:14 AM 8 09:14 AM 9 09:14 AM 10 09: 15 AM 11

11 UNTIL I WAS PROMOTED TO A SPECIALIST I, AND I HONESTLY DON'T KNOW WHAT THE DATE WAS. Q. OKAY. ALL RIGHT. AND WHAT WAS YOUR POSITION BEFORE BEING ADMINISTRATIVE TECHNICIAN? A. AT THE AGENCY I WAS A CLERK III. Q. OKAY. AND IN FACT, BEFORE YOU WERE AN ADMINISTRATIVE TECHNICIAN, IS THAT WHEN THERE WAS A. THE GAP. Q. -- A FEW MONTHS HIATUS IN YOUR WORK? A. UH-HUH. Q. HOW LONG WERE YOU AWAY FROM THE TEXAS WORKFORCE

09:15 AM 12 COMMISSION? 09:15 AM 13 A. IT WAS EIGHT OR NINE MONTHS.

09: 15 AM 14 Q. AND BEFORE THAT, WHAT WAS YOUR POSITION WITH THE

09:15 AM 15 TEXAS WORKFORCE COMMISSION?

09: 15 AM 16 A.

CLERK III.

09: 15 AM 17 Q. ALL RIGHT. AND WHEN DID YOU -- ROUGHLY, AS BEST YOU

09:15 AM 18 CAN ESTIMATE, WHEN WERE YOU A CLERK III, FROM WHEN TO

09:15 AM 19 WHEN?

09:15 AM 20 A. I STARTED IN SEPTEMBER OF '93 AND I LEFT IN JUNE OF

09: 15 AM 21 '96 I THINK IT WAS. 09:15 AM 22 Q. ALL RIGHT. NOW, THROUGHOUT YOUR WORK AT THE TEXAS

09:15 AM 23 WORKFORCE COMMISSION YOU HAVE BEEN INVOLVED AND WORKED

09:15 AM 24 WITH THEIR COMPUTER MATCHING SYSTEM, IS THAT CORRECT?

09:15 AM 25 A. THAT'S CORRECT.

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09:16 AM 1 Q.

12 OKAY. AND WOULD YOU DESCRIBE FOR US YOUR DUTIES IN

09:16 AM 2 YOUR CURRENT POSITION AS A WORKFORCE DEVELOPMENT

09:16 AM 3 SPECIALIST?

09:16 AM 4 A. INTERVIEWING CUSTOMERS WHO ARE LOOKING FOR WORK,

09:16 AM 5 TALKING WITH EMPLOYERS, WRITING JOB ORDERS, JOB DEVELOP

09:16 AM 6 CUSTOMERS TO JOBS EVEN IF THERE'S NOT A JOB ORDER, TRYING

09:16 AM 7 TO FIND THEM WORK. WE HELP WITH WRITING RESUMES, JUST

09:16 AM 8 ANYTHING REALLY INVOLVING, YOU KNOW, EMPLOYMENT. A LOT

09:16 AM 9 09:16 AM 10 09:16 AM 11

OF --

THERE MAY BE -I MAY GO OUT TO A SCHOOL AND SPEAK TO STUDENTS

09:16 AM 12 ON FILLING OUT APPLICATIONS OR HOW TO APPLY FOR JOBS.

09:16 AM 13

IT'S ANYTHING INVOLVING EMPLOYMENT SERVICES.

09:16 AM 14 Q. ALL RIGHT. NOW, YOU REFERRED -- TWO OF THE THINGS

09:16 AM 15 YOU MENTIONED WERE INTERVIEWING APPLICANTS?

09 : 16 AM 16 A .

YES, CUSTOMERS.

09:16 AM 17 Q. ALL RIGHT. THOSE WOULD BE THE INDIVIDUALS LOOKING

09:17 AM 18 FOR WORK?

09:17 AM 19 A.

CORRECT.

09:17 AM 20 Q. AND YOU SAID YOU ALSO ACCEPTED JOB ORDERS, IS THAT

09:17 AM 21 CORRECT?

09:17 AM 22 A.

UH-HUH.

09:17 AM 23 Q.

FOR THE RECORD, AND I'M NOT TRYING TO BE

09:17 AM 24 09:17 AM 25

PARTICULARLY FORMAL, BUT I NEED YOU TO SAY YES OR NO. A. OKAY. YES.

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09:17 AM 1 09:17 AM 2 09:17 AM 3 09:17 AM 4 09:17 AM 5 09:17 AM 6 09:17 AM 7

13 Q. THANK YOU.
WHAT PORTION OF YOUR -WELL, WHEN YOU TALK ABOUT ACCEPTING WORK ORDERS, THAT'S WHEN AN EMPLOYER CALLS YOUR AGENCY AND IS LOOKING FOR CANDIDATES, APPLICANTS FOR EMPLOYMENT? A. THAT, OR THE INTERVIEWER CALLS CUSTOMERS, ASKING IF THEY HAVE -- CALLS EMPLOYERS, ASKING IF THEY HAVE ANY

09:17 AM 8 OPENINGS THEY WOULD LIKE TO LIST WITH THE WORKFORCE

09: 17 AM 9 CENTER.

09:17 AM 10 Q. 09:17 AM 11 A. 09:17 AM 12 Q. 09:17 AM 13 A. 09: 17 AM 14 Q.

OKAY. SO SOMETIMES YOU SOLICIT -YES. -- THE WORK ORDERS? YES. SOMETIMES THE EMPLOYERS CALL YOU?

09:17 AM 15 A. 09:17 AM 16 Q.

YES. ALL RIGHT. AND YOU DO --

09:18 AM 17

DOES YOUR ASSIGNMENT PARTICULARLY CONCERN LUFKIN

09:18 AM 18 INDUSTRIES?

09 :18 AM 19 A • 09 :18 AM 20 Q .

PARTICULARLY CONCERN? WELL, ARE YOU THE PERSON AT THE TEXAS WORKFORCE

09: 18 AM 21 COMMISSION IN LUFKIN THAT IS PRIMARILY ASSIGNED TO LUFKIN 09:18 AM 22 INDUSTRIES?

09:18 AM 23 A. 09 :18 AM 24 Q .

YES. I BELIEVE YOU SAID BEFORE YOU DO ABOUT NINETY-FIVE

09:18 AM 25 PERCENT OF THEIR JOB ORDERS?

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09:18 AM 1 A.

SINCE 2000, YES.

09:18 AM 2 Q. ALL RIGHT. I WOULD LIKE TO ASK YOU SOME QUESTIONS

09:18 AM 3 NOW ABOUT WHAT WE'VE REFERRED TO AS THE MATCHING PROCESS.

09:18 AM 4 A.

OKAY.

09:18 AM 5 Q. AND SPECIFICALLY WE'RE TALKING ABOUT THE SYSTEM YOU

09:18 AM 6 USE TO MAKE REFERRALS TO LUFKIN INDUSTRIES. ALL RIGHT?

09:18 AM 7 A.

UH-HUH.

09:18 AM 8 Q.

DO YOU UNDERSTAND?

09:18 AM 9 A.

YES.

09: 18 AM 10 Q• OKAY. THANK YOU.

09:19 AM 11

NOW, AS I UNDERSTAND IT, THE FIRST STEP OF THE

09:19 AM 12 MATCHING PROCESS IS WHEN YOU INTERVIEW THE APPLICANTS, IS

09:19 AM 13 THAT CORRECT?

09:19 AM 14 A. TO GET THEIR APPLICATION INTO THE WORKFORCE, TO TWC,

09:19 AM 15 YES.

09:19 AM 16 Q. ALL RIGHT. AND THAT'S WHEN YOU WOULD USE THESE

09:19 AM 17 EXHIBITS 13 AND 15?

09: 19 AM 18 A •

YES.

09:19 AM 19 Q.

WHO FILLS OUT 13 OR 15?

09: 19 AM 20 A •

THE CUSTOMER.

09:19 AM 21 Q. OKAY. WHEN YOU SAY CUSTOMER, THAT'S ALSO THE

09:19 AM 22 APPLICANT?

09:19 AM 23 A.

THE APPLICANT, YES.

09:19 AM 24 Q. WHAT KIND OF INFORMATION IS ON THOSE FORMS?

09: 19 AM 25 A • THEIR SOCIAL SECURITY NUMBER, THEIR NAME, THEIR

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09: 19 AM 1 09:19 AM 2 09:19 AM 3 09: 20 AM 4 09: 20 AM 5 09:20 AM 6 09:20 AM 7 09:20 AM 8 09: 20 AM 9 09:20 AM 10 09:20 AM 11 09: 20 AM 12 09:20 AM 13

ADDRESS, THEIR DATE OF BIRTH, SEX, THEIR EDUCATION, THEIR EMPLOYMENT HISTORY. THE RACE IS ON THERE, WHAT -- THEIR MINIMUM REQUIRED SALARY, WHAT COUNTIES THEy'RE AVAILABLE TO WORK IN, IF THEY HAVE ANY OCCUPATIONAL LICENSE, IF THEY HAVE A TYPING SPEED OR A SHORTHAND, IF THEY HAVE AN ELECTRICAL LICENSE, THINGS LIKE THAT. Q. ALL RIGHT. AND WHEN THEY FILL OUT THE FORM AND PROVIDE THIS INFORMATION, WHAT DOES THE TEXAS WORKFORCE COMMISSION DO WITH IT? A. THEY SIT DOWN FOR AN INTERVIEW IF THEY WANT, OR THEY CAN JUST DROP IT OFF. THEY CAN SIT DOWN WITH AN INTERVIEWER, AND WE GO OVER THE WORK HISTORY.
THEY ALSO FILL OUT KEYWORD SHEETS THAT REFLECTS

09:20 AM 14 WHAT KIND OF WORK EXPERIENCE OR INTERESTS OR EDUCATION

09:20 AM 15 THEY HAVE, AND THAT IS CODED ONTO THEIR APPLICATION AND

09:20 AM 16 ENTERED INTO THE SYSTEM.

09:20 AM 17 Q. ALL RIGHT. NOW, WE'RE TALKING ABOUT A COMPUTER

09:20 AM 18 SYSTEM AT THE WORKFORCE COMMISSION?

09:20 AM 19 A. A COMPUTER SYSTEM, YES.

09:21 AM 20 Q. AND THEN THE COMPUTER SYSTEM ANALYZES THAT

09:21 AM 21 INFORMATION AND ASSIGNS AN OCCUPATION CODE TO THE

09:21 AM 22 APPLICANT?

09 :21 AM 23 A. 09:21 AM 24 Q.

YES. AND THE OCCUPATION CODE IN TURN IS ASSOCIATED WITH

09:21 AM 25 CERTAIN TYPES OF WORK?

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09:21 AM 1 09:21 AM 2 09:21 AM 3 09:21 AM 4 09:21 AM 5 09:21 AM 6 09:21 AM 7 09:21 AM 8 09:21 AM 9 09:21 AM 10

16 A. RIGHT. Q. ALL RIGHT. NOW, WHAT I THINK OF AS THE SECOND STEP OF THIS SYSTEM, YOU GATHER SIMILAR INFORMATION FROM THE EMPLOYER SIDE, IS THAT CORRECT? A. YES. Q. WOULD YOU DESCRIBE FOR THE COURT HOW THAT HAPPENS? A. IT'S E-MAILED TO ME, THE JOB OPENINGS, THE NUMBER OF OPENINGS, THE REQUIREMENTS, AND THE SHIFT, THE SALARY, YOU KNOW, WHAT THE JOB IS, AND IT'S ENTERED INTO THE SYSTEM. Q. OKAY. YOU SAY IT'S E-MAILED TO YOU?

09:21 AM 11 A. YES.

09:21 AM 12 Q. YOU'RE SPECIFICALLY REFERRING TO THE PROCESS WITH

09:22 AM 13 LUFKIN INDUSTRIES?

09:22 AM 14 A. THE REQUISITION, UH-HUH.

09:22 AM 15 Q. WHO IS IT AT LUFKIN INDUSTRIES THAT YOU DEAL WITH?

09:22 AM 16 A. VIRON BARBAY.

09:22 AM 17 Q. AND FOR HOW LONG HAS HE BEEN E-MAILING YOU THIS

09:22 AM 18 INFORMATION?

09:22 AM 19 A. 09:22 AM 20 Q.

TOWARD THE END OF 2002. ALL RIGHT. SO JUST FOR ABOUT THE LAST YEAR?

09:22 AM 21 A. 09:22 AM 22 Q.

YES. AND BEFORE THAT MR. BARBAY WOULD TELEPHONE THE

09:22 AM 23 INFORMATION TO YOU?

09: 22AM 24 A.

YES.

09: 22 AM 25 Q. ALL RIGHT. AND THE INFORMATION THAT LUFKIN PROVIDES

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09:22 AM 1 09:22 AM 2 09:22 AM 3 09:22 AM 4 09: 22 AM 5 09:22 AM 6 09:23 AM 7 09:23 AM 8 09:23 AM 9 09:23 AM 10 09:23 AM 11 09:23 AM 12 09:23 AM 13

17 TO YOU INCLUDES DESCRIPTIONS OF THE JOBS THAT THEY HAVE OPENINGS FOR? A. YES. Q. YOU ENTER ALL OF THAT INTO THE COMPUTER, AND IT ALSO ASSOCIATES OCCUPATIONAL CODES WITH THEIR INFORMATION? A. YES. Q. ALL RIGHT. SO IN YOUR SYSTEM, ONCE YOU HAVE THE INFORMATION FROM THE APPLICANTS, YOU GET A JOB ORDER FROM THE EMPLOYER, IN THIS CASE LUFKIN INDUSTRIES. HOW DOES THE SYSTEM WORK AT THAT POINT? A. YOU COMMAND THE SYSTEM TO DO A SEARCH FOR APPLICANTS OR CUSTOMERS THAT MEET THOSE MINIMUM QUALIFICATIONS, AND IT GENERATES A REPORT.

09:23 AM 14 Q. 09:23 AM 15 A. 09: 23 AM 16 Q.

IS THIS WHAT YOU REFERRED TO AS THE OVERNIGHT MATCH? YES. AND SO AFTER YOU GET THE WORK ORDER FROM LUFKIN, THE

09:23 AM 17 OVERNIGHT MATCH GETS RUN, AND IN THE MORNING YOU HAVE A

09:23 AM 18 LIST OF QUALIFIED CANDIDATES, HOPEFULLY QUALIFIED

09:23 AM 19 09:23 AM 20 09:24 AM 21

CANDIDATES THAT MIGHT END UP BEING REFERRED TO LUFKIN? A. UH-HUH. YES. Q. ALL RIGHT. AND WHAT DO YOU DO WITH THAT LIST WHEN

09:24 AM 22 YOU GET IT THE NEXT MORNING? 09:24 AM 23 A. YOU START AT THE TOP PHONING THE CUSTOMER, TRYING TO

09:24 AM 24 CONTACT THEM TO SEE IF THEY ARE INTERESTED IN LUFKIN

09:24 AM 25 INDUSTRIES, AND IF THEY MEET THE MINIMUM QUALIFICATIONS.

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09:24 AM 1 Q.

ALL RIGHT. AND WHEN YOU FIRST CONTACT THE

09:24 AM 2 APPLICANTS ABOUT OPENINGS AT LUFKIN INDUSTRIES, THAT'S THE

09:24 AM 3 PHONE CALL YOU'RE TALKING ABOUT?

09: 24 AM 4 A.

YES.

09:24 AM 5 Q.

DO YOU TELL THEM WHAT JOB IS OPEN AT LUFKIN

09:24 AM 6 INDUSTRIES?

09:24 AM 7 A.

YES.

09: 24 AM 8 Q. AND IS THAT A ROUTINE PART OF THAT PHONE CALL?

09:24 AM 9 A. 09: 24 AM 10 Q.

YES. HAS THAT ALWAYS BEEN TRUE IN YOUR EXPERIENCE?

09:24 AM 11 A.

YES.

09:24 AM 12 Q.

AND WHEN YOU TELL THEM WHAT JOB IS OPEN, YOU TAKE

09:24 AM 13 THAT INFORMATION OFF OF THE JOB ORDER?

09:24 AM 14 A.

YES.

09:24 AM 15 Q.

OKAY. AND THAT'S THE SAME --

09:25 AM 16

YOU USE THE COMPUTER WHEN YOU'RE TALKING TO

09:25 AM 17 THEM?

09:25 AM 18 A.

YES.

09:25 AM 19 Q.

IS THE SAME INFORMATION CONTAINED IN EXHIBIT 11, THE

09:25 AM 20 PAPER JOB ORDERS?

09 : 25 AM 21 A • I'M NOT SURE IF ALL OF THE INFORMATION IS ON THIS,

09:25 AM 22 BECAUSE THIS IS PURGED, AND PURGED ORDERS -- I BELIEVE

09:25 AM 23 PURGED ORDERS DON'T PULL UP EVERYTHING THAT IS ON THE JOB

09:25 AM 24 ORDER WHEN IT'S WRITTEN.

09 : 25 AM 2 5 Q. ALL RIGHT. WHAT I'M MOST INTERESTED IN NOW IS THE

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09:25 AM 1 INFORMATION ABOUT THE OPENINGS. IN THIS CASE, AND FOR

09:26 AM 2 LUFKIN INDUSTRIES, WE'RE TALKING ABOUT ENTRY-LEVEL JOBS?

09:26 AM 3 A. UH-HUH. IT WOULD DEFINITELY SAY GENERAL LABOR WORK,

09:26 AM 4 EXPERIENCE IN GENERAL LABOR WORK, TWELVE MONTHS REQUIRED.

09:26 AM 5 IT DEFINITELY WOULD SAY THAT.

09:26 AM 6

AND I BELIEVE THE I BELIEVE IT SHOULD HAVE ON

09:26 AM 7 THERE WHAT AREA IT'S IN.

09:26 AM 8 Q. AND BY THAT YOU MEAN WHETHER IT WOULD BE POWER

09:26 AM 9 TRANSMISSION, GEAR REPAIR, FOUNDRY OR TRAILER?

09:26 AM 10 A.

FOUNDRY OR TRAILER, UH-HUH.

09:26 AM 11 Q.

YES?

09:26 AM 12 A.

YES.

09:26 AM 13 Q. OKAY. AND THAT INFORMATION IS ON THE PAPER WORK

09:26 AM 14 ORDERS AS WELL AS YOUR -- THE COMPUTER SCREEN YOU WOULD BE

09:26 AM 15 LOOKING AT?

09:26 AM 16

MR. HAMEL: YOUR HONOR, OBJECTION, LEADING.

09:26 AM 17

THE WITNESS: PAPER WORK ORDERS? I'M NOT SURE

09:26 AM 18 WHAT YOU I RE --

09:26 AM 19

THE COURT: WELL, THIS IS RATHER FORMALISTIC

09:26 AM 20 TESTIMONY. I I M GOING TO LET HIM LEAD IN THE INTEREST OF

09:27 AM 21 TIME. SO

09:27 AM 22

MR. HAMEL: IS THAT A DEFINITIVE RULING, YOUR

09:27 AM 23 09:27 AM 24 09:27 AM 25

HONOR?

THE COURT: SIR? MR. HAMEL: IS THAT A DEFINITIVE RULING, YOUR

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09:27 AM 1 HONOR, JUST SO I DON'T HAVE TO MAKE THE OBJECTION AGAIN?

09:27 AM 2

THE COURT: WELL, YOU CAN MAKE THE OBJECTION ANY

09:27 AM 3 TIME YOU WANT TO.

09:27 AM 4

MR. HAMEL: WELL, WHAT I'M --

09:27 AM 5

THE COURT: I'M GOING TO LET HIM LEAD ON THIS

09:27 AM 6 TYPE OF TESTIMONY IN THE INTEREST OF TIME.

09:27 AM 7

MR. HAMEL: THANK YOU, YOUR HONOR.

09:27 AM 8

THE COURT: NO JURY BEING PRESENT.

09:27 AM 9 09:27 AM 10 09:27 AM 11 09:27 AM 12 09:27 AM 13

BY MR. GARRIGAN: Q. OKAY. OKAY. MS. POULAN, IS THE --
THE POSITION THAT'S OPEN THAT YOU'RE CALLING THE APPLICANT ABOUT, IS THAT POSITION DESCRIBED IN THE PAPER WORK ORDERS THAT ARE IN PLAINTIFF'S EXHIBIT II?

09:27 AM 14 A.

YES.

09:27 AM 15 Q. ALL RIGHT. AND IS THAT THE SAME INFORMATION THAT

09:27 AM 16 YOU'RE LOOKING AT ON THE COMPUTER SCREEN WHEN YOU'RE

09:27 AM 17 TALKING TO THEM TO ARRANGE THE INTERVIEW?

09:28 AM 18 A.

YES.

09:28 AM 19 Q.

ALL RIGHT. AND IT'S A --

09:28 AM 20

THE ROUTINE BUSINESS PRACTICE AT THE TEXAS

09:28 AM 21 WORKFORCE COMMISSION IS TO TELL THE POTENTIAL APPLICANT

09:28 AM 22 WHAT THE OPENING IS?

09:28 AM 23 A.

YES.

09:28 AM 24 Q. AND WITH REGARD TO LUFKIN INDUSTRIES, WOULD THAT

09:28 AM 25 INCLUDE TELLING THEM WHAT DIVISION THE REFERRAL WOULD BE

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09:28 AM 1 TO?

09:28 AM 2 A.

YES.

09:28 AM 3 Q. OKAY. SO IF THE WORK ORDER, FOR INSTANCE, IN

09:28 AM 4 PLAINTIFF'S EXHIBIT 11, SAYS FOUNDRY, YOU WOULD TELL THE

09:28 AM 5 APPLICANT WHEN YOU FIRST MADE CONTACT THAT THE OPENINGS

09:28 AM 6 ARE IN THE FOUNDRY?

09:28 AM 7 A.

YES.

09:28 AM 8 Q. OKAY. AND THEN WHAT'S THE REST OF YOUR CONVERSATION

09:28 AM 9 WITH THE POTENTIAL APPLICANTS?

09:28 AM 10

THE COURT: WELL, THAT WOULD BE HEARSAY, SIR.

09:29 AM 11 09:29 AM 12

MR. GARRIGAN: EXCUSE ME? THE COURT: THAT WOULD BE HEARSAY, WHAT THE REST

09:29 AM 13 09:29 AM 14 09: 29 AM 15

OF THE CONVERSATION WAS. IT'S WIDE OPEN.

WAY.

MR. GARRIGAN: ALL RIGHT. LET ME TRY IT THIS

09: 29 AM 16

THE COURT: WELL, TRY IT IN AN ADMISSIBLE FORM.

09:29 AM 17 SHE TELLS THEM WHAT DIVISION IT'S IN. SHE EITHER READS IT

09:29 AM 18 OFF A PAPER OR A COMPUTER SCREEN, RELAYS IT TO THAT

09:29 AM 19 09: 29 AM 20 09:29 AM 21 09:29 AM 22

PERSON.

THE APPLICANT EITHER ACCEPTS OR REJECTS. IS THAT TRUE? THE WITNESS: THAT'S TRUE. THE COURT: OR DO THEY SAY "I'LL CALL YOU BACK

09:29 AM 23 AND LET YOU KNOW IF I DON'T GET ANYTHING BEllER"?

09: 29 AM 24

THE WITNESS: THEY WILL USUALLY EITHER SAY

09:29 AM 25 THEy'RE INTERESTED OR THEy'RE NOT INTERESTED.

WENDELL R. PARKS, OFFICIAL COURT REPORTER 409-654-2834

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09:29 AM 1
09:29 AM 2

22 THE COURT: MA'AM? PROSPECTIVE JUROR: THEy'LL EITHER SAY THEy'RE

09:29 AM 3 INTERESTED OR THEy'RE NOT INTERESTED.

09:29 AM 4

THE COURT: OKAY.

09:29 AM 5 BY MR. GARRIGAN:

09:29 AM 6 Q.

ALL RIGHT. AND IF THEy'RE INTERESTED, WHAT

09:29 AM 7 HAPPENS? WHAT'S THE NEXT STEP?

09:29 AM 8 A. IF THEy'RE INTERESTED, AND THEY MEET ALL THE

09:29 AM 9 QUALIFICATIONS, THEy'RE SET UP FOR AN INTERVIEW WITH

09: 30 AM 10 LUFKIN INDUSTRIES.

09: 30 AM 11 Q. ALL RIGHT. AND AT THAT POINT THE TEXAS WORKFORCE

09: 30 AM 12 COMMISSION HAS REFERRED THAT APPLICANT TO LUFKIN

09: 30 AM 13 INDUSTRIES, IS THAT CORRECT?

09:30 AM 14 A.

CORRECT.

09: 30 AM 15 Q.

AND BASICALLY YOUR JOB IS DONE?

09:30 AM 16 A.

CORRECT.

09:30 AM 17 Q.

NOW, IF YOU LOOK AT EXHIBIT 11, AT ANY ONE OF THE

09: 30 AM 18 JOB ORDER FORMS, EVEN AFTER YOU REFER THE APPLICANT TO

09: 30 AM 19 LUFKIN INDUSTRIES FOR THEIR INTERVIEW, LUFKIN INDUSTRIES

09: 30 AM 20 REPORTS BACK WHETHER OR NOT THEy'VE HIRED THAT INDIVIDUAL?

09:30 AM 21 A.

CORRECT.

09: 30 AM 22 Q• AND THAT IS ALSO RECORDED ON THE JOB ORDER FORM?

09 : 30 AM 23 A •

YES.

09: 30 AM 24 Q. OKAY. NOW, THIS JOB MATCHING SYSTEM THAT WE'VE JUST

09:30 AM 25 DESCRIBED, THAT HASN'T CHANGED SINCE YOU'VE BEEN AT THE

WENDELL R. PARKS, OFFICIAL COURT REPORTER 409-654-2834

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09:30 AM 1 09:30 AM 2 09: 31 AM 3 09:31 AM 4 09:31 AM 5 09: 31 AM 6 09:31 AM 7

23
TEXAS WORKFORCE COMMISSION? A. IT HAS NOT. Q. ALL RIGHT. THE PROCESS AS YOU'VE EXPLAINED IT REMAINS THE SAME? A. YES. Q. AND I BELIEVE THE ONLY CHANGE THAT YOU'VE MENTIONED IS THAT FOR ABOUT THE LAST YEAR MR. BARBAY WOULD E-MAIL

09:31 AM 8 THE JOB ORDER INFORMATION TO YOU AS OPPOSED TO A TELEPHONE

09: 31 AM 9 CALL?

09:31 AM 10 A. AND THEy'VE ADDED REQUISITION NUMBERS TO THEIR JOB

09: 31 AM 11 ORDERS.

09:31 AM 12 Q. AND AGAIN, THAT'S ALL WITHIN THE LAST YEAR?

09: 31 AM 13 A.

CORRECT.

09:31 AM 14 Q. OKAY. NOW, WHEN LUFKIN REPORTS BACK TO YOU ABOUT

09:31 AM 15 WHETHER OR NOT AN APPLICANT IS HIRED, DO THEY TELL YOU

09:31 AM 16 WHAT POSITION THE APPLICANT WAS HIRED INTO?

09:31 AM 17 A. 09:31 AM 18 Q.

NO. SO ALL YOU KNOW IS WHAT POSITION YOU HAVE REFERRED

09:32 AM 19 THE APPLICANT FOR?

09:32 AM 20 A.

CORRECT.

09:32 AM 21 Q. AND THE TEXAS WORKFORCE COMMISSION HAS NOTHING TO DO

09: 32 AM 22 WITH WHETHER THAT APPLICANT GETS HIRED?

09:32 AM 23 A. 09:32 AM 24 Q.

NO. DOES THE TEXAS WORKFORCE COMMISSION HAVE ANYTHING TO

09:32 AM 25 DO WITH WHAT JOB THE APPLICANT IS ASSIGNED TO IF THEY ARE

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24

09: 32 AM 1 HIRED?

09:32 AM 2 A.

NO.

09: 32 AM 3 Q. OKAY. WHEN YOU'RE RECRUITING PEOPLE FOR LUFKIN

09:32 AM 4 INDUSTRIES, YOU'RE GENERALLY FAMILIAR WITH THEIR

09:32 AM 5 ENTRY-LEVEL REQUIREMENTS?

09:32 AM 6 A.

YES.

09:32 AM ? Q. THAT'S WHAT YOU SCREEN THE APPLICANT FOR, IS THAT

09:32 AM 8 RIGHT?

09:32 AM 9 09: 32 AM 10 09:32 AM 11 09: 32 AM 12 09: 32 AM 13 09: 32 AM 14

A. YES. Q. AND YOU DON'T RECOGNIZE ANY MEANINGFUL DISTINCTION BETWEEN THE ENTRY-LEVEL JOB REQUIREMENTS FOR THE DIFFERENT DIVISIONS AT LUFKIN, IS THAT RIGHT? A. FOR AN ENTRY-LEVEL POSITION? Q. YES.

09 : 32 AM 15 09: 33 AM 16

A •
ALL.

THERE ARE NO DIFFERENCES IN TRAILER AND FOUNDRY AT

09:33AM I? Q. OKAY. AREN'T THE ENTRY-LEVEL REQUIREMENTS THE SAME

09: 33 AM 18 FOR ALL OF THE ENTRY-LEVEL JOBS AT LUFKIN INDUSTRIES AS

09: 33 AM 19 FAR AS YOU'RE CONCERNED? 09 :33 AM 20 A . THE ONES I'M MORE FAMILIAR WITH ARE FOR THE FOUNDRY

09:33 AM 21 AND THE TRAILER, AND THERE ARE NO DIFFERENCES ON THOSE TWO 09: 33 AM 22 JOBS.

09: 33 AM 23

IF IT'S AN ENTRY-LEVEL JOB IN ANOTHER DIVISION,

09: 33 AM 24 THE REQUIREMENTS MAY BE DIFFERENT. I WOULD HAVE TO LOOK

09:33 AM 25 AT THE REQUIREMENTS ON IT.

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25

09: 33 AM 1

AND IF A JOB ORDER WERE LISTED WIT US IN ONE OF

09:33 AM 2 THOSE DIVISIONS, I WOULD SPEAK WITH VIRON ABOUT IT AND ASK

09:33 AM 3 HIM WHAT THE REQUIREMENTS ARE, BECAUSE SOME OF THEIR JOBS

09:33 AM 4 REQUIRE, DO REQUIRE HIGH SCHOOL OR G.E.D., VERSUS THE

09:33 AM 5 GENERAL FOUNDRYMEN AND THE TRAILER DOES NOT.

09:34 AM 6

MR. GARRIGAN: MAY I APPROACH THE WITNESS?

09:34 AM 7

THE COURT: YOU MAY.

09:34 AM 8 BY MR. GARRIGAN:

09:34 AM 9 09: 34 AM 10 09: 34 AM 11 09: 34 AM 12 09: 34 AM 13

Q. DO YOU REMEMBER GIVING YOUR DEPOSITION TESTIMONY IN THIS CASE? A. YES. Q. ALL RIGHT. I'M SHOWING YOU PAGE 52 OF YOUR DEPOSITION. DO YOU RECOGNIZE THAT?

09: 34 AM 14 A. 09: 34 AM 15 Q.

YEAH, SURE. DID YOU HAVE A CHANCE TO REVIEW THE DEPOSITION?

09:34 AM 16 A.

I DID.

09: 34 AM 17 Q. NOW, BEGINNING AT PAGE -- AT LINE 6. BEGINNING AT

09:34 AM 18 LINE 6, I ASKED "DO YOU RECOGNIZE ANY MEANINGFUL

09:34 AM 19 DISTINCTIONS BETWEEN THE ENTRY-LEVEL REQUIREMENTS FOR

09: 34 AM 20 DIFFERENT JOBS IN THE DIFFERENT DIVISIONS AT LUFKIN OR IS

09:34 AM 21 IT ALL THE SAME TO YOU?"

09: 34 AM 22

AND YOUR ANSWER WAS

09:34 AM 23

WOULD YOU PLEASE READ THAT?

09:34 AM 24 A.

"AS FAR AS, YOU KNOW, THE QUALIFICATIONS COULD BE

09:34 AM 25 DIFFERENT, WORK EXPERIENCE QUALIFICATIONS COULD BE

WENDELL R. PARKS, OFFICIAL COURT REPORTER 409-654-2834

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26

09:34 AM 1 DIFFERENT ON DIFFERENT JOBS. AS FAR AS REQUIREMENTS THAT

09:35 AM 2 HAVE TO BE MET, THEY ARE THE SAME, BUT WORK QUALIFICATIONS

09:35 AM 3 OR EDUCATION QUALIFICATIONS COULD BE DIFFERENT."

09:35 AM 4 Q. OKAY. THEN I CLARIFIED, I ASKED YOU "FOR

09:35 AM 5 ENTRY-LEVEL JOBS?"

09:35 AM 6

AND YOU SAID WHAT?

09:35 AM 7 A.

"NOT FOR ENTRY-LEVEL JOBS."

09:35 AM 8 Q. AND THEN I ASKED YOU AGAIN "FOR ENTRY-LEVEL JOBS YOU

09:35 AM 9 09: 35 AM 10 09: 35 AM 11 09:35 AM 12 09: 35 AM 13 09: 35 AM 14 09: 35 AM 15

SEE THEM ALL THE SAME?" AND YOUR ANSWER?
A. "CORRECT." Q. OKAY. SO YOUR TESTIMONY HAS BEEN IN THIS CASE SO FAR, OR AT LEAST UP UNTIL TODAY, WAS THAT ALL OF THE ENTRY-LEVEL JOBS HAVE THE SAME REQUIREMENTS?
MR. HAMEL: OBJECTION, YOUR HONOR,

09: 35 AM 16 ARGUMENTATIVE.

09: 35 AM 17

THE COURT: I'M GOING TO TAKE IT INTO

09:35 AM 18 CONSIDERATION.

09:35 AM 19

MA' AM, IF THEY WANT SOMEBODY TO WORK IN A

09: 35 AM 20 MACHINE SHOP CUTTING GEARS, THAT WOULD BE DIFFERENT THAN

09:35 AM 21 09: 35 AM 22 09:35 AM 23 09: 35 AM 24

SOMEBODY WORKING IN THE FOUNDRY OR TRAILER? THE WITNESS: THAT'S MORE OF A SKILLED JOB. THE COURT: YES. THE WITNESS: AND YOU HAVE TO HAVE A LOT OF SHOP

09:35 AM 25 MATH TO DO THAT, AND IT'S USUALLY ON HIGH SCHOOL OR ABOVE

WENDELL R. PARKS, OFFICIAL COURT REPORTER 409-654-2834

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27

09: 36 AM 1 ALGEBRA. YOU HAVE TO PASS, BE ABLE TO PASS THAT KIND OF 09: 36 AM 2 TEST.

09:36 AM 3

THE COURT: THAT WOULD BE ON AN ENTRY-LEVEL,

09:36 AM 4 SOMEBODY WORKING ON MACHINES?

09:36 AM 5

THE WITNESS: RIGHT.

09:36 AM 6

THE COURT: OR THE SO-CALLED POWER TRANSMISSION,

09:36 AM 7 USED TO BE CALLED MACHINISTS, IS THAT CORRECT?

09:36 AM 8

THE WITNESS: CORRECT.

09:36 AM 9 09:36 AM 10 09:36 AM 11

THE COURT: SOMEBODY WHO IS ENTERING INTO THE ADMINISTRATION PART OF IT, WOULD THAT HAVE -- WOULD THEY HAVE DIFFERENT REQUIREMENTS, SAY AN INSURANCE CLERK OR A

09:36 AM 12 BENEFITS

09: 36 AM 13

THE WITNESS: IT'S HIGH SCHOOL OR G.E.D. USUALLY

09: 36 AM 14 09: 36 AM 15

FOR THOSE TYPE JOBS. THE COURT: AND SO THEy'RE NOT ALL -- ALL ENTRY

09:36 AM 16 09: 36 AM 17 09:36 AM 18

JOBS ARE NOT EXACTLY THE SAME? THE WITNESS: THEy'RE NOT EXACTLY THE SAME. THE COURT: PROCEED, SIR.

09: 36 AM 19 BY MR. GARRIGAN: 09:36 AM 20 Q. OKAY. MS. POULAN, IS IT YOUR UNDERSTANDING THAT A

09:36 AM 21 MACHINIST IS AN ENTRY-LEVEL JOB?

09: 36 AM 22 A • I HAVE NOT WORKED THAT MANY JOB ORDERS ON

09:36 AM 23 MACHINISTS. I MEAN, I WOULD JUST HAVE TO SEE THE

09: 37 AM 24 REQUIREMENTS ON IT. BUT A MACHINIST IS PROBABLY NOT ENTRY 09:37 AM 25 LEVEL.

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28

09:37 AM 1 Q. IN FACT, ENTRY-LEVEL JOBS, EVEN IN POWER

09:37 AM 2 TRANSMISSION, ISN'T THAT CALLED A HELPER?

09:37 AM 3 A.

IT COULD BE.

09:37 AM 4 Q. AND AN ENTRY-LEVEL JOB IN THE TRAILER DIVISION IS

09:37 AM 5 ALSO CALLED A HELPER?

09:37 AM 6 A.

CORRECT.

09:37 AM 7 Q. AND WHEN I ASKED YOU BEFORE ABOUT THE QUALIFICATIONS

09:37 AM 8 FOR ENTRY-LEVEL JOBS, IS THAT WHAT YOU WERE THINKING

09:37 AM 9 ABOUT?

09:37 AM 10 A. I WAS THINKING MORE OF TRAILER AND FOUNDRY, BECAUSE

09: 37 AM 11 THAT'S THE JOBS THAT I HAVE HAD MORE EXPERIENCE WITH WITH

09:37 AM 12 LUFKIN INDUSTRIES, BECAUSE THAT'S WHAT THEy'VE HAD A NEED

09:37 AM 13 FOR.

09:38 AM 14 Q. ALL RIGHT. WHEN YOU PLUG IN THE INFORMATION FROM

09: 38 AM 15 LUFKIN INDUSTRIES INTO THE MATCHING SYSTEM, WE DISCUSSED

09: 38 AM 16 THIS BEFORE, THE MATCHING SYSTEM ASSIGNS AN OCCUPATION

09:38 AM 17 CODE, IS THAT RIGHT?

09:38 AM 18 A.

FOR A JOB ORDER, THE INTERVIEWER SHOULD BE PUTTING

09:38 AM 19 THE D.O.T. ON THERE FOR WHATEVER KIND OF JOB IT IS.

09: 38 AM 20 Q.

ALL RIGHT.

09:38 AM 21 A.

YES.

09: 38 AM 22 Q. AND THE OCCUPATIONAL CODES FOR ALL THE ENTRY-LEVEL

09: 38 AM 23 POSITIONS AT LUFKIN ARE ALL GENERAL LABOR CODES, IS THAT

09: 38 AM 24 RIGHT?

09:38 AM 25 A. THAT'S PRETTY MUCH THE ONE THAT I'VE BEEN USING.

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29

09:38 AM 1 Q. AND AGAIN, THAT COVERED ALL ENTRY-LEVEL POSITIONS AT

09: 39 AM 2 LU FKIN?

09: 39 AM 3 A.

YES.

09:39 AM 4 09: 39 AM 5 09:39 AM 6 09:39 AM 7 09:39 AM 8 09:39 AM 9

Q. AND SO WHEN THE COMPUTER SYSTEM IS MATCHING APPLICANTS TO LUFKIN, IT'S LOOKING FOR THE SAME PEOPLE, REGARDLESS OF THE DIVISION, AS LONG AS IT'S AN ENTRY-LEVEL JOB? A. IT'S LOOKING FOR PEOPLE THAT HAVE THE SAME EXPERIENCE OR REQUIREMENTS ON THEIR APPLICATION, IS WHAT

09: 39 AM 10 IS WRITTEN ON THE JOB ORDER. IF THE D.O.T. AND THE

09: 39 AM 11 KEYWORDS MATCH, OR THE KEYWORDS OR EXPERIENCE MATCH,

09: 39 AM 12 THAT'S WHAT IT'S LOOKING FOR.

09:39 AM 13 Q. OKAY. DO YOU REMEMBER TESTIFYING THAT THE

09: 39 AM 14 OCCUPATIONAL CODES FOR LUFKIN INDUSTRIES' ENTRY-LEVEL JOBS

09: 39 AM 15 ARE ALL GENERAL LABOR?

09:39 AM 16 A. THAT'S PRETTY MUCH THE ONE I USE ON GENERAL LABOR.

09:39 AM 17 Q. AND AS A RESULT, THE MATCHING SYSTEM IS MATCHING

09:39 AM 18 APPLICANTS THAT HAVE THE SAME GENERAL LABOR OCCUPATION

09:40 AM 19 CODE TO THE JOB ORDERS, REGARDLESS OF THE DIVISION?

09 :40 AM 20 A. CORRECT.

09:40 AM 21 Q. OKAY. NOW, THESE JOB ORDER FORMS IN EXHIBIT 11,

09:40 AM 22 THOSE REFLECT THE TEXAS WORKFORCE COMMISSION'S REFERRALS

09:40 AM 23 TO LUFKIN INDUSTRIES RESPONSIVE TO A PARTICULAR JOB ORDER? 09:40 AM 24 A. SOME OF THEM. SOME OF THEM ARE DELAYED

09:40 AM 25 VERIFICATIONS, WHICH IS DIFFERENT THAN A JOB ORDER.

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30

09:40 AM 1

THE FIRST PAGE, IF YOU I LL LOOK AT THAT, I'LL

09:40 AM 2 SHOW YOU THE DIFFERENCE.

09:40 AM 3 Q.

OKAY.

09:40 AM 4 A.

SOME OF THEM ARE JD'S, WHICH IS THE JOB DEVELOPMENT.

09:40 AM 5 IT'S NOT AN ACTUAL JOB ORDER.

09:41 AM 6

THE COURT: WHAT'S THE DIFFERENCE?

09:41 AM 7 BY MR. GARRIGAN:

09:41 AM 8 Q.

OKAY. GO AHEAD AND TELL ME ABOUT THE EXAMPLE.

09:41 AM 9 A. 09:41 AM 10

THE DIFFERENCE ON A DELAYED VERIFICATION? THE COURT: YEAH.

09:41 AM 11

THE WITNESS: IT MAY HAVE BEEN SOME MONTHS AGO

09:41 AM 12 THERE WAS A JOB ORDER IN OUR SYSTEM THAT A CUSTOMER WAS

09:41 AM 13 REFERRED ON AND WE DIDN'T GET THE PLACEMENT ON IT. IN

09:41 AM 14 OTHER WORDS, FOR SOME REASON THE EMPLOYER DIDN'T TELL US

09:41 AM 15 THEY WERE HIRED, AND IT CAME OFF OF A POTENTIAL EMPLOYMENT

09:41 AM 16 REPORT THAT COMES FROM AUSTIN.

09:41 AM 17

THE COURT: UH-HUH. ALL RIGHT. BUT YOU WOULD

09:41 AM 18 EXPECT A REPORT BACK IF THEy'RE HIRED, AND SOMETIMES YOU

09:41 AM 19 DON'T GET IT?

09:41 AM 20

THE WITNESS: SINCE I'VE BEEN WORKING WITH THEM

09:41 AM 21 SINCE 2000, lIVE HAD REAL GOOD COMMUNICATION ON GETTING

09:41 AM 22 OUR HIRES TIMELY.

09:41 AM 23

BEFORE I STARTED, THERE WERE JUST DIFFERENT

09:41 AM 24 INTERVIEWERS THAT WOULD WORK A YEAR AND QUIT AND WORK A

09: 41 AM 25 YEAR AND QUIT, AND THERE WASN'T ANY REAL GOOD, A REAL GOOD

WENDELL R. PARKS, OFFICIAL COURT REPORTER
409-654-2834

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31

09:41 AM 1 COMMUNICATION. OUR COMMUNICATION MAY NOT HAVE BEEN AS

09:41 AM 2 GOOD THEN AS IT IS NOW.

09:41 AM 3

BUT IF WE DIDN'T GET IT FROM THE EMPLOYER, WE

09:42 AM 4 GOT IT FROM THE POTENTIAL PLACEMENT REPORT.

09:42 AM 5 BY MR. GARRIGAN:

09:42 AM 6 Q. OKAY. LET ME ASK YOU TO LOOK AT PLAINTIFF'S EXHIBIT

09:42 AM 7 11. IF YOU WOULD TURN TO THE PAGE THAT'S MARKED TWc00034.

09:42 AM 8 A.

WELL--

09:42 AM 9

THE COURT: WHICH EXHIBIT?

09:42 AM 10

MR. GARRIGAN: I'M GUESSING THAT'S MAYBE FIFTEEN

09:42 AM 11 PAGES INTO THE EXHIBIT.

09:42 AM 12
09:42 AM 13

THE COURT: WHICH EXHIBIT? MR. GARRIGAN: EXHIBIT 11.

09:42 AM 14

THE WITNESS: I THINK I'M LOST HERE. HOLD ON.

09:43 AM 15 I DON'T KNOW IF I'M SKIPPING IT. HANG ON. OKAY.

09:43 AM 16 Q. ALL RIGHT. NOW, THAT'S ONE OF THE RECORDS OR THE

09:43 AM 17 FIRST PAGE OF ONE OF THE RECORDS THAT WE'VE BEEN REFERRING

09:43 AM 18 TO AS A JOB ORDER?

09:43 AM 19 A.
09:43 AM 20

CORRECT. THE COURT: TWC--

09:43 AM 21

MR. GARRIGAN: 00034.

09:43 AM 22
09:43 AM 23 09:43 AM 24 09:43 AM 25

THE COURT: THANK YOU. THE FIRST NAME ON IT IS BALLOU? MR. GARRIGAN: YES. THE COURT: ALL RIGHT. I HAVE IT. GO AHEAD.

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32

09:43 AM 1 BY MR. GARRIGAN:

09:44 AM 2 Q.

IS THAT CORRECT?

09:44 AM 3 A.

THAT'S CORRECT.

09:44 AM 4 Q.

ALL RIGHT. NOW, THIS IS A JOB ORDER FOR LUFKIN

09:44 AM 5 INDUSTRIES, CORRECT?

09:44 AM 6 A.

CORRECT.

09:44 AM 7 Q.

AND WHAT KIND OF --

09:44 AM 8

THE COURT: I THOUGHT THEY ALL WERE?

09:44 AM 9

MR. GARRIGAN: THEY ARE.

09:44 AM 10

THE COURT: ALL RIGHT. SO

09: 44 AM 11 BY MR. GARRIGAN:

09:44 AM 12 Q.

AND THIS JOB ORDER REFERS TO OPENINGS IN THE TRAILER

09:44 AM 13 DIVISION, IS THAT RIGHT?

09 : 44 AM 14 A .

CORRECT.

09 : 44 AM 15 Q•

ENTRY-LEVEL POSITIONS?

09:44 AM 16 A.

YES.

09:44 AM 17 Q.

AND YOU REFERRED TO THEM HERE AS TRAILER ASSEMBLER?

09:44 AM 18 A.

THAT'S WHAT THE INTERVIEWER REFERRED TO IT.

09:44 AM 19 Q.

ALL RIGHT. PAYS SEVEN DOLLARS AND FORTY CENTS AN

09:44 AM 20 HOUR?

09:44 AM 21 A.

YES.

09 : 44 AM 22 Q.

THAT'S REFLECTED ON HERE ALSO?

09: 44 AM 23 A •

YES.

09: 44 AM 24 Q. AND THE INDIVIDUALS LISTED ON THIS REPORT, THOSE ARE

09:44 AM 25 ALL THE PEOPLE THAT THE TEXAS WORKFORCE COMMISSION

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09:45 AM 1 09:45 AM 2 09:45 AM 3 09:45 AM 4 09:45 AM 5 09:45 AM 6 09:45 AM 7 09:45 AM 8 09:45 AM 9 09:45 AM 10 09:45 AM 11 09:45 AM 12

33 REFERRED TO LUFKIN? A. YES. Q. AND THEN IF YOU LOOK DOWN WHERE THE INDIVIDUALS' NAMES ARE LISTED, THE INFORMATION FOR EACH ONE, THE FIRST COLUMN IS SOCIAL SECURITY NUMBER, CORRECT? A. AND MARKED OUT, YES. Q. THAT'S RIGHT. YOUR AGENCY REDACTED THAT? A. YES. Q. THE SECOND COLUMN IS THE NAME? A. YES. Q. THE THIRD COLUMN, IT SAYS APPOINTMENT DATE. WHAT DOES THAT REFER TO?

09:45 AM 13 A. I BELIEVE THAT'S THEIR APPOINTMENT DATE, THEIR

09:45 AM 14 INTERVIEW DATE. I BELIEVE THAT'S WHAT IT IS. 09:45 AM 15 Q. OKAY. THAT WOULD BE THE DATE THAT THE APPLICANT WAS

09:45 AM 16 TO COME IN AND INTERVIEW WITH MR. BARBAY?

09 :45 AM 17 A • OR WHOEVER AT LUFKIN INDUSTRIES BACK IN '97, WHOEVER

09:45 AM 18 WAS INTERVIEWING.

09:45 AM 19 09:45 AM 20 Q.

HIS NAME IS ON THERE, SO, YES. ALL RIGHT. THEN REFERRAL RESULT, WHAT DOES THAT

09:46 AM 21 REFER TO?

09:46 AM 22 09:46 AM 23 09 : 46 AM 24

A. I DIDN'T KNOW IN MY DEPOSITION. I KNOW WHAT ALL OF THEM ARE NOW. Q • ALL RIGHT. WELL, I DON'T NEED YOU TO DESCRIBE EACH

09: 46 AM 25 CODE RIGHT NOW.

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09:46 AM 1 09:46 AM 2 09:46 AM 3 09:46 AM 4 09:46 AM 5 09:46 AM 6 09:46 AM 7 09:46 AM 8 09:46 AM 9 09:46 AM 10 09:46 AM 11 09:46 AM 12 09:46 AM 13 09:46 AM 14

34 A. OKAY. THAT MEANS WHETHER THEY WERE HIRED OR NOT HIRED, OR IF THEY DID NOT SHOW FOR THEIR INTERVIEW OR IF THEY DID NOT SHOW FOR THEIR JOB. Q. AND BASICALLY --
AND THAT'S INFORMATION THAT LUFKIN INDUSTRIES REPORTS BACK TO YOU? A. YES. Q. AND THE NEXT COLUMN, RESULT DATE? A. THAT IS THE DATE THE JOB ORDER WAS CLOSED OUT OR THAT THEY GOT THE INFORMATION FROM THE EMPLOYER THAT THE PERSON EITHER WENT TO WORK OR DIDN'T. Q. AND THEN THAT'S THE DATE IT WAS REPORTED BACK TO THE TEXAS WORKFORCE COMMISSION? A. UH-HUH.

09:46 AM 15 Q.

SO THE

09:46 AM 16 A.

YES.

09:46 AM 17 Q.

DIFFERENCE BETWEEN --

09:46 AM 18

YOU KNOW, THE HIRE DATE, IF SOMEBODY WAS HIRED,

09:46 AM 19 WOULD PROBABLY BE BETWEEN THE APPOINTMENT DATE AND THE

09:47 AM 20 09:47 AM 21 09:47 AM 22

DATE LUFKIN GOT BACK TO YOU WITH THE RESULTS?

A.

YES.

Q. NOW, ALL OF THE PEOPLE ON THIS LIST, YOU'VE SCREENED

09:47 AM 23 THEM ALL FOR MINIMUM QUALIFICATIONS?

09:47 AM 24 A. 09: 47 AM 25 Q •

YES. AND SO IF THEy'RE ON THIS LIST, THEy'VE MET THOSE

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35

09:47 AM 1 QUALIFICATIONS?

09:47 AM 2 A.

YES.

09:47 AM 3 Q. ALL RIGHT. AND ALL OF THE PEOPLE ON THE LIST ALSO

09:47 AM 4 EXPRESSED AN INTEREST IN THE POSITION LISTED AT THE TOP OF

09:47 AM 5 THE REPORT?

09:47 AM 6 A.

YES.

09:47 AM 7

THE COURT: WHAT DOES THE "NHO" MEAN?

09:47 AM 8

THE WITNESS: NOT HIRED, OTHER.

09:47 AM 9

THE COURT: OTHER?

09:47 AM 10

THE WITNESS: NOT HIRED, OTHER.

09:47 AM 11 BY MR. GARRIGAN:

09:47 AM 12 Q. OKAY. LET'S GO AHEAD, AND LET ME ASK YOU --

09:47 AM 13

THE COURT: WHAT IS "DNR," WHICH IS MR. MCGRAW

09: 47 AM 14 AND MR. JANCONNA?

09:47 AM 15

THE WITNESS: DID NOT REPORT TO THE INTERVIEW.

09:47 AM 16

THE COURT: ALL RIGHT. PROCEED. I'M SORRY.

09:48 AM 17

AND I DON'T SEE WHERE IT SAYS SEVEN DOLLARS AND

09: 48 AM 18 SOMETHING AN HOUR.

09:48 AM 19

WHERE IS THAT?

09:48 AM 20

THE WITNESS: IN THE UPPER RIGHT-HAND CORNER.

09:48 AM 21 IT WOULD BE LIKE THE SIXTH LINE DOWN, UPPER RIGHT-HAND

09:48 AM 22
09:48 AM 23 09: 48 AM 24

CORNER, WHERE IT SAYS "SALARY." THE COURT: OH, SEVEN FORTY-NINE AN HOUR. THE WITNESS: YES.

09:48 AM 2 5

THE COURT: I SEE IT NOW. THANK YOU.

WENDELL R. PARKS, OFFICIAL COURT REPORTER 409-654-2834

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36

09:48 AM 1

THE WITNESS: UH-HUH.

09:48 AM 2 BY MR. GARRIGAN:

09:48 AM 3 Q. AND THAT WOULD HAVE BEEN THE ENTRY-LEVEL PAY AT

09:48 AM 4 LUFKIN BACK AT THIS TIME?

09:48 AM 5 A.

I'M ASSUMING, UH-HUH.

09:48 AM 6 Q. ALL RIGHT. AND AGAIN I WANT TO CLARIFY. WHEN THE

09:48 AM 7 MATCHING SYSTEM WORKS, IT IDENTIFIES THE INDIVIDUALS THAT

09:48 AM 8 ARE ULTIMATELY SCREENED FOR REFERRAL, CORRECT?

09:48 AM 9 A.

YES.

09:48 AM 10 Q. AND IT IS SCREENING BASICALLY FOR THIS GENERAL LABOR

09:48 AM 11 OCCUPATIONAL CODE?

09:49 AM 12 A.

YES.

09:49 AM 13 Q. AND IT WOULD BE SCREENING FOR THE SAME SET OF

09:49 AM 14 POTENTIAL APPLICANTS FOR ANY ENTRY-LEVEL POSITION AT

09:49 AM 15 LUFKIN?

09: 49 AM 16 A.

YES.

09:49 AM 17 Q. OKAY. LET ME ASK YOU TO LOOK AT A FEW PAGES DOWN ON

09:49 AM 18 THAT SAME JOB ORDER, ON PAGE 37.

09:49 AM 19

I PICKED OUT THE NAME OF ONE OF MY FAVORITE

09:49 AM 20 BEERS. THERE'S A SAM ADAMS A FEW LINES DOWN. DO YOU SEE

09:49 AM 21 THAT?

09:49 AM 22 A.

YES.

09:49 AM 23 Q. WHAT DOES THIS REFLECT ABOUT SAM ADAMS?

09:49 AM 24 A. HE WAS REFERRED ON OCTOBER 28, '97, AND I'M ASSUMING

09:49 AM 25 THE INTERVIEWER SPOKE WITH LUFKIN INDUSTRIES OR FOUND OUT

WENDELL R. PARKS, OFFICIAL COURT REPORTER 409-654-2834

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37

09:49 AM 1 HE WENT TO WORK ON 11-20-97.

09:49 AM 2 Q.

SO HE WAS HIRED BY LUFKIN?

09: 50 AM 3 A.

YES.

09:50 AM 4 Q.

AND THAT INFORMATION WAS REPORTED BACK TO THE

09:50 AM 5 WORKFORCE COMMISSION SEPTEMBER 20, '97, OR EXCUSE ME,

09:50 AM 6 NOVEMBER 20TH?

09: 50 AM 7

MR. HAMEL: I'M SORRY, COUNSEL. COULD YOU TELL

09: 50 AM 8 ME WHERE THIS ENTRY IS?

09: 50 AM 9

MR. GARRIGAN: THIS IS ON PAGE TWc00037.

09: 50 AM 10

MR. HAMEL: THANK YOU.

09:50 AM 11

MR. GARRIGAN: AND MR. ADAMS WAS SIX NAMES DOWN

09: 50 AM 12 09: 50 AM 13

FROM THE TOP. MR. HAMEL: RIGHT. I SEE IT. THANK YOU.

09: 50 AM 14 BY MR. GARRIGAN:

09:50 AM 15 Q.

ALL RIGHT. AND IF YOU WOULD LOOK ACROSS THAT LINE A

09:50 AM 16 LITTLE FURTHER, UNDER THE COLUMN "ETH," THERE'S A CODE 2.

09:50 AM 17 DO YOU SEE THAT?

09: 50 AM 18 A .

YES.

09:50AM 19 Q.

WHAT DOES THAT INDICATE TO YOU?

09:50 AM 20 A.

BLACK.

09:50 AM 21 Q.

THAT'S MR. ADAMS RACE?

09: 50 AM 22 A •

YES.

09: 50 AM 23 Q •

LET ME ASK YOU ABOUT ANOTHER EXAMPLE. WOULD YOU

09: 51 AM 24 LOOK -- IT'S GOING TO BE ABOUT A HALF A PAGE OR A HALF AN

09:51 AM 25 INCH DOWN IN THE STACK FOR TWC131.

WENDELL R. PARKS, OFFICIAL COURT REPORTER 409-654-2834

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38

09: 51 AM 1

HAVE YOU FOUND THAT PAGE?

09:51 AM 2 A.

YES.

09: 51 AM 3 Q. OKAY. AND MOST OF THE WAY DOWN, IT LOOKS LIKE MAYBE

09:51 AM 4 TEN LINES FROM THE BOTTOM, IS A J. MESHELLE. DO YOU SEE

09: 51 AM 5 THAT?

09: 51 AM 6 A.

YES.

09: 51 AM 7 Q. AND SO WAS HE REFERRED TO LUFKIN INDUSTRIES BY THE

09: 52 AM 8 TEXAS WORKFORCE COMMISSION?

09:52 AM 9 A. 09: 52 AM 10 Q. 09: 52 AM 11 A. 09: 52 AM 12 Q. 09: 52 AM 13 09:52 AM 14 A.

YES. AND FOR WHAT JOB WAS HE REFERRED? IT SHOWS A FOUNDRY WORKER. OKAY. AND WHEN --
AND IT REFLECTS THAT HE WAS HIRED BY LUFKIN? YES.

09:52AM 15 09: 52 AM 16

Q. ALL RIGHT. INTO?

DO YOU KNOW WHAT POSITION HE WAS HIRED

09 : 52 AM 17 09: 52 AM 18

A . JUST AS A FOUNDRY WORKER, IS WHAT IT SHOWS ON THE JOB ORDERS.

09: 52 AM 19 09: 52 AM 20

Q. SO YOU WOULD EXPECT THAT HE WAS HIRED INTO THE FOUNDRY?

09: 52 AM 21 A. 09:52 AM 22 Q. 09: 52 AM 23 A. 09:52 AM 24 Q.

YES. AND WHAT IS MR. MESHELLE'S RACE? WHITE. NOW, IF HE WASN'T HIRED INTO THE FOUNDRY BUT WAS

09: 52 AM 25 SENT TO SOME OTHER DIVISION, DOES THE TEXAS WORKFORCE

WENDELL R. PARKS, OFFICIAL COURT REPORTER 409-654-2834

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39

09:52 AM 1 COMMISSION HAVE ANYTHING TO DO WITH THAT?

09:52 AM 2 A.

NO.

09:52 AM 3 Q.

WHO WOULD MAKE THAT DECISION?

09: 52 AM 4 A.

I DON'T KNOW.

09:52 AM 5 Q. WOULD IT HAVE TO BE SOMEBODY AT LUFKIN INDUSTRIES?

09:52 AM 6 A.

YES.

09:53 AM 7 Q. JUST ONE MORE EXAMPLE, ANOTHER QUARTER INCH OR SO

09:53 AM 8 DOWN INTO THE STACK, TWC157.

09:53 AM 9 A. 09: 53 AM 10 Q. 09: 53 AM 11 A.

OKAY. WHAT OPENING IS DESCRIBED IN THAT WORK ORDER? A FOUNDRY WORKER.

09:53 AM 12 Q.

IF YOU LOOK OVER ON THE NEXT PAGE, THERE'S A --

09:53 AM 13 ABOUT TWO INCHES DOWN, THE NAME ETHRIDGE.

09:54 AM 14 A. 09:54 AM 15 Q.

OKAY. OKAY. WAS ETHRIDGE REFERRED BY THE TEXAS WORKFORCE

09: 54 AM 16 09:54 AM 17 09:54 AM 18 09: 54 AM 19 09:54AM 20 09: 54 AM 21 09:54 AM 22 09: 54 AM 23

COMMISSION TO LUFKIN FOR A JOB IN THE FOUNDRY?

A. YES.

Q. AND WAS HE HIRED BY LUFKIN INDUSTRIES?

A. YES.

Q. DO YOU KNOW WHAT POSITION HE WAS HIRED INTO?

A •

NO.

Q. AND WHAT WAS MR. ETHRIDGE'S RACE?

A • WHITE.

09:54AM 24 Q. 09: 54 AM 25 A.

WHAT CODE DO YOU SEE FOR ETHNICITY?
AI.

WENDELL R. PARKS, OFFICIAL COURT REPORTER 409-654-2834

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40

09:54 AM 1 Q. AND DOES THAT INDICATE BLACK OR WHITE?

09: 54 AM 2 A.

WHITE.

09:54 AM 3 Q. OKAY. 11M SORRY. I THOUGHT I HEARD YOU SAY BLACK.

09:54 AM 4 A.

I SAID WHITE.

09:54 AM 5 Q.

OKAY. THANK YOU.

09:55 AM 6

OKAY. THE ONE POINT I WANT TO TRY TO COVER

09: 55 AM 7 HERE, IF THE JOB ORDER SAYS "FOUNDRY" AT THE TOP, AS FAR

09:55 AM 8 AS THE TEXAS WORKFORCE COMMISSION IS CONCERNED, THE NAMES

09:55 AM 9 BELOW THERE WERE REFERRED TO LUFKIN INDUSTRIES FOR AN 09: 55 AM 10 OPENING IN THE FOUNDRY?

09: 55 AM 11 A.

YES.

09:55 AM 12 Q.

IS THAT RIGHT?

09: 55 AM 13 A. 09: 55 AM 14

YES. MR. GARRIGAN: PASS THE WITNESS.

09: 55 AM 15

THANK YOU VERY MUCH.

09: 55 AM 16

CROSS-EXAMINATION

09:55 AM 17 BY MR. HAMEL:

09: 56 AM 18 Q.

GOOD MORNING, MS. POULAN.

09:56 AM 19 A.

GOOD MORNING.

09:56 AM 20 Q.

11M DOUG HAMEL.

09: 56 AM 21

I WOULD FIRST LIKE YOU TO TAKE A LOOK --

09: 56 AM 22

WOULD YOU PASS ME THAT NOTEBOOK, PLEASE?

09: 56 AM 23

I BELIEVE AT EXHIBIT 9, MS. POULAN, IN YOUR

09: 56 AM 24 09: 57 AM 2 5

THAT I S BEEN PROVIDED BY THE PLAINTIFF A • OKAY.

WENDELL R. PARKS, OFFICIAL COURT REPORTER 409-654-2834

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09:57 AM 1 Q.

41
NOW, EXHIBIT 9 IS A DOCUMENT THAT WAS PROVIDED TO

09: 57 AM 2 THE TWC BY LUFKIN INDUSTRIES?

09:57 AM 3 A.

YES.

09: 57 AM 4 Q.

AND THIS IS FOR ENTRY-LEVEL EMPLOYMENT

09:57 AM 5 QUALIFICATIONS IN THE OILFIELD AND POWER TRANSMISSION

09:57 AM 6 DIVISIONS?

09:57 AM 7 A.

YES.

09:57 AM 8 Q. AND DOES IT SHOW THAT A MINIMUM QUALIFICATION FOR

09:57 AM 9 ENTRY LEVEL IN THOSE DIVISIONS IS A G.E.D. OR BETTER?

09: 57 AM 10 A.

YES.

09: 57 AM 11 Q.

OKAY. THERE IS A HANDWRITTEN NOTE NEXT TO THAT. IS

09: 57 AM 12 THAT YOUR HANDWRITING?

09: 57 AM 13 A.

NO.

09:57AM 14 Q.

DO YOU KNOW WHOSE HANDWRITING IT IS?

09:57 AM 15 A.

NO.

09:57AM 16 Q.

CAN I ASSUME THAT IT WOULD BE SIMPLY SPECULATION ON

09: 57 AM 17 YOUR PART WHAT THAT HANDWRITING MEANS?

09:57 AM 18 A.

YES.

09: 57 AM 19 Q.

OKAY. NOW, IF YOU'LL LOOK AT EXHIBIT 10, IS THIS

09: 58 AM 20 THE ENTRY-LEVEL EMPLOYMENT QUALIFICATIONS PROVIDED TO TWC

09: 58 AM 21 BY LUFKIN FOR THE GENERAL FOUNDRYMEN AND TRAILER HELPER

09: 58 AM 22 POSITIONS?

09:58 AM 23 A. 09:58AM 24 Q.

YES. AND DO YOU HAVE TO HAVE A HIGH SCHOOL EDUCATION OR A

09:58 AM 25 G.E.D. TO WORK ON THOSE POSITIONS?

WENDELL R. PARKS, OFFICIAL COURT REPORTER 409-654-2834

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42

09:58 AM 1 A.

NO.

09:58 AM 2 Q.

NOW, MS. POULAN, I WOULD LIKE TO TAKE YOU BACK FOR A

09:58 AM 3 MOMENT TO THE PROCESS THAT YOU HAVE GONE -- THAT YOU GO

09:58 AM 4 THROUGH AT THE TWC SO THAT I'M SURE THAT WE UNDERSTAND IT.

09:58 AM 5

FIRST, AN APPLICANT OR A CUSTOMER COMES IN AND

09:58 AM 6 HE SAYS THAT HE'S SEEKING WORK, AND YOU ASK HIM TO FILL

09:58 AM ?
09:58 AM 8 09:58AM 9

OUT AN INFORMATION FORM?

A.

CORRECT.

Q. AND THEN IF HE'S WILLING TO DO SO OR SHE'S WILLING

09:58 AM 10 09:58 AM 11 09: 58 AM 12

TO DO SO, YOU HAVE AN INTERVIEW, IS THAT RIGHT? A. CORRECT. Q. PART OF THIS INFORMATION THAT YOU RECEIVE FROM THE

09: 58 AM 13 CUSTOMER IS WHAT JOBS THEY HAVE WORKED IN THE PAST, RIGHT?

09: 59 AM 14 A. 09: 59 AM 15 Q.

CORRECT. AND WHAT JOBS THEY ARE INTERESTED IN WORKING IN?

09: 59 AM 16 A.

CORRECT.

09: 59AM 1? Q.

IN ADDITION TO WHETHER THEy'RE WILLING TO WORK ANY

09:59 AM 18 SHIFT, AND WHERE THEY LIVE, AND WHAT COUNTIES THEy'RE

09:59 AM 19 09: 59 AM 20 09: 59 AM 21

WILLING TO WORK IN AND THE LIKE?

A.

CORRECT.

Q. THAT'S ALL PUT INTO A COMPUTER?

09:59 AM 22 A.
09: 59 AM 23 Q.

YES. AND THEN WHEN THE TWC GETS JOB REQUESTS, OR

09: 59 AM 24 REQUISITIONS IN THE CASE OF LUFKIN, YOU ENTER INTO THE

09: 59 AM 25 COMPUTER DATA WITH RESPECT TO THAT REQUISITION, IS THAT

WENDELL R. PARKS, OFFICIAL COURT REPORTER 409-654-2834

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43
09:59 AM 1 RIGHT?

09:59 AM 2 A.

CORRECT.

09: 59 AM 3 Q. AND THEN THE COMPUTER PRINTS OUT A LIST OF PEOPLE

09: 59 AM 4 THAT THE TWC BELIEVES SHOULD BE INTERVIEWED FOR THAT

09: 59 AM 5 POSITION?

09: 59 AM 6 A.

THAT ACCORDING TO THE KEYWORDS WOULD MATCH THE JOB

09: 59 AM 7 ORDER.

09: 59 AM 8 Q. ALL RIGHT. SO YOU PUT IN KEYWORDS, AND FOR EXAMPLE,

09: 59 AM 9 YOU MAY PUT IN A KEYWORD THAT SAYS FOUNDRY, RIGHT?

09:59 AM 10 A.

CORRECT.

09: 59 AM 11 Q.

AND THE COMPUTER THEN WOULD LOOK AT PEOPLE WHO MAY

09: 59 AM 12 BE SUITABLE FOR THE FOUNDRY?

09: 59 AM 13 A.

CORRECT. YOU HAVE EXPERIENCE OR INTERESTS.

10:00 AM 14 Q. ALL RIGHT. AND AM I CORRECT THAT THAT IS A

10:00 AM 15 MECHANICAL PROCESS WHICH IS NOT DONE BY, NOT INFLUENCED BY

10:00 AM 16 ANY HUMAN OTHER THAN THE FACT THAN THEY ENTER IN THE DATA?

10 :00 AM 17 A. CORRECT.

10:00 AM 18 Q. OKAY. IT IS AN OBJECTIVE PROCESS, THE COMPUTER JUST

10:00 AM 19 SELECTS OUT PEOPLE BASED ON A PREDETERMINED PROGRAM AS TO

10:00 AM 20 WHAT IS IMPORTANT?

10 :00 AM 21 A.

CORRECT.

10:00 AM 22 Q. AND AM I CORRECT THAT, WITH RESPECT TO FOUNDRY WORK,

10:00 AM 23 IF A PERSON HAS LISTED PRIOR EXPERIENCE IN THE FOUNDRY,

10:00 AM 24 THEY ARE MORE LIKELY THAN SOMEONE WHO DOES NOT TO GET ON

10:00 AM 25 THE FOUNDRY LIST?

WENDELL R. PARKS, OFFICIAL COURT REPORTER
409-654-2834

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10:00 AM 1 10:00 AM 2 10:00 AM 3 10:00 AM 4 10:00 AM 5 10:00 AM 6 10:00 AM 7 10:00 AM 8 10:00 AM 9 10:00 AM 10 10:00 AM 11

44 A. CORRECT. Q. IF A PERSON LISTS THAT THEY ARE INTERESTED IN DOING FOUNDRY WORK, THEy'RE MORE LIKELY TO GET ON THE FOUNDRY LIST? A. CORRECT. Q. IF A PERSON HAS GREATER EXPERIENCE IN DOING FOUNDRY WORK THAN SOMEONE ELSE, SAY SOMEBODY ONLY HAS SIX MONTHS OF FOUNDRY WORK AND SOMEBODY HAS THREE YEARS OF FOUNDRY WORK, THE PERSON WHO HAS THREE YEARS IS MORE LIKELY TO GET ON THE LIST? A. CORRECT. AND NORMALLY, IF SOMEONE HAS GENERAL

10:00 AM 12 FOUNDRY ON THERE, THEY ALSO HAVE GENERAL LABOR, WHICH

10:01 AM 13 EITHER ONE WOULD GET THEM ON THE LIST. 10:01 AM 14 Q. OKAY. BUT AM I CORRECT THAT IF YOU'RE LOOKING FOR A

10:01 AM 15 FOUNDRY SITUATION, YOU MAY SEE THAT PEOPLE ARE HIGHER UP

10:01 AM 16 ON THE LIST IF THEY HAVE PREVIOUSLY WORKED IN THE FOUNDRY?

10:01 AM 17 A.

RIGHT.

10:01 AM 18 Q. OR THEY HAVE INDICATED FOUNDRY IS ONE OF THEIR

10:01 AM 19 10:01 AM 20 10:01 AM 21

DESIRES? A. YES. Q. AND AS I UNDERSTAND THE PROCESS, ONCE YOU GET THIS

10:01 AM 22 LIST FROM THE COMPUTER, YOU DON'T ADD ANYBODY TO IT, YOU

10:01 AM 23 JUST TAKE PEOPLE OFF AS YOU CALL THEM, AND YOU DETERMINE

10:01 AM 24 IF IN FACT THEY DO HAVE THE MINIMUM QUALIFICATIONS, RIGHT?

10:01 AM 25 A.

CORRECT.

WENDELL R. PARKS, OFFICIAL COURT REPORTER 409-654-2834

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45

10:01 AM 1 Q.

OR IF THEy'RE --

10:01 AM 2

OR IF THEY CONTINUE TO BE INTERESTED IN THE JOB?

10:01 AM 3 A.

CORRECT.

10:01 AM 4 Q. OKAY. AND AM I CORRECT THAT IN YOUR EXPERIENCE YOU

10:01 AM 5 HAVE HAD PEOPLE WHO, WHEN YOU TELL THEM THAT YOU'RE

10:01 AM 6 LOOKING FOR FOUNDRY WORK, THEY SAY THEy'RE NOT INTERESTED?

10:01 AM 7 A.

CORRECT.

10:01 AM 8 Q. AND HOW ABOUT CHIPPER/GRINDER WORK, DO YOU EVER TELL

10:01 AM 9 THEM THAT YOU'RE LOOKING FOR A CHIPPER/GRINDER?

10:01 AM 10 A.

YES, AND A LOT OF THEM AREN'T INTERESTED.

10:01 AM 11 Q.

OKAY. AND THAT'S UP TO THE INDIVIDUAL TO TELL YOU

10:02 AM 12 THAT, ISN'T THAT RIGHT?

10:02 AM 13 A.

THAT'S CORRECT.

10:02 AM 14 Q.

AND AS YOU'RE DOING THIS INTERVIEWING PROCESS, YOU

10:02 AM 15 ARE CROSSING OFF PEOPLE FROM THE LIST FROM TOP TO BOTTOM?

10: 02 AM 16

AND YOU FOL LOW TH E LIST TOP TO BOTTOM, DON'T

10:02 AM 17 YOu?

10:02 AM 18 A.

CORRECT.

10:02 AM 19 Q.

OKAY. UNTIL YOU GET ENOUGH PEOPLE TO INTERVIEW FOR

10:02 AM 20 THE JOB, RIGHT?

10:02 AM 21 A.

THAT'S CORRECT.

10:02 AM 22 Q.
10:02 AM 23 A.

AND DO YOU THEN STOP BASICALLY? WELL, WE KEEP SEARCHING UNTIL WE HAVE FOUND ENOUGH

10:02 AM 24 PEOPLE TO FILL THE JOB ORDERS.

10: 02AM 25 Q.

OKAY. NOW, AM I CORRECT THAT YOU TELL THESE

WENDELL R. PARKS, OFFICIAL COURT REPORTER 409-654-2834

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46

10:02 AM 1 INDIVIDUALS THAT SAY THAT, YES, THEY ARE INTERESTED THAT

10:02 AM 2 "YOU NEED TO COME IN FOR AN INTERVIEW"?

10:02 AM 3 A.

THAT'S CORRECT.

10:02 AM 4 Q. AND DOES LUFKIN TYPICALLY INTERVIEW AT THE TWC

10:02 AM 5 OFFICES?

10:02 AM 6 A.

YES.

10:02 AM 7 Q. IN FACT, IN YOUR EXPERIENCE THAT'S WHERE THEY ALWAYS

10:02 AM 8 INTERVIEW, ISN'T THAT RIGHT?

10:02 AM 9 10:02 AM 10 10:02 AM 11

A. NO. Q. OKAY. DO THEY ALWAYS INTERVIEW FOR HELPER AND GENERAL FOUNDRYMEN POSITIONS THERE?

10:02 AM 12 A.

IF IT'S -- MAYBE -- LIKE IF IT'S ONLY ONE POSITION,

10:02 AM 13 THEY MAY INTERVIEW AT LUFKIN INDUSTRIES. IF IT'S FOR MORE 10:02 AM 14 THAN ONE POSITION, IF THEy'RE GOING TO HAVE TWO OR THREE

10:03 AM 15 PEOPLE IN THE OFFICE, THEy'LL COME TO OUR OFFICE.

10:03 AM 16 Q. OKAY. AND WHEN THE CUSTOMER COMES TO YOUR OFFICE,

10:03 AM 17 THE RECEPTIONIST GIVES THEM A LUFKIN INDUSTRIES'

10:03 AM 18 APPLICATION?

10:03 AM 19 A. 10:03 AM 20 Q.

THAT'S CORRECT. AND THE PERSON FILLS IT OUT, RIGHT?

10:03 AM 21 A.

CORRECT.

10:03 AM 22 Q. AND RETURNS IT TO THE RECEPTIONIST?

10:03 AM 23 A. 10:03 AM 24 Q.

CORRECT. AND THE RECEPTIONIST PUTS IT IN A CUBBYHOLE

10:03 AM 25 SOMEWHERE, RIGHT?

WENDELL R. PARKS, OFFICIAL COURT REPORTER 409-654-2834

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47

10:03 AM 1 A.

CORRECT.

10:03 AM 2 10:03 AM 3 10:03 AM 4 10:03 AM 5 10:03 AM 6 10:03 AM 7

Q. AND THEN LUFKIN INTERVIEWS IN THE ORDER THAT THE APPLICATIONS ARE RETURNED? A. CORRECT. Q. SO LUFKIN DOESN'T PICK AND CHOOSE FROM THE PEOPLE SITTING IN THE WAITING AREA, THEY GO AND THEY PICK THE APPLICATIONS IN THE ORDER THAT THEy'RE RETURNED AND THEY

10:03 AM 8 INTERVIEW PEOPLE?

10:03 AM 9 A.

CORRECT.

10:03 AM 10 Q.

OKAY. AND FROM THAT POINT, LUFKIN THEN MAKES A

10:03 AM 11 DETERMINATION OF WHETHER THEy'RE GOING TO BE HIRED OR NOT?

10:03 AM 12 A. 10:03 AM 13 Q.

CORRECT. OKAY. NOW, AM I CORRECT THAT IN YOUR EXPERIENCE

10:03 AM 14 WITH LUFKIN MR. BARBAY HAS BEEN THE PERSON WHO HAS BEEN

10:03 AM 15 RESPONSIBLE FOR HIRING?

10:03 AM 16 A.

YES.

10:03 AM 17 Q. OKAY. DOES THE TWC HAVE ANY REQUIREMENTS WITH

10:03 AM 18 RESPECT TO WHETHER OR NOT THEY WILL PERMIT AN EMPLOYER TO

10:03 AM 19 DISCRIMINATE ON THE BASIS OF RACE?
10 :04 AM 20 A. WE WILL NOT TAKE THE JOB ORDER.

10:04 AM 21 Q. OKAY. HAVE YOU EVER HAD ANY DIFFICULTY WITH RESPECT

10:04 AM 22 10: 04 AM 23 10:04 AM 24

TO THAT WITH MR. BARBAY OR WITH LUFKIN INDUSTRIES? A. NO . Q. ALL RIGHT. SO -- AND IF YOU HAD SUCH DIFFICULTY,

10:04 AM 25 YOU AS A STATE AGENCY WOULD REFUSE TO TAKE THE JOB ORDER?

WENDELL R. PARKS, OFFICIAL COURT REPORTER
409-654-2834

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10:04 AM 1 10:04 AM 2 10:04 AM 3 10:04 AM 4 10:04 AM 5 10:04 AM 6 10:04 AM 7 10:04 AM 8 10:04 AM 9 10:04 AM 10

48 A. CORRECT. Q. OKAY. AM I CORRECT THAT YOU HAVE NEVER REFUSED TO TAKE A JOB ORDER FROM LUFKIN INDUSTRIES? A. WE HAVE NOT. Q. OKAY. NOW, WHEN MR. BARBAY CALLS YOU AND WHEN HE E-MAILS YOU, DOES HE TELL YOU BY REQUISITION SPECIFICALLY WHAT JOB THEy'RE LOOKING FOR? A. YES. Q. SUCH AS HE'LL TELL YOU "WE WANT A GENERAL FOUNDRYMAN"?

10:04 AM 11 A.

YES.

10:04 AM 12 Q. AND HE'LL OFTEN TELL YOU EXACTLY WHERE THAT PERSON

10:04 AM 13 IS GOING TO GO TO WORK, WON'T HE?

10:04 AM 14 A.

YES.

10:04 AM 15 Q. OKAY. OR HE'LL SAY, "I WANT A TRAILER BUILDER,"

10: 04 AM 16 RIGHT?

10:04 AM 17 A.

CORRECT.

10:04 AM 18 Q. AND YOUR BASIC EXPERIENCE HAS BEEN, THOSE ARE THE

10:04 AM 19 TWO JOBS THAT GET FILLED, GET FILLED, AS OPPOSED TO A

10:04 AM 20 MACHINIST HELPER FOR EXAMPLE?

10: 04 AM 21 A. I DON'T SEE THOSE ORDERS VERY OFTEN.

10 :04 AM 22 Q • OKAY. AND A MACHINIST HELPER IS SOMEONE WHO, IF

10:05 AM 23 THEy'RE WORKING IN POWER TRANSMISSION OR OILFIELD, WOULD

10:05 AM 24 NEED TO HAVE A HIGH SCHOOL EDUCATION OR A G. E. D. OR

10:05 AM 25 BETTER, RIGHT?

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49

10:05 AM 1 A.

CORRECT.

10:05 AM 2 Q. AND THAT'S -- YOUR UNDERSTANDING, THAT'S BECAUSE

10:05 AM 3 THEY WOULD NEED TO BE ABLE TO DO SHOP MATH CALCULATIONS TO

10:05 AM 4 ASSIST THE MACHINISTS?

10:05 AM 5 A.

CORRECT.

10:05 AM 6 Q. OKAY. HAVE YOU BEEN TO LUFKIN INDUSTRIES?

10:05 AM 7 A.

YES.

10:05 AM 8 Q.

DID LUFKIN BRING YOU THERE WHEN THEY LEARNED THAT

10:05 AM 9 YOU WERE GOING TO BE THEIR PRINCIPAL CONTACT SO YOU COULD

10:05 AM 10 TOUR THE ENTIRE FACILITY?

10:05 AM 11 A.

I TOURED MOST OF THE FACILITY.

10:05 AM 12 Q.

OKAY. DID YOU TOUR THE FOUNDRY?

10:05 AM 13 A.

YES.

10:05 AM 14 Q.

DID THEY SHOW YOU EVERYTHING IN THE FOUNDRY?

10:05 AM 15 A.

YES.

10:05 AM 16 Q.

DID YOU TOUR TRAILER?

10:05 AM 17 A.

YES.

10:05 AM 18 Q.

DID YOU TOUR OILFIELD?

10:05 AM 19 A.

NO.

10:05 AM 20 Q.

OKAY. DID YOU TOUR POWER TRANSMISSION?

10:05 AM 21 A.

NO.

10:05 AM 22 Q.

OKAY. SO YOU WENT TO TRAILER AND OILFIELD (SIC),

10:05 AM 23 WHICH ARE THE JOBS THAT YOU MOST OFTEN FILL AS YOU RECALL

10:05 AM 24 IT?

10:05 AM 25 A.

CORRECT.

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10:05 AM 1 Q.

50 OKAY. NOW, AM I CORRECT IN UNDERSTANDING THAT SINCE

10:06 AM 2 YOU SAID YOU HAVE BEEN ON THE JOB YOU HAVE DONE JOB

10:06 AM 3 REQUISITIONS OR YOU HAVE TAKEN INDIVIDUAL REQUISITIONS AND

10:06 AM 4 YOU HAVE CREATED AN INDIVIDUAL JOB ORDER, IS THAT RIGHT?

10:06 AM 5 A.

REPEAT THAT.

10:06 AM 6 Q.

YEAH. LET ME TRY TO REPEAT IT.

10:06 AM 7

IN FACT, LET ME ASK YOU TO LOOK AT EXHIBIT 11,

10:06 AM 8 PLEASE.

10:06 AM 9

WHEN I WAS LOOKING AT EXHIBIT 11, MS. POULAN, I

10:06 AM 10 NOTICED THERE SEEMED TO BE A SUBSTANTIAL CHANGE IN HOW

10:06 AM 11 THINGS WERE DONE AT ABOUT THE DEMARCATION OF TWC00177 AND

10:06 AM 12 00298. DO YOU SEE THOSE TWO PAGES?

10:07 AM 13 A.

JUST A SECOND. WELL, 177 IS A JOB DEVELOPMENT.

10:07 AM 14 IT'S NOT A JOB ORDER, IT'S A JOB DEVELOPMENT.

10:07 AM 15 Q.

OKAY. IS THAT THE ONE THAT SAYS FOR MAINTENANCE

10:07 AM 16 ELECTRICIAN?

10: 07 AM 17 A.

YES.

10:07 AM 18 Q.

OKAY. LET ME ASK --

10:07 AM 19 A.

IT'S A PLACEMENT AS A RESULT OF A JOB DEVELOPMENT.

10:07 AM 20 Q.

OKAY. AND THAT WAS A JOB DEVELOPMENT AT FEBRUARY

10:07 AM 21 27, 1997?

10:07 AM 22 A.

CORRECT.

10:07 AM 23 Q.

NOW, LOOK AT TWc298. THAT'S AN ORDER THAT IS PLACED

10:07 AM 24 IN JULY OF 2001, IS IT NOT?

10: 07 AM 2 5 A.

298 IS A DELAYED VERIFICATION.

WENDELL R. PARKS, OFFICIAL COURT REPORTER 409-654-2834

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10:08 AM 1 Q.

ALL RIGHT. AM I CORRECT THAT --

10:08 AM 2

FIRST OF ALL, THERE ARE NO IN EXHIBIT 11

10:08 AM 3 THERE ARE NO DOCUMENTS BATES-STAMPED FROM 00178 TO 00297?

10:08 AM 4 A.

I'M NOT FOLLOWING YOU.

10:08 AM 5 Q. WELL, LET ME APPROACH. OKAY. I'M JUST WANTING TO

10:08 AM 6 BE SURE -- EXCUSE ME. I'M JUST WANTING TO BE SURE THAT

10:08 AM 7 I'M NOT MISSING SOMETHING FROM MY BOOK. I DON'T THINK I

10:08 AM 8 AM.

10:08 AM 9 10:08 AM 10 10:08 AM 11

WHAT I'M -AM I CORRECT, AS FAR AS YOU CAN SEE, THAT EXHIBIT 11 STARTS WITH TWC14?

10:08 AM 12 10:08 AM 13 10:08 AM 14

A. UH-HUH. Q. AND IT SEEMS TO RUN SEQUENTIALLY 73, 74, 76 UNTIL IT GETS TO NUMBER TWC00177?

10 : 08 AM 15 A .

OKAY.

10: 08 AM 16 Q. AND THEN IT SKIPS AND IT GOES TO TWC00298?

10:08 AM 17 A. 10:08 AM 18 Q.

YES. SO WE'RE KIND OF MISSING FROM 178 TO 297, IS THAT

10: 09 AM 19 RIGHT?

10:09 AM 20 A.

I HADN'T NOTICED, BUT, YES.

10: 09 AM 21 Q. OKAY. AND IF YOU WOULD LOOK FROM 298, DO THEY

10:09 AM 22 APPEAR TO BE JOB ORDERS THAT HAVE BEEN TAKEN RECENTLY WHEN

10:09 AM 23 10 : 09 AM 24

YOU WERE HANDLING LUFKIN?

A .

298?

10: 09 AM 2 5 Q.

FROM 298 ON.

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10:09 AM 1 A.

298 IS JULY, '01.

10:09 AM 2 Q.

OKAY. HOW ABOUT

10:09 AM 3

AND WHEN DID YOU START HANDLING LUFKIN?

10:09 AM 4 A.

I THINK AROUND MARCH -- MARCH, 2000.

10:09 AM 5 Q.

OKAY.

10:09 AM 6 A.

BUT THIS IS A DELAYED VERIFICATION.

10:09 AM 7 Q.

I SEE.

10:09 AM 8 A.

IT'S NOT A JOB ORDER.

10:09 AM 9 Q. OKAY. HOW ABOUT THE NEXT PAGE?

10:09 AM 10 A.

IT'S A DELAYED VERIFICATION.

10:09 AM 11 Q. ALL RIGHT. AND GO THROUGH AND TELL ME WHERE IS THE

10:09 AM 12 FIRST JOB ORDER THAT YOU SEE.

10 :09 AM 13 A . OKAY. DELAYED VERIFICATION, DELAYED VERIFICATION.

10:09 AM 14 OKAY. JUNE, '01.

10:09 AM 15 Q.

AND THAT'S TWC302?

10:09 AM 16 A.

YES.

10 :09 AM 17 Q. OKAY. I WANT YOU TO DO -- AND I APOLOGIZE FOR

10: 09 AM 18 MAKING YOU FLI P BACK AND FORTH, BUT I WANT YOU TO DO A

10:10 AM 19 LITTLE COMPARISON FOR ME IF YOU COULD.

10:10 AM 20

WOULD YOU TAKE A LOOK AT TWC PAGE 335? DO YOU

10:10 AM 21 SEE THAT?

10:10 AM 22 A.

335, YES.

10: 10 AM 23 Q. YES. THAT'S FOR GENERAL FOUNDRYMEN, ISN'T IT?

10:10 AM 24 A.

YES.

10: 10 AM 2 5 Q. AND IT WAS AN ORDER TAKEN IN FEBRUARY OF '03?

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10:10 AM 1 A.

CORRECT.

10:10 AM 2 Q. OKAY. AND THIS HAS THREE NAMES ON IT OF PEOPLE WHO

10:10 AM 3 WERE REFERRED AND ACTUALLY ONE WAS HIRED?

10: 10 AM 4 A. YES.

10: 10 AM 5 Q. OKAY. DOES THIS HAVE THE ACTUAL REQUISITION NUMBER

10:10 AM 6 THAT LUFKIN WOULD PROVIDE TO YOU FROM THEIR SYSTEM?

10:10 AM 7 A.

IT'S NOT ON HERE.

10:10 AM 8 Q. OKAY. ALL RIGHT. THEN LOOK AT 334, OR 336, PLEASE.

10:11 AM 9 A.

OKAY.

10:11 AM 10 Q. AND THIS IS A GENERAL FOUNDRYMAN JOB ORDER FOR

10:11 AM 11 FEBRUARY OF 2003, AND IT HAS TWO NAMES ON IT?

10: 11 AM 12 A .

YES.

10:11 AM 13 Q.

ONE OF WHICH WAS HIRED?

10:11 AM 14 A.

YES.

10 :11 AM 15 Q . AND THEN IF YOU WOULD LOOK AT 338. THIS IS A

10:11 AM 16 GENERAL FOUNDRYMAN REQUISITION, AND IT HAS FOUR NAMES ON

10:11 AM 17 IT, ONE OF WHOM WAS HIRED?

10:11 AM 18 A.

CORRECT.

10:11 AM 19 Q. NOW, DOES 338 HAVE A REQUISITION NUMBER ON IT AT

10: 11 AM 20 ALL?

10 : 11 AM 21 A .

I DON'T SEE ONE.

10: 11 AM 22 Q . OKAY. NOW, IF YOU WOULD TURN BACK AND LOOK AT TWC

10:11 AM 23 NUMBER 138. DO YOU SEE THAT?

10: 12 AM 24 A .

YES.

10 :12 AM 25 Q . NOW, 138 IS A REQUISITION BACK IN '96, ISN'T THAT

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10:12 AM 1 RIGHT?

10:12 AM 2 A.

YES.

10:12 AM 3 Q. AND IT HAS TWO AND A HALF PAGES OF PEOPLE WHO WERE

10:12 AM 4 REFERRED AND HIRED, CORRECT?

10:12 AM 5 A.

YES.

10:12 AM 6 Q. AND THEN IF YOU LOOK AT TWC153 , THAT'S A REQUISITION

10:12 AM 7 IN APRIL OF '96, AND IT HAS ABOUT THREE AND A QUARTER

10:12 AM 8 PAGES OF PEOPLE WHO WERE REFERRED AND HIRED?

10:12 AM 9 10: 12 AM 10 10: 12 AM 11

A. YES. Q. SO THE REQUISITIONS BACK IN TIME SEEM TO HAVE A LOT MORE APPLICANTS THAT WERE REFERRED AND A LOT MORE

10:12 AM 12 INDICATION OF HIRING THAN MORE RECENTLY, AM I CORRECT?

10 : 12 AM 13 A .

CORRECT.

10:12 AM 14 Q.

OKAY. DO I --

10: 13 AM 15

I BELIEVE YOU TESTIFIED, BUT LET ME BE SURE,

10:13 AM 16 THAT YOU STARTED TO WORK WITH LUFKIN IN 2000, AND THAT IN

10:13 AM 17 THE TIME PERIOD OF 1996 TO 1999 YOU HAD A DIFFERENT JOB

10:13 AM 18 AND YOU WEREN'T INVOLVED IN PREPARING THESE JOB ORDERS?

10:13 AM 19 A.

NOT PREPARING THE JOB ORDERS.

10 : 13 AM 20 Q. OKAY. AND THAT YOU IN FACT WERE WITH TWC BUT YOU

10:13 AM 21 WEREN'T WORKING WITH LUFKIN?

10 : 13 AM 22 A . I MADE SOME LIMITED REFERRALS ON SOME OF THE ORDERS

10:13 AM 23 IN THE LATTER PART, BUT I DID NOT WRITE THE JOB ORDERS. 10: 13 AM 24 Q. OKAY. AND I AM ALSO CORRECT, AM I NOT, THAT IT

10:13 AM 25 WOULD BE APPROPRIATE UNDER TWC POLICY -- IT WOULDN'T BE AN

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10:13 AM 1 ERROR IN THIS PAST TIME FRAME FOR SOMEONE TO USE AN

10: 13 AM 2 EXISTING JOB ORDER AND REFER PEOPLE ON DIFFERENT

10:13 AM 3 REQUISITIONS TO DIFFERENT DIVISIONS?

10:13 AM 4 A.

AS LONG AS THE QUALIFICATIONS WERE THE SAME, IT

10:13 AM 5 WOULD NOT BE AN ERROR.

10:13 AM 6 Q.

OKAY. SO A PERSON IN THE PAST COULD HAVE TAKEN A

10:13 AM 7 JOB ORDER, FOR EXAMPLE, FOR A FOUNDRY WORKER, AND SINCE

10:13 AM 8 ITS QUALIFICATIONS ARE THE SAME AS TRAILER BUILDER -- IF

10: 14 AM 9 SOMEBODY CALLED IN AND SAID, "WE NEED TRAILER BUILDERS,"

10:14 AM 10 THEY MAY JUST PULL THIS UP ON THE SCREEN AND FILL IT FROM

10:14 AM 11 A JOB ORDER, RIGHT?

10: 14 AM 12 A .

IDEALLY THERE WOULD HAVE BEEN TWO JOB ORDERS IN

10: 14 AM 13 TH ERE, BUT, YOU KNOW, IT COU LD HAVE

10:14 AM 14

I MEAN, IF THE JOB ORDERS ARE THE SAME, I MEAN,

10:14 AM 15 IF THE QUALIFICATIONS ARE THE SAME, IT'S NOT AN ERROR AS

10:14 AM 16 FAR AS -- YOU KNOW, IF YOU'RE LOOKING FOR ERROR MADE ON

10:14 AM 17 REFERRALS, IT WOULDN'T BE AN ERROR.

10: 14 AM 18 Q.

OKAY. WELL, YOU BELIEVE -- I TAKE IT YOU BELIEVE

10: 14 AM 19 THAT, GIVEN THE NUMBER OF PEOPLE THAT WE'RE TALKING ABOUT

10:14 AM 20 HERE, IT IS ENTIRELY POSSIBLE THAT THESE JOB ORDERS WERE

10:14 AM 21 USED TO FILL MULTIPLE REQUISITIONS, RIGHT?

10:14 AM 22 A.

I WASN'T WORKING DURING THAT TIME, I CAN'T SAY, BUT,

10: 14 AM 23 10:14 AM 24

I MEAN, IT IS POSSIBLE.

Q.

AND IT IS POSSIBLE THAT THOSE REQUISITIONS WERE FOR

10:14 AM 25 DIFFERENT DEPARTMENTS, PROVIDED THEY MAY HAVE HAD THE SAME

WENDELL R. PARKS, OFFICIAL COURT REPORTER
409-654-2834

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10:14 AM 1 ENTRY-LEVEL QUALIFICATIONS?

10:14 AM 2 A. 10: 14 AM 3 Q.

A POSSIBILITY. OKAY. WELL, LET ME GET TO A RANGE OF A LITTLE MORE

10:15 AM 4 WITH RESPECT TO THIS.

10:15 AM 5

IT HAS BEEN YOUR EXPERIENCE, HASN'T IT, THAT

10:15 AM 6 LUFKIN NEEDS PEOPLE TO WORK IN THE FOUNDRY AND THE TRAILER

10:15 AM 7 DIVISIONS FAIRLY OFTEN?

10:15 AM 8 A. THE FOUNDRY MORE OFTEN THAN THE TRAILER.

10:15 AM 9 Q.

SO IT IS A SITUATION IN WHICH YOU WOULD EXPECT THEM

10:15 AM 10 TO BE SENDING YOU REQUISITIONS BECAUSE OF THE TURNOVER IN

10:15 AM 11 THE FOUNDRY EVERY COUPLE OF WEEKS OR THREE WEEKS OR SO, IS

10:15 AM 12 THAT BASICALLY RIGHT, OR EVERY MONTH?

10:15 AM 13 A.

I'M GETTING THEM ALMOST DAILY NOW.

10:15 AM 14 Q.

ALMOST DAILY? AND AS FAR AS YOU KNOW, FROM THE

10:15 AM 15 SITUATION AT LUFKIN, THAT WAS THE CASE -- THAT I S BEEN THE

10:15 AM 16 CASE FOR AS LONG AS THEy'VE BEEN LOOKING FOR FOUNDRY

10:15 AM 17 WORKERS?

10:15 AM 18 A.

RIGHT. WHEN THE ECONOMY IS GOOD THEy'RE LOOKING FOR

10: 15 AM 19 EMPLOYEES, WHEN THE ECONOMY IS BAD, THEY I RE NOT.

10:15 AM 20 Q.

OKAY. AND LET ME SAY THAT, IF YOU LOOK AT THE TWC

10:15 AM 21 EXHIBITS, YOU WILL SEE THAT IN THE SERIES THAT THE

10: 15 AM 22 PLAINTIFF HAS PROVIDED FROM TWC14 TO TWC178 , THERE WERE

10:16 AM 23 ONE, TWO, THREE, FOUR, FIVE, SIX, SEVEN REQUISITIONS FOR

10:16 AM 24 FOUNDRY WORKER. THE FIRST WAS FOUND AT TWC041 , THE SECOND

10: 16 AM 25 AT 059. YOU CAN TAKE A LOOK AT THOSE.

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10:16 AM 1 A.

041, UH-HUH.

10:16 AM 2 Q.

041 IS A FOUNDRY WORKER, RIGHT?

10:16 AM 3 A.

YES.

10:16 AM 4 Q.

OKAY. AND THAT REQUISITION WAS PLACED ON 11-2-97,

10:16 AM 5 RIGHT?

10:16 AM 6 A.

CORRECT.

10:16 AM 7 Q.

OKAY. AND I'M NOT --

10:16 AM 8

LET ME SAY, IN THE INTEREST OF TIME CONSTRAINTS,

10:16 AM 9 I'M GOING TO TRY TO DO THIS QUICKLY. SO IF YOU WOULD LOOK

10: 16 AM 10 QUICKLY THROUGH THERE, DO YOU SEE ANYBODY WHO HAD AN

10: 16 AM 11 APPOINTMENT DATE AFTER MARCH 28, 1988?

10: 16 AM 12 A. 10: 17 AM 13 Q. 10:17 AM 14 A.

AFTER MARCH 28TH? YES. NO.

10:17 AM 15 Q.

OKAY. NOW, I'M GOING TO REPRESENT TO YOU, BECAUSE

10: 17 AM 16 IT'S IN THE DOCUMENT, AND I'M NOT GOING TO MAKE YOU WORK

10:17 AM 17 THROUGH IT, MS. POULAN, BECAUSE YOUR TIME IS MORE VALUABLE

10:17 AM 18 THAN THAT, BUT I'M GOING TO REPRESENT TO YOU THAT THESE

10:17 AM 19 SEVEN REQUISITIONS ARE ALL THE GENERAL FOUNDRY WORKER

10: 17 AM 20 REQUISITIONS FOUND IN THAT FIRST SERIES OF BATES NUMBERS,

10:18 AM 21 AND THAT WHAT THEY REFLECT IS THAT THERE WASN'T ANY

10:18 AM 22 FOUNDRY WORKER REQUESTED BY LUFKIN INDUSTRIES UNTIL

10:18 AM 23 OCTOBER OF 1995.

10: 18 AM 24

NOW, WOULD IT BE YOUR EXPERIENCE THAT, FOR

10:18 AM 25 EXAMPLE, IF WE TAKE THE BENCHMARK PERIOD MARCH 6, 1994,

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10:18 AM 1 AND WE GO THROUGH TO OCTOBER OF 1995, WHICH IS A PERIOD OF

10:18 AM 2 ABOUT EIGHTEEN MONTHS, THAT LUFKIN WOULD HAVE NEVER NEEDED

10:18 AM 3 A FOUNDRY WORKER?

10:18 AM 4 A.

HIGHLY UNLIKELY.

10:18 AM 5 Q.

HIGHLY UNLIKELY, ISN'T IT?

10:18 AM 6 A.

YES.

10:18 AM 7 Q.

AND THESE DOCUMENTS WILL ALSO REFLECT THAT, WITH THE

10:18 AM 8 EXCEPTION OF TWO OR THREE PEOPLE FROM JANUARY 1, 1997, TO

10:18 AM 9 10: 18 AM 10 10: 18 AM 11

NOVEMBER, 1997, THERE WAS NO REQUIREMENT FOR A FOUNDRY WORKER, ABOUT A TEN-MONTH PERIOD, AND THAT WOULD BE UNUSUAL IN YOUR EXPERIENCE AS WELL, WOULDN'T IT?

10:18 AM 12

MR. GARRIGAN: YOUR HONOR, I NEED TO OBJECT ON

10: 18 AM 13 THE BASIS OF FOUNDATION. HE'S ASKING ABOUT DETAILS THAT

10:19 AM 14 10:19 AM 15

SHE CLEARLY HAS NO KNOWLEDGE OF. THE COURT: THAT'S TRUE.

IT'S A HYPOTHETICAL

10:19 AM 16 10:19 AM 17 10: 19 AM 18 10:19 AM 19 10:19 AM 20 10:19 AM 21 10:19 AM 22 10: 19 AM 23 10:19 AM 24

QUESTION. I'M GOING TO ALLOW IT.

ISN'T IT A HYPOTHETICAL QUESTION?

MR. HAMEL: IT IS, YOUR HONOR.

THE COURT: I THOUGHT SO.

THE WITNESS: OF ELEVEN MONTHS, NO JOB ORDER?

BY MR. HAMEL:

Q.

YES.

A . IT'S UNLIKELY.

Q. THAT WOULD BE VERY INCONSISTENT WITH YOUR EXPERIENCE

10: 19 AM 25 AS TO TH E NEEDS IN TH E FOUNDRY?

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10:19 AM 1 A.

CORRECT.

10:19 AM 2 Q.

OKAY. AND IF THE REQUISITIONS FOR GENERAL

10:19 AM 3 FOUNDRYMEN DONIT COVER THOSE TIME PERIODS, THEN THE

10:19 AM 4 PEOPLE -- IF THEY WERE ASKING FOR GENERAL FOUNDRYMEN, THEY

10:19 AM 5 MUST BE -- 11M SORRY. IF THE JOB ORDERS FOR GENERAL

10:19 AM 6 FOUNDRYMEN DONIT COVER THOSE TIME PERIODS, THEN IF LUFKIN

10:19 AM 7 NEEDED GENERAL FOUNDRYMEN, THEY MUST BE FOUND ON SOME

10:19 AM 8 OTHER JOB ORDER, ISNIT THAT RIGHT?

10:19 AM 9 A. 10:19 AM 10 Q.

THEY COULD BE. OKAY. AND SO --

10:19 AM 11

THE COURT: IF THE RECORDS ARE ACCURATE AND

10:19 AM 12 THEylVE NOT BEEN CHANGED?

10: 19 AM 13

THE WITNESS: RIGHT.

10:19 AM 14 BY MR. HAMEL:

10:19 AM 15 Q.

AND SO IT COULD BE THAT SOMEONE AT THE TWC, EVEN

10:19 AM 16 THOUGH, YOU KNOW, ITIS NOT THE PRACTICE YOU FOLLOW, BUT IT

10:20 AM 17 COULD BE THAT SOMEONE IN THE TWC PULLED UP AN OPEN JOB

10:20 AM 18 ORDER THAT WAS, SAY, FOR TRAILER, KNEW IT HAD THE SAME

10: 20 AM 19 ENTRY-LEVEL REQUIREMENTS, AND SIMPLY RAN A SEARCH BECAUSE

10:20 AM 20 THEY HAD GOTTEN SOMETHING FOR GENERAL FOUNDRYMEN FROM

10:20 AM 21 LUFKIN? THATIS A POSSIBILITY?

10:20 AM 22 A.

IF THEY DID NOT CHANGE THE JOB DESCRIPTION, IT COULD

10:20 AM 23 HAPPEN.

10:20 AM 24 Q.

OKAY. AND DOESNIT THE TWC, WHEN THEY GET BY

10:20 AM 25 TELEPHONE A REQUISITION FROM A COMPANY LIKE LUFKIN, DONIT

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10:20 AM 1 10:20 AM 2 10:20 AM 3

THEY WRITE DOWN THE REQUISITION THAT THEy'VE GOTTEN?

A.

WE WRITE DOWN THE JOB ORDER ON A JOB ORDER PAD.

Q.

ON A JOB ORDER PAD? AND THOSE DOCUMENTS ARE

10:20 AM 4
10:20 AM 5 10:20 AM 6
10:20 AM 7
10:20 AM 8 10:20 AM 9 10:20 AM 10 10:20 AM 11

DESTROYED BY THE TWC AFTER THEY

A.

THEy'RE SHREDDED.

Q.

OKAY. BUT WHEN YOU'RE ACTUALLY CALLING PEOPLE, YOU

HAVE THE JOB ORDER PAD THERE, DON'T YOU?

A.

YES.

Q.

AND IN FACT, THIS ISN'T SOMETHING THAT --

YOU'RE DOING IT IN REALTIME. YOU GET A

REQUISITION FROM LUFKIN AND THEY SAY, "I NEED SOME GENERAL

10:20 AM 12 FOUNDRYMEN." YOU RUN A LIST FROM THE COMPUTER AND YOU

10:20 AM 13 10:21 AM 14 10:21 AM 15

START CALLING PEOPLE FOR GENERAL FOUNDRYMEN?

A.

YES, IF IT'S A GENERAL FOUNDRYMAN JOB.

Q.

OKAY. SO IT'S FRESH IN YOUR MIND THAT THEY TOLD YOU

10:21 AM 16 "WE NEED GENERAL FOUNDRYMEN," EVEN IF YOU WOULD HAVE RUN

10:21 AM 17 THAT LIST AGAINST A JOB ORDER THAT HAD BEEN PLACED MONTHS

10:21 AM 18 10:21 AM 19
10:21 AM 20

BEFORE FOR TRAILER, ISN'T THAT RIGHT?

A.

YOU'LL HAVE TO REPEAT THAT.

Q.

I'M SORRY. I'M GOING A LITTLE FAST.

10:21 AM 21

LET ME ASK HYPOTHETICALLY IF FROM YOUR

10:21 AM 22 EXPERIENCE WITH THE TWC YOU THINK THIS IS A POSSIBILITY.

10:21 AM 23 10:21 AM 24 10:21 AM 25

LET'S ASSUME BACK IN '96, WHEN YOU WEREN'T DOING THIS, BUT
SOMEBODY ELSE WAS DOING IT, AND KNOWING THAT IT WASN'T AN ERROR, AN ERROR UNDER TWC PROCEDURES, THEY GOT A JOB ORDER

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10:21 AM 1 CURRENTLY IN THE SYSTEM FOR A TRAILER, A TRAILER POSITION.

10:21 AM 2 A.

UH-HUH.

10:21 AM 3 Q. AND VIRON BARBAY CALLS THEM AND SAYS, "I NEED SOME

10:21 AM 4 GENERAL FOUNDRYMEN."

10:21 AM 5 A.

UH-HUH.

10:21 AM 6 Q.

AND THE PERSON WRITES IT DOWN ON THE PAD, AND GOES

10:21 AM 7 INTO THE SYSTEM AND SEES THAT THEY HAVE A TRAILER JOB

10:21 AM 8 ORDER OPEN, AND SAYS, "IT'S THE END OF THE DAY, I CAN'T

10:21 AM 9 I CAN'T GET ALL THIS STUFF ENTERED IN TO DO A NEW JOB

10:22 AM 10 ORDER, SO I'M JUST GOING TO RUN THIS REQUISITION AGAINST

10:22 AM 11 THE EXISTING JOB ORDER, BECAUSE, AFTER ALL, IT HAS THE

10:22 AM 12 SAME REQUIREMENTS."

10:22 AM 13 A.

HUH-UH.

10:22 AM 14 Q.

OKAY?

10 : 22 AM 15 A •

NO.

10:22 AM 16 Q.

WOULDN'T DO THAT?

10:22 AM 17 A.

NO.

10:22 AM 18 Q.

WHY NOT?

10:22 AM 19 A.

YOU'VE GOT THE JOB ORDER PAD IN FRONT OF YOU?

10:22 AM 20 Q.

RIGHT.

10:22 AM 21 A.

IF YOU'RE WRITING ANOTHER JOB ORDER, THAT IS ANOTHER

10:22 AM 22 JOB ORDER NUMBER, IT'S A SEPARATE JOB ORDER NUMBER.

10 : 22 AM 23 Q .
10:22 AM 24 A.

WELL -WHETHER YOU RAN OUT OF TIME THAT DAY OR NOT, YOU

10:22 AM 25 WOULD DO IT THE NEXT MORNING.

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10:22 AM 1 Q.

OKAY. BUT AM I --

10:22 AM 2

THEN HOW WOULD YOU EXPLAIN, MS. POULAN, THAT

10:22 AM 3 THERE ARE MANY MORE REQUISITIONS THAN THERE ARE JOB

10:22 AM 4 ORDERS, IF EACH REQUISITION IS A SEPARATE JOB ORDER?

10: 22 AM 5 A.

WELL, 11M SAYING --

10:22 AM 6

MR. GARRIGAN: OBJECTION. HEIS ASSUMING FACTS

10: 22 AM 7 THAT ARE NOT IN EVIDENCE.

10:22 AM 8

THE COURT: 11M GOING TO ALLOW THE QUESTION.

10:22 AM 9 10:22 AM 10

ITI S CROSS-EXAMINATION. THE WITNESS: I WOULD SAY NO, BECAUSE THAT IS

10:22 AM 11 JUST NOT A PRACTICE THAT I WOULD DO. I CANIT TELL YOU

10: 22 AM 12 WHAT SOMEBODY ELSE DID IN 196 OR 197, BUT I I M TELLING YOU

10:22 AM 13 I WOULDN IT DO IT.

10:22 AM 14 BY MR. HAMEL:

10:22 AM 15 Q.

WELL, LET ME SAY I APPRECIATE THAT, AND THE

10:23 AM 16 MATERIALS THAT YOU IVE DONE ARE IN 2000 AND SINCE THEN.

10 : 23 AM 17 A .

UH-HUH.

10:23 AM 18 Q.

AND THERE DOESNIT SEEM TO BE A DISCREPANCY THERE.

10:23 AM 19 I I M JUST ASKING ABOUT 1996. IS IT POSSIBLE THAT SOMEBODY

10:23 AM 20 COULD HAVE DONE THAT?

10:23 AM 21 A.

I GUESS IT COULD BE POSSIBLE, BUT THEY SHOULDN IT DO

10:23 AM 22 IT. IT COULD BE POSSIBLE, IF THE REQUIREMENTS ARE THE

10:23 AM 23 SAME. YOU KNOW, IF THEY SAID, "WELL, THEREIS ALREADY A

10:23 AM 24 JOB ORDER IN THERE, IILL JUST WORK OFF OF IT," YOU KNOW, I

10:23 AM 25 GUESS THEY COULD.

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10:23 AM 1 10: 23 AM 2 10:23 AM 3 10:23 AM 4 10: 23 AM 5 10:23 AM 6 10:23 AM 7 10:23 AM 8 10:23 AM 9 10:23 AM 10

63 Q. WELL, LET ME HELP REFRESH YOUR RECOLLECTION. DO YOU RECALL IN YOUR DEPOSITION TESTIFYING THAT, PRIOR TO THE TIME THAT YOU TOOK OVER, THAT IT WAS -- THAT THERE COULD BE MULTIPLE REQUESTS FOR MULTIPLE POSITIONS FROM LUFKIN THAT WOULD BE DEALT WITH ON A SINGLE JOB ORDER? A. YES. Q. OKAY. YOU DID TESTIFY TO THAT IN YOUR DEPOSITION? A. YES. Q. AND THAT YOU BELIEVE THAT PRIOR TO THE TIME YOU TOOK OVER THERE WERE SITUATIONS IN WHICH REQUESTS FOR PEOPLE TO

10:23 AM 11 BE EMPLOYED IN DIFFERENT DIVISIONS WERE PUT ON THE SAME

10:23 AM 12 JOB ORDER, ISN'T THAT RIGHT?

10: 23 AM 13 A.

IT COULD BE.

10:24 AM 14 Q. OKAY. AND I BELIEVE, AS YOU'VE TESTIFIED, WHAT

10:24 AM 15 YOU'VE SAID IS, WHILE THAT'S NOT A PRACTICE THAT YOU WOULD

10:24 AM 16 HAVE DONE, THE PERSON IN 1996 WOULD NOT HAVE BEEN IN ERROR

10:24 AM 17 IN DOING IT, IT'S JUST NOT A PRACTICE YOU THINK IS

10: 24 AM 18 APPROPRIATE?

10:24 AM 19 A. THAT'S RIGHT.

10:24 AM 20 Q. OKAY. SO IT WOULD HAVE BEEN CONSISTENT WITH TWC

10:24 AM 21 POLICY, EVEN THOUGH IT'S NOT THE BEST PRACTICE?

10:24 AM 22 A.

RIGHT.

10:24 AM 23 Q. AND IT IS YOUR -- IT IS CONSISTENT WITH YOUR

10:24 AM 24 UNDERSTANDING THAT YOU WOULD NOT HAVE EXPECTED TO FIND

10:24 AM 25 GAPS OF TEN OR TWELVE OR EIGHTEEN MONTHS WHERE LUFKIN SAID

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10:24 AM 1 THEY DIDN'T NEED ANYBODY FOR THE FOUNDRY?

10:24 AM 2 A.

RIGHT.

10:24 AM 3 Q.

AM I CORRECT

10: 24 AM 4

AND LET ME JUST BE SURE THAT --

10: 24 AM 5

YOU TELL THE PERSON THAT IS CALLED WHAT JOB THEY

10: 25 AM 6 ARE INTERVIEWING FOR, SO WHEN THEY COME IN TO THE

10:25 AM 7 INTERVIEW, THEY SHOULD KNOW WHAT THEy'RE THERE TO TALK

10:25 AM 8 ABOUT, RIGHT?

10:25 AM 9 10:25 AM 10

A. WE GIVE THEM A JOB TITLE AND A BRIEF JOB DESCRIPTION.

10:25 AM 11 Q.

AND IT'S A SINGLE JOB, ISN'T IT?

10: 25 AM 12 A.

YES.

10:25 AM 13 Q.

OKAY.

10:25 AM 14

MR. HAMEL: THANK YOU, YOUR HONOR. THAT'S ALL

10:25 AM 15 THE QUESTIONS I HAVE.

10:25 AM 16

REDIRECT EXAMINATION

10:25 AM 17 BY MR. GARRIGAN:

10:25 AM 18 Q.

I APOLOGIZE, BUT I GET TO ASK YOU SOME MORE

10:25 AM 19 QUESTIONS.

10:25 AM 20 A.

OKAY.

10:25 AM 21 Q. WOULD YOU LOOK AT PLAINTIFF'S EXHIBIT 10? DO YOU

10:25 AM 22 HAVE THAT IN FRONT OF YOU?

10:25 AM 23 A.

YES.

10:26 AM 24 Q.

ALL RIGHT. NOW, WHEN MR. HAMEL WAS QUESTIONING YOU,

10:26 AM 25 I BELIEVE YOU INDICATED THAT THAT ONLY CONCERNED POSITIONS

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10: 26 AM 1 10:26 AM 2 10: 26 AM 3 10: 26 AM 4 10:26 AM 5 10:26 AM 6 10: 26 AM 7 10:26 AM 8 10:26 AM 9 10:26 AM 10 10:26 AM 11 10:26 AM 12 10: 26 AM 13 10:26 AM 14 10:26 AM 15 10:27 AM 16

65 IN POWER TRANSMISSION AND OILFIELD. DO YOU RECALL TESTIFYING TO THAT EFFECT? A. 013, ISN'T THAT WHAT YOU'RE LOOKING AT? Q. NO. I'M LOOKING AT EXHIBIT 10. IT SHOULD BE TWC184. A. OKAY. THAT'S PRIMARILY A CHIPPER/GRINDER, A GENERAL FOUNDRYMAN, TRAILER HELPER, LABOR, YES. Q. OKAY. DOES IT SAY --
WHERE ON THAT FORM DOES IT SAY TRAILER HELPER? A. THE HELPER IS THE HELPER AT THE TRAILER DIVISION. THAT IS THE JOB TITLE. Q. DOES IT SAY ON THAT FORM ANYWHERE THAT IT'S REFERRING TO HELPERS ONLY IN THE TRAILER DIVISION? A. NO. Q. AREN'T HELPERS ALSO HIRED IN POWER TRANSMISSION? A. THEY COULD BE. I'VE NOT TAKEN A JOB ORDER I DON'T

10:27 AM 17 THINK.

10: 27 AM 18 Q. ALL RIGHT. AREN'T LABORERS ALSO HIRED IN OTHER

10:27 AM 19 DIVISIONS?

10:27 AM 20 A.

NOT -- WELL, SINCE I'VE WORKED WITH THEM, THE

10:27 AM 21 LABORERS -- A LABORER -- GENERAL LABOR, IT'S ALL THE SAME

10:27 AM 22 FOR FOUNDRY OR TRAILER. IT'S A LABOR JOB. 10:27 AM 23 Q. OKAY. WHERE ON THIS DOCUMENT, PLAINTIFF'S EXHIBIT

10:27 AM 24 10, DOES IT INDICATE THAT IT'S ONLY TALKING ABOUT HELPERS

10:27 AM 25 OR LABORERS IN THE FOUNDRY OR THE TRAILER DIVISION?

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10:27 AM 1 10:27 AM 2 10:27 AM 3 10: 27 AM 4 10: 27 AM 5 10:27 AM 6 10:27 AM 7 10: 27 AM 8 10:28 AM 9 10:28 AM 10

66 A. WELL, I MEAN, YOU PICK UP THE GENERAL FOUNDRYMEN FROM FOUNDRY, BUT THAT'S ALL. Q. I UNDERSTAND. IT DOES COVER GENERAL FOUNDRYMEN? A. SO, YOU KNOW, THAT'S FOUNDRY, IF YOU'RE TALKING ABOUT A FOUNDRYMAN. BUT AS FAR AS SAYING TRAILER DIVISION, IT DOESN'T. Q. OKAY. WELL, I'M JUST AFRAID YOU MAY HAVE LEFT THE IMPRESSION THAT THESE REQUIREMENTS WERE EXCLUSIVELY RELATED TO TRAILER AND FOUNDRY AND NOT THE OTHER DIVISIONS, WHEN IN FACT THERE'S NO INDICATION TO THAT

10:28 AM 11 10:28 AM 12 10:28 AM 13

EFFECT ON HERE.

A.

NO.

Q. SO THESE -- THIS FORM SEEMS TO COVER ALL THE

10:28 AM 14 ENTRY-LEVEL POSITIONS, DOESN'T IT?

10:28 AM 15 A.

IT COVERS THE ENTRY-LEVEL POSITIONS THAT I WORK WITH

10:28 AM 16 FOR THE FOUNDRY AND TRAILER DIVISION.

10:28 AM 17 Q. OKAY. DOES IT ALSO COVER THE ENTRY-LEVEL POSITIONS

10:28 AM 18 IN THE OTHER DIVISIONS?

10:28 AM 19 A.

NOT IF IT'S FOR MACHINISTS, LIKE A HELPER, BECAUSE

10:28 AM 20 YOU'VE GOT TO HAVE HIGH SCHOOL MATH, SHOP MATH. THEN, NO.

10:28 AM 21 Q. OKAY. DOES IT INDICATE ANYWHERE ON HERE THAT THIS

10:28 AM 22 IS LIMITED TO TRAILER AND FOUNDRY?

10:29 AM 23 A.

NO.

10:29 AM 24 Q. OKAY. NOW, YOU ALSO SAID I BELIEVE --

10:29 AM 25

YOU WERE ASKED ABOUT PLAINTIFF'S EXHIBIT 9.

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67

10:29 AM 1 WOULD YOU TURN TO THAT?

10:29 AM 2 A.

OKAY.

10:29 AM 3

MR. GARRIGAN: FIRST, I'VE NEVER ASKED HER ANY

10:29 AM 4 QUESTIONS ABOUT THAT DOCUMENT.

10:29 AM 5

THE COURT: WELL, I KNOW THAT.

10:29 AM 6

MR. GARRIGAN: OKAY. I WOULD ASK THAT, SINCE

10:29 AM 7 YOU HAVE BEEN QUESTIONED ABOUT IT, I WOULD LIKE THAT TO BE

10:29 AM 8 ADMITTED AS AN EXHIBIT.

10:29 AM 9

THE COURT: ANY OBJECTION?

10:29 AM 10

MR. HAMEL: NO, YOUR HONOR.

10:29 AM 11

THE COURT: IT'S ADMITTED AS MARKED WITHOUT

10: 29 AM 12 OBJ ECTION .

10: 29 AM 13 BY MR. GARRIGAN:

10:29 AM 14 Q.

OKAY. NOW, AGAIN, WHEN MR. HAMEL QUESTIONED YOU,

10:29 AM 15 YOU SAID YOU HAD NO IDEA WHAT THE WORD "PREF" MEANT?

10:29 AM 16 A.

NO, I DIDN'T SAY I HAD NO IDEA.

10:29 AM 17 Q.

OKAY. WHAT DOES THAT MEAN TO YOU AS A TWC --

10:29 AM 18 A.

WELL, IF I SEE THAT WRITING ANYWHERE, NOT AT TWC, AT

10:30 AM 19 HOME OR ANYWHERE, I WOULD THINK THAT WOULD MEAN

10:30 AM 20 "PREFERRED," THAT SOMEONE WROTE "PREFERRED," THAT'S WHAT

10:30 AM 21 IT SOUNDS LIKE TO ME, OR "PREFERENCE."

10: 30 AM 22 Q.

OKAY.

10:30 AM 23 A.

BUT I DON'T -- I MEAN, THAT'S JUST WHAT I THINK.

10: 30 AM 24 Q.

OKAY.

10:30 AM 25 A.

I DON'T KNOW.

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10: 30 AM 1

MR. HAMEL: OBJECTION, YOUR HONOR. THE WITNESS

10: 30 AM 2 HAS SAID IT WOULD BE SPECULATION FOR HER.

10: 30 AM 3

THE COURT: I'M GOING TO TAKE HER ANSWER, GIVE

10: 30 AM 4 IT SUCH WEIGHT AS I THINK IT'S ENTITLED TO RECEIVE.

10:30 AM 5

AND I'LL GO IN THE UNABRIDGED DICTIONARY IN MY

10:30 AM 6 OFFICE AND SEE HOW MANY P-R-E-F WORDS THERE ARE BESIDES

10:30 AM 7 "PROFESSIONAL."

10:30 AM 8 BY MR. GARRIGAN:

10:30 AM 9 Q.

MS. POULAN, YOU WERE ALSO QUESTIONED ABOUT THE

10:30 AM 10 KEYWORDS AND HOW THOSE MIGHT AFFECT THE MATCHING SYSTEM.

10: 30 AM 11 DO YOU KNOW HOW SPECIFIC KEYWORDS MIGHT AFFECT THE

10:31 AM 12 MATCHING SYSTEM?

10:31 AM 13 A.

YES.

10:31 AM 14 Q.

OKAY. OKAY. YOU SAID I THINK THAT "GENERAL LABOR"

10:31 AM 15 OR "LABOR" WAS ONE OF THE WORDS THAT WOULD GET YOU ON THE

10: 31 AM 16 FOUNDRY LIST?

10:31 AM 17 A.

IT COULD.

10:31 AM 18 Q.

WOULD THAT GET YOU ON ANY LIST FOR ANY OF THE

10:31 AM 19 ENTRY-LEVEL POSITIONS AT LUFKIN?

10 : 31 AM 20 A .

IF THE JOB ORDER IS WRITTEN WITH THAT KEYWORD, THEN,

10: 31 AM 21 YES, IT COULD.

10: 31 AM 22 Q. 10:31 AM 23 A.

OKAY. YOU SAY IT COULD? UH-HUH.

10:31 AM 24 Q. 10: 31 AM 25 A.

THAT'S YOUR UNDERSTANDING? UH-HUH.

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10:31 AM 1 10:31 AM 2 10: 31 AM 3 10:31 AM 4 10:31 AM 5 10:31 AM 6 10:31 AM 7 10:31 AM 8 10:31 AM 9 10:32 AM 10

69 Q. DO YOU KNOW FOR A FACT HOW DIFFERENT KEYWORDS MIGHT
AFFECT THE MATCHING SYSTEM? A. WELL, I MEAN, YOUR KEYWORDS ON YOUR APPLICATION AS FAR AS YOUR EXPERIENCE, IF THEY MATCH CLOSELY TO THE KEYWORDS ON THE JOB ORDER, THAT'S WHEN THEY CROSS AND THEY MAKE A MATCH. Q. OKAY. ARE SOME KEYWORDS MORE IMPORTANT THAN OTHERS? A. I MEAN, IT'S -- WELL, IT'S IMPORTANT IF YOU'VE GOT GENERAL LABOR EXPERIENCE. IF AN EMPLOYER NEEDS A GENERAL LABORER WITH EXPERIENCE, THEN THAT IS IMPORTANT.

10: 32 AM 11

IF THERE'S A CASHIER JOB AND SOMEONE HAS TEN

10: 32 AM 12 YEARS CASHIERING, AND THEY NEED SOMEONE WITH AT LEAST

10:32 AM 13 THREE YEARS CASHIERING, THEN THAT PERSON HAS A GOOD CHANCE

10:32 AM 14 OF GETTING ON THAT JOB ORDER.

10:32 AM 15 Q.

OKAY. WELL, I GUESS I'M ASKING WITH REGARD TO THE

10:32 AM 16 KEYWORD AFFECT ON THE MATCHING SYSTEM. DO YOU KNOW WHICH

10:32 AM 17 KEYWORDS WOULD HAVE A MORE IMPORTANT IMPACT THAN OTHER

10: 32 AM 18 KEYWORDS?

10:32 AM 19 A.

FOR THE JOB ORDERS THAT I WORK ON, GENERAL LABOR,

10:32 AM 20 ASSEMBLY WORK, CONSTRUCTION LABOR, MATERIAL HANDLING, ANY

10: 32 AM 21 OF THOSE KEYWORDS COULD GET YOU ON THAT JOB ORDER, ON THAT

10:32 AM 22 LIST.

10:32 AM 23 Q. OKAY. WELL, I'M TRYING TO BE MORE SPECIFIC. ARE

10: 32 AM 24 SOME OF THOSE WORDS MORE LIKELY TO GET YOU ONTO A LIST

10:32 AM 25 THAN OTHERS, OR IS IT JUST LOOKING FOR ANY MATCH?

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70

10: 33 AM 1 A.

JUST LOOKING FOR A MATCH.

10:33 AM 2 Q.

OKAY.

10: 33 AM 3 A.

AS FAR AS I KNOW.

10:33 AM 4 Q.

YOU TESTIFIED THAT THE TEXAS WORKFORCE COMMISSION

10:33 AM 5 WOULD NOT PERMIT LUFKIN INDUSTRIES TO DISCRIMINATE?

10:33 AM 6 A.

NO.

10: 33 AM 7 Q. 10:33 AM 8 A.

IS THAT RIGHT? WE WOULDN'T TAKE A JOB ORDER IF THEY WERE

10:33 AM 9 10: 33 AM 10 10: 33 AM 11 10:33 AM 12

DISCRIMINATING. Q. HOW WOULD YOU KNOW IF THEY WERE DISCRIMINATING? A. WELL, IF SOMEONE --
WAL-MART, FOR EXAMPLE, HAS CALLED US, NEEDING --

10: 33 AM 13 AND THEY ASK FOR A LADY. THEY WANTED A LADY. WELL, THEY

10:33 AM 14 HAD TO TELL US WHY THEY NEEDED A LADY. THEY NEEDED A LADY

10:33 AM 15 BECAUSE IT WAS IN THE LADIES' DRESSING ROOM. THAT'S OKAY.

10:33 AM 16 BUT IF YOU JUST NEED A LADY BECAUSE YOU WANT A LADY TO

10:33 AM 17 SWEEP YOUR FLOORS, THAT'S NOT OKAY, AND WE WOULD NOT TAKE

10:33 AM 18 THAT JOB ORDER.

10:33 AM 19 Q.

SO IF IT'S OBVIOUS TO THE TEXAS WORKFORCE

10:33 AM 20 COMMISSION--

10:33 AM 21 A.

RIGHT.

10: 33 AM 22 Q.

-- YOU WOULD NOT FACILITATE THE DISCRIMINATION, IS

10:33 AM 23 10:33 AM 24 10: 34 AM 2 5

THAT RIGHT? A. WE WOULD NOT TAKE THE JOB ORDER. Q. ALL RIGHT. WELL, SUPPOSE LUFKIN -- HYPOTHETICALLY,

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10: 34 AM 1 SUPPOSE LUFKIN INDUSTRIES WAS STEERING MINORITIES INTO

10: 34 AM 2 MORE ONEROUS WORK CONDITIONS AT THE FOUNDRY AND STEERING

10:34 AM 3 WHITES TO MORE FAVORABLE WORK CONDITIONS AT POWER

10:34 AM 4 TRANSMISSION. WOULD THE TEXAS WORKFORCE COMMISSION KNOW

10:34 AM 5 THAT?

10:34 AM 6 A.

NO.

10:34 AM 7 Q.

DID ANYBODY AT LUFKIN TELL THE TEXAS WORKFORCE

10:34 AM 8 COMMISSION THAT THE OFCCP HAD FOUND DISCRIMINATORY JOB

10:34 AM 9 10: 34 AM 10

PRACTICES? A. WHAT IS THE OFCCP?

10: 34 AM 11 10: 34 AM 12

Q. OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS, THE FEDERAL AGENCY THAT --

10:34 AM 13 A.

I DON'T KNOW IF THEY TOLD ANYONE. THEY HAVEN'T TOLD

10:34 AM 14 ME.

10 : 34 AM 15 Q. OKAY. BUT BASICALLY THERE'S AN AWFUL LOT OF

10:34 AM 16 DISCRIMINATION THAT COULD GO ON AT LUFKIN INDUSTRIES AND

10: 34 AM 17 THE TWC WOULD KNOW NOTHING ABOUT IT?

10: 35 AM 18

MR. HAMEL: OBJECTION, YOUR HONOR, CALLS FOR

10: 35 AM 19 SPECULATION.

10:35 AM 20

THE WITNESS: WE DON'T KNOW ANYTHING ABOUT ANY

10: 35 AM 21 DISCRIMINATION.

10: 35 AM 22

THE COURT: OVERRULED. SHE'S ANSWERED IT. SHE

10:35 AM 23 SAYS SHE DOESN'T KNOW ANYTHING ABOUT IT.

10:35 AM 24 BY MR. GARRIGAN:

10:35 AM 25 Q.

OKAY. NOW, MR. HAMEL BROUGHT TO YOUR ATTENTION A

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10:35 AM 1 10:35 AM 2 10:35 AM 3 10:35 AM 4 10:35 AM 5 10:35 AM 6 10:35 AM 7 10: 35 AM 8 10:35 AM 9 10:35 AM 10

72 GAP IN THE TWC BATES NUMBERS. DO YOU REMEMBER THAT? A. UH-HUH. Q. DO YOU KNOW WHY THAT GAP EXISTS? A. NO. Q. DO YOU KNOW WHETHER THOSE TWC RECORDS ARE COMPLETE OR NOT? A. THOSE ARE PURGED ORDERS. I DONIT KNOW. Q. IS IT POSSIBLE THAT THE EARLIER SERIES OF NUMBERS WAS PRODUCED AT AN EARLIER TIME AND THE LATER SERIES OF NUMBERS WAS PRODUCED AT A LATER TIME?

10: 35 AM 11 A.

FROM AUSTIN?

10: 35 AM 12 Q. 10: 35 AM 13 A.

YES. I GUESS YOU WOULD HAVE TO ASK THEM. I DONIT KNOW

10: 36 AM 14 WHEN THEY PRODUCED THEM.

10:36 AM 15 Q. OKAY. THEREIS NO REASON TO THINK THAT THAT GAP

10: 36 AM 16 INDICATES THAT RECORDS HAVE BEEN REMOVED, IS THERE?

10: 36 AM 17 A.

I DONIT KNOW. THE NUMBERS ARE JUST THEY ARENIT

10:36 AM 18 IN SEQUENCE. I DONIT KNOW WHY THEY ARENIT IN SEQUENCE.

10:36 AM 19 Q. OKAY. OKAY. IS IT CONSISTENT WITH TWC POLICY TO

10: 36 AM 20 PUT SEVERAL REQUISITIONS OR REQUESTS FROM AN EMPLOYER ONTO

10: 36 AM 21 A SINGLE JOB ORDER?

10:36 AM 22 A.

YES.

10: 36 AM 23 Q.

THAT IS CONSISTENT?

10:36 AM 24 A. WE HAVE DONE IT BEFORE.

10:36 AM 25 Q. OKAY. I KNOW YOU HAVE DONE IT. liM ASKING, IS THAT

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10:36 AM 1 CONSISTENT WITH POLICY?

10:36 AM 2 A.

NO.

10:36 AM 3 Q. THAT WOULD BE AGAINST YOUR POLICY?

10:36 AM 4 A. I DON'T KNOW IF IT WOULD BE AGAINST THE POLICY, IT'S

10:37 AM 5 JUST WHATEVER THE INTERVIEWER, WHATEVER PROCESS THE

10:37 AM 6 INTERVIEWER FOLLOWS.

10:37 AM 7 Q. AND AGAIN, THAT'S WHAT YOU TESTIFIED BEFORE YOU

10: 37 AM 8 WOULD NOT DO?

10:37 AM 9 A.

NO.

10:37 AM 10 Q.

AND YOU WOULD NOT CONSIDER THAT TO BE CONSISTENT

10: 37 AM 11 WITH POLICY?

10:37 AM 12 A.

NO.

10:37 AM 13 Q.

OKAY.

10:37 AM 14

MR. GARRIGAN: I'LL PASS THE WITNESS. THANK

10: 37 AM 15 YOU.

10: 37 AM 16

MR. HAMEL: JUST BRIEFLY, YOUR HONOR.

10: 37 AM 17

RECROSS EXAMINATION

10: 37 AM 18 BY MR. HAMEL:

10:37 AM 19 Q.

MS. POULAN, WOULD YOU LOOK AT EXHIBIT 9, AS LONG AS

10: 37 AM 20 WE'RE GOING TO SPECU LATE HERE?

10:37 AM 21 A.

OKAY.

10:37 AM 22 Q.

AND EXHIBIT 9, WHERE IT SAYS --

10: 37 AM 23

FIRST OF ALL, EXHIBIT 9 SAYS SPECIFICALLY

10: 37 AM 24 "ENTRY-LEVEL EMPLOYMENT QUALIFICATIONS, OILFIELD AND POWER

10: 37 AM 25 TRANSMISSION," DOES IT NOT?

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10:37 AM 1 A.

YES.

10:37 AM 2 Q.

DATED AUGUST 22, 1997?

10: 37 AM 3 A.

YES.

10: 37 AM 4 Q.

AND WHEN YOU GET DOWN TO THE LAST BULLET POINT IN

10:38 AM 5 THE MINIMUM QUALIFICATIONS, IT SAYS "G.E.D. OR BETTER,"

10:38 AM 6 AND RIGHT NEXT TO THE "BETTER" YOU HAVE THE HANDWRITTEN

10:38 AM 7 NOTE "P-R-E-F," WHICH YOU CAN'T IDENTIFY?

10:38 AM 8 A.

NO.

10:38 AM 9 Q.

ALL RIGHT. BUT WOULD IT BE POSSIBLE, GIVEN WHAT YOU

10: 38 AM 10 GENERALLY UNDERSTAND P-R-E-F TO MEAN, THAT WHAT IS

10: 38 AM 11 PREFERRED IN THIS SITUATION IS BETTER THAN A G.E.D.?

10: 38 AM 12 A.

G.E.D. OR BETTER WOULD BE PREFERRED.

10: 38 AM 13 Q.

WELL, HOW ABOUT JUST THE IDEA THAT YOU HAVE TO HAVE

10:38 AM 14 A G.E.D., BUT IF YOU HAVE, SAY, A YEAR'S COLLEGE, THAT'S

10: 38 AM 15 EVEN BETTER?

10:38 AM 16 A.

YES.

10:38 AM 17 Q.

AND THAT'S PREFERRED?

10: 38 AM 18 A.

YES.

10: 38 AM 19 Q.

THAT WOULD BE CONSISTENT WITH THE NOTE, WOULDN'T IT?

10: 38 AM 20 A.

YES.

10:38 AM 21 Q.

ALL RIGHT. LET ME SHOW YOU YOUR DEPOSITION. I JUST

10:38 AM 22 WANT TO BE --

10:38 AM 23

I JUST WOULD LIKE TO ASK YOU TO REFRESH YOUR

10: 38 AM 24 RECOLLECTION WITH RESPECT TO SOME TESTIMONY.

10: 38 AM 25

COULD YOU TURN TO PAGE 67 OF THAT DEPOSITION?

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10:38 AM 1

AND THIS IS A DEPOSITION THAT WAS TAKEN ON

10:39 AM 2 AUGUST 7, 2003, WAS IT NOT?

10:39 AM 3 A.

YES.

10:39 AM 4

MR. GARRIGAN: YOUR HONOR, I NEED TO OBJECT TO

10:39 AM 5 THE HEARSAY. HE'S JUST TRYING TO REVIEW OUT-OF-COURT

10:39 AM 6 TESTIMONY FROM A DEPOSITION, WHEN THE WITNESS IS PRESENT

10:39 AM 7 RIGHT HERE.

10:39 AM 8

MR. HAMEL: YOUR HONOR, THIS IS IMPEACHMENT WITH

10:39 AM 9
10:39 AM 10

RESPECT TO QUESTIONS MADE BY MR. GARRIGAN, AND I'M SIMPLY READING THE MATERIAL.

10: 39 AM 11

THE COURT: HE'S ENTITLED TO IMPEACH HER WITH

10: 39 AM 12 HER DEPOSITION.

10: 39 AM 13 BY MR. HAMEL:

10:39 AM 14 Q.

MS. POULAN, LET ME START READING AT LINE 7 OF PAGE

10:39 AM 15 67.

10:39 AM 16 A.

OKAY.

10:39 AM 17 Q.

AND I'LL READ THE QUESTION AND THEN WOULD YOU READ

10:39 AM 18 YOUR ANSWER FOR ME?

10:39 AM 19 A.
10:39 AM 20 Q.

OKAY. OKAY. AND THESE WERE QUESTIONS THAT MR. GARRIGAN

10: 39 AM 21 HAD PUT TO YOU. HE WAS THE ONE EXAMINING YOU AT THE TIME,

10: 39 AM 22 WAS HE NOT?

10: 39 AM 23 A.

YES.

10:39 AM 24 Q.

ALL RIGHT. AT LINE 7, QUESTION FROM MR. GARRIGAN:

10:39 AM 25 "I BELIEVE YOU'VE ALREADY TESTIFIED THAT UP UNTIL 2002

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10: 39 AM 1 LUFKIN WOULD MAKE REQUESTS FOR REFERRALS TO ENTRY-LEVEL

10:39 AM 2 POSITIONS IN ANY OF ITS DIVISIONS, AND THAT THOSE REQUESTS

10:40 AM 3 AND MULTIPLE REQUESTS WOULD BE REFLECTED ON A SINGLE JOB

10:40 AM 4 ORDER?"

10:40 AM 5

YOUR ANSWER?

10:40 AM 6 A.

"YES. "

10:40 AM 7 Q.

NOW, LET'S GO TO -- WELL, LET'S JUST GO AHEAD AND

10:40 AM 8 WE'LL READ IT THROUGH.

10:40 AM 9

"QUESTION: OKAY. ON THOSE -- SO UP UNTIL 2002

10:40 AM 10 IS THERE ANY WAY TO TELL WHETHER OR WHICH REQUEST OR WHICH

10:40 AM 11 POSITION A PARTICULAR REFERRAL WAS MADE TO?"

10:40 AM 12

ANSWER?

10:40 AM 13 A.

"NO."

10:40 AM 14 Q.

"SINCE 2002 IS THAT POSSIBLE?"

10:40 AM 15

ANSWER?

10:40 AM 16 A.

"TO TELL THE ORDER?"

10:40 AM 17 Q.

AND THEN QUESTION INDICATES MR. GARRIGAN MOVING HEAD

10:40 AM 18 UP AND DOWN AFFIRMATIVELY.

10:40 AM 19

AND YOUR ANSWER?

10:40 AM 20 A.

"YES."

10 : 40 AM 21 Q •

NOW, QUESTION: "AND LET ME TRY TO -- I NEED TO

10:40 AM 22 CLARIFY THAT I THINK WE KNOW WHAT I'M TALKING ABOUT HERE.

10:40 AM 23 IN 2002 YOU MADE A CHANGE IN PROCEDURE WITH REGARD TO THE

10:40 AM 24 WAY THAT THE TEXAS WORKFORCE COMMISSION MADE REFERRALS TO

10:40 AM 25 LUFKIN, AND THE CHANGE I'M TALKING ABOUT NOW IS THAT

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10:40 AM 1 BEGINNING IN 2002 SOMETIME ANY SPECIFIC REQUEST FROM

10:40 AM 2 LUFKIN WOULD CORRESPOND TO A SPECIFIC JOB ORDER?"

10:40 AM 3

YOUR ANSWER?

10:41 AM 4 A.

"CORRECT."

10:41 AM 5 Q. AND THEN QUESTION AT LINE 6: "ALL RIGHT. AND

10:41 AM 6 BEFORE 2002 THERE MIGHT BE MULTIPLE REQUESTS FOR MULTIPLE

10:41 AM 7 POSITIONS FROM LUFKIN THAT WOULD BE DEALT WITH BY A SINGLE

10:41 AM 8 JOB ORDER AT TWC?"

10:41 AM 9 10:41 AM 10 A.

YOUR ANSWER? "CORRECT. "

10:41 AM 11 10 :41 AM 12 10:41 AM 13

Q. ALL RIGHT. THANK YOU VERY MUCH. HAVE I CORRECTLY READ AND YOU CORRECTLY
RESPONDED TO THE TESTIMONY YOU GAVE IN AUGUST OF 2002?

10:41 AM 14 A.

YES.

10:41 AM 15 Q.

THANK YOU.

10:41 AM 16

MR. HAMEL: THAT'S ALL THE QUESTIONS I HAVE,

10:41 AM 17 YOUR HONOR.

10:41 AM 18

THE COURT: I'M GOING TO RECESS. I DON'T KNOW

10:41 AM 19 HOW LONG YOU'RE GOING TO BE.

10:41 AM 20 10:41 AM 21

MR. GARRIGAN: LESS THAN FIVE MINUTES. THE COURT: I'LL GIVE YOU -- I WILL GIVE YOU

10:41 AM 22 LESS THAN FIVE MINUTES.

10:41 AM 23

REDIRECT EXAMINATION

10:41 AM 24 10: 41 AM 25

BY MR. GARRIGAN: Q . DO YOU STILL HAVE THAT DEPOSITION WITH YOU?

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10:41 AM 1

MR. GARRIGAN: MAY I APPROACH?

10:41 AM 2

THE COURT: YOU MAY.

10:41 AM 3

MR. HAMEL: I'LL GIVE IT TO HER, MR. GARRIGAN.

10:41 AM 4 BY MR. GARRIGAN:

10:41 AM 5 Q. THIS MIGHT BE QUICKER IF I'M HERE.

10:42 AM 6 A.

OKAY.

10:42 AM 7 Q. ALL RIGHT. I'M SHOWING YOU THE SAME DEPOSITION, BUT

10:42 AM 8 A FEW PAGES LATER, PAGE 77.

10:42 AM 9 A.

OKAY.

10:42 AM 10 Q.

DO YOU SEE THAT?

10:42 AM 11 A.

YES.

10:42 AM 12 Q. ALL RIGHT. DO YOU RECALL CHANGING YOUR TESTIMONY IN

10:42 AM 13 THAT DEPOSITION AND ULTIMATELY COMING TO THE CONCLUSION

10:42 AM 14 THAT IN FACT IF THERE'S A JOB ORDER THAT REFERS TO THE

10:42 AM 15 FOUNDRY, AN OPEN POSITION IN THE FOUNDRY, ANYBODY REFERRED

10:42 AM 16 PURSUANT TO THAT JOB ORDER FORM SHOULD HAVE BEEN ASSIGNED

10:42 AM 17 TO THE FOUNDRY?

10:42 AM 18 A.

OKAY. I'M NOT FOLLOWING YOU. JUST A SECOND. DO

10:42 AM 19 YOU WANT ME TO READ IT? IS THAT WHAT YOU'RE ASKING ME TO

10:42 AM 20 DO?

10:42 AM 21 Q.

YES.

10:42 AM 22 A.

OKAY.

10:42 AM 23 Q.

START AT PAGE -- EXCUSE ME -- LINE 5.

10:42 AM 24 A.

START AT 5? OKAY. SO IF THERE WAS A GENERAL

10:43 AM 25 FOUNDRYMEN JOB ORDER, THEN THAT'S THE ONE WE WOULD HAVE

WENDELL R. PARKS, OFFICIAL COURT REPORTER 409-654-2834

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10:43 AM 1 PUT THEM ON, WAS GENERAL FOUNDRYMEN.

10:43 AM 2 Q. OKAY. AND ONLY GENERAL FOUNDRYMEN REFERRALS WOULD

10:43 AM 3 BE ON AN ORDER FOR THE FOUNDRY?

10:43 AM 4 A.

YES.

10:43 AM 5 Q.

CORRECT?

10:43 AM 6 A.

YES.

10:43 AM 7 Q.

AND LATER ON, BEGINNING AT LINE 20, THE SAME PAGE.

10:43 AM 8 A.

OKAY.

10:43 AM 9 Q.

"AND FROM TWC'S PERSPECTIVE, WHEN PEOPLE WERE

10:43 AM 10 ASSIGNED PURSUANT TO A JOB ORDER THAT REFERRED TO FOUNDRY

10:43 AM 11 WORKERS, THE UNDERSTANDING WAS THAT THOSE REFERRALS WERE

10:43 AM 12 GOING TO WORK AT THE FOUNDRY?"

10:43 AM 13

AND YOUR ANSWER?

10:43 AM 14 A.

"YES."

10:43 AM 15 Q. OKAY. DO YOU REMEMBER AT YOUR DEPOSITION THAT THERE

10:43 AM 16 WAS SOME BACK AND FORTH ON THAT ISSUE?

10 :44 AM 17 A • YES, BECAUSE A LOT OF TIMES, EVEN WHEN I'VE READING

10:44 AM 18 WHAT YOU WERE SAYING, I MEAN, I REALLY HAVE TO WORK ON

10:44 AM 19 FIGURING OUT WHAT YOU'RE ASKING ME. I'M SORRY.

10 : 44 AM 20 Q •

I UNDERSTAND. AND THERE WAS SOME CONFUSION DURING

10:44 AM 21 THE DEPOSITION?

10 : 44 AM 22 A •

UH-HUH.

10 : 44 AM 23 Q •
10:44 AM 24

BUT ULTIMATELY WASN'T IT YOUR CONCLUSION AND LET'S LOOK AT PAGE 78, LINE 11. I ASKED

10:44 AM 25 YOU: "YOUR TESTIMONY IS THAT IF THE JOB ORDER FORM SAID

WENDELL R. PARKS, OFFICIAL COURT REPORTER 409-654-2834

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10:44 AM 1 FOUNDRY WORKER, ALL OF THE REFERRALS CORRESPONDING TO THAT

10:44 AM 2 JOB ORDER SHOULD HAVE GONE TO THE FOUNDRY, CORRECT?"

10:44 AM 3 A.

"YES."

10:44 AM 4 Q.

ALL RIGHT. THANK YOU.

10:44 AM 5

MR. GARRIGAN: THAT'S ALL I HAVE, YOUR HONOR.

10:44 AM 6

RECROSS EXAMINATION

10:44 AM 7 BY MR. HAMEL:

10:44 AM 8 Q.

MS. POULAN, THAT WAS YOUR PRACTICE, WASN'T IT?

10:44 AM 9 A. 10:44 AM 10

YES. MR. HAMEL: THANK YOU.

10:44 AM 11

THE COURT: WE'RE GOING TO RECESS.

10:44 AM 12

MAY THIS WITNESS BE EXCUSED?

10:45 AM 13

MR. GARRIGAN: THAT'S FINE WITH US.

10:45 AM 14

MR. HAMEL: CERTAINLY, YOUR HONOR.

10:45 AM 15

THE COURT: ALL RIGHT. YOU'RE EXCUSED, MAlAM.

10:44 AM 16

I AM NOT GOING TO BE HERE ON MONDAY. THE

10:44 AM 17 CRIMINAL DOCKET WILL BE SOUNDED, AND ANY OTHER CIVIL

10:44 AM 18 CASES, ON TUESDAY. SO THAT WHEN WE RECESS AT 5: 00 0 ICLOCK

10:44 AM 19 OR 5: 30 TODAY, THIS CASE WON IT RESUME UNTIL WEDNESDAY AT

10:44 AM 20 9: 00 0 ICLOCK.

10:44 AM 21 10:44 AM 22

MR. GARRIGAN: THANK YOU. THE COURT: AND IF THERE'S ANY CHANGE IN THAT,

10:45 AM 23 I ILL TRY AND NOTIFY YOU BY PHONE.

10:45 AM 24

I ANTICIPATE THAT IF ON WEDNESDAY I HAVE SOME

10:45 AM 25 CRIMINAL, A CRIMINAL CASE TO GO TO TRIAL, THAT I WILL

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10:45 AM 1 SELECT A JURY, AND I WILL NOT SEAT THEM OR SWEAR THEM OR

10:45 AM 2 HAVE THE DEFENDANT PLEAD TO THE INDICTMENT OR INFORMATION,

10:45 AM 3 BUT BY SELECTING A JURY I CAN ESCAPE THE RIGORS OF THE

10:45 AM 4 SPEEDY TRIAL ACT. I DON'T HAVE TO START THE TRIAL BUT I

10:45 AM 5 HAVE TO SELECT A JURY, AND I CAN BRING IT BACK TO A TIME

10:45 AM 6 CERTAIN.

10:45 AM 7

THIS COURT'S IN RECESS FOR FIFTEEN MINUTES.

10:45 AM 8

THE CSO: ALL RISE.

10:45 AM 9

(RECESS)

11:06 AM 10

THE COURT: WHO DO YOU HAVE NEXT?

11:06 AM 11

MS. BURRELL: PLAINTIFFS CALL LISA DUNGAN.

11:06 AM 12

WE'RE GOING TO BE REFERRING TO PLAINTIFFS'

11:06 AM 13 EXHIBIT 11, WHICH WAS JUST INTRODUCED, AND EXHIBITS 75 AND

11:06 AM 14 77, WHICH I THINK YOU ALREADY HAVE.

15

THE COURT: ALL RIGHT.

16

17

LISA DUNGAN, PLAINTIFF WITNESS, SWORN

18

19

DIRECT EXAMINATION

20 BY MS. BURRELL:

11:06 AM 21 Q.

COULD YOU STATE YOUR NAME FOR THE RECORD, PLEASE?

11:07 AM 22 A.

LISA DUNGAN.

11:07 AM 23 Q. 11:07 AM 24 A.

MS. DUNGAN, WHERE ARE YOU CURRENTLY EMPLOYED? I WORK AT THE LAW FIRM OF GOLDSTEIN, DEMCHAK,

11:07 AM 25 BALLER, BORGEN & DARDARIAN.

WENDELL R. PARKS, OFFICIAL COURT REPORTER 409-654-2834

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11:07 AM 1 Q.

AND WHAT IS YOUR POSITION THERE?

11:07 AM 2 A.

I'M A SENIOR PARALEGAL THERE.

11:07 AM 3 Q.

I'M GOING TO ASK YOU TO REFER TO PLAINTIFFS' EXHIBIT

11:07 AM 4 NUMBER 11, WHICH IS THE TEXAS WORKFORCE COMMISSION JOB

11:07 AM 5 ORDERS THAT WERE INTRODUCED EARLIER TODAY.

11:07 AM 6 A.

OKAY.

11:07 AM 7 Q.

DO YOU RECOGNIZE THESE DOCUMENTS?

11:07 AM 8 A.

I DO.

11:07 AM 9 11:07 AM 10

Q. DID YOU COMPLETE AN ANALYSIS OF THESE DOCUMENTS? I'M SORRY. GO AHEAD.

11:07 AM 11 A.

I WORKED WITH A TEAM OF THREE OTHER PARALEGALS, AND

11:07 AM 12 I SUPERVISED THEIR WORK ON THE ANALYSIS OF THE TWC JOB

11:07 AM 13 ORDERS.

11:07 AM 14 Q.

I'M NOW GOING TO ASK YOU TO REFER TO PLAINTIFFS'

11:07 AM 15 EXHIBIT 75.

11:08 AM 16 A.
11:08 AM 17 Q.
11:08 AM 18 A.

OKAY. DO YOU RECOGNIZE THIS DOCUMENT? I DO.

11:08 AM 19 Q.
11:08 AM 20 A.

CAN YOU TELL ME WHAT IT IS, PLEASE? IT'S A MICROSOFT EXCEL CHART OF THE REVIEW,

11:08 AM 21 COMPILING THE REVIEW OF THE TWC JOB ORDERS THAT WE DID AT

11:08 AM 22 OUR OFFICE.

11:08 AM 23

MS. BURRELL: WE WOULD LIKE TO OFFER PLAINTIFFS'

11:08 AM 24 11:08 AM 25

EXHIBIT NUMBER 75 INTO EVIDENCE. MR. BACON: PLAINTIFFS' NUMBER 75 --

WENDELL R. PARKS, OFFICIAL COURT REPORTER 409-654-2834

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11:08 AM 1

83 I OBJECT UNLESS THEY ESTABLISH A FOUNDATION. I

11: 08 AM 2 THINK THIS IS A SUMMARY.

11:08 AM 3

THE COURT: WELL, I DON'T HAVE EXHIBIT 75. I'VE

11:08 AM 4 GOT 103 TO 128, 13 TO 21, AND 1 TO 12, UNLESS IT'S IN THIS

11:09 AM 5 ONE. I DON'T KNOW.

11:09 AM 6

WAIT A SECOND. I DO HAVE 75.

11:09 AM 7

IS IT THE LONG ONE?

11:09 AM 8

MS. BURRELL: IT SHOULD BE THE LONG ONE THAT

11: 09 AM 9 11:09 AM 10 11:09 AM 11 11:09 AM 12

STICKS OUT. MR. BACON: JUST TO MAKE SURE, IT'S TWENTY-SIX
PAGES. MS. BURRELL: WELL, IT BEGINS ABOUT THE --

11:09 AM 13

(OFF-THE-RECORD DISCUSSION)

11:09 AM 14

THE COURT: WELL, I'M HOLDING TAB 75. THESE ARE

11:10 AM 15 PUT IN HERE BACKWARDS. AND THERE SEEMS TO BE A LONG ONE.

11:10 AM 16

IS THIS IT?

11:10 AM 17

THE WITNESS: YES, THAT'S RIGHT.

11:10 AM 18 11:10 AM 19

THE COURT: ALL RIGHT. THANK YOU. WHAT'S YOUR OBJECTION, MR. BACON?

11:10 AM 20

MR. BACON: MY OBJECTION AT THIS POINT IS, SHE'S

11:10 AM 21 FAILED TO ESTABLISH A FOUNDATION FOR THIS EXHIBIT. I

11: 10 AM 22 MEAN, IF SHE CAN ESTABLISH A FOUNDATION, I PROBABLY HAVE

11:10 AM 23 NO OBJECTION TO IT, BUT AT THIS POINT THERE IS NO

11:10 AM 24 FOUNDATION.

11:10 AM 25

THE COURT: ALL RIGHT. EXPLAIN WHAT THIS IS.

WENDELL R. PARKS, OFFICIAL COURT REPORTER 409-654-2834

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11: 10 AM 1

THE WITNESS: WELL, WE WENT THROUGH TWC JOB

11: 10 AM 2 ORDERS THAT WE HAD IN OUR OFFICE AND REVIEWED THOSE JOB

11: 10 AM 3 ORDERS, AND CHECKING THE NAMES OF THE PEOPLE THAT WERE

11: 10 AM 4 HIRED, AND THEN WE CHECKED THOSE NAMES AGAINST THE LUFKIN

11: 10 AM 5 PERSONNEL DATA BASE THAT WE HAVE, AND CHECKED TO SEE WHEN

11: 11 AM 6 THESE PEOPLE WERE HIRED, AND THEN CONFIRMED --

11:11 AM 7

THE COURT: SO THIS IS A SUMMARY OF THINGS THAT

11:11 AM 8 ARE ALREADY IN EVIDENCE?

11:11 AM 9 11:11 AM 10

THE WITNESS: IT'S A SUMMARY OF THE TWC JOB ORDERS, THAT'S CORRECT.

11:11 AM 11

MR. BACON: I'M NOT SURE THAT LUFKIN'S DATA BASE

11:11 AM 12 IS IN EVIDENCE YET WHICH WAS USED TO COMPARE THIS WITH.

11:11 AM 13

THE COURT: WELL, IT WILL BE.

11:11 AM 14

MR. BACON: YOU'RE RIGHT, IT WILL BE.

11:11 AM 15

THE COURT: SUBJECT TO BEING CONNECTED UP, THEN

11: 11 AM 16 I'M GOING TO ADMIT IT.

11:11 AM 17

MS. BURRELL: ALL RIGHT. THANK YOU, YOUR HONOR.

11:11 AM 18 BY MS. BURRELL:

11:11 AM 19 Q. WELL, YOU JUST TALKED ABOUT THIS A LITTLE BIT, BUT

11:11 AM 20 LET'S GO INTO THAT.

11:11 AM 21

HOW DID YOU BEGIN YOUR ANALYSIS OF THE DOCUMENTS

11:11 AM 22 THAT ARE IN PLAINTIFFS' EXHIBIT 11, THE TWC JOB ORDERS?

11:11 AM 23 A.

WE TOOK THE JOB ORDERS AND HIGHLIGHTED ALL THE

11:11 AM 24 PEOPLE WHO WERE INDICATED AS BEING HIRED, AND THEN WE

11: 11 AM 25 WOULD TAKE THOSE, COMPILED THOSE NAMES AND CHECKED THOSE

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85
11: 11 AM 1 NAMES AGAINST THE LUFKIN DATE BASE, AND

11: 11 AM 2

THE COURT: AND WHERE DID YOU GET THE LUFKIN

11:11 AM 3 DATA BASE?

11:12 AM 4

THE WITNESS: IT WAS PRODUCED BY LUFKIN I

11:12 AM 5 BELIEVE.

11: 12 AM 6

THE COURT: ALL RIGHT.

11: 12 AM 7 BY MS. BURRELL:

11: 12 AM 8 Q.

AND HOW DID YOU DETERMINE INTO WHICH EACH

11:12 AM 9
11:12 AM 10 11:12 AM 11

POSITION -- INTO WHICH POSITION EACH APPLICANT WAS HIRED?

A.

WE WOULD CHECK THEIR NAME IN THE DATA BASE, AND --

THAT PERSON'S NAME, OR SOMETIMES THERE WERE MORE THAN ONE

11:12 AM 12 PERSON THAT HAD THE SAME NAME. THEIR NAMES WOULD COME UP.

11:12 AM 13 AND ON THE TWC JOB ORDERS, THE VERSIONS THAT WE HAD HAD

11:12 AM 14 THE SOCIAL SECURITY NUMBERS BLACKED OUT, SO WE WOULD

11:12 AM 15 ATTEMPT TO CONFIRM THE PERSON'S NAME BY CHECKING THE

11:12 AM 16 SOCIAL SECURITY NUMBER.

11:12 AM 17

IF WE HAD -- FOR INSTANCE, THE FIRST NUMBER WAS

11:12 AM 18 2 AND THE LAST NUMBER WAS 0, IF THAT PERSON'S NAME

11:12 AM 19 CORRESPONDED TO THAT PART OF THE SOCIAL SECURITY NUMBERS,

11:12 AM 20 THEN WE WOULD CHECK AGAINST, THEIR HIRE DATES AGAINST THE

11: 12 AM 21 TWC JOB ORDER RESULT DATE. AND IF THOSE THREE THINGS

11: 12 AM 22 MATCHED, THEN WE WOULD ALSO CHECK THEIR RACE. AND IF ALL

11:13 AM 23 THOSE THINGS MATCHED, THEN WE WOULD ASSUME THAT THIS WAS

11:13 AM 24 11:13 AM 25

THE PERSON MOST LIKELY TO HAVE BEEN INDICATED ON THE TWC JOB ORDER.

WENDELL R. PARKS, OFFICIAL COURT REPORTER
409-654-2834

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11:13 AM 1 Q.

AND YOU SAID THE SOCIAL SECURITY NUMBERS ARE

11:13 AM 2 REDACTED. ARE THEY ENTIRELY OBSCURED?

11: 13 AM 3 A.

NO, THEy'RE NOT. THAT'S WHAT I MEANT. SOMETIMES

11: 13 AM 4 YOU CAN SEE MAYBE ONE NUMBER OR TWO NUMBERS, AND WHEN YOU

11: 13 AM 5 GO INTO THE DATA BASE, WHAT'S PULLED UP IS THE PERSON'S

11: 13 AM 6 NAME AND THE SOCIAL SECURITY NUMBER. AND SO WE WOULD

11: 13 AM 7 CHECK -- IF IT WAS ONE PERSON, WE WOULD CONFIRM AS MUCH AS

11: 13 AM 8 POSSIBLE THAT THAT WAS THE SAME PERSON. AND IF THERE'S

11:13 AM 9 THREE OR FOUR PEOPLE, WE WOULD GO THROUGH THE SAME

11:13 AM 10 PROCESS.

11:13 AM 11 Q.

SO CAN I TURN YOUR ATTENTION TO THE FIRST PAGE OF

11:13 AM 12 PLAINTIFFS' EXHIBIT 75?

11: 13 AM 13 A.

OKAY.

11:13 AM 14 Q.

WHICH IS PTSF02941. DO YOU SEE THAT?

11:13 AM 15 A.

I DO.

11:13 AM 16 Q.

AND WHAT'S THE FIRST NAME ON THERE?

11:13 AM 17 A. 11:13 AM 18 Q.

MCMASTER, LAST NAME, RICHARD C. OKAY. SO IF YOU WERE LOOKING UP MR. MCMASTER --

11: 14 AM 19

SO TO GIVE A SPECI FIC EXAMPLE, CAN YOU EXPLAIN

11:14 AM 20 WHAT THE PARALEGALS WOULD HAVE DONE TO FIND MR. MCMASTER?

11:14 AM 21 A.

WE WOULD TAKE HIS NAME AND GO INTO THE LUFKIN DATA

11:14 AM 22 BASE, AND YOU CAN TYPE IN A PERSON'S NAME, AND WHEN YOU

11:14 AM 23 SEARCH THAT NAME, THEN THEIR NAME COMES UP IN THE DATA

11:14 AM 24 BASE IF THEY ARE IN THE DATA BASE.

11: 14 AM 25

AND SO, FOR INSTANCE, IF WE SEARCHED MR.

WENDELL R. PARKS, OFFICIAL COURT REPORTER 409-654-2834

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11:14 AM 1 MCMASTER, HIS NAME WOULD COME UP, AND WE WOULD CHECK THE

11:14 AM 2 PARTIAL SOCIAL SECURITY NUMBER WE HAD ON THE TWC JOB ORDER

11: 14 AM 3 AGAINST WHATEVER THE SOCIAL SECURITY NUMBER WAS THAT CAME

11: 14 AM 4 UP IN THE DATA BASE.

11:14 AM 5

AND THEN WE WOULD OPEN UP HIS FILE, AND IN HIS

11: 14 AM 6 FILE YOU COULD SEE WHEN HE WAS HIRED, AND WE WOULD CHECK

11:14 AM 7 HIS HIRE DATE AGAINST THE TWC JOB ORDER TO SEE WHAT THE

11:14 AM 8 RESULT DATE WAS ON THE TWC JOB ORDER AND SEE IF THAT

11:14 AM 9 MATCHED.

11:14 AM 10

AND THEN WE WOULD ALSO CHECK THE RACE OF MR.

11:15 AM 11 MCMASTER TO SEE IF THAT MATCHED AS WELL.

11:15 AM 12

AND IF ALL FOUR OF THOSE COMPONENTS MATCHED,

11: 15 AM 13 THEN WE WOULD ASSUME THAT HE WAS THE PERSON MOST LIKELY TO

11:15 AM 14 BE THE ONE IDENTIFIED ON THE JOB ORDER.

11:15 AM 15 Q.

AND IF YOU PUT MR. MCMASTER'S NAME INTO THE DATA

11:15 AM 16 BASE AND IT PULLED UP MORE THAN ONE MCMASTER, WHAT WOULD

11:15 AM 17 YOU DO?

11:15 AM 18 A.

WE WOULD ESSENTIALLY DO THE SAME PROCESS. WE WOULD

11:15 AM 19 JUST GO THROUGH EACH ONE AND BY PROCESS OF ELIMINATION TRY

11: 15 AM 20 TO DETERMINE WHICH MCMASTER WAS THE CORRECT ONE.

11:15 AM 21 Q.

OKAY. SO BY LOOKING AT --

11:15 AM 22

YOU LOOKED AT LUFKIN'S DATA BASE TO DETERMINE

11:15 AM 23 11:15 AM 24 11:15 AM 25

WHERE THE INDIVIDUAL WAS HIRED? A. THAT'S RIGHT. Q. SO FROM LUFKIN'S DATA BASE COULD YOU DETERMINE WHERE

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11:15 AM 1 SAMUEL ADAMS WAS HIRED?

11:15 AM 2 A. YES. IF HE WAS IN THE DATA BASE, WE COULD CERTAINLY

11:16 AM 3 FIND OUT WHICH DIVISION HE WAS HIRED INTO.

11:16 AM 4 Q.

AND WHERE WAS SAMUEL ADAMS HIRED?

11:16 AM 5 A.

IS ADAMS ON THIS PAGE OF EXHIBIT 75?

11:16 AM 6 Q.

NO. I'M JUST ASKING YOU WHERE SAMUEL ADAMS WAS

11:16 AM 7 HIRED.

11:16 AM 8

THE COURT: INTO WHAT DEPARTMENT?

11:16 AM 9 11:16 AM 10 11:16 AM 11 11:16 AM 12

MS. BURRELL: YES. BY MS. BURRELL: Q. INTO WHAT DIVISION WAS SAMUEL ADAMS HIRED? A. IS HE OWN THIS LIST? I'M NOT SURE WHAT YOU'RE

11: 16 AM 13 11:16 AM 14

ASKING. I'M SORRY. Q. I'M ASKING YOU FOR SOME CONCRETE EXAMPLES OF

11: 16 AM 15 INDIVIDUALS THAT YOU COULD LOOK UP IN LUFKIN'S PERSONNEL

11:16 AM 16 DATA BASE.

11:16 AM 17 11:16 AM 18 A. 11:16 AM 19 Q.

THE FIRST PERSON I'M ASKING YOU ABOUT -OKAY. -- IS SAMUEL ADAMS.

11 : 16 AM 20 A .

YES. SAMUEL ADAMS WAS HIRED INTO THE FOUNDRY.

11:16 AM 21

THE COURT: WHAT PAGE DOES HIS NAME APPEAR ON?

11:16 AM 22 THESE ARE NUMBERED 1 THROUGH --

11:16 AM 23

MS. BURRELL: SAMUEL ADAMS APPEARS ON -- IT'S IN

11:17 AM 24 PLAINTIFFS' EXHIBIT NUMBER 11, AND IT'S ON -- HE'S ON

11:17 AM 25 TWc00037.

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11:17 AM 1

THE COURT: I'M ASKING WHAT PAGE --

11:17 AM 2

THESE ARE NUMBERED AT THE BOTTOM, STARTING 1

11:17 AM 3 THROUGH -- I SEE 19. WHAT PAGE OF THIS EXHIBIT DOES

11:17 AM 4 SAMUEL ADAMS

11:17 AM 5

MS. BURRELL: I'M SORRY, YOUR HONOR. SAMUEL

11:17 AM 6 ADAMS WOULD BE FOUND THE REFERENCE THAT I HAVE, SAMUEL

11:17 AM 7 ADAMS WOULD BE FOUND ON PLAINTIFFS' EXHIBIT NUMBER 11.

11:17 AM 8

THE COURT: DOES HE APPEAR ON --

11:17 AM 9

MS. BURRELL: HE DOES APPEAR ON EXHIBIT NUMBER

11:17 AM 10 75. I'M NOT SURE EXACTLY WHERE IN EXHIBIT 75 HE APPEARS.

11:17 AM 11

THE COURT: DO YOU HAPPEN TO KNOW WHERE HE'S

11:17 AM 12

MS. BURRELL: WE COULD FIND THAT INFORMATION IF

11:17 AM 13 YOU WOULD LIKE US TO, YOUR HONOR.

11:17 AM 14

I KNOW IT. IF YOU'RE GOING TO USE

11: 17 AM 15

KNOW WHAT PAGE OF THE EXHIBIT 75 IT

11:18 AM 16

11:18 AM 17

OKAY, YOUR HONOR.

11: 18 AM 18

DO YOU KNOW?

11: 18 AM 19

I'M CHECKING, YOUR HONOR.

11: 18 AM 20

IT DOESN'T APPEAR TO BE ON THE FIRST

11: 18 AM 21

11:18 AM 22

DO YOU HAVE EXHIBIT 11 UP THERE?

11:18 AM 23 IT'S ACTUALLY ON EXHIBIT 11.

11: 18 AM 24

THE COURT: YES. IS HE ON EXHIBIT 75, AND IF

11: 18 AM 25 SO, WHAT PAGE?

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11:19 AM 1

ALL OF 75, THE NAMES ON 75, YOU SAY YOU CHECKED

11: 19 AM 2 AND THEY WERE HIRED?

11: 19 AM 3

THE WITNESS: THAT'S CORRECT.

11:19 AM 4

THE COURT: YOU PUT THEM IN EXHIBIT 75 WHEN

11: 19 AM 5 YOU -- AND I JUST WANT TO KNOW WHAT PAGE.

11:19 AM 6

THE CLERK: HE'S ON PAGE 14, JUDGE.

11:19 AM 7
11:19 AM 8 11:19 AM 9 11:19 AM 10 11:19 AM 11 11:19 AM 12 11: 19 AM 13

THE COURT: THANK YOU. THE CLERK: ABOUT HALFWAY DOWN, ALMOST HALFWAY DOWN. THE COURT: MA'AM? THE CLERK: HE'S ABOUT HALFWAY DOWN. MS. BURRELL: AND SAMUEL ADAMS APPEARS ON PAGE 14 OF EXHIBIT 75, AND IT IS PTSF02954.

11:19 AM 14 11:19 AM 15

RIGHT.

THE COURT: I FOUND IT, SAMUEL M. ADAMS. ALL

11:20 AM 16 BY MS. BURRELL:

11:20 AM 17 Q.

AND I'LL ASK YOU, SINCE WE'RE LOOKING AT THIS

11:20 AM 18 EXHIBIT, MS. DUNGAN, DOES IT INDICATE ON EXHIBIT 75 INTO

11: 20 AM 19 WHICH TYPE OF OPENING SAMUEL ADAMS - - WELL, I'M SORRY.

11:20 AM 20 11:20 AM 21 11:20 AM 22

FOR WHICH TYPE OF OPENING SAMUEL ADAMS WAS REFERRED? A. IT SAYS TRAILER DIVISION. Q. AND DOES IT INDICATE ON EXHIBIT 75 INTO WHICH

11:20 AM 23 POSITION MR. ADAMS WAS HIRED?

11:20 AM 24 A.

YES, IT SAYS GENERAL FOUNDRYMAN.

11:21 AM 25 Q.

MS. DUNGAN, HOW MANY WORK ORDERS OF TWC WORK ORDERS

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11: 21 AM 1 DID YOU ANALYZE?

11:21 AM 2 A.

THERE WERE FIFTY-FIVE.

11:21 AM 3 Q.

OF THOSE WORK ORDERS, HOW MANY INCLUDED AT LEAST ONE

11:21 AM 4 APPLICANT WHO WAS ASSIGNED TO A POSITION THAT WAS

11: 21 AM 5 DIFFERENT THAN WHAT WAS INDICATED ON THE JOB ORDERS AS

11:21 AM 6 BEING THE REFERRAL DEPARTMENT?

11: 21 AM 7 A.

WE FOUND THIRTY-ONE.

11:21 AM 8 Q. AND WHAT WERE THE TOTAL NUMBER OF APPLICANTS ON THE

11:21 AM 9 JOB ORDERS WHO WERE ASSIGNED TO A POSITION THAT WAS 11:21 AM 10 DIFFERENT THAN THE ONE FOR WHICH THEY WERE REFERRED?

11:21 AM 11 A.

WE FOUND THREE HUNDRED AND NINETY-TWO IN THAT

11:21 AM 12 CATEGORY.

11:21 AM 13 Q.

OKAY. SO I WOULD LIKE TO NOW MOVE ON TO ANOTHER

11:21 AM 14 EXHIBIT.

11:21 AM 15 A.

OKAY.

11:21 AM 16 Q.

CAN YOU -- I JUST WANT YOU TO LOOK AT EXHIBIT NUMBER

11: 22 AM 17 76, PLEASE.

11:22 AM 18 A.

ALL RIGHT.

11:22 AM 19 Q.

CAN YOU TELL ME, DID THE PLAINTIFFS RECEIVE FROM

11:22 AM 20 LUFKIN A DATA BASE THAT WAS CREATED FROM HOURLY BID

11:22 AM 21 SHEETS?

11:22 AM 22 A.

WE DID.

11:22 AM 23 Q. AND DID THEY RECEIVE A DATA BASE ON AUGUST 19, 2003?

11:22 AM 24 A.

THAT'S CORRECT.

11:22 AM 25 Q.

DID YOU CONDUCT AN ANALYSIS OF THOSE BID SHEETS

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92

11: 22 AM 1 OF THAT DATA BASE? I'M SORRY.

11: 22 AM 2 A.

WE DID.

11: 22 AM 3 Q. ALL RIGHT. NOW, REFERRING TO PLAINTIFFS' EXHIBIT

11: 22 AM 4 NUMBER 76, DO YOU RECOGNIZE THIS DOCUMENT?

11:22 AM 5 A.

I DO. IT'S THE CHARTS OF OUR ANALYSIS OF THE DATA

11: 22 AM 6 BASE THAT WE RECEIVED.

11: 22 AM 7 Q. AND YOU'RE REFERRING TO THE ANALYSIS OF THE DATA

11: 22 AM 8 BASE THAT WAS CREATED FROM HOURLY BID SHEETS?

11:22 AM 9 A.

THAT'S CORRECT.

11:22 AM 10 Q.

THE DATA BASE THAT WAS RECEIVED ON AUGUST 19TH?

11:22 AM 11 A.

YES.

11:23 AM 12

MS. BURRELL: WE WOULD LIKE TO OFFER EXHIBIT 76

11: 23 AM 13 INTO EVIDENCE.

11:23 AM 14

MR. BACON: YOUR HONOR, WE OBJECT TO THIS

11: 23 AM 15 EXHIBIT, ON SEVERAL GROUNDS.

11:23 AM 16

FIRST, IT IS A SUMMARY RECORD, AND WE BELIEVE WE

11: 23 AM 17 CAN SHOW THE RECORD IS VERY INACCURATE. IT DOES NOT

11:23 AM 18 REPRESENT THE DATA THAT IT IS MEANT TO SUMMARIZE. AND FOR

11:23 AM 19 THAT REASON WE THINK IT SHOULD NOT BE ALLOWED INTO

11:23 AM 20 EVIDENCE.

11:23 AM 21

THE COURT: WELL, I'M GOING TO -- I'M GOING TO

11:23 AM 22 ADMIT IT AT THIS TIME FOR WHATEVER IT'S WORTH, AND YOU CAN

11:23 AM 23 CROSS-EXAMINE HER ON THAT.

11:23 AM 24

MR. BACON: THANK YOU, YOUR HONOR.

11:23 AM 25 BY MS. BURRELL:

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11: 23 AM 1 11:23 AM 2 11:23 AM 3 11:23 AM 4 11: 23 AM 5 11:23 AM 6 11: 23 AM 7

93 Q. CAN YOU EXPLAIN HOW YOU CONDUCTED YOUR ANALYSIS FOR
EXHIBIT 76, PLEASE? A. WELL, IN ADDITION TO THE DATA BASE, WE RECEIVED THE HARD COPY BID SHEETS, AND SO WHAT WE DID WAS, WE WENT THROUGH THE BID SHEETS THAT WE HAD AND ORGANIZED THEM CHRONOLOGICALLY.
AND THEN WE CHECKED FOR DUPLICATES OF THE BID

11:24 AM 8 SHEETS AND ORGANIZED THOSE AS WELL.

11:24 AM 9

AND THEN WE REVIEWED EACH BID SHEET AGAINST THE

11:24 AM 10 DATA BASE THAT WE RECEIVED, AND THEN WE CHECKED THAT

11: 24 AM 11 INFORMATION FROM THE BID SHEETS, THE HARD COPY BID SHEETS,

11:24 AM 12 AND THE MARY BAKER DATA BASE AGAINST THE LUFKIN PERSONNEL

11:24 AM 13 DATA BASE THAT WE HAD AND CHECKED FOR ANY DISCREPANCIES,

11:24 AM 14 AND REVIEWING TO SEE IF THE INFORMATION WAS ACCURATE FROM

11:24 AM 15 THE HARD COpy TO THE DATA BASE.

11:24 AM 16 Q.

YOU MENTIONED MARY BAKER. WHO IS MARY BAKER?

11:24 AM 17 A.

SHE IS THE EXPERT FOR THE DEFENDANTS.

11:24 AM 18 Q. AND YOU SAY WHEN YOU -- YOU REFERRED TO THE DATA

11:24 AM 19 BASE AS THE MARY BAKER DATA BASE?

11:24 AM 20 A.

YES.

11:24 AM 21 Q.

YOU'RE REFERRING TO THE HOURLY --

11:24 AM 22
11:24 AM 23 11:24 AM 24 11:24 AM 25

A. THAT'S CORRECT. Q. THE DATA BASE THAT'S BEEN CREATED FROM HOURLY BID SHEETS? A. THAT'S CORRECT, THE HOURLY BID SHEETS.

WENDELL R. PARKS, OFFICIAL COURT REPORTER
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94

11:24 AM 1 Q. AND YOU TESTIFIED THAT YOU WERE LOOKING TO SEE IF

11:24 AM 2 THERE WERE DISCREPANCIES BETWEEN THE PAPER RECORDS, THE

11:24 AM 3 DATA BASE AND THE PERSONNEL DATA, IS THAT CORRECT?

11:25 AM 4 A.

BASICALLY WE REVIEWED THEM TO SEE IF IT MATCHED, IF

11: 25 AM 5 WHAT WAS ON THE BID SHEET MATCHED MARY BAKER'S DATA BASE,

11:25 AM 6 AND IF THAT ALSO MATCHED THE PERSONNEL DATA BASE, AND IF

11: 25 AM 7 IT DIDN'T, THEN WE NOTED ANY DISCREPANCIES, AND THAT'S

11:25 AM 8 WHAT'S INDICATED ON THIS CHART.

11:25 AM 9 Q.
11:25 AM 10 A.

ALL RIGHT. SO DID YOU FIND ANY DISCREPANCIES? WE DID.

11:25 AM 11 Q.

CAN YOU GIVE ME A EXAMPLE OF ONE OF THE

11:25 AM 12 DISCREPANCIES YOU FOUND?

11:25 AM 13 A.

YES. ON

IT'S BID SHEETS NUMBER L12522 THROUGH

11:25 AM 14 24, AND THAT I S ON

11:25 AM 15 Q. 11:25 AM 16 TO?

CAN YOU TELL ME WHERE IN EXHIBIT 76 YOU'RE REFERRING

11:25 AM 17 A. 11:25 AM 18

YES. IT'S ON PAGE 18 OF EXHIBIT 76. MR. BACON: I BEG YOUR PARDON. COULD I HAVE

11:25 AM 19 11:25 AM 20 11:25 AM 21 11:25 AM 22 11:25 AM 23 11:26 AM 24

THAT NUMBER AGAIN? THE WITNESS: OF THE BID SHEET OR MR. BACON: THE BID SHEET NUMBER. THE WITNESS: YES. IT'S L12522 THROUGH 24. MR. BACON: THANK YOU. THE WITNESS: UH-HUH. AND ON THIS BID SHEET, WE

11:26 AM 25 FOUND THAT THE NUMBER OF BIDDERS ON THE ACTUAL HARD COPY

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95 11: 26 AM 1 WAS SIXTY-THREE, AND IN THE DATA BASE, THE HOURLY BID DATA

11: 26 AM 2 BASE THAT WE HAD RECEIVED, THEY HAD A LIST OF FORTY-SIX.

11: 26 AM 3 SO THERE WAS A DIFFERENCE OF APPROXIMATELY SEVENTEEN

11:26 AM 4 BETWEEN THE HARD COPY AND WHAT WAS IN THE DATA BASE.

11:26 AM 5

THE COURT: AND THAT'S UNDER "NOTES" OVER THERE?

11:26 AM 6

THE WITNESS: THAT'S CORRECT.

11:26 AM 7

THE COURT: ALL RIGHT.

11:26 AM 8 BY MS. BURRELL:

11:26 AM 9 11:26 AM 10 11:26 AM 11 11:26 AM 12

Q. CAN YOU GIVE ME AN EXAMPLE OF ANOTHER DISCREPANCY THAT YOU FOUND? A. YES. AND THIS WOULD BE BATES NUMBER L13044. Q. CAN YOU -- I'M SORRY, I DON'T WANT TO INTERRUPT YOU,

11:26 AM 13 11:26 AM 14 11: 26 AM 15

BUT CAN YOU TELL US FIRST WHAT PAGE OF THE EXHIBIT? A. SURE. IT'S ON PAGE 53 OF THAT EXHIBIT.
THE COURT: NOW, WHILE I HAVE ADMITTED THIS, AND

11:26 AM 16 THERE'S A NOTE "DISCREPANCY," MANY OF THEM ARE -- THE

11: 27 AM 17 NOTES ARE ILLEGIBLE, AND IT LOOKS LIKE SHE SKIPPED THEM

11: 27 AM 18 ALTOGETHER. I AM CERTAINLY NOT GOING TO CONSIDER THAT

11:27 AM 19 COMMENT. WHETHER SHE DID SKIP THEM OR DIDN'T SKIP THEM, I

11:27 AM 20 DON'T KNOW, BUT I'M NOT GOING TO TAKE YOUR --

11:27 AM 21

MS. DUNGAN, I'M NOT GOING TO TAKE YOUR

11:27 AM 22 CONCLUSION ON THAT AS SOMETHING AS A FACT IN THE TRIAL OF

11:27 AM 23 11:27 AM 24 11:27 AM 25

THIS CASE. THE WITNESS: I UNDERSTAND. THE COURT: I JUST WANTED TO EXPLAIN TO MR.

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96

11:27 AM 1 HAMEL AND MR. BACON AND ALSO TO MS. DEMCHAK AND MR.

11:28 AM 2 GARRIGAN.

11:28 AM 3

THE WITNESS: I UNDERSTAND, YOUR HONOR.

11:28 AM 4 BY MS. BURRELL:

11:28 AM 5 Q.

SO GOING --

11:28 AM 6

MR. BACON: I'M SORRY, MS. BURRELL. WHAT IS THE

11:28 AM 7 NUMBER OF THE BATES STAMP? I'M KIND OF SLOW.

11:28 AM 8

THE WITNESS: IT'S L13044.

11:28 AM 9 11:28 AM 10

MR. BACON: THANK YOU VERY MUCH. THE WITNESS: AND ON THE BIDS -- IT INDICATED IN

11:28 AM 11 THE DATA BASE THAT MR. PHIPPS AND MR. EVANS DID NOT

11:28 AM 12 RECEIVE THEIR PROMOTION, ALTHOUGH THE HOURLY BID DATA BASE

11:28 AM 13 SAID THAT THEY DID.

11:28 AM 14 BY MS. BURRELL:

11:28 AM 15 Q.

LET'S HOLD ON ONE SECOND. I WOULD LIKE TO GO

11:28 AM 16 BACK

11:28 AM 17

THE COURT: I HAVE NO IDEA WHAT --

11: 28 AM 18 BY MS. BURRELL:

11:28 AM 19 Q.

LET'S GO BACK TO THE EXHIBIT, TO PAGE 18 THAT WE

11:28 AM 20 WERE JUST TALKING ABOUT.

11:28 AM 21 A.

OKAY.

11:28 AM 22 Q.

OKAY. NOW, REFERRING TO THE EXHIBIT IN THAT ENTRY

11:29 AM 23 FOR THE BID SHEET WITH THE BATES NUMBER 12522 THROUGH

11:29 AM 24 24

11:29 AM 25 A.

YES.

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11:29 AM 1 Q.

97 NOW, I JUST WANT TO -- ASIDE FROM THE CONCLUSION

11:29 AM 2 11:29 AM 3 11:29 AM 4 11:29 AM 5 11:29 AM 6 11:29 AM 7 11:29 AM 8 11:29 AM 9 11:29 AM 10

THAT'S WRITTEN HERE, I JUST WANT TO GET -- CLARIFY WHAT WAS SEEN WHEN LOOKING AT THE RECORDS. A. THE HARD COPIES, IS THAT -Q. YES. THAT'S RIGHT. A. WELL, WE WOULD LOOK AT THE ACTUAL HARD COpy OF THE BID SHEETS, AND OFTEN TIMES THEy'RE HANDWRITTEN LISTS, SOMETIMES THEy'RE TYPED, AND ON THOSE BIDS SHEETS THERE'S A LIST OF NAMES OF PEOPLE THAT BID FOR THE JOB. SO WE WOULD LOOK AT THAT, AND THEN WE CHECKED THOSE NAMES

11:29 AM 11 AGAINST WHAT MARY BAKER HAD LISTED FOR THIS PARTICULAR

11:29 AM 12 BATES NUMBER BID SHEET, AND THAT WAS THE DIFFERENCE THAT

11:29 AM 13 WE FOUND. 11:29 AM 14 Q. SO WHEN YOU'RE SAYING WHAT MARY BAKER HAD LISTED,

11: 30 AM 15 YOU MEAN WHAT WAS IN THE HOURLY, THE DATA BASE THAT WAS

11: 30 AM 16 CREATED FROM THE HOURLY BID SHEETS?

11 :30 AM 17 A .

THAT'S CORRECT.

11 :30 AM 18 Q.

IN THAT DATA BASE THERE WERE FORTY-SIX NAMES, IS

11: 30 AM 19 THAT CORRECT?

11:30 AM 20 A.

THAT'S CORRECT.

11:30 AM 21 Q. AND THE PAPER RECORD, THERE WERE SIXTY-THREE NAMES?

11 :30 AM 22 A.

THAT'S CORRECT.

11 :30 AM 23 Q. ALL RIGHT. SO NOW WE CAN MOVE ON TO THE EXAMPLE

11: 30 AM 24 THAT YOU WERE DISCUSSING. CAN YOU TELL ME AGAIN WHAT PAGE

11: 30 AM 25 THAT WAS AT?

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98

11: 30 AM 1 A.

PAGE 53.

11: 30 AM 2 Q. AND CAN YOU REPEAT THE BATES NUMBER?

11: 30 AM 3 A.

YES. IT'S L13044.

11: 30 AM 4 Q. OKAY. AND SO CAN YOU GO ON ONCE AGAIN AND EXPLAIN

11: 31 AM 5 WHAT YOU FOUND WITH RESPECT TO THIS PARTICULAR ENTRY?

11:31 AM 6 A.

ON THIS ENTRY IT INDICATED IN THE LUFKIN DATA BASE

11:31 AM 7 THAT MR. PHIPPS AND MR. EVANS DID NOT RECEIVE THE

11: 31 AM 8 PROMOTION, BUT IN THE HOURLY BID DATA BASE IT INDICATED

11: 31 AM 9 THAT THEY DID.

11:31 AM 10

THE COURT: THAT'S PAGE 53?

11:31 AM 11

THE WITNESS: THAT'S RIGHT.

11: 31 AM 12

THE COURT: AND WHICH EMPLOYEES -- WHAT'S THE

11: 31 AM 13 DISCREPANCY?

11: 31 AM 14

THE WITNESS: ACCORDING TO THE LUFKIN PERSONNEL

11:31 AM 15 DATA BASE, MR. PHIPPS AND MR. EVANS DID NOT RECEIVE A

11: 31 AM 16 PROMOTION, BUT IN THE HOURLY BID DATA BASE IT SHOWED THAT

11: 31 AM 17 THEY HAD RECEIVED THAT PROMOTION.

11: 31 AM 18 BY MS. BURRELL:

11:31 AM 19 Q.

AND WHAT IS MR. PHIPPS' RACE?

11: 31 AM 20 A.

MR. PHIPPS IS BLACK.

11:31 AM 21 Q.

AND THAT'S INDICATED HERE ON THE EXHIBIT?

11:31 AM 22 A.

YES, IN PARENS "B."

11:32 AM 23 Q. SO ON THIS EXHIBIT, THE "B" NEXT TO MR. PHIPPS' NAME

11:32 AM 24 STANDS FOR BLACK?

11 : 32 AM 2 5 A .

THAT'S CORRECT.

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99

11:32 AM 1 Q. 11:32 AM 2

AND SO WHAT
AND THE "w" NEXT TO MR. EVANS I NAME, THAT STANDS

11:32 AM 3 FOR?

11:32 AM 4 A.

INDICATES WHITE.

11:32 AM 5 Q. AND WHERE DID YOU GET THE RACIAL DATA TO IDENTIFY

11:32 AM 6 THESE INDIVIDUALS BY RACE?

11:32 AM 7 A. THAT'S IN THE LUFKIN PERSONNEL DATA BASE.

11:32 AM 8 Q. DO YOU HAVE ANY OTHER EXAMPLES FROM THIS EXHIBIT?

11:32 AM 9 A. ON PAGE 86 OF THE EXHIBIT, AND THAT IS BATES NUMBER, 11:32 AM 10 REFERENCING BATES NUMBER L23294 THROUGH 95.

11: 32 AM 11

THE COURT: PAGE WHAT OF THE EXHIBIT?

11: 32 AM 12

THE WITNESS: 86, YOUR HONOR.

11: 33 AM 13

THE COURT: ALL RIGHT.

11:33 AM 14

MR. BACON: I'M SORRY AGAIN. WHAT

11: 33 AM 15

THE WITNESS: DO YOU NEED THAT?

11:33 AM 16

MR. BACON: I DON'T THINK SO.

11: 33 AM 17

THE WITNESS: OKAY.

11: 33 AM 18

THE COURT: WELL, OKAY.

11: 33 AM 19 BY MS. BURRELL:

11:33 AM 20 Q. AND DO YOU WANT TO DESCRIBE OR EXPLAIN WHAT YOU

11:33 AM 21 FOUND WITH RESPECT TO THIS ENTRY?

11:33 AM 22 A. WELL, WHAT WE FOUND WHEN WE LOOKED AT THE HARD COpy

11:33 AM 23 IS THAT THIS IS NOT ACTUALLY A BID SHEET, IT'S A COpy OF A

11: 33 AM 24 FILE FOLDER. AND THEN -- AND THAT I S PAGE L23294.

11:33 AM 25

AND THEN THE NEXT PAGE IS ACTUALLY A NOTICE OF

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11:33 AM 1 11: 33 AM 2 11:33 AM 3 11:33 AM 4 11:33 AM 5 11: 33 AM 6 11:33 AM 7

100 THE BID WINNER, IT'S NOT ACTUALLY A BID SHEET. Q. OKAY. NOW, IN THE COLUMN UNDER "NOTES" -A. YES. Q. IT SAYS "THE NAMES ON THE BAKER DATA ARE NOT LISTED ON THE CITED PAGES." WHAT DOES THAT MEAN? A. THAT MEANS THAT THE CITED PAGES AS REFERENCED TO THE BID SHEETS AND THE NAMES IN THE MARY BAKER DATA BASE ARE

11: 34 AM 8 NOT THE SAME AS THE ONES LISTED ON THE HARD COPY.

11:34 AM 9 Q.

DID PLAINTIFFS ALSO RECEIVE A DATA BASE THAT WAS

11: 34 AM 10 11:34 AM 11 11:34 AM 12 11: 34 AM 13 11: 34 AM 14 11:34 AM 15 11: 34 AM 16

CREATED FROM SALARIED BID SHEETS? A. WE DID. Q. AND DID YOU ALSO CONDUCT AN ANALYSIS OF THOSE? A. I DID. Q. FOR THAT DATA BASE? A. YES. Q. I WOULD LIKE YOU TO TURN TO PLAINTIFFS' EXHIBIT

11: 34 AM 17 NUMBER 77.

11:34 AM 18 11:34 AM 19 11: 34 AM 20 11: 34 AM 21 11: 34 AM 22 11: 34 AM 23 11: 34 AM 24 11: 35 AM 25

A. OKAY. Q. ARE YOU THERE? A. YES, I AM. Q. DO YOU RECOGNIZE THIS DOCUMENT? A. I DO. Q. CAN YOU TELL ME WHAT IT IS, PLEASE? A. IT'S A CHART SHOWING THE SALARIED BID SHEETS THAT WE REVIEWED.

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11:35 AM 1 Q.

101
AND THIS IS SIMILARLY A COMPARISON BETWEEN -- IS IT

11: 35 AM 2 A COMPARISON BETWEEN THE PAPER RECORDS, THE DATA BASE --

11: 35 AM 3 WELL, THE SALARIED BID DATA BASE AND THE PERSONNEL DATA

11:35 AM 4 BASE?

11:35 AM 5 A.

THAT'S CORRECT. WE USED A SIMILAR APPROACH TO WHAT

11: 35 AM 6 WE USED WITH THE HOURLY BID DATA BASE. THE ONLY

11: 35 AM 7 DIFFERENCE IS THAT WE ONLY CHECKED THE INDIVIDUALS WHO

11: 35 AM 8 WERE DESIGNATED AS THE WINNERS IN THE SALARIED DATA BASE.

11:35 AM 9 Q.

OKAY. I'M GOING TO ASK YOU ABOUT THAT IN A MOMENT.

11:35 AM 10

MS. BURRELL: BUT RIGHT NOW I WOULD LIKE TO

11: 35 AM 11 11:35 AM 12

OFFER THIS AS EXHIBIT, PLAINTI FFS' EXHIBIT NUMB ER 77.
MR. BACON: YOUR HONOR, WE MAKE THE SAME

11: 35 AM 13 OBJ ECTION THAT WE MADE AS TO EXHIBIT 76, ON THE GROUNDS

11: 36 AM 14 THAT IT'S

11:36 AM 15

THE COURT: SUBJECT TO IT BEING CONNECTED UP

11:36 AM 16 WITH LUFKIN'S

11: 36 AM 17

THIS IS APPARENTLY A CRITICISM OF WHAT WAS

11:36 AM 18 FURNISHED AS LUFKIN'S RECORDS, AND I'M ALLOWING HER TO DO

11: 36 AM 19 THAT CONTINGENT UPON EVENTUALLY GETTING THE LUFKIN RECORDS

11: 36 AM 20 IN EVIDENCE.

11: 36 AM 21

MR. BACON: WELL, ACTUALLY IT'S MORE THAN THAT.

11: 36 AM 22 IT'S A CRITICISM OF LUFKIN'S STATISTICIAN'S INTERPRETATION

11:36 AM 23 OF LUFKIN'S RECORDS, AND THAT'S WHAT I THINK THEy'RE

11:36 AM 24 OFFERING THIS FOR, IS TO SHOW THAT THAT DATA BASE THAT WAS

11: 36 AM 25 CREATED BY OR FOR LUFKIN'S EXPERT IS UNRELIABLE.

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102

11: 36 AM 1

AND WE OBJECT TO THIS EXHIBIT BECAUSE WE THINK

11:36 AM 2 IT IS UNRELIABLE, AND IT DOES NOT INTERPRET THE DATA BASE

11:36 AM 3 CORRECTLY.

11: 36 AM 4

THE COURT: I'LL TAKE IT INTO CONSIDERATION

11:36 AM 5 INSOFAR AS -- IN COMPARISON TO THE EXHIBITS YET TO COME

11:37 AM 6 INTO THE RECORD. THE PLAINTIFF HASN'T RESTED.

11:37 AM 7

AND I ASSUME THAT YOU ARE GOING --

11: 37 AM 8

YOU HAVE PRODUCED BID SHEETS, AND THAT THIS IS

11:37 AM 9
11: 37 AM 10

A --

AND YOU'VE PRODUCED DR. BAKER'S REPORT, AND

11: 37 AM 11 THAT'S BEEN FURNISHED TO THE PLAINTIFF, THEy'VE ANALYZED

11: 37 AM 12 11: 37 AM 13 11: 37 AM 14

IT, AND THESE ARE THE DISCREPANCIES THAT THEY CLAIM THEY MAKE.
AND THAT'S THE ONLY REASON THAT IT'S BEING

11:37 AM 15 ADMITTED.

11: 37 AM 16

IT'S CONTINGENT ON THE INTRODUCTION BOTH OF

11:37 AM 17 LUFKIN'S DOCUMENTS FURNISHED TO THE PLAINTIFF BY ORDER OF

11: 37 AM 18 THE COURT.

11:37 AM 19

SECOND, THEy'VE REVIEWED DR. BAKER'S FIRST AND

11:37 AM 20 SECOND REPORT, AND THESE ARE THEIR ANALYSIS OF

11:37 AM 21 SHORTCOMINGS IN HER REPORT, AND THAT'S ALL THAT I I M

11:38 AM 22 CONSIDERING THEM FOR.

11:38 AM 23

WHETHER THAT TURNS OUT TO BE TRUE OR NOT, I

11: 38 AM 24 11: 38 AM 25

DON'T KNOW. MR. BACON: ALL RIGHT.

YOU'RE OVERRULING MY

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103

11:38 AM 1 OBJECTION.

11:38 AM 2

THANK YOU.

11: 38 AM 3

THE COURT: WELL, YES, SIR.

11:38 AM 4

THE WITNESS: THANK YOU, YOUR HONOR.

11: 38 AM 5 BY MS. BURRELL:

11:38 AM 6 Q.

SO, JUST TO GO BACK AND CLARIFY, EXHIBIT 77 IS A

11:38 AM 7 COMPARISON BETWEEN THE PAPER BID RECORDS, THE SALARIED BID

11: 38 AM 8 DATA BASE THAT WAS PRODUCED BY LUFKIN AND THE PERSONNEL

11:38 AM 9 DATA, CORRECT?

11:38 AM 10 A. 11: 38 AM 11 Q.

THAT'S CORRECT. AND YOU WENT INTO THIS A LITTLE BIT, BUT CAN YOU

11: 38 AM 12 EXPLAIN AGAIN, HOW DID YOU CONDUCT THE ANALYSIS OF THE

11: 38 AM 13 11:38 AM 14

PAPER -- WELL, THE ANALYSIS THAT WE JUST TALKED ABOUT?

A.

WE ESSENTIALLY USED THE SAME METHOD THAT WE USED TO

11: 38 AM 15 REVIEW THE HOURLY BID SHEET DATA BASE. WE ORGANIZED THEM

11: 38 AM 16 CHRONOLOGICALLY, AND THEN WE CHECKED FOR DUPLICATES OF THE

11: 38 AM 17 BID SHEETS, AND THEN WE REVIEWED THE HARD COPIES OF THE

11:39 AM 18 BID SHEETS AGAINST THE SALARIED BID DATA BASE AND THE

11:39 AM 19 LUFKIN PERSONNEL DATA BASE AND CHECKED TO SEE HOW IT

11: 39 AM 20 MATCHED UP OR NOT, AND THE ONLY DIFFERENCE WAS THAT WITH

11:39 AM 21 THE SALARIED BID SHEETS, WE ONLY CHECKED FOR THE PERSON

11:39 AM 22 11:39 AM 23 11: 39 AM 24 11:39 AM 25

THAT WAS DESIGNATED AS THE WINNER THERE.

Q.

AND DID YOU FIND ANY DISCREPANCIES?

A.

YES, WE DID.

Q.

AND CAN YOU GIVE ME SOME EXAMPLES OF SOME

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104

11:39 AM 1 DISCREPANCIES? WELL, GIVE MY ONE EXAMPLE OF A DISCREPANCY

11: 39 AM 2 THAT YOU FOUND.

11: 39 AM 3 A. ON EXHIBIT 77, IT'S PAGE PTSF07468, AND THAT BID

11: 39 AM 4 NUMBER IS L1214.

11: 39 AM 5 Q.

HOLD ON ONE SECOND.

11: 39 AM 6

YOU KNOW, IT MIGHT BE EASIER IF YOU WOULD GIVE

11:40 AM 7 US, YOU KNOW, THE PAGE 1 OUT OF -- COULD YOU TELL US THAT

11:40 AM 8 NUMBER, THAT PAGE NUMBER?

11:40 AM 9

THE COURT: IT'S 3.

11:40 AM 10

THE WITNESS: IT'S 3. THANK YOU. PAGE 3.

11:40 AM 11

SO, FOR THIS EXAMPLE, IN THE COMMENTS FIELD

11:40 AM 12 THERE WAS A NOTE ON THE ACTUAL BID SHEET THAT SAID "STEVE

11:40 AM 13 HAS OTHER PLANS FOR NED HIGHTSMAN. II THAT' 5 IN QUOTES.

11:40 AM 14

AND THEN ON PAGE 5 OF EXHIBIT 77, IT INDICATES

11:40 AM 15 THAT MR. HIGHTSMAN WAS AWARDED A SUPERVISOR JOB.

11:40 AM 16

SO THOSE TWO, COMPARING THOSE TWO, IT APPEARS

11:40 AM 17 THAT MR. HIGHTSMAN -- IT APPEARED TO US THAT MR. HIGHTSMAN

11:40 AM 18 WAS PRESELECTED FOR THIS SUPERVISOR POSITION.

11:40 AM 19 BY MS. BURRELL:

11 : 40 AM 20 Q• DO YOU HAVE ANY OTHER EXAMPLES OF DISCREPANCIES THAT

11:41 AM 21 YOU FOUND?

11:41 AM 22 A. THIS IS PAGE 10 OF EXHIBIT 77, AND THAT'S BATES

11:41 AM 23 NUMBER L1264. IT'S THE THIRD ROW THERE.

11:41 AM 24

IN THE COMMENTS FIELD, WHAT WE FOUND IS THAT

11:41 AM 25 JAMES WHITE -- JAMES WHITE IS BLACK, AND HE -- IT WAS

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105

11:41 AM 1 SHOWN ON THE DATA BASE THAT HE WAS WHITE. AND SO THAT

11:41 AM 2 WHAT HAPPENED WAS THAT THE NUMBER OF BLACK APPLICANTS WAS

11:41 AM 3 UNDERCOUNTED.

11:41 AM 4 Q.

HOW DO YOU KNOW THAT JAMES WHITE IS BLACK?

11:41 AM 5 A.

BECAUSE HE HAS BEEN DEPOSED IN THIS CASE.

11:41 AM 6 Q.

WHO TOOK HIS DEPOSITION?

11:41 AM 7 A.

LUFKIN'S COUNSEL.

11:42 AM 8

MS. BURRELL: YOUR HONOR, WHAT WE WOULD LIKE TO

11:42 AM 9 11:42 AM 10 11:42 AM 11

INTRODUCE SOME TESTIMONY ABOUT NOW ARE THE APPLICATIONS THAT WE RECENTLY RECEIVED FROM LUFKIN. WE JUST RECEIVED -- WE RECEIVED THE BULK OF THEM WITHIN THE PAST

11:42 AM 12 WEEK. WE HAVEN 'T HAD AN OPPORTUNITY TO MAKE COPIES OF

11:43 AM 13 THEM. SO WHAT WE WANT TO DO IS INTRODUCE A SET OF THEM.

11:43 AM 14

AND WE ALSO HAVE NOT BEEN ABLE TO ANALYZE ALL OF

11:43 AM 15 THEM.

11:43 AM 16

WHAT WE HAVE HERE IS A SET, ONE SET OF WHAT WE

11:43 AM 17 HAVE BEEN ABLE TO ANALYZE, BUT WE WOULD LIKE -- AND WE

11:43 AM 18 WOULD LIKE TO OFFER THEM INTO EVIDENCE, AND OFFER SOME

11:43 AM 19 TESTIMONY ON THEM, BUT THEY I RE GOING TO NEED TO BE COPIED. 11:43 AM 20 WE NEED TO COpy THEM SO THAT WE CAN PROVIDE A COpy OF THIS

11:43 AM 21 11:43 AM 22

EXHIBIT TO THE DEFENDANTS AND -THE COURT: WELL, WERE THEY FURNISHED TO YOU BY

11:43 AM 23 11:43 AM 24 11:43 AM 25

THE DEFENDANT? MS. BURRELL: YES, THEY WERE. THE COURT: ALL RIGHT.

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11:43 AM 1 11:43 AM 2

106 MS. BURRELL: THESE ARE THE APPLICATIONS THAT MR. GARRIGAN REFERENCED YESTERDAY THAT WERE ORDERED TO BE

11:43 AM 3 PRODUCED BY THE COURT ON NOVEMBER 13TH.

11:43 AM 4

MR. BACON: YOUR HONOR, YOU WILL RECALL THAT YOU

11:43 AM 5 ORDERED LUFKIN TO PRODUCE --

11:43 AM 6 11:43 AM 7

THE COURT: YES. MR. BACON: -- COPIES OF ALL APPLICATIONS OF ALL

11:43 AM 8 THE EMPLOYEES IN THE RELEVANT TIME PERIOD, WHICH IS A HUGE

11:43 AM 9 11:43 AM 10 11:44 AM 11

NUMBER OF APPLICATIONS, AND THEY HAVE BEEN COPIED AND THEy'VE BEEN PRODUCED.
WE WOULD BE AT A DISADVANTAGE AT THIS POINT,

11:44 AM 12 YOUR HONOR, WITHOUT KNOWING WHAT SELECT GROUP THEy l RE

11:44 AM 13 GOING TO USE AS AN EXHIBIT, WITHOUT HAVING THE OPPORTUNITY

11:44 AM 14 TO HAVE ANALYZED IT. SO--

11:44 AM 15

THE COURT: WELL, WHAT DO YOU WANT, TO ADJOURN?

11:44 AM 16

MR. BACON: EITHER ADJOURN, OR AT LEAST --

11:44 AM 17

11M NOT OPPOSED TO LETTING THEM RECALL -- I

11:44 AM 18 MEAN, I CAN TAKE HER ON CROSS AND STUFF, AND RECALL HER

11:44 AM 19 LATER, THIS WITNESS LATER ON THIS ISSUE ONCE WE I VE HAD AN

11:44 AM 20 OPPORTUNITY TO LOOK AT THIS EXHIBIT.

11:44 AM 21

I DON IT MIND SPLITTING THIS WITNESS UP AT SOME

11:44 AM 22 OTHER TIME, IF MS. BURRELL IS NOT OPPOSED AND THE COURT IS

11:44 AM 23 NOT OPPOSED.

11:44 AM 24

MS. BURRELL: WELL, THE INFORMATION THAT I CAN

11:44 AM 25 OFFER, AND YOU CAN DETERMINE WHETHER THIS IS SUFFICIENT

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107

11:44 AM 1 FOR YOU, THESE ARE FROM THE FIRST SET --

11:44 AM 2

THE FIRST APPLICATIONS THAT WE RECEIVED I

11:45 AM 3 BELIEVE WERE THE ONE BOX OF APPLICATIONS, AND THEY WERE

11:45 AM 4 IDENTIFIED TO US AS CURRENT, APPLICATIONS FOR CURRENT

11:45 AM 5 EMPLOYEES DURING THE LIABILITY PERIOD. THAT IS ALL THAT'S

11:45 AM 6 IN THIS SET.

11:45 AM 7

MR. BACON: THAT STILL DOESN'T --

11:45 AM 8

WE'RE CERTAINLY NOT GOING TO OBJECT TO THEIR

11:45 AM 9 ADMISSIBILITY. THEy'RE LUFKIN'S RECORDS. THE ISSUE HERE 11:45 AM 10 IS, WE HAVE NOT HAD AN OPPORTUNITY TO EXAMINE THE --

11:45 AM 11

THE COURT: WELL, YOU KNOW WHAT YOU SENT THEM.

11:45 AM 12

MR. BACON: YOUR HONOR, WE SENT THEM OUR

11:45 AM 13 APPLICATIONS OVER A LONG PERIOD OF TIME. THEY HAVE

11:45 AM 14 FOCUSED ON A PARTICULAR GROUP. WE HAVE NOT HAD AN

11:45 AM 15 OPPORTUNITY TO LOOK AT THE GROUP THAT THEy'RE GOING TO ASK

11:45 AM 16 QUESTIONS ABOUT AND TO PREPARE TO CROSS-EXAMINE A WITNESS

11:45 AM 17 ON THAT. I HAVE NO IDEA WHICH APPLICATIONS THAT --

11:45 AM 18

THE COURT: TELL ME WHICH ONES YOU'RE GOING TO

11:45 AM 19 INTRODUCE AND

11:45 AM 20

MS. BURRELL: THESE ARE CURRENT EMPLOYEES.

11:45 AM 21

THE COURT: TELL ME THE NAMES.

11:45 AM 22

MS. BURRELL: WELL, THERE'S QUITE A FEW OF THEM.

11:45 AM 23 THERE'S A WHOLE BOX. I CAN'T TELL YOU THE NAMES.

11:45 AM 24

THE COURT: YOU CAN'T TELL ME THE NAMES?

11:45 AM 25 THEy'RE NOT ON THERE?

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11:45 AM 1

108 MS. BURRELL: THEY ARE ON THERE, BUT THERE'S

11:45 AM 2 SEVERAL OF THEM.

11:46 AM 3

THE COURT: WELL, THERE'S ONE ON THE TOP. IT

11:46 AM 4 HAS A NAME ON IT.

11:46 AM 5

MS. BURRELL: THE ONE ON THE TOP --

11:46 AM 6

WELL, LET ME

11:46 AM 7

OKAY. ONE POSSIBILITY IS, WE COULD COMPLETE THE

11:46 AM 8 DIRECT EXAMINATION, GIVE LUFKIN THESE DOCUMENTS TO EXAMINE

11:46 AM 9 11:46 AM 10 11:46 AM 11 11:46 AM 12 11:46 AM 13 11:46 AM 14

OVER LUNCH, SO THAT -- BEFORE YOU DO YOUR CROSS-EXAMINATION.
THE COURT: YOU DO NOT WISH ME TO KNOW THE NAME? MS. BURRELL: I'M SORRY. ABSOLUTELY. BUT I CAN TELL YOU, THIS WE ORGANIZED THESE INTO CHRONOLOGICAL ORDER, SO

11:46 AM 15 THIS IS NOT THE ORDER IN WHICH WE GAVE THEM. BUT THE

11:46 AM 16 FIRST NAME THAT ON HERE IS RYAN KEITH THIGPEN, AND HE

11:46 AM 17 APPLIED FOR A POSITION IT SAYS IN THE TRAILER PLANT ON

11:46 AM 18 JANUARY 25, 1994.

11:47 AM 19

AND THERE'S A BATES NUMBER ON THE BOTTOM, WHICH

11:47 AM 20 11:47 AM 21

IS 002485. THE COURT:

AND THESE WERE ALL FURNISHED TO YOU

11:47 AM 22 11:47 AM 23

OVER DIFFERING -- AT DIFFERENT TIMES? MS. BURRELL: NO. THIS BOX WE RECEIVED ALL AT

11:47 AM 24 ONE TIME. WE INITIALLY RECEIVED ONE BOX OF APPLICATIONS.

11:47 AM 25 WE RECEIVED SOME MORE APPLICATIONS THE NEXT WEEK, AND THEN

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109 11:47 AM 1 THE DAY BEFORE TRIAL STARTED WE RECEIVED SEVERAL

11:47 AM 2 ADDITIONAL BOXES. THIS IS THE FIRST -- THIS IS FROM THE

11:47 AM 3 FIRST SET OF APPLICATIONS WE RECEIVED, JUST THIS ONE BOX.

11:47 AM 4

MR. BACON: LET ME EXPLAIN ALSO, THE SERVICE

11:47 AM 5 THAT DID THIS JOB, SO IT DOESN'T SEEM LIKE THE SERVICE

11:47 AM 6 TOOK FOREVER --

11:47 AM 7

A LOT OF THESE APPLICATIONS WERE ON MICROFICHE,

11:47 AM 8 SO IT WASN'T SIMPLY A MATTER OF TAKING AN APPLICATION AND

11:47 AM 9 XEROXING IT. THEY HAD TO ACTUALLY BE PUT ON THIS LITTLE

11:47 AM 10 MACHINE, AND IT'S MY UNDERSTANDING IT TAKES QUITE A BIT OF

11:47 AM 11 TIME TO PRINT SOMETHING ON A MICROFICHE FEEDER.

11:47 AM 12

THEN THEY HAD TO MAKE COPIES FOR THE PLAINTIFF

11:48 AM 13 AND COPIES FOR US FOR A LOT OF THESE APPLICATIONS.

11:48 AM 14

BUT, YOU KNOW, AGAIN, MY --

11:48 AM 15

I DON'T HAVE AN OBJ ECTION TO THESE EXHIBITS PER

11:48 AM 16 SE. WE NEED TIME TO BE ABLE TO

11:48 AM 17

THE COURT: WELL--

11:48 AM 18

MR. BACON: I MEAN, TYPICALLY WE GET THIRTY DAYS

11:48 AM 19 AND MORE TIME TO LOOK AT EXHIBITS, BUT WE AT LEAST NEED,

11:48 AM 20 YOU KNOW, I THINK AT LEAST THE WEEKEND TO BE ABLE TO LOOK

11:48 AM 21 AT WHAT THEy'RE INTRODUCING, TO BE ABLE TO LOOK THROUGH

11:48 AM 22
11:48 AM 23 11:48 AM 24

EACH AND EVERY APPLICATION TO SEE WHAT INFORMATION IS IN IT.
MS. BURRELL: WELL, WHILE I DON'T DISAGREE THAT

11:48 AM 25 TYPICALLY YOU WOULD BE ALLOWED THIRTY DAYS, WE JUST

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110

11:48 AM 1 RECEIVED THESE WITHIN THE LAST FEW WEEKS.

11:48 AM 2

IT'S A FAIRLY SMALL BOX OF DOCUMENTS. I'M NOT

11:48 AM 3 CERTAIN IT WOULD TAKE YOU THE WEEKEND TO LOOK THROUGH

11:48 AM 4 THEM.

11:48 AM 5

AND THESE ARE SIMPLY DOCUMENTS THAT YOU PRODUCED

11:48 AM 6 TO US.

11:49 AM 7

THE COURT: WELL, WE'RE ADJOURNED UNTIL 2:00

11:49 AM 8 O'CLOCK. RUN THROUGH THEM BETWEEN NOW AND 2:00 O'CLOCK.

11:49 AM 9

THE CSO: ALL RISE.

11:49 AM 10

THE COURT: WE'RE IN RECESS UNTIL 2:00 O'CLOCK.

11:49 AM 11

INCIDENTALLY, I MADE AN ERROR THIS MORNING WHEN

11:49 AM 12 I SAID I WAS GOING TO LOOK UP EVERY WORD THAT STARTED WITH

11:49 AM 13 P-R-E, AND THAT -- AND I MISSPOKE. I SAID STARTING WITH

11:49 AM 14 "PROFESSION. " I THOUGHT ABOUT THAT VERY SHORTLY AFTER I

11:50 AM 15 SAID IT, AND I DIDN'T HAVE A CHANCE TO CORRECT MYSELF.

11:50 AM 16

I HOPE YOU CAN LET THEM SEE WHAT THEY GOT, AND

11: 50 AM 17 MAKE A HAND LIST, AND YOU CAN SPLIT IT UP, AND YOU CAN

11: 50 AM 18 TAKE TEN OF THEM, AND YOU CAN GET THEM A LIST OF THEM.

11: 50 AM 19
11:50 AM 20

MS. BURRELL: OKAY. THE COURT: WE'RE IN RECESS UNTIL 2:00.

11: 50 AM 21 02:04 PM 22
02:04 PM 23 02:05 PM 24 02 :05 PM 2 5

(RECESS) THE COURT: ARE YOU READY TO PROCEED? MS. BURRELL: YES, WE ARE, YOUR HONOR. THE COURT: PLEASE BE SEATED. PLEASE PROCEED.

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111

02 :05 PM 1

MS. BURRELL: THANK YOU, YOUR HONOR.

02 :05 PM 2

WE APOLOGIZE FOR THE DELAY, AND WE'RE READY TO

02:05 PM 3 GO NOW.

02 :05 PM 4 CONTINUED BY MS. BURRELL:

02:05 PM 5 Q. MS. DUNGAN, I WANT TO REFER BACK TO PLAINTIFFS'

02:05 PM 6 EXHIBIT NUMBER 75.

02:05 PM 7 A.

OKAY.

02:06 PM 8 Q. CAN YOU TURN TO PAGE 8 OF THAT EXHIBIT?

02:06 PM 9

THE COURT: PAGE WHAT?

02 :06 PM 10

MS. BURRELL: PAGE 8.

02 :06 PM 11

THE COURT: ALL RIGHT. THANK YOU.

02 :06 PM 12

THE WITNESS: OKAY.

02:06 PM 13 BY MS. BURRELL:

02:06 PM 14 Q.

ALL RIGHT. AND WHICH IS NUMBERED PTSF02948, IS

02:06 PM 15 THAT CORRECT?

02:06 PM 16 A.

THAT'S CORRECT.

02: 06 PM 17 Q. DO YOU SEE ON THAT LIST THE NAME JOSEPH MESHELLE?

02: 06 PM 18 A •

I DO.

02 :06 PM 19 Q• AND THAT'S ON THE SAME LINE AS A NUMBER, WHICH IS

02:06 PM 20 TX7398299, IS THAT CORRECT?

02: 07 PM 21 A.

THAT'S CORRECT.

02:07 PM 22 Q.

SO FROM THIS --

02:07 PM 23

LET ME JUST REMIND YOU THAT EXHIBIT 75 IS THE

02:07 PM 24 ANALYSIS THAT YOU SUPERVISED OF THE WORK ORDERS THAT WE

02:07 PM 25 RECEIVED FROM THE -- THAT PLAINTIFFS RECEIVED FROM THE

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112

02: 07 PM 1 TEXAS WORKFORCE COMMISSION, CORRECT?

02 :07 PM 2 A.

THAT'S CORRECT.

02 :07 PM 3 Q. ALL RIGHT. SO LOOKING AT THAT EXHIBIT FOR MR.

02 :07 PM 4 MESHELLE, WHAT DOES IT INDICATE THAT MR. MESHELLE -- FOR

02 :07 PM 5 WHAT POSITION HE WAS REFERRED TO?

02 :07 PM 6 A. IT INDICATES THAT HE WAS REFERRED TO THE FOUNDRY.

02 :07 PM 7 Q. AND LOOKING AT THAT SAME DOCUMENT, WHERE DOES IT

02 :07 PM 8 INDICATE THAT MR. MESHELLE WAS HIRED?

02:07 PM 9 A.

INTO GEAR REPAIR.

02: 07 PM 10 Q. AND WHAT POSITION WAS HE HIRED FOR?

02: 07 PM 11 A.

GEAR REPAIR SPECIALIST.

02:07 PM 12

THE COURT: I DON'T I DON'T --

02 :07 PM 13

IS THAT PAGE 8 OF 107?

02:08 PM 14

THE WITNESS: I THINK YOU NEED EXHIBIT 75.

02:08 PM 15

MS. BURRELL: EXHIBIT 75, YOUR HONOR.

02 :08 PM 16

THE WITNESS: I THINK YOU'RE IN '76.

02 :08 PM 17

(OFF-THE-RECORD DISCUSSION)

02 :08 PM 18

THE COURT: EXCUSE ME. WHAT NAME WAS IT?

02 :08 PM 19

MS. BURRELL: IT'S JOSEPH MESHELLE, AND HE'S

02:08 PM 20 ABOUT -- HE'S TWELVE NAMES DOWN.

02 :08 PM 21

THE COURT: YES, MA'AM, I SEE IT.

02:08 PM 22

MS. BURRELL: OKAY.

02:08 PM 23 BY MS. BURRELL:

02 :08 PM 24 Q. AND YOU TESTIFIED, MS. DUNGAN, THAT ACCORDING TO THE

02:08 PM 25 ANALYSIS THAT YOU SUPERVISED, HE WAS ON -- HE WAS REFERRED

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113

02:08 PM 1 FOR A POSITION IN THE FOUNDRY, CORRECT?

02:08 PM 2 A.

THAT'S CORRECT.

02:08 PM 3 Q. BUT IT APPEARS THAT HE WAS HIRED INTO A POSITION IN

02:08 PM 4 GEAR REPAIR?

02:08 PM 5 A.

THAT'S RIGHT.

02:08 PM 6 Q. AS A GEAR REPAIR SPECIALIST?

02:09 PM 7 A.

THAT'S RIGHT.

02:09 PM 8 Q. ALL RIGHT. SO OF THAT SAME EXHIBIT, EXHIBIT 75, CAN

02:09 PM 9 YOU TURN TO PAGE 25?

02:09 PM 10 A.

OKAY.

02 :09 PM 11 Q. WHICH IS NUMBERED, BATES-STAMPED PTFS02965.

02:09 PM 12 02 :09 PM 13

AND DO YOU SEE THE NAME RICKY W. ETHRIDGE ON THAT PAGE?

02:09 PM 14 A.

I DO.

02:09 PM 15 Q. AND MR. ETHRIDGE IS ABOUT EIGHT NAMES UP FROM THE

02: 09 PM 16 BOTTOM.

02:09 PM 17

MR. BACON: EXCUSE ME, COUNSEL. WHAT PAGE ARE

02:09 PM 18 WE ON?

02:09 PM 19

MS. BURRELL: PAGE 25.

02:09 PM 20

THE COURT: PAGE 25.

02:09 PM 21 BY MS. BURRELL:

02:09 PM 22 Q.

NOW, REFERRING BACK TO THAT SAME DOCUMENT, WHERE

02:09 PM 23 DOES IT INDICATE THAT MR. ETHRIDGE WAS REFERRED?

02:09 PM 24 A.

THE FOUNDRY DIVISION.

02: 10 PM 2 5 Q. AND WHAT DEPARTMENT DOES THIS INDICATE HE WAS HIRED

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114

02: 10 PM 1 INTO?

02 :10 PM 2 A.

IT SAYS POWER TRANSMISSION.

02:10 PM 3 Q. AND WHAT POSITION WAS HE HIRED FOR?

02:10 PM 4 A.

MACHINIST HELPER.

02:10 PM 5 Q. SO NOW I WOULD LIKE NOW FOR YOU TO TURN TO

02:10 PM 6 EXHIBIT 76.

02:10 PM 7

THE COURT: ARE YOU BACK ON 76?

02:10 PM 8

MS. BURRELL: 76, YES, SIR.

02:10 PM 9

THE WITNESS: OKAY.

02:10 PM 10 BY MS. BURRELL:

02 :10 PM 11 Q.

AND IF YOU COULD, COULD YOU TURN TO PAGE 18 OF 107

02 :10 PM 12 ON THAT EXHIBIT?

02: 10 PM 13 A.

ALL RIGHT.

02:11 PM 14 Q.

ALL RIGHT.

02:11 PM 15

MS. BURRELL: YOUR HONOR, I HAVE -- LET ME

02:11 PM 16 JUST -- I HAVE A BID SHEET WHICH IS PART OF PLAINTIFFS'

02: 11 PM 17 EXHIBIT NUMBER 117.

02:11 PM 18

MAY I APPROACH THE WITNESS, YOUR HONOR?

02:11 PM 19

THE COURT: YES.

02:11 PM 20

THE WITNESS: THANK YOU.

02:11 PM 21 BY MS. BURRELL:

02:12 PM 22 Q.

MS. DUNGAN, DO YOU RECOGNIZE THIS DOCUMENT?

02 : 12 PM 23 A.

I DO.

02:12 PM 24 Q.

CAN YOU PLEASE TELL ME WHAT IT IS?

02 : 12 PM 25 A.

IT'S AN HOURLY BID SHEET FOR AN INSPECTOR, SECOND

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115

02:12 PM 1 SHIFT.

02: 12 PM 2 Q. AND WHERE DID PLAINTIFFS RECEIVE THIS DOCUMENT?

02: 12 PM 3 A. THEY WERE PRODUCED BY LUFKIN'S COUNSEL.

02: 12 PM 4 Q. AND SO THIS IS A DOCUMENT THAT IS ENTITLED THE

02:12 PM 5 JOB -- AT THE TOP IS THE WORD "NOTICE," IS THAT CORRECT?

02:12 PM 6 A.

THAT'S RIGHT.

02:12 PM 7 Q. AND UNDERNEATH IS THE JOB VACANCY OF INSPECTOR,

02:12 PM 8 SECOND SHIFT, IS THAT CORRECT?

02:12 PM 9 A.

CORRECT.

02:12 PM 10 Q. AND IT'S BATES NUMBER L12522?

02 :12 PM 11 A.

THAT'S RIGHT.

02 : 12 PM 12 Q.

IS THAT CORRECT?

02:12 PM 13

MS. BURRELL: THE PLAINTIFFS WOULD LIKE TO OFFER

02: 12 PM 14 THIS EXHIBIT INTO EVIDENCE.

02:13 PM 15

MR. BACON: NO OBJECTION, YOUR HONOR.

02:13 PM 16

THE COURT: WITHOUT OBJECTION, IT'S ADMITTED AS

02: 13 PM 17 MARKED.

02:13 PM 18 BY MS. BURRELL:

02 : 13 PM 19 Q • SO EARLIER TODAY, MS. DUNGAN, YOU TESTIFIED AS TO AN

02: 13 PM 20 ENTRY ON PAGE 10 OF EXHIBIT 76?

02:13 PM 21 A.

THAT'S RIGHT.

02 : 13 PM 22 Q. AND THAT WAS THE IT'S ACTUALLY THE VERY FIRST

02:13 PM 23 ENTRY, AND IT'S FOR A BID SHEET, THE BID SHEET WHICH IS

02: 13 PM 24 NUMBERED L12 522, IS THAT CORRECT?

02: 13 PM 25 A.

THAT'S CORRECT.

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116

02:13 PM 1 Q. AND THE DOCUMENT THAT WE JUST ENTERED INTO EVIDENCE

02:13 PM 2 IS NUMBERED L12522, IS THAT CORRECT?

02: 13 PM 3 A.

THAT'S RIGHT, THROUGH 24.

02:13 PM 4

THE COURT: 23.

02:13 PM 5

MS. BURRELL: IT'S 22.

02:13 PM 6

THE COURT: 23, THE ONE THAT WAS HANDED ME.

02:14 PM 7

MS. BURRELL: THE FIRST PAGE OF THE DOCUMENT YOU

02:14 PM 8 HAVE, YOUR HONOR, IS 23?

02:14 PM 9 02:14 PM 10

THE COURT: YES, MA'AM, 23. MS. BURRELL: IT'S THE -- THE FIRST PAGE OF THAT

02:14 PM 11 DOCUMENT IS WHAT I'M REFERRING TO, JUST TO IDENTIFY IT.

02:14 PM 12 I'M SORRY.

02:14 PM 13

THE COURT: IT'S 22, YES, MA'AM.

02:14 PM 14

MS. BURRELL: OKAY.

02:14 PM 15

THE COURT: THAT'S THE NOTICE THAT'S BEEN FILLED

02: 14 PM 16 BY KENNY FERRIS.

02:14 PM 17

MS. BURRELL: THAT'S RIGHT.

02: 14 PM 18 BY MS. BURRELL:

02:14 PM 19 Q. AND EARLIER THIS MORNING, MS. DUNGAN, YOU TESTIFIED

02:14 PM 20 THAT -- WHAT THE -- AS TO THE ENTRY ON EXHIBIT 76 WITH

02:14 PM 21 RESPECT TO THE BID SHEET THAT BEGINS WITH L12522?

02: 14 PM 22 A. THAT'S CORRECT.

02 : 14 PM 23 Q •

CORRECT?

02 : 14 PM 24 A. THAT'S CORRECT.

02: 14 PM 2 5 Q. AND YOU TESTIFIED THAT WHEN YOU COMPARED THIS BID

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117

02: 14 PM 1 SHEET WITH THE DATA BASE THAT WAS PRODUCED BY LUFKIN, AND

02:14 PM 2 THEN -- THAT YOU FOUND THAT THE BID SHEET HAD FORTY-SIX

02:15 PM 3 NAMES?

02: 15 PM 4 A.

THAT'S RIGHT.

02:15 PM 5

MR. BACON: OBJECTION, LEADING.

02:15 PM 6

MS. BURRELL: I'M SORRY, THAT WAS ACTUALLY

02:15 PM 7 INACCURATE.

02:15 PM 8 BY MS. BURRELL:

02:15 PM 9 Q.

YOU FOUND THAT THE --

02:15 PM 10

WELL, LET ME ASK IT THIS LIKE THIS.

02 :15 PM 11

MR. BACON: I HAVE AN OBJECTION.

02: 15 PM 12

MS. BURELL: I UNDERSTAND THAT --

02:15 PM 13

THE COURT: HOW MANY DID MS. BAKER SAY IT HAD?

02: 15 PM 14

THE WITNESS: THE BID SHEET HAS SIXTY-THREE

02: 15 PM 15 NAMES AND DR. BAKER'S DATA BASE INDICATES THAT THERE WERE

02:15 PM 16 FORTY-SIX.

02:15 PM 17 BY MS. BURRELL:

02:15 PM 18 Q.

SO, REFERRING TO THIS DOCUMENT, HOW DID YOU

02:15 PM 19 DETERMINE THAT THERE WERE SIXTY-THREE NAMES ON THIS BID

02: 15 PM 20 SHEET?

02: 15 PM 21

THE COURT: PROBABLY COUNTED THEM.

02: 15 PM 22

THE WITNESS: THAT'S CORRECT.

02:15 PM 23 BY MS. BURRELL:

02: 15 PM 24 Q. 02: 15 PM 25 A.

OKAY. WE REVIEWED IT AND COUNTED THE NAMES ON THE BID

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118

02:15 PM 1 SHEET.

02:15 PM 2 Q. AND THEN WHAT DID YOU DO?

02:15 PM 3 A. WE CHECKED IN THE MARY BAKER DATA BASE TO SEE HOW

02:15 PM 4 SHE HAD IDENTIFIED THE BID SHEET.

02:15 PM 5 Q. AND DID YOU FIND THAT THE NUMBER THAT SHE HAD THAT

02:15 PM 6 WAS IN THE DATA BASE WAS DIFFERENT FROM THE NUMBER THAT

02:15 PM 7

THE COURT: FORTY-SIX, THAT'S DIFFERENT THAN

02:16 PM 8 SIXTY-THREE.

02:16 PM 9 02: 16 PM 10

MS. BURRELL: YES. THANK YOU. MAY I APPROACH THE WITNESS, YOUR HONOR?

02:16 PM 11

THE COURT: YES. YES, MA'AM.

02:16 PM 12 BY MS. BURRELL:

02:17 PM 13 Q. ALL RIGHT. MS. DUNGAN, I'VE JUST HANDED YOU A

02:17 PM 14 DOCUMENT, THE TITLE OF WHICH IS POWER TRANSMISSION

02:17 PM 15 MANUFACTURING AND OILFIELD PRODUCTS MACHINING, IS THAT

02: 17 PM 16 CORRECT?

02:17 PM 17 A.

THAT'S CORRECT.

02: 17 PM 18 Q • AND IT'S BATES NUMBER L13044, IS THAT CORRECT?

02:17 PM 19 A.

THAT'S CORRECT.

02:17 PM 20 Q. AND DO YOU RECOGNIZE THIS DOCUMENT?

02:17 PM 21 A.

I DO.

02:17 PM 22 Q.

AND CAN YOU TELL ME WHAT IT IS?

02: 17 PM 23 A. IT'S AN HOURLY BID SHEET FOR A POSITION OF

02:17 PM 24 ELECTRONICS TECHNICIAN, MAINTENANCE, C-64, THE SECOND

02:17 PM 25 SHIFT.

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119

02:18 PM 1

MS. BURRELL: PLAINTIFFS WOULD LIKE TO OFFER

02:18 PM 2 THIS DOCUMENT INTO EVIDENCE.

02:18 PM 3

THE COURT: ANY OBJECTION?

02:18 PM 4

MR. BACON: I HAVE NO OBJECTION.

02:18 PM 5

HOW ARE YOU MARKING THESE PARTICULAR DOCUMENTS?

02:18 PM 6

MS. BURRELL: WELL, THEylRE PART OF EXHIBIT 117.

02:18 PM 7 PROBABLY THE EASIEST WAY TO DO IT -- WEILL DO IT SIMILAR

02:18 PM 8 TO WHAT YOU DID YESTERDAY MAYBE. THIS WILL BE 117-B, AND

02:18 PM 9 CAN BE MARKED AS -- THE OTHER -- THE LAST BID SHEET IS

02: 18 PM 10 117-A.

02 :18 PM 11

MR. BACON: THATIS FINE. I HAVE NO OBJECTION TO

02 :18 PM 12 THAT.

02:18 PM 13

THE COURT: ITIS ADMITTED AS MARKED.

02:18 PM 14

NOW, TELL ME WHOSE INITIALS "WM" AND "BM" ARE,

02: 18 PM 15 AND "HM."

02 :18 PM 16

THE WITNESS: ARE YOU ASKING ME, YOUR HONOR?

02:18 PM 17

THE COURT: MAlAM?

02 :18 PM 18

THE WITNESS: WE -- THOSE INDICATE -- "WM"

02:18 PM 19 INDICATES WHITE MALE AND "BM" INDICATES BLACK MALE AND

02: 18 PM 20 "HM" INDICATES HISPANIC MALE. THAT WAS OUR UNDERSTANDING.

02:18 PM 21

THE COURT: THANK YOU.

02:18 PM 22 BY MS. BURRELL:

02:18 PM 23 Q. AND, MS. DUNGAN, DID YOU MAKE THESE MARKS?

02 : 18 PM 24 A .

NO. THEY WERE ON THE DOCUMENT WHEN WE RECEIVED IT.

02:19 PM 25 Q.

SO EARLIER THIS MORNING YOU REFERRED TO PAGE 53 OF

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02:19 PM 1 EXHIBIT 76. CAN WE TURN TO THAT RIGHT NOW?

02: 19 PM 2 A.

YES.

02: 19 PM 3

THE COURT: 63?

02 :19 PM 4

THE WITNESS: 53.

02:19 PM 5

MS. BURRELL: 53.

02:19 PM 6

THE COURT: THANK YOU.

02:19 PM 7 BY MS. BURRELL:

02:19 PM 8 Q. AND THIS IS THE ENTRY FOR THE BID SHEET WHICH IS

02:19 PM 9 NUMBERED L13044, IS THAT CORRECT?

02:20 PM 10 A.

THAT I S CORRECT.

02:20 PM 11 Q.

NOW, CAN YOU TELL ME AGAIN WHAT THIS ENTRY REFLECTS?

02 :20 PM 12 A.

IT SHOWS THAT MR. PHIPPS AND MR. EVANS -- WHEN WE

02:20 PM 13 CHECKED THE LUFKIN DATA BASE, IT INDICATED THAT MR. PHIPPS

02: 20 PM 14 AND MR. EVANS DID NOT RECEIVE THE PROMOTION , ALTHOUGH IN

02:20 PM 15 THE MARY BAKER DATA BASE IT SHOWS THAT HE DID.

02 : 20 PM 16 Q. OKAY. WELL, LET ME TAKE A STEP BACK FOR A MINUTE.

02:20 PM 17 YOU MENTIONED THE LUFKIN DATA BASE. WHAT IS THE LUFKIN

02:20 PM 18 DATA BASE THAT YOU'RE REFERRING TO?

02:20 PM 19 A.

IT'S THE PERSONNEL DATA BASE THAT WE RECEIVED FROM

02:20 PM 20 LUFKIN.

02:20 PM 21 Q.

AND HOW DID WE -- DO YOU RECALL HOW WE RECEIVED

02:20 PM 22 THAT?

02:20 PM 23 A.

IT WAS A CD.

02:20 PM 24 Q.

AND WHAT DID WE DO WITH THE CD WHEN WE RECEIVED IT?

02:20 PM 25 A.

WE SENT IT TO OUR EXPERT, DR. DROGIN.

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02:20 PM 1 Q. AND THEY USED THAT CD TO CREATE A DATA BASE?

02:20 PM 2 A.

THAT'S CORRECT.

02: 20 PM 3 Q. AND WHAT DO YOU DO WITH THE DATA BASE THAT WAS

02:21 PM 4 CREATED BY DR. DROGIN?

02:21 PM 5 A. WE LOADED IT ONTO OUR SYSTEM IN OUR OFFICE AND HAVE

02:21 PM 6 USED THAT TO REVIEW IN OUR REVIEW OF THE BID SHEETS.

02:21 PM 7 Q. AND IS THAT HOW YOU DETERMINED WHETHER OR NOT THE

02:21 PM 8 MEN THAT ARE LISTED AS WINNERS ON EXHIBIT 75, WHETHER THEY

02:21 PM 9
02:21 PM 10 02:21 PM 11 02:21 PM 12 02: 21 PM 13

WERE IN FACT PROMOTED? A. THAT IS HOW WE DID THAT. Q. ALL RIGHT.
MS. BURRELL: MAY I APPROACH THE WITNESS, YOUR HONOR?

02:21 PM 14 02:21 PM 15

THE COURT: YES, MA'AM. THE WITNESS: THANK YOU.

02: 21 PM 16 BY MS. BURRELL:

02:22 PM 17 Q.

MS. DUNGAN, DO YOU RECOGNIZE THIS DOCUMENT?

02: 22 PM 18 A •

I DO.

02:22 PM 19 Q. 02: 22 PM 20 A.

CAN YOU DESCRIBE WHAT IT IS FOR US, PLEASE? IT'S A PRINTOUT OF THE PERSONNEL HISTORY FOR DANIEL

02:22 PM 21 PHIPPS, AND THIS IS A PRINTOUT FROM THE DATA BASE THAT WE

02:22 PM 22
02:22 PM 23

RECEIVED FROM LUFKIN. Q. SO THIS IS FROM THE DATA BASE THAT WAS RECEIVED FROM

02:22 PM 24 LUFKIN, OR IS IT FROM THE INFORMATION, THE ELECTRONIC DATA

02: 22 PM 25 AND PERSONNEL DATA THAT WE RECEIVED FROM LUFKIN?

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02:22 PM 1 A.

THE PERSONNEL DATA WE RECEIVED FROM LUFKIN.

02:22 PM 2

MS. BURRELL: WE WOULD PLEASE LIKE TO OFFER THIS

02:22 PM 3 INTO EVIDENCE. IT'S PART OF PLAINTIFFS' -- ACTUALLY, IT'S

02:22 PM 4 PART OF DEFENDANT'S EXHIBIT NUMBER 135, WHICH IS DR.

02:23 PM 5 DROGIN'S DATA BASE, PERSONNEL DATA BASE, WHICH ARE

02:23 PM 6 COMPRISED FROM THE CYBORG AND MAINFRAME DATA THAT WE

02:23 PM 7
02:23 PM 8

RECEIVED FROM LUFKIN. MR. BACON: I CONFESS I'VE NEVER SEEN THIS, BUT

02:23 PM 9 I'M NOT SAYING WE HAVEN'T BEEN GIVEN IT, YOUR HONOR.

02:23 PM 10

DR. DROGIN' S --

02: 23 PM 11

I WOULD OBJECT TO IT AS HEARSAY. IT'S FROM HIS

02:23 PM 12 EXPERT REPORT, AND I THINK HE SHOULD TESTIFY ABOUT IT AND

02: 23 PM 13 NOT SOMEONE ELSE.

02:23 PM 14

THE COURT: WELL, I'M GOING TO LET HER EXPLAIN

02:23 PM 15 IT, IF SHE CAN.

02: 23 PM 16

BUT BASICALLY THESE -- 75 AND 76 ARE A REVIEW OF

02: 23 PM 17 DR. BAKER'S REPORT AND UNDERLYING FACTS, AND THEy'RE IN

02: 23 PM 18 ANTICIPATION OF CROSS-EXAMINATION, AND I WILL ACCEPT THEM

02:24 PM 19 ONCE EITHER DR. BAKER OR DR. DROGIN TESTIFIES.

02: 24 PM 20

BUT YOU DON'T HAVE TO GO INTO THIS MUCH DETAIL

02:24 PM 21 OF THEM, AND ESPECIALLY THE COMMENTS THAT DR. BAKER EITHER

02:24 PM 22 OVERLOOKED THEM OR JUST COULDN'T READ THEM. WELL, I CAN'T

02:24 PM 23 READ THEM EITHER, THE PHOTOSTATIC COPIES. SOME OF THEM

02:24 PM 24 02: 24 PM 25

ARE BLANK. MS. BURRELL:

OKAY.

WELL--

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02:24 PM 1

THE COURT: BUT I ACCEPT THEM IN ANTICIPATION OF

02:24 PM 2 THE CROSS-EXAMINATION OF DR. BAKER.

02:24 PM 3

MS. BURRELL: OKAY. THANK YOU, YOUR HONOR.

02:24 PM 4

MR. BACON: EXCUSE ME, YOUR HONOR. HOW WILL

02:24 PM 5 THIS BE MARKED?

02:24 PM 6

MS. BURRELL: LET'S MARK IT AS 135-A.

02:24 PM 7

THE CLERK: DEFENDANT'S?

02:24 PM 8

MS. BURRELL: WELL, LET'S MARK IT AS PLAINTIFFS'

02:24 PM 9 135-A. DO WE HAVE --

02 :25 PM 10

ALL RIGHT. MARK IT AS DEFENDANT'S 135-A. I'M

02 :25 PM 11 SORRY.

02: 25 PM 12

THE CLERK: OKAY.

02:25 PM 13

MS. BURRELL: I'M TRYING TO MAKE THINGS AS

02: 25 PM 14 UNCOMPLICATED AS POSSIBLE.

02:25 PM 15

THE COURT: ALL 75 AND 76 ARE IS IN ANTICIPATION

02: 25 PM 16 OF DR. BAKER'S EXPERT REPORT AND SECOND EXPERT'S REPORT,

02:25 PM 17 AND I UNDERSTAND THAT, AND THESE ARE AN ADVANCE ATTEMPT TO

02:25 PM 18 POKE HOLES AT IT, AND I UNDERSTAND THAT.

02:25 PM 19

NOW, I DON'T HAVE HER REPORT. I DON'T HAVE DR.

02: 25 PM 20 DROGIN' S. WELL, I DO HAVE A COpy OF DR. DROGIN' S REPORT.

02:25 PM 21 I DON'T HAVE A COpy OF DR. BAKER'S REPORT.

02: 25 PM 22

BUT THEY AREN'T PER SE IN EVIDENCE. THEy'VE

02: 25 PM 23 BEEN MARKED, AND I'VE READ THEM.

02:25 PM 24

MS. BURRELL: ALL RIGHT. I UNDERSTAND, YOUR

02:25 PM 25 HONOR. I WILL TIE THIS UP QUICKLY.

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02:25 PM 1 BY MS. BURRELL:

02:25 PM 2 Q. SO REFERRING TO THE DOCUMENT THAT YOU JUST DESCRIBED

02:26 PM 3 AS BEING A PRINTOUT FROM THE DATA BASE CONTAINING LUFKIN'S

02:26 PM 4 PERSONNEL INFORMATION

02:26 PM 5 A.

YES.

02:26 PM 6 Q. CAN YOU TELL ME THE NAME OF THE INDIVIDUAL TO WHOM

02:26 PM 7 THIS DOCUMENT REFERS?

02:26 PM 8 A.

DANIEL PHIPPS.

02:26 PM 9 Q. AND YOU KNOW THAT BECAUSE THAT'S AT THE TOP OF THE

02:26 PM 10 DOCUMENT, IS THAT CORRECT?

02:26 PM 11

NOW, REFERRING BACK TO EXHIBIT 76 --

02 :26 PM 12 A.

OKAY.

02:26 PM 13 Q.

YOU TESTIFIED EARLIER THAT EXHIBIT 76 REFLECTS THAT

02:26 PM 14 D. EVANS AND D. PHIPPS WERE BOTH PROMOTED, WERE BOTH

02: 26 PM 15 WINNERS OF THIS PARTICULAR BID ACCORDING TO THE HOURLY BID

02 :26 PM 16 DATA BASE, IS THAT CORRECT?

02:26 PM 17 A.

THAT'S CORRECT.

02:26 PM 18 Q.

SO LOOKING NOW BACK AT THE EXHIBIT 135-A, WHICH WE

02 :27 PM 19 JUST IDENTIFIED AS BEING -- REFERRING TO DANIEL PHIPPS,

02: 27 PM 20 CAN YOU DESCRIBE THE --

02: 27 PM 21

WELL, LET ME JUST DO IT --

02:27 PM 22

UNDERNEATH THERE'S THE WORD "HISTORY RESULTS,"

02: 27 PM 23 CORRECT?

02:27 PM 24 A.

THAT'S CORRECT.

02: 27 PM 2 5 Q. AND UNDERNEATH THAT THERE'S SOME NUMBERS AND

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125

02: 27 PM 1 LETTERS?

02:27 PM 2 A.

THAT'S RIGHT.

02:27 PM 3 Q. AND THEN UNDERNEATH THAT THERE IS WHAT APPEARS TO BE

02:27 PM 4 SEVERAL LINES OF THE SOCIAL SECURITY NUMBER?

02:27 PM 5 A.

THAT'S RIGHT.

02:27 PM 6 Q. AND THEN UNDER EFFECTIVE DATE, E-F-F D-A-T-E --

02:27 PM 7 A.

UH-HUH.

02:27 PM 8 Q. -- THERE'S A DATE, IS THAT CORRECT?

02:27 PM 9 A. 02:27 PM 10 Q.

THAT'S CORRECT. AND THEN IF YOU GO OVER TO THE COLUMN AFTER THAT,

02:27 PM 11 IT'S JOB TITLE?

02: 27 PM 12 A.

THAT'S RIGHT.

02:27 PM 13 Q.

AND THEN DEPARTMENT?

02:27 PM 14 A.

RIGHT.

02:27 PM 15 Q. ALL RIGHT. NOW, LOOKING THROUGH THIS DOCUMENT, DO

02:27 PM 16 YOU SEE

02:27 PM 17

WELL, LET ME GO BACK UP FOR A SECOND. THIS

02: 27 PM 18 DOCUMENT APPEARS TO REFLECT MR. PHIPPS I, DANIEL PHIPPS'

02:28 PM 19 EMPLOYMENT HISTORY AT LUFKIN INDUSTRIES FROM THE FIRST

02:28 PM 20 DATE, WHICH IS NOVEMBER 2, 1979?

02:28 PM 21 A. 02:28 PM 22 Q.

RIGHT. THROUGH THE LAST DATE, WHICH IS ON THE THIRD PAGE OF

02: 28 PM 23 THE DOCUMENT?

02: 28 PM 24 A.

YES.

02:28 PM 25 Q. WHICH IS MARCH 9, 2003. DO YOU SEE THAT? IS THAT

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02:28 PM 1 CORRECT?

02:28 PM 2 A.

THAT'S RIGHT.

02:28 PM 3 Q.

NOW, REFERRING TO THIS DOCUMENT, DO YOU SEE AN

02:28 PM 4 IDENTIFICATION ON THIS DOCUMENT THAT MR. PHIPPS WAS

02:28 PM 5 PROMOTED TO ELECTRONICS TECHNICIAN?

02:28 PM 6 A.

I DO NOT.

02:29 PM 7

THE COURT: THE LAST ONE I SEE IS LUFKIN MACHINE

02:29 PM 8 OPERATOR, CLASS "A," SENIORITY ROSTER 5.

02:29 PM 9

MS. BURRELL: AND IF YOU GO TO THE NEXT PAGE,

02:29 PM 10 YOUR HONOR, IT ENDS WITH MACHINIST.

02 :29 PM 11

THE COURT: THIS IS PAGE 4 OF 4.

02:29 PM 12

MS. BURRELL: ON THE THIRD PAGE.

02:29 PM 13

THE COURT: MACHINIST.

02:30 PM 14

MS. BURRELL: ONE MORE THING ON THIS, YOUR

02: 30 PM 15 HONOR, AND THEN I WILL MOVE ON.

02: 30 PM 16

MAY I APPROACH THE WITNESS, YOUR HONOR?

02: 30 PM 17 02:30 PM 18

THE COURT: OF COURSE. MS. BURRELL: 11M SORRY. IF YOU DON'T WANT ME

02:30 PM 19 TO ASK, I WON'T ASK IT.

02:30 PM 20

THE COURT: MA'AM?

02: 30 PM 21

MS. BURRELL: WOULD YOU NOT LIKE ME TO ASK THAT

02: 30 PM 22 ANY MORE?

02: 30 PM 23

THE COURT: NO, I CAN'T STOP YOU. YOU HAVE A

02: 30 PM 24 CERTAIN NUMBER OF HOURS FOR YOUR SIDE, AND WHEN THAT'S

02:30 PM 25 OVER, THE PLAINTIFF IS THROUGH. IF YOU WANT TO SPEND THEM

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127

02:31 PM 1 THIS WAY, THAT'S YOUR CHOICE.

02:31 PM 2

THANK YOU, MA'AM.

02:31 PM 3

MS. BURRELL: WE SEEM TO BE A COpy SHORT. CAN

02: 31 PM 4 WE GIVE YOU A COpy AS SOON AS WE'RE DONE HERE?

02:31 PM 5

THE CLERK: SURE. UH-HUH.

02: 31 PM 6

MS. BURRELL: OKAY.

02:32 PM 7

THE COURT: THANK YOU.

02:32 PM 8 BY MS. BURRELL:

02:32 PM 9 Q. ALL RIGHT. REFERRING BACK TO EXHIBIT 76 AGAIN, CAN 02: 32 PM 10 YOU TURN TO PAGE 103 OF 107?

02:33 PM 11 A.

OKAY.

02: 33 PM 12 Q. AND THE SECOND ENTRY ON THAT PAGE REFERS TO L27902

02:33 PM 13 THROUGH L27916, IS THAT CORRECT?

02:33 PM 14 A.

THAT'S CORRECT.

02:33 PM 15 Q.

NOW, CAN YOU JUST TELL ME, IN THE FIELD UNDER BID

02: 33 PM 16 WINNER ON BAKER DATA, WHAT DOES -- CAN YOU TELL ME WHAT

02:33 PM 17 THAT SAYS?

02:33 PM 18 A.

UNCLEAR.

02:33 PM 19 Q. NOW, THAT'S THE BID WINNER ON THE BID SHEET. THE

02: 33 PM 20 NEXT COLUMN, BID WINNER UNDER BAKER DATA.

02:33 PM 21 A. I'M SORRY. JOSE MARTINEZ, SR., GAYLON F. TAYLOR AND

02:34 PM 22 CURTIS R. WASHBURN.

02: 34 PM 23 Q. AND IN THE NEXT COLUMN, BID WINNER ON CYBORG

02: 34 PM 24 MAINFRAME DATA BASE?

02: 34 PM 25 A.

JOSE MARTINEZ, SR., CURTIS WASHBURN.

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128

02: 34 PM 1 Q.

NOW, I WANT TO REFER YOUR ATTENTION TO THE E-MAIL

02: 34 PM 2 COMMUNICATION FROM CHRIS BACON TO JOHN GODKIN, WHICH IS

02: 34 PM 3 DATED NOVEMBER 21, 2003. DO YOU SEE THAT?

02: 34 PM 4 A.

I DO.

02:34 PM 5 Q. CAN YOU JUST DESCRIBE WHAT IS IN THAT DOCUMENT?

02:34 PM 6 A. THE SUBJECT LINE SAYS "A FEW MORE CHANGES FROM

02:34 PM 7 PLAINTIFFS' EXHIBIT 76," AND THERE'S --

02:34 PM 8

MR. BACON: EXCUSE ME. I'M SORRY.

02:34 PM 9

THE WITNESS: SURE.

02:34 PM 10

MR. BACON: OBJECTION ONLY FOR THE PURPOSES OF

02: 34 PM 11 FOUNDATION. IF SHE'S GOING TO BE READING AN E-MAIL THAT I

02: 34 PM 12 WROTE TO A CONSULTING EXPERT, I NEED TO KNOW WHAT HER

02:34 PM 13 FOUNDATION IS TO BE ABLE TO TESTIFY ABOUT THIS PARTICULAR

02:35 PM 14 EXHIBIT.

02:35 PM 15

THE COURT: WELL, YOU SENT IT TO THE PLAINTIFFS'

02:35 PM 16 REPRESENTATIVES, DID YOU NOT?

02:35 PM 17

MR. BACON: YES, YOUR HONOR.

02:35 PM 18

THE COURT: SENT A COpy TO MR. HAMEL, DID YOU

02: 35 PM 19 NOT?

02:35 PM 20

MR. BACON: I DID, YOUR HONOR.

02:35 PM 21

THE COURT: ALL RIGHT.

02:35 PM 22

MR. BACON: BUT THE QUESTION IS THOUGH, DOES

02:35 PM 23 THIS PARTICULAR WITNESS HAVE A FOUNDATION TO TESTIFY ABOUT

02: 35 PM 24 THIS PARTICULAR EXHIBIT, OR IS SHE JUST SIMPLY READING THE

02:35 PM 25 EXHIBIT INTO THE RECORD?

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129

02:35 PM 1

THE COURT: WELL, SHE'S OFFERED IT AND YOU

02:35 PM 2 HAVEN'T OBJECTED TO IT.

02:35 PM 3

YOU'RE OBJECTING TO THIS?

02:35 PM 4

MR. BACON: I'M OBJECTING TO THIS PARTICULAR

02:35 PM 5 EXHIBIT.

02:35 PM 6

THE COURT: ON WHAT BASIS? I MEAN, IF YOU WROTE

02:35 PM 7 IT AND THEN SENT IT TO THE

02:35 PM 8

IT'S CORRECTIONS THAT YOU MADE, WHICH UPON

02:35 PM 9 EXAMINATION YOU FELT WAS NECESSARY FOR YOU TO MAKE.

02:35 PM 10

WHAT'S YOUR OBJECTION, THAT YOU SHOULDN'T HAVE

02:35 PM 11 MADE THE CORRECTIONS? I'LL EXCLUDE IT AND LET YOUR

02: 35 PM 12 INITIAL TENDER BE WHAT THE DEFENDANT WANTS

02:36 PM 13

MR. BACON: YOUR HONOR, I WITHDRAW MY OBJECTION.

02:36 PM 14 SHE CAN READ MY E-MAIL.

02: 36 PM 15 02:36 PM 16

THE COURT: THANK YOU. THE WITNESS: WELL--

02: 36 PM 17

THE COURT: IT'S JUST A CORRECTION THAT HE

02:36 PM 18 E-MAILED TO THE ONE THAT WAS YOUR EXPERT, OR SORT OF

02:36 PM 19 HERDING THE PARALEGALS TOGETHER, AND I UNDERSTAND THAT.

02: 36 PM 20

THE WITNESS: OKAY.

02:36 PM 21

THE COURT: HE MADE A CORRECTION, FOUND AN

02: 36 PM 22 ERROR, MADE A CORRECTION.

02:36 PM 23

WHAT DO YOU WANT

02: 36 PM 24

WHAT'S THIS WITNESS GOT TO DO WITH THE

02: 36 PM 25 CORRECTIONS THAT WERE SENT FROM YOUR EXPERT, I MEAN, FROM

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02:36 PM 1 DEFENDANT'S LAWYER, MR. BACON, TO ONE OF YOUR

02: 36 PM 2 SUPERVISING -- A PERSON SUPERVISING THE PARALEGALS?

02:36 PM 3

MS. BURRELL: WELL, YOUR HONOR, YOU CAN SEE FROM

02:36 PM 4 THE SUBJECT, WHICH YOU NOTED THAT THESE WERE CHANGES. IT

02:36 PM 5 NOTES THERE'S A FEW MORE CHANGES FROM PLAINTIFFS' EXHIBIT

02:36 PM 6 76.

02:36 PM 7

I'M GOING TO

02:36 PM 8

WE WERE JUST INTENDING TO HAVE HER TESTIFY THAT

02:36 PM 9 02: 36 PM 10

A PARTICULAR CHANGE THAT IS INDICATED ON HERE IS IN FACT IN EXHIBIT 76.

02: 37 PM 11 02:37 PM 12 02: 37 PM 13

THE COURT: IT IS. THAT'S WHAT THEY -MS. BURRELL: OKAY. THE COURT: THAT'S WHAT EXHIBIT 76 TRIES TO DO,

02: 37 PM 14 IS TO POINT OUT THE MISINFORMATION THAT WAS FURNISHED BY

02: 37 PM 15 LUFKIN INDUSTRIES TO COUNSEL FOR PLAINTIFFS, AND I

02:37 PM 16 UNDERSTAND THAT.

02: 37 PM 17 02: 37 PM 18

MS. BURRELL: OKAY. THE COURT: YOU DON'T HAVE TO GO THROUGH EACH

02: 37 PM 19 ONE OF THEM.

02: 37 PM 20

MS. BURRELL: OKAY. WE'LL MOVE ON, YOUR HONOR.

02:37 PM 21

THE COURT: IT'S LAYING A FOUNDATION FOR THE

02:37 PM 22 CROSS-EXAMINATION OF DR. BAKER. I UNDERSTAND THAT.

02:37 PM 23

HER STATISTICS ARE NOT THE SAME AS DR. DROGIN,

02: 37 PM 24 02: 37 PM 25

AND I UNDERSTAND THAT. MS. BURRELL:

OKAY.

THANK YOU, YOUR HONOR.

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131

02:38 PM 1

WE ONLY HAVE ONE COpy OF THIS. I'M NOT SURE HOW

02:38 PM 2 TO HANDLE THIS.

02: 38 PM 3

MAY I APPROACH THE WITNESS?

02: 38 PM 4

THE COURT: ONE COpy OF WHAT?

02:38 PM 5

MS. BURRELL: OF THE APPLICATIONS. I'M SORRY.

02:38 PM 6 I'M GOING TO FINISH MY EXAMINATION OF MS. DUNGAN BY ASKING

02: 38 PM 7 HER SOME QUESTIONS REGARDING THE APPLICATIONS THAT WERE

02:38 PM 8 THE DISCUSSION THIS MORNING BEFORE WE WENT TO LUNCH.

02: 38 PM 9 02: 38 PM 10

THE COURT: THAT CAME FROM LUFKIN INDUSTRIES' FILES AND WERE FORWARDED TO YOU AFTER AN ORDER BY THIS

02:38 PM 11 COURT.

02: 38 PM 12

MS. BURRELL: OKAY.

02:38 PM 13

THE COURT: AND I UNDERSTAND THAT. YOU DON'T

02: 38 PM 14 HAVE TO PROVE THAT, AND YOU CAN'T, AND I CANNOT TESTIFY.

02: 38 PM 15

MS. BURRELL: OKAY. OKAY.

02: 38 PM 16 BY MS. BURRELL:

02: 38 PM 17 Q. WELL, THEN, REFERRING TO THESE APPLICATIONS, MS.

02: 38 PM 18 DUNGAN, DID YOU CONDUCT AN ANALYSIS --

02: 38 PM 19

WELL, FIRST OFF, DID YOU CONDUCT AN ANALYSIS OF

02: 38 PM 20 THIS FIRST SET OF APPLICATIONS?

02:38 PM 21 A.

I REVIEWED THEM.

02: 38 PM 22 Q.

OKAY. AND CAN YOU EXPLAIN TO ME HOW YOU CONDUCTED

02:39 PM 23 THE ANALYSIS?

02 : 39 PM 24 A • WELL, WHEN WE RECEIVED THEM, THEY WEREN'T ORGANIZED

02: 39 PM 2 5 CHRONOLOGICALLY, SO -- AND THEY INCLUDED APPLICATIONS FROM

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02:39 PM 1 02:39 PM 2 02:39 PM 3 02:39 PM 4 02:39 PM 5 02:39 PM 6 02:39 PM 7 02:39 PM 8 02:39 PM 9 02:39 PM 10

132 OUTSIDE ANGELINA COUNTY. SO FIRST WE SEPARATED OUT THE APPLICATIONS THAT WERE FROM OUTSIDE ANGELINA COUNTY, AND THEN -- WE DID THAT BY CHECKING AREA CODES TO MAKE SURE THAT WE HAD THEM CORRECT.
AND WE ALSO EXCLUDED THE APPLICATIONS THAT WERE -- DIDN'T HAVE ANY DATE, OR IF THEY WERE OUTSIDE THE LIABILITY PERIOD, OR IF THEY HAD ANY RESUMES ATTACHED, AND THEN WE ORGANIZED THEM BY YEAR. Q. AND WHAT DID YOU DO NEXT IN YOUR REVIEW? A. WE WENT THROUGH THEM AND CHECKED TO SEE IF THERE

02: 39 PM 11 WERE ANY -- EXCUSE ME -- CHECKED THE APPLICATIONS TO SEE 02: 39 PM 12 IF THERE WERE ANY REQUISITION NUMBERS ON THEM.

02:39 PM 13

AND THEN WE CHECKED TO SEE IF AN APPLICANT

02: 39 PM 14 INDICATED ON THE APPLICATION, HE OR SHE INDICATED ON THE

02: 39 PM 15 APPLICATION WHETHER THERE WAS A JOB THAT THEY WERE

02:39 PM 16 SPECIFICALLY APPLYING FOR.

02:40 PM 17 Q. AND WHY DID YOU LOOK FOR THE REQUISITION NUMBER?

02 :40 PM 18 A. BECAUSE MY UNDERSTANDING WAS THAT LUFKIN HAD

02 :40 PM 19 INDICATED THAT THEY ALWAYS HAD A REQUISITION NUMBER ON

02 :40 PM 20 THEIR APPLICATIONS.

02: 40 PM 21 Q. AND WHY DID YOU LOOK FOR THE INFORMATION WITH

02 :40 PM 22 RESPECT TO WHAT POSITION THE APPLICANTS APPLIED FOR? 02:40 PM 23 A. IT WAS MY UNDERSTANDING THAT THAT WAS ANOTHER PIECE

02:40 PM 24 OF INFORMATION THAT WAS SUPPOSED TO BE INCLUDED ON THE

02 :40 PM 25 APPLICATION.

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02 :40 PM 1 Q.

AND WHAT DID YOU FIND WITH RESPECT TO WHETHER

02:40 PM 2 REQUISITION NUMBERS APPEARED ON THE APPLICATIONS THAT YOU

02:40 PM 3 REVIEWED?

02 :40 PM 4 A. THAT INITIAL BOX, THEREIS THREE HUNDRED AND EIGHTEEN

02:40 PM 5 APPLICATIONS, AND WE ONLY FOUND SIXTY THAT HAD A

02:40 PM 6 REQUISITION NUMBER ON THEM.

02:40 PM 7 Q. OKAY. AND OF THOSE SIXTY THAT HAD A NUMBER ON THEM,

02:40 PM 8 WERE THEY FROM THROUGHOUT THE LIABILITY PERIOD?

02:40 PM 9
02:41 PM 10 02:41 PM 11

A. NO. FIFTY-EIGHT OF THE SIXTY WERE FROM THIS YEAR, 2003. Q. AND DID YOU FIND INFORMATION ON THE APPLICATIONS

02:41 PM 12 REGARDING THE POSITIONS FOR WHICH PEOPLE APPLIED?

02:41 PM 13 A.

IN SOME INSTANCES IT WAS THERE. IN OTHER INSTANCES

02:41 PM 14 IT WASN IT.

02:41 PM 15 Q.

OKAY. AND WHAT DID YOU FIND WITH RESPECT TO THE

02 :41 PM 16 INSTANCES WHERE IT WAS NOT THERE?

02:41 PM 17 A. 02:41 PM 18 Q. 02: 41 PM 19 A.

ARE YOU TALKING ABOUT THE TOTAL NUMBER OR -YES. LET ME CHECK MY --

02:41 PM 20

WELL, THERE WERE THREE HUNDRED AND EIGHTEEN IN

02:41 PM 21 THAT BOX, AND WE ELIMINATED ANY OF THE SALARIED,

02 :41 PM 22 APPLICATIONS FOR SALARIED POSITIONS. THAT LEFT US WITH

02:41 PM 23 TWO HUNDRED AND SEVENTY-FIVE. AND OF THAT, THERE WERE

02:41 PM 24 THIRTY-FOUR WITH NOTHING WRITTEN ON THEM FOR A POSITION OF 02:41 PM 25 ANY KIND, AND FORTY-FIVE THAT HAD WRITTEN ON THEM

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02:41 PM 1 "ANYTHING" OR "ANY JOB OPEN," AND THIRTY-ONE WHERE THERE

02:42 PM 2 WAS INFORMATION ABOUT A DIVISION WHERE THEY WERE ASSIGNED

02:42 PM 3 BUT -- OR APPLYING BUT NO SPECIFIC JOB.

02:42 PM 4 Q.

ALL RIGHT.

02 :42 PM 5

THE COURT: NO WHAT?

02:42 PM 6

THE WITNESS: NO SPECIFIC JOB.

02:42 PM 7

MS. BURRELL: ALL RIGHT. PASS THE WITNESS.

02:42 PM 8

CROSS-EXAMINATION

02 :42 PM 9 BY MR. BACON:

02:42 PM 10 Q.

GOOD AFTERNOON, MS. DUNGAN.

02:42 PM 11 A.

GOOD AFTERNOON.

02 : 42 PM 12 Q. I WOULD LIKE TO BEGIN BY TALKING ABOUT EXHIBIT 75.

02: 42 PM 13 A.

OKAY.

02:42 PM 14 Q.

AND MY UNDERSTANDING FROM YOUR TESTIMONY IS THAT

02 :42 PM 15 EXHIBIT 75 IS AN ANALYSIS THAT YOU DID OF THE DOCUMENTS

02:42 PM 16 THAT THE TEXAS WORKFORCE COMMISSION PRODUCED TO MR.

02:42 PM 17 GARRIGAN?

02 : 42 PM 18 A •

THAT'S CORRECT.

02:42 PM 19 Q.

AND THESE WERE DOCUMENTS

02 :42 PM 20

WERE YOU IN THE COURTROOM EARLIER TODAY WHEN MS.

02:42 PM 21 POULAN FROM THE TEXAS WORKFORCE COMMISSION WAS TESTIFYING?

02:43 PM 22 A.
02:43 PM 23 Q. 02:43 PM 24 A. 02: 43 PM 25 Q.

I WAS HERE FOR PART OF HER TESTIMONY. HAVE YOU EVER READ HER DEPOSITION? I HAVE NOT. OKAY. THOSE WERE DOCUMENTS THAT THE TWC HAD SENT TO

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02:43 PM 1 MR. GARRIGAN, AND WHAT I UNDERSTAND YOU DID, AND CORRECT

02:43 PM 2 ME IF I'M WRONG, IS, YOU TOOK THE DATA FROM EACH OF THE

02:43 PM 3 WORK ORDERS -- AND I'M JUST GOING TO USE THAT TERM, I

02:43 PM 4 DON'T KNOW IF THAT'S REALLY WHAT THE OFFICIAL TERM IS

02:43 PM 5 AND YOU PUT THEM INTO SOME FORM OF DATA BASE?

02:43 PM 6 A.

THAT'S RIGHT.

02:43 PM 7 Q. AND YOU I THINK SAID THERE WERE -- YOU FOUND

02:43 PM 8 FIFTY-FIVE DISTINCT WORK ORDERS?

02:43 PM 9 A.

THAT'S CORRECT.

02:43 PM 10 Q.

AND EACH ONE IS IN EXHIBIT NUMBER 75. THE FIRST ONE

02: 43 PM 11 IS ACTUALLY A FAIRLY LONG WORK ORDER, BECAUSE IT ACTUALLY

02:43 PM 12 GOES ON FOR THREE PAGES, IS THAT CORRECT? THIS IS EXHIBIT

02:43 PM 13 75.

02:43 PM 14 A.

THAT'S RIGHT.

02:43 PM 15 Q.

AND IT'S THE FIRST THREE PAGES?

02:43 PM 16 A.

THAT'S CORRECT.

02:43 PM 17 Q.

OR FIRST TWO AND TWO-THIRDS PAGES?

02: 43 PM 18 A •

CORRECT.

02:43 PM 19 Q.

AND JUST FROM LOOKING AT THIS, FROM READING YOUR

02:44 PM 20 EXHIBIT, I GATHER THAT THE FIRST COLUMN IS THE NUMBER THAT

02:44 PM 21 WAS ON THE ORDER ITSELF?

02: 44 PM 22 A.

THAT'S RIGHT.

02: 44 PM 23 Q. AND THEN THE SECOND COLUMN IS THE BATES RANGE THAT

02:44 PM 24 02: 44 PM 25

MR. GARRIGAN'S LAW FIRM PLACED ON THE DOCUMENTS? A. THAT'S RIGHT.

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02:44 PM 1 Q. AND THEN WE HAVE THE SOCIAL SECURITY NUMBER, THE

02:44 PM 2 APPLICANT NAME, THE RACE.

02:44 PM 3

AND THEN ALL OF THESE PEOPLE HAVE THE SAME TERM

02:44 PM 4 IN THE NEXT COLUMN, WHICH IS TRAILER, AND I'M ASSUMING YOU

02:44 PM 5 DID THAT BECAUSE ON THIS PARTICULAR WORK ORDER, AT THE

02:44 PM 6 TITLE PAGE, OR AT THE TOP OF IT, IT SAID "TRAILER"?

02:44 PM 7 A.

CORRECT.

02:44 PM 8 Q. AND WHAT YOU ENDED UP DOING IS, YOU TOOK ALL THESE

02:44 PM 9 NAMES AND YOU LOOKED INTO LUFKIN'S PERSONNEL DATA BASES TO 02:44 PM 10 SEE WHERE THEY ACTUALLY STARTED WORKING WHEN THEY WENT TO

02:44 PM 11 LUFKIN?

02 : 44 PM 12 A •

THAT'S WHAT WE DID.

02: 44 PM 13 Q. AND I GUESS YOU WERE TRYING TO TEST THE THEORY OF

02:44 PM 14 DID THEY END UP IN TRAILER, LIKE IT WOULD APPEAR THEY

02 :44 PM 15 SHOULD END UP, OR DID THEY END UP SOMEWHERE ELSE?

02:44 PM 16 A.

THAT'S CORRECT.

02:44 PM 17 Q.

THAT WAS YOUR TASK?

02:44 PM 18 A.

THAT'S RIGHT.

02 :44 PM 19 Q. AND IN ORDER TO DETERMINE WHERE THEY ENDED UP, YOU

02 :45 PM 20 WERE ABLE TO GET INTO LUFKIN'S PERSONNEL DATA BASES

02:45 PM 21 BECAUSE THOSE HAD BEEN PRODUCED TO THE PLAINTIFFS?

02:45 PM 22 A.
02:45 PM 23 Q.

THAT'S RIGHT. YOU HAD A COMPUTER DATA BASE AND YOU COULD FIND OUT

02:45 PM 24 WHEN ANYBODY HAD BEEN HIRED, PROMOTED, WHAT THEY MAKE, ALL

02 :45 PM 25 THAT KIND OF STUFF?

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02:45 PM 1 A.

THAT'S RIGHT.

02:45 PM 2 Q. AND WHAT YOU DETERMINED FROM LOOKING AT THIS, IT

02:45 PM 3 APPEARED THAT NOT EVERYBODY, FOR EXAMPLE, IN THIS FIRST

02:45 PM 4 REQUISITION ENDED UP IN TRAILER, THEY ENDED UP IN

02:45 PM 5 DIFFERENT PLACES?

02:45 PM 6 A. THAT'S WHAT WE FOUND, YEAH.

02:45 PM 7 Q. YEAH. NOW, DID YOU HEAR THE PART OF MS. POULAN'S

02:45 PM 8 TESTIMONY THIS MORNING WHERE SHE INDICATED THAT IT WAS

02:45 PM 9 02 :45 PM 10 02 :45 PM 11 02:45 PM 12 02:45 PM 13

CONCEIVABLE THAT AT LEAST PRIOR TO 2000 WORK ORDERS MAY HAVE COMBINED, OR 2001, MAY HAVE COMBINED SEVERAL DIFFERENT REQUISITIONS FROM LUFKIN INDUSTRIES? A. I HEARD PART OF THAT, YES. Q. HAD YOU EVER HEARD ANY OF THAT BEFORE?

02:45 PM 14 A.

NO.

02:45 PM 15 Q. ALL RIGHT. YOU HAD NOT -- YOU WERE NOT AWARE THAT

02:45 PM 16 SOME PEOPLE HAVE CLAIMED THAT MAYBE SOME OF THESE WERE

02:45 PM 17 02:45 PM 18 02:45 PM 19

COMBINED WITH SEVERAL DIFFERENT REQUISITIONS? A. I DIDN'T KNOW THAT, NO. Q. IN LOOKING THROUGH THESE FIFTY-FIVE REQUISITIONS,

02 :45 PM 20 DID YOU NOTICE THAT THE SIZE OF THE REQUISITIONS, AND WHEN

02:46 PM 21 I SAY SIZE, THE NUMBER OF APPLICANTS IN A REQUISITION WAS

02:46 PM 22 CONSIDERABLY GREATER IN THE YEARS PRIOR TO 2000? 02: 46 PM 23 A. I DON'T REMEMBER SPECIFICALLY KNOWING THAT. I

02 :46 PM 24 REMEMBER THERE WERE SOME THAT WERE A LOT LONGER THAN

02:46 PM 25 OTHERS. I DON'T REMEMBER DATES, BUT

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02 :46 PM 1 Q.

138 YOU DIDN'T FOCUS ON THE TIME FRAME AS TO WHICH ONES

02 :46 PM 2 SEEMED TO BE -- WHAT YEARS SEEM TO HAVE VERY BIG

02:46 PM 3 REQUISITIONS?

02:46 PM 4 A. WE DID NOT, WE JUST WENT ALL THROUGH ALL THE TWC JOB

02:46 PM 5 ORDERS.

02:46 PM 6 Q. LET'S TAKE A LOOK AT THIS PARTICULAR REQUISITION.

02:46 PM 7 IT APPEARS THAT SOME OF THE PEOPLE WHO WERE ON THIS

02:46 PM 8 TRAILER REQUISITION ACTUALLY ENDED UP AS GENERAL

02:46 PM 9 02:46 PM 10 02 :46 PM 11 02 :46 PM 12 02 :46 PM 13

FOUNDRYMEN, IS THAT CORRECT? A. THAT'S CORRECT. Q. CAN YOU TELL ME HOW MANY OF THE PEOPLE IN THIS TRAILER REQUISITION ENDED UP AS GENERAL FOUNDRYMEN? A. DO YOU WANT ME TO COUNT RIGHT NOW OR --

02:46 PM 14 Q.

I BEG YOUR PARDON?

02 : 46 PM 15 A • DO YOU WANT ME TO COUNT IT RIGHT NOW?

02:47 PM 16 Q.

YES.

02:47 PM 17 A. 02:47 PM 18 Q. 02 :47 PM 19

I GOT 11. OKAY. I COUNTED TWELVE, BUT I MAY HAVE MISCOUNTED.
OF THOSE, HOW MANY WERE WHITE?

02:47 PM 20 A.

I GOT FOUR.

02 : 47 PM 21 Q• 02:47 PM 22 A.

YOU GOT FOUR? I COUNTED FIVE, BUT OKAY. WE KEEP BEING OFF. BUT

02:47 PM 23 Q. 02:47 PM 24

WE'RE OFF ONE. THE COURT: WELL, I COUNTED THREE. I REMEMBER

02:48 PM 25 TESTIMONY ABOUT THREE.

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02:48 PM 1 02 :48 PM 2

139 MR. BACON: I BEG YOUR PARDON? THE COURT: I REMEMBER TESTIMONY ABOUT THREE,

02:48 PM 3 TWO BROTHERS AND THEN ONE OTHER MAN THAT BECAME A

02 :48 PM 4 STOREKEEPER.

02:48 PM 5 BY MR. BACON:

02:48 PM 6 Q.

SO IT APPEARS THAT, ASSUMING THESE RECORDS ARE

02:48 PM 7 CORRECT, THERE ARE PEOPLE WHO ENDED UP ON A JOB ORDER FOR

02:48 PM 8 TWC, AND I'M USING AGAIN, THAT'S THE TERM THEY WERE

02:48 PM 9 02:48 PM 10

USING THIS MORNING A. RIGHT.

02 : 48 PM 11 Q •

-- FOR TRAILER, AND ELEVEN, TEN, ELEVEN OR TWELVE

02:48 PM 12 OF THEM ENDED UP AS GENERAL FOUNDRYMEN, AND, YOU KNOW,

02 :48 PM 13 FOUR OR FIVE OF THEM WERE WHITE?

02:48 PM 14 A.

OKAY.

02:48 PM 15 Q.

SO NOT ALL OF THE PEOPLE WHO MAY HAVE BEEN SENT TO

02 :48 PM 16 WORK AS GENERAL FOUNDRYMEN WERE BLACKS?

02:48 PM 17 A.

SAY THAT AGAIN. I'M SORRY.

02:48 PM 18 Q.

NOT ALL OF THE PEOPLE WHO HAD BEEN SENT TO WORK AS

02:48 PM 19 02:48 PM 20

GENERAL FOUNDRYMEN WOULD HAVE BEEN BLACK? A. THAT'S CORRECT.

02:48 PM 21 Q. OKAY. COULD YOU PUT UP TWC77? IF YOU COULD MAKE IT

02:49 PM 22
02:49 PM 23

A LITTLE BIT BIGGER. THIS IS DOCUMENT TWC77.

DO YOU HAVE THAT UP

02:49 PM 24 02:49 PM 25

THERE? IT'S WITHIN EXHIBIT 11.

A.

RIGHT. 77 YOU SAID?

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02:49 PM 1 Q.

YES.

02:49 PM 2 A.

YEAH, I'VE GOT IT.

02:49 PM 3 Q.

DO YOU FIND IT?

02:49 PM 4 A.

I DO.

02:49 PM 5 Q. ALL RIGHT. AND IT APPEARS, LOOKING AT YOUR EXHIBIT

02:49 PM 6 75, THAT YOU RECORDED THE INFORMATION FROM TWC77 ON PAGE 7

02:49 PM 7 OF EXHIBIT 75?

02:49 PM 8 A.

THAT'S RIGHT.

02: 50 PM 9 Q. ALL RIGHT. WHAT I WOULD LIKE TO DO --

02: 50 PM 10

COULD YOU FOCUS ON THIS LITTLE AREA OVER HERE?

02: 50 PM 11

AND DO YOU SEE AT THE VERY TOP THERE IS A PLACE

02: 50 PM 12 WHERE THERE'S A REFERENCE TO ORIGINAL REFERENCE DATES IN

02: 50 PM 13 THIS PARTICULAR DOCUMENT?

02:50 PM 14 A.

YOU'RE TALKING ABOUT TWC77?

02:50 PM 15 Q.

ON TWC77.

02 : 50 PM 16 A •

AT THE TOP?

02 : 50 PM 17 Q . AT THE TOP. WELL, SORT OF IN THE CENTER, NOT THE

02:50 PM 18 VERY TOP AREA, BUT THE SECOND LITTLE AREA. IT'S ABOVE THE

02: 50 PM 19 NAMES.

02:50 PM 20 A.

OKAY.

02:50 PM 21 Q.

AND YOU SEE THOSE DATES?

02 : 50 PM 22 A .
02 : 50 PM 23 Q .

I DO. DID YOU NOTICE THOSE DATES WHEN YOU WERE INPUTTING

02: 50 PM 24 THE DATA?

02 : 50 PM 2 5 A .

I'M SURE WE NOTICED THEM, YES.

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02: 50 PM 1 Q. OKAY. BUT YOU DIDN'T THINK ANYTHING OF THEM?

02: 50 PM 2 A.

WE DIDN'T, NO.

02: 50 PM 3 Q. SO YOU JUST ASSUMED THERE WAS JUST ONE DATE AND THIS

02:50 PM 4 WAS ONE JOB ORDER?

02:51 PM 5 A.

I BELIEVE THAT'S CORRECT, YES.

02:51 PM 6 Q. ALL RIGHT. LET ME ASK YOU, IN YOUR CAPACITY AS A

02:51 PM 7 PARALEGAL, DID YOU HANDLE THE DOCUMENTS FOR GETTING READY

02: 51 PM 8 FOR TRIAL IN THIS CASE?

02: 51 PM 9 A.

YES, I WAS ONE OF THE PEOPLE WHO WAS DOING THAT.

02:51 PM 10 Q.

DID YOU EVER LOOK AT THE REQUISITIONS THAT LUFKIN

02: 51 PM 11 MAINTAINS FOR PEOPLE THAT IT HIRES FROM THE TWC?

02:51 PM 12 A.

I'M FAMILIAR WITH THEM. I HAVEN'T LOOKED AT THEM IN

02:51 PM 13 DETAIL, NO.

02:51 PM 14 Q.

ALL RIGHT. YOU'VE SEEN THE DOCUMENTS BUT YOU DIDN'T

02: 51 PM 15 DO ANY KIND OF STUDY WITH THOSE DOCUMENTS?

02:51 PM 16 A.

NO.

02:51 PM 17 Q.

YOU DON'T KNOW HOW MANY DOCUMENTS THERE ARE?

02:51 PM 18 A.

REQUISITIONS?

02:51 PM 19 Q.
02:51 PM 20 A.

YES. I KNOW IT'S A SIZEABLE AMOUNT. I DON'T HAVE AN

02:51 PM 21 EXACT NUMBER.

02: 51 PM 22 Q.

WOULD IT SURPRISE YOU THAT THERE ARE SEVEN HUNDRED

02: 51 PM 23 AND FIFTY OR SO REQUISITIONS FOR THE TIME PERIOD THAT

02: 51 PM 24 THESE PARTICULAR --

02: 51 PM 25

MR. GARRIGAN: OBJECTION. HE'S ASSUMING FACTS

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02:52 PM 1 NOT IN EVIDENCE.

02:52 PM 2

THE COURT: I'M GOING TO OVERRULE IT.

02:52 PM 3

THEy'RE PUBLIC DOCUMENTS MAINTAINED, I MEAN,

02:52 PM 4 GENERATED BY ONE OF THE PARTIES IN THE CASE AND MAINTAINED

02:52 PM 5 BY MS. POULAN OR HER AGENCY. THEy'RE PUBLIC DOCUMENTS.

02:52 PM 6

MR. GARRIGAN: I BELIEVE WHAT HE'S REFERRING TO

02:52 PM 7 ARE JUST DOCUMENTS THAT LUFKIN PRODUCED.

02: 52 PM 8

THE COURT: THAT'S RIGHT.

02: 52 PM 9

MR. BACON: WITH ALL DUE RESPECT, YOUR HONOR, I

02: 52 PM 10 BELIEVE THAT THE RULES OF PROCEDURE REQUIRE FOR THE LAWYER

02: 52 PM 11 WHO TOOK THIS WITNESS ON DIRECT TO BE THE ONE WHO

02:52 PM 12 02: 52 PM 13

INTERPOSES THE OBJECTION. THE COURT: YOU'RE RIGHT, YEAH.

I'M NOT GOING

02: 52 PM 14 TO HAVE ALL THE LAWYERS TAKING POTSHOTS AT A WITNESS.

02: 52 PM 15 02: 52 PM 16

MR. BACON: OR A LAWYER. THE COURT: SIR?

02:52 PM 17

MR. BACON: OR A LAWYER.

02: 52 PM 18

THE COURT: WELL, OF COURSE, LAWYERS ARE

02: 52 PM 19 SACROSANCT IN THE HALLS OF JUSTICE.

02: 52 PM 20 BY MR. BACON:

02:53 PM 21 Q.

LET ME -- THE QUESTION I HAVE IS --

02:53 PM 22

THE COURT: THE LAWYER THAT SPONSORED THIS

02:53 PM 23 WITNESS WILL MAKE ALL OBJECTIONS.

02:53 PM 24 BY MR. BACON:

02:53 PM 25 Q.

WOULD IT SURPRISE YOU THAT THERE WERE IN EXCESS OF

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02:53 PM 1 02:53 PM 2 02:53 PM 3 02:53 PM 4 02:53 PM 5 02:53 PM 6 02:53 PM 7 02:53 PM 8 02:53 PM 9 02: 53 PM 10 02:53 PM 11 02:53 PM 12 02:53 PM 13 02:53 PM 14

143 SEVEN HUNDRED REQUISITIONS FOR THE TIME PERIOD AT LUFKIN THAT WERE KEPT THAT MATCHED TO THESE JOB ORDERS? A. I DON'T KNOW IF IT WOULD SURPRISE ME. I KNOW THAT THERE WERE A LOT. Q. YOU KNEW THERE WERE A LOT? YOU KNEW THERE WERE A LOT MORE JOB REQUISITIONS AT LUFKIN FOR THIS TIME PERIOD THAN THERE WERE JOB ORDERS AT TWC? A. I NEVER THOUGHT ABOUT IT IN THAT WAY, BUT --
NO, I DIDN'T THINK ABOUT IT IN THAT WAY. Q. I'M GOING TO MOVE ON, AND I WOULD LIKE TO TALK ABOUT YOUR OTHER PROJECTS. A. OKAY. Q. AND THAT'S THE PROJECT THAT YOU DID IN EXHIBITS 76 AND 77. AND MY UNDERSTANDING, WHAT YOU DID THERE, THERE

02:54 PM 15 WAS REALLY SORT OF TWO DIFFERENT PROJECTS THAT YOU HAD.

02: 54 PM 16 ONE OF THE PROJ ECTS YOU HAD WAS TO TAKE THE BID SHEET

02: 54 PM 17 DOCUMENTS AND COMPARE THE BID SHEET DOCUMENTS WITH THE

02: 54 PM 18 DATA BASE THAT DR. MARY BAKER HAD USED FOR HER ANALYSIS OF

02: 54 PM 19 PROMOTIONS, IS THAT CORRECT?

02: 54 PM 20 A.

THAT'S CORRECT.

02: 54 PM 21 Q. IN OTHER WORDS, YOU WANTED TO MAKE SURE THAT WHAT IS

02:54 PM 22 IN DR. BAKER'S DATA BASE ACCURATELY IS REFLECTED IN THE

02: 54 PM 23 02: 54 PM 24 02: 54 PM 2 5

PAPER DOCUMENTS? A. WE CHECKED IT, YES. Q. AND THE SECOND THING YOU DID WAS, YOU COMPARED DR.

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02:54 PM 1 BAKER'S RESULTS AND ALSO THE RESULTS ON THE PAPER WITH

02: 54 PM 2 WHAT YOU COULD FIND IN THE CYBORG OR IN LUFKIN'S COMPUTER

02:54 PM 3 DATA BASE?

02:54 PM 4 A.

THAT'S RIGHT.

02: 54 PM 5 Q.

SO YOU REALLY HAD TWO DIFFERENT PROJECTS THAT YOU

02:54 PM 6 WERE WORKING ON, IS THAT RIGHT?

02:54 PM 7 A.

IT WAS ALL ONE, BUT, YES.

02:54 PM 8 Q.

BUT THERE WAS TWO MAJOR TASKS?

02:55 PM 9 A. 02: 55 PM 10 Q.

RIGHT. I WANT TO FOCUS FIRST ON THE TASK OF LOOKING AT DR.

02: 55 PM 11 BAKER'S DATA BASE AND DETERMINING WHETHER THAT DATA BASE

02:55 PM 12 ACCURATELY REFLECTS THE BID SHEET DOCUMENTS.

02:55 PM 13

NOW, LET'S TALK ABOUT THE BID SHEET DOCUMENTS

02:55 PM 14 FOR A MOMENT.

02: 55 PM 15 A.

OKAY.

02:55 PM 16 Q.

THERE WERE

02:55 PM 17

WHEN I SAY BID SHEET DOCUMENTS, THERE'S

02: 55 PM 18 DIFFERENT TYPES OF BID SHEET DOCUMENTS?

02:55 PM 19 A.

RIGHT.

02: 55 PM 20 Q.

WOULD YOU PUT UP 12243? AND SEE IF YOU CAN JUST

02:55 PM 21 BLOW UP THE PLACE WHERE THE NAMES ARE JUST A BIT.

02: 55 PM 22

ONE TYPE OF DOCUMENT THAT YOU HAD AND THAT

02: 55 PM 23 LUFKIN HAS ARE SIGN-UP SHEETS, IS THAT CORRECT?

02:55 PM 24 A.

THAT'S CORRECT.

02: 55 PM 25 Q.

AND, YOU KNOW, THE TYPICAL SIGN-UP SHEET -- THEY HAD

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02: 56 PM 1 DIFFERENT FORMS ACROSS DIVISIONS, BUT THEY PRETTY MUCH

02: 56 PM 2 02:56 PM 3 02:56 PM 4 02:56 PM 5 02:56 PM 6 02:56 PM 7 02:56 PM 8 02:56 PM 9 02: 56 PM 10

LOOKED THE SAME IN THE SENSE THAT THEY WOULD HAVE USUALLY THE DIVISION, IS THAT CORRECT? A. THAT'S CORRECT. Q. AND THEY WOULD HAVE A PARTICULAR JOB? A. THAT'S RIGHT. Q. AND THEY WOULD IDENTIFY A DATE? A. RIGHT. Q. AND THERE MAY BE ONE OR TWO BID SHEETS WHERE THEY DIDN'T PUT THE DATE ON, AND, YOU KNOW, THERE ARE LOTS AND

02: 56 PM 11 LOTS OF BID SHEETS, BUT GENERALLY THAT WAS THE INFORMATION

02: 56 PM 12 THAT WAS ON ALL THE BID SHEETS?

02: 56 PM 13 A. WE'RE TALKING ABOUR THIS PARTICULAR ONE?

02:56 PM 14 Q. WELL, ON THIS PARTICULAR BID SHEET, BUT YOU LOOKED

02: 56 PM 15 AT A LOT OF BID SHEETS LIKE THIS?

02: 56 PM 16 A.

YEAH, THERE WERE SOME THAT -- THERE WERE A LOT THAT

02:56 PM 17 WERE SIMILAR TO THAT.

02: 56 PM 18 Q. WOULD YOU SAY THAT THE VAST MAJORITY OF THE POSTING

02: 56 PM 19 SHEETS, THESE KINDS OF DOCUMENTS, HAD A DIVISION, A

02: 56 PM 20 CLASSIFICATION AND A DATE ON IT?

02: 56 PM 21 A. YES.

02: 56 PM 22 Q. ALL RIGHT. AND THEN THEY WOULD HAVE PLACES WHERE

02: 56 PM 23 02: 56 PM 24 02: 56 PM 25

PEOPLE COULD SIGN THEIR NAMES, AND ON THOSE DOCUMENTS -IS THAT CORRECT? A. SOME OF THEM DID, AND SOME OF THEM ARE TYPED.

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02:56 PM 1 Q. ALL RIGHT. AND PEOPLE USUALLY SIGN THEIR NAMES, AND

02:56 PM 2 THEY WOULD PUT THEIR CLOCK NUMBER?

02:56 PM 3 A.

SOMETIMES, NOT ALL THE TIME, YES.

02:57 PM 4 Q. WELL, YOU SAY SOMETIMES THEY WERE TYPED, AND LET ME

02:57 PM 5 TALK ABOUT THAT. THERE WERE SOME DOCUMENTS THAT WERE

02:57 PM 6 SUMMARY SHEETS THAT APPEARED TO HAVE BEEN PREPARED BY

02:57 PM 7 SUPERVISORS AT LUFKIN, WHERE THEY LISTED ALL THE PEOPLE

02: 57 PM 8 WHO HAD BID ON A JOB?

02:57 PM 9

MS. BURRELL: YOUR HONOR, I JUST WANT TO OBJECT

02: 57 PM 10 BECAUSE MR. BACON IS TESTIFYING AS OPPOSED TO ACTUALLY

02: 57 PM 11 ASKING A QUESTION.

02:57 PM 12

MR. BACON: IT'S CROSS-EXAMINATION, YOUR HONOR.

02: 57 PM 13

THE COURT: OVERRULED. IT IS CROSS-EXAMINATION,

02:57 PM 14 AND--

02:57 PM 15

MS. BURRELL: THANK YOU, YOUR HONOR.

02:57 PM 16

THE COURT: -- HE'S ENTITLED TO GO INTO IT.

02:57 PM 17 BY MR. BACON:

02:57 PM 18 Q.

MS. DUNGAN, THERE WERE SOME DOCUMENTS THAT APPEARED

02: 57 PM 19 TO BE MORE LIKE SUMMARY SHEETS, WHERE SOMEONE AT LUFKIN

02: 57 PM 20 HAD TYPED UP NAMES , USUALLY IN ORDER OF SENIORITY, AND

02: 57 PM 21 SOMETIMES THERE WERE MARKINGS AS TO WHO GOT SELECTED FOR A

02: 57 PM 22 JOB?

02: 57 PM 23

MS. BURRELL: OBJECTION, YOUR HONOR, ASSUMES

02:57 PM 24 FACTS NOT IN EVIDENCE, THAT THEY WERE IN ORDER OF

02: 57 PM 25 SENIORITY.

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147

02:57 PM 1

THE COURT: MA'AM? I DON'T KNOW WHETHER THEY

02:58 PM 2 WERE IN ORDER OF SENIORITY OR NOT. YOU CAN'T TESTIFY TO

02:58 PM 3 THAT.

02:58 PM 4

MS. BURRELL: WELL, THAT'S WHY I WAS OBJECTING,

02:58 PM 5 BECAUSE HE'S --

02:58 PM 6

THE COURT: WELL--

02:58 PM 7

MS. BURRELL: MR. BACON'S STATEMENT WAS THAT

02:58 PM 8 THEY USUALLY WERE --

02:58 PM 9

THE COURT: HE SAID SOMETIMES THEY HAD ORDERS --

02: 58 PM 10 SOMETIMES THEY WERE LIKE THAT. THAT DOESN'T HAVE ANY DATE

02:58 PM 11 OF SENIORITY.

02:58 PM 12

SOME OF THEM THAT HE'S TALKING ABOUT THAT A

02: 58 PM 13 FOREMAN OR A DIVISION MANAGER MIGHT HAVE TYPED UP, HE

02:58 PM 14 WOULD HAVE PUT A SENIORITY DATE ON THEM, AND HE'S ASKING

02: 58 PM 15 THE WITNESS IF SHE NOTICED THAT, AND I HAVEN'T HEARD AN

02: 58 PM 16 ANSWER.

02:58 PM 17

MS. BURRELL: OKAY. THANK YOU, YOUR HONOR.

02:58 PM 18 BY MR. BACON:

02:58 PM 19 Q.

DID YOU NOTICE THAT?

02:58 PM 20 A.

YES.

02:58 PM 21 Q.

ALL RIGHT. LET'S TALK ABOUT THE SIGN-UP SHEET

02:58 PM 22

THE COURT: THE OBJECTION IS OVERRULED.

02:58 PM 23 BY MR. BACON:

02: 58 PM 24 Q.

-- DOCUMENTS.

02: 58 PM 25 A.

OKAY.

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148

02:58 PM 1 Q. DID YOU EVER FIND SITUATIONS WHERE THERE WERE

02:58 PM 2 MULTIPLE SIGN-UP SHEET DOCUMENTS OR SIGN-UP SHEETS FOR

02:58 PM 3 ONE JOB ON THE SAME DATE?

02:58 PM 4 A.

I DON'T RECALL SEEING THAT, NO.

02:58 PM 5 Q. YOU DON'T RECALL IF THERE WERE THOSE? OKAY. DID

02:59 PM 6 YOU FIND ON OCCASION THAT SOME OF THE NAMES WERE HARD TO

02: 59 PM 7 READ ON THE SIGN-UP SHEETS?

02:59 PM 8 A.

YES, WE DID FIND THAT.

02: 59 PM 9 Q. AND DID YOU EVER, WHEN YOU HAD TROUBLE READING THE 02: 59 PM 10 NAMES, DID YOU USE THE CLOCK NUMBER TO TRY TO FIGURE OUT

02: 59 PM 11 IF YOU COULD READ THE NAME?

02 : 59 PM 12 A • 02: 59 PM 13 Q.

WE DID NOT. ALL RIGHT. BUT YOU HAD -- YOU DID HAVE LUFKIN'S

02: 59 PM 14 DATA BASE WHERE YOU COULD HAVE DONE THAT?

02:59 PM 15 A.

RIGHT.

02: 59 PM 16 Q. ALL RIGHT. NOW, LET ME -- LET'S LOOK AT A SECOND

02: 59 PM 17 TYPE OF DOCUMENT THAT YOU HAD, 12679.

02: 59 PM 18 02: 59 PM 19

THE COURT: YOU BETTER MAKE IT LARGER. MR. BACON: YEAH, CUT SOME OF THAT, IT DOESN'T

02: 59 PM 20 02: 59 PM 21

MATTER.

JUST GIVE ME THE NATURE OF THE DOCUMENT. THAT'S FINE.

02: 59 PM 22 03:00 PM 23

CAN YOU ENLARGE THAT A BIT? OKAY. THAT'S FINE.

03:00 PM 24 BY MR. BACON:

03:00 PM 25 Q.

MS. DUNGAN, THIS IS WHAT I MEANT. THIS IS THE

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03:00 PM 1 03:00 PM 2 03 :00 PM 3 03:00 PM 4 03:00 PM 5 03:00 PM 6 03:00 PM 7 03:00 PM 8 03:00 PM 9 03:00 PM 10

149 SECOND TYPE OF DOCUMENT THAT I WAS TALKING ABOUT AS A SUMMARY SHEET DOCUMENT, AND SOMETIMES YOU FOUND THESE KINDS OF DOCUMENTS? A. THAT'S RIGHT. Q. AND, YOU KNOW, THESE WERE DOCUMENTS -- WOULD YOU AGREE THAT GENERALLY THESE DOCUMENTS HAD THE EMPLOYEES LISTED IN ORDER OF SENIORITY? A. I CAN'T SAY THAT FOR SURE, NO. Q. WERE THEY EVER LISTED IN ORDER OF SENIORITY? A. I HAVE SEEN THAT SOMETIMES.

03:00 PM 11 Q. ALL RIGHT. DID YOU FOCUS ON SENIORITY DATES WHEN

03:00 PM 12 03:00 PM 13 03:00 PM 14

YOU LOOKED AT THESE DOCUMENTS? A. NO. Q. WHAT YOU WERE FOCUSING ON WAS WHO WAS ON THE LIST?

03:00 PM 15 A.

RIGHT.

03:00 PM 16 Q.

AND YOU WERE ALSO TRYING TO FOCUS ON WHETHER ANYBODY

03 :00 PM 17 ON WHO ON THE LIST COULD BE DETERMINED AS A WINNER?

03:00 PM 18 A.

RIGHT.

03:00 PM 19 Q. THOSE WERE THE TWO THINGS THAT YOU WERE LOOKING AT,

03:00 PM 20 IS THAT CORRECT?

03 :00 PM 21 A. WE LOOKED AT THE HARD COPIES AND CHECKED TO SEE --

03:00 PM 22 CHECKED -- EXCUSE ME -- AGAINST THE DATA BASE, THE MARY

03:00 PM 23 BAKER DATA BASE, AND THEN THE LUFKIN DATA BASE. OFTEN

03:00 PM 24 TIMES THERE WAS NO INDICATION, NO, THERE WASN'T AN

03:01 PM 25 INDICATION ON THE SHEET WHO WON IT.

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03:01 PM 1 03:01 PM 2 03:01 PM 3 03:01 PM 4 03:01 PM 5 03:01 PM 6 03:01 PM 7 03:01 PM 8 03:01 PM 9 03 :01 PM 10

150 Q. MS. DUNGAN, WHEN YOU WERE DOING THIS PROJECT, YOU DISCOVERED THAT OCCASIONALLY THERE WERE SOME DOCUMENTS THAT WERE DUPLICATED? A. THAT'S RIGHT. Q. AND SOMETIMES DOCUMENTS APPEARED THREE TIMES? A. YES. Q. AND THEY HAD DIFFERENT BATES NUMBERS? A. RIGHT. Q. AND ALL THE DOCUMENTS YOU LOOKED AT WERE COPIES? A. THAT'S RIGHT.

03:01 PM 11 Q. BECAUSE YOU NEVER LOOKED AT THE ACTUAL ORIGINALS?

03:01 PM 12 A.

NO.

03:01 PM 13 Q. DID YOU KNOW THAT THE ORIGINALS WERE AVAILABLE TO BE

03:01 PM 14 REVIEWED?

03:01 PM 15 A. I KNOW THAT -- I BELIEVE MR. GARRIGAN HAD -- I THINK

03:01 PM 16 COPIES OF THE ORIGINALS WERE AVAILABLE.

03:01 PM 17 Q. ALL RIGHT. DID YOU KNOW THAT THE ORIGINALS WERE

03:01 PM 18 AVAILABLE TO BE REVIEWED?

03:01 PM 19 A. I DID NOT.

03:01 PM 20 Q. OKAY. AND YOU NEVER LOOKED AT THE ORIGINALS?

03:01 PM 21 A.

NO.

03: 01 PM 22 Q. SO SOME OF THE DOCUMENTS YOU HAD WERE COPIES AND

03:01 PM 23 SOME WERE COPIES OF COPIES?

03:01 PM 24 A.

PROBABLY.

03:01 PM 25 Q. AND SOME WERE HARD TO READ?

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151

03:01 PM 1 A.

YES.

03:01 PM 2 Q. AND THEY WERE HARD TO READ BECAUSE THEY HAD BEEN

03:01 PM 3 COPIED SO MUCH, IS THAT CORRECT?

03:01 PM 4 03:02 PM 5 03:02 PM 6 03 :02 PM 7 03:02 PM 8 03:02 PM 9

A. I DON'T KNOW THAT FOR SURE. Q. OKAY. IN DETERMINING WHO HAD BEEN THE WINNER, THERE WERE DIFFERENT WAYS THAT DIFFERENT SUPERVISORS HAD MARKED THE WINNER ON THESE BID SHEETS? A. THAT'S CORRECT. Q. ON SOME OF THE BID SHEETS THE WINNER IS MARKED

03:02 PM 10 CLEARLY AS "THE WINNER" OR "SELECTED"?

03:02 PM 11 A.

SOMETIMES, YES.

03:02 PM 12 Q. SOMETIMES THE WINNER IS MARKED CLEARLY BECAUSE HE IS

03:02 PM 13 CIRCLED OR HIGHLIGHTED, BUT THERE'S NO VERBAL LANGUAGE

03:02 PM 14 THAT THE PERSON HAS BEEN A WINNER?

03:02 PM 15 A. THAT HAPPENS, YES.

03:02 PM 16 Q. AND THEN THERE'S SOMETIMES THE MARKS ARE A LITTLE

03:02 PM 17 BIT VAGUER, THERE MIGHT BE AN ASTERISK OR A CHECK BY THE

03 :02 PM 18 NAME?

03:02 PM 19 A. THAT'S RIGHT.

03:02 PM 20 Q. IN THOSE CASES YOU'RE NOT SURE IF THE CHECK IS THERE

03:02 PM 21 BECAUSE THE PERSON GOT SELECTED OR IF IT'S FOR SOME OTHER

03:02 PM 22 REASON?

03:02 PM 23 A. 03:02 PM 24 Q.

THAT'S RIGHT. LET ME ASK YOU, DID YOU EVER LOOK AT LUFKIN'S

03:02 PM 25 PERSONNEL DATA BASE, THE CYBORG DATA BASE, WHENEVER YOU

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03 :02 PM 1 HAD ONE OF THOSE UNCLEAR SITUATIONS, WHERE IT WAS JUST A

03:02 PM 2 CHECK AND YOU WANTED TO SEE IF THAT PERSON HAD GOTTEN THE

03:02 PM 3 JOB AROUND THAT TIME?

03:02 PM 4 A.

WE DID.

03 :02 PM 5 03 :03 PM 6 03:03 PM 7

Q. ALL RIGHT. AND SO SOMETIMES YOU DETERMINED THAT THE CHECK WAS ACTUALLY A SELECTION MARK? A. SOMETIMES IT WAS, YES.

03:03 PM 8 Q. AND WHEN YOU SAID THAT YOU LOOKED AT DR. BAKER'S

03:03 PM 9 DATA BASE, WERE YOU LOOKING AT -- DID YOU PRINT OUT A HARD

03:03 PM 10 COpy OF IT?

03:03 PM 11 A. WE DID HAVE A HARD COPY, BUT USUALLY WE USED THE

03:03 PM 12 DATA VERSION.

03:03 PM 13 Q.

LET'S LOOK AT THE FIRST PAGE OF THIS DOCUMENT. DOES

03:04 PM 14 THIS LOOK LIKE THE DATA BASE THAT DR. BAKER HAD CREATED

03 :04 PM 15 FOR THE ANALYSIS OF PROMOTIONS?

03:04 PM 16 A. YES.

03:04 PM 17 Q. OKAY. COULD YOU FIND THE INFORMATION -- WAS THERE A

03:04 PM 18 BATES NUMBER COLUMN?

03 :04 PM 19 A. YES, THERE IS.

03 :04 PM 20 Q. AND THEN THERE WAS A JOB TITLE?

03: 04 PM 21 A. CORRECT.

03:04 PM 22 Q. AND THEN THE IMPORTANT PART WAS, YOU KNOW, IF YOU

03:04 PM 23 LOOK AT, FOR EXAMPLE, THE FIRST ONE, THERE WOULD BE A LIST

03 :04 PM 24 OF PEOPLE, AND THOSE WERE THE PEOPLE WHO HAD APPLIED FOR

03:04 PM 25 THE JOB?

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03:04 PM 1 A. 03:04 PM 2 Q. 03:04 PM 3 A. 03:04 PM 4 Q.

153
YOU'RE TALKING ABOUT THE NAME? THE NAMES. YES.
AND, FOR EXAMPLE, ON THE FIRST ONE, WHICH IS 12198,

03:04 PM 5 WHICH IS A MATERIAL HANDLER, CLASS "A," AND I'M GOING TO

03:04 PM 6 GUESS, IT LOOKS LIKE ELEVEN OR SO PEOPLE, BUT I'VE BEEN

03:04 PM 7
03 :04 PM 8

COUNTING WRONG ALL DAY, SO I'M NOT GOING TO DO THAT. BUT--

03:04 PM 9

AND THEN THERE'S A COLUMN WITH THEIR SOCIAL

03:04 PM 10 03:04 PM 11 03:04 PM 12 03:04 PM 13 03:05 PM 14 03 :05 PM 15

SECURITY NUMBER, IS THAT RIGHT?

A.

CORRECT.

Q.

AND THEIR RACE. BUT -- IN A LOT OF CASES THERE'S

THEIR SENIORITY DATE, NOT ALWAYS?

A.

RIGHT.

Q •

AND THEN THERE'S A COLUMN -- THERE'S TWO LAST

03:05 PM 16 COLUMNS FOR SELECTED AND DECLINED.

03:05 PM 17

AND WHAT WAS YOUR UNDERSTANDING IF SOMEONE HAD

03:05 PM 18 SOMETHING OTHER THAN AN "N," SAY A "y" IN THE SELECTED

03:05 PM 19 03:05 PM 20 03:05 PM 21

COLUMN? WHAT WAS YOUR UNDERSTANDING OF WHAT THAT MEANT?

A.

THAT THEY HAD BEEN SELECTED FOR THE POSITION.

Q.

OKAY. AND WHAT IF SOMEONE HAD --

03:05 PM 22

WHAT WAS THE LAST COLUMN FOR? WHAT WAS YOUR

03:05 PM 23 03:05 PM 24 03:05 PM 25

UNDERSTANDING OF THAT COLUMN?

A.

THAT ACCORDING TO THIS THEY DECLINED THE POSITION.

Q.

THAT THEY DECLINED THE POSITION? SO SOMETIMES YOU

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154

03:05 PM 1 HAVE A PERSON WHO GOT THE JOB, THEY HAD A "YES," BUT THEN

03:05 PM 2 THEY HAD DECLINED THE POSITION?

03:05 PM 3

DID YOU HAVE ANY IDEA WHAT

03:05 PM 4 A.

ACCORDING TO THIS DATA BASE, YES.

03 :05 PM 5 Q.

DID YOU HAVE ANY IDEA WHY THAT INFORMATION WAS IN

03:05 PM 6 THERE?

03:05 PM 7 A.

THE "SELECTED" AND "DECLINED"?

03:05 PM 8 Q. 03:05 PM 9

YEAH. OR THE "DECLINED," THE LAST COLUMN. MS. BURRELL: I'M SORRY, YOUR HONOR. COUNSEL

03:05 PM 10 HAS IDENTIFIED THIS AS BEING OUT OF DR. BAKER'S DATA BASE.

03:05 PM 11 03:06 PM 12

PLAINTIFFS RECEIVED TWO DATA BASES FROM DR. BAKER. MR. BACON: WELL, LET ME

03:06 PM 13

YOUR HONOR, I WOULD LIKE TO OFFER THIS EXHIBIT

03:06 PM 14 03 :06 PM 15

EXHIBIT 7 INTO EVIDENCE.
THE COURT: WELL

03:06 PM 16 03 :06 PM 17

MS. BURRELL: I MEAN THE COURT: IT'S PREMATURE. WHEN YOU CONNECT IT

03:06 PM 18 UP WHEN DR. BAKER TESTIFIES, IT WILL BE ADMITTED THEN.

03:06 PM 19

BUT IT'S ADMITTED NOW FOR THE LIMITED PURPOSE OF

03:06 PM 20 SHOWING WHAT THIS WITNESS REVIEWED AND FOUND, SOMETIMES

03:06 PM 21 FOUND FAULT WITH, OR INACCURACIES AND SO ON.

03:06 PM 22

AS TO THE SELECTED --

03:06 PM 23

THERE ARE A BUNCH OF "N'S" AND "Y'S." I ASSUME

03:06 PM 24 THAT'S "YES" AND "NO."

03 :06 PM 2 5

I DON'T KNOW WHAT "DECLINED" MEANS, BECAUSE I

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155

03:06 PM 1 SEE SOME

03:07 PM 2

I THOUGHT I SAW SOME "H'S" OVER THERE, BUT ON

03:07 PM 3 FURTHER REVIEW, I THINK THEy'RE ALL "N'S." AND I DON'T

03:07 PM 4 KNOW WHETHER THAT MEANS NO, THEY DIDN'T DECLINE, OR NO,

03:07 PM 5 THEY DID DECLINE. I HAVE NO IDEA.

03 :07 PM 6

MS. BURRELL: WELL, THE REASON THAT I'M RAISING

03:07 PM 7 THE ISSUE AND ASKING THAT THIS BE IDENTIFIED IS THAT WE

03:07 PM 8 RECEIVED I BELIEVE AT LEAST TWO OR THREE DIFFERENT

03:07 PM 9 03:07 PM 10 03:07 PM 11 03:07 PM 12 03:07 PM 13 03:07 PM 14

VERSIONS OF AN HOURLY BID DATA BASE. THE COURT: WELL, THEY MAY BE, AND YOU'LL BE
ABLE TO PROVE THAT. MS. BURRELL: NO. I UNDERSTAND, YOUR HONOR.
THE REASON I'M RAISING IT IS BECAUSE HE'S ASKING HER ABOUT THIS, AND IT'S SO NOT CLEAR THAT THIS IS THE DATA BASE

03:07 PM 15 THAT SHE REVIEWED. BUT HE'S ASKING --

03: 07 PM 16

THE COURT: I DON'T KNOW WHETHER IT IS OR NOT.

03:07 PM 17 I THINK HE CAN INQUIRE.

03:07 PM 18 03:07 PM 19 03:07 PM 20

MS. BURRELL: OKAY. MR. BACON: AND I WILL GET TO THAT, YOUR HONOR. MS. BURRELL: ALL RIGHT. THANK YOU.

03: 07 PM 21 BY MR. BACON:

03:07 PM 22 Q. MS. DUNGAN, YOU WERE AWARE THAT THERE WAS MORE THAN

03:08 PM 23 ONE DATA BASE THAT WAS SENT TO YOUR OFFICE?

03:08 PM 24 A.

THAT'S RIGHT.

03:08 PM 25 Q. ONE DATA BASE WAS SENT WHEN DR. BAKER DID HER FIRST

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156

03:08 PM 1 REPORT?

03:08 PM 2 A.

THAT'S RIGHT.

03:08 PM 3 Q. AND ANOTHER DATA BASE WAS SENT WITH HER SECOND

03:08 PM 4 REPORT?

03:08 PM 5 A. YOU'RE TALKING ABOUT THE REVISED REPORT?

03 :08 PM 6 Q.

THE REVISED REPORT.

03:08 PM 7 A.

THAT'S RIGHT.

03:08 PM 8 Q. AND YOU WERE AWARE THAT THE SECOND DATA BASE HAD

03:08 PM 9 CORRECTIONS FROM THE FIRST DATA BASE?

03:08 PM 10 A.

I HAVEN'T ACTUALLY LOOKED AT IT, BUT, YES, WE USED

03:08 PM 11 THE FIRST DATA BASE.

03:08 PM 12 Q.

ALL RIGHT. SO WHEN YOU POINTED OUT --

03:08 PM 13

THE COURT: WAS THIS THE FIRST OR SECOND ONE?

03:08 PM 14

MR. BACON: THIS IS THE SECOND. THIS IS THE

03:08 PM 15 FINAL.

03:08 PM 16

THE COURT: YOU'RE ASKING HER IN EFFECT WHETHER

03:08 PM 17 SHE REVIEWED THIS ONE, AND SHE AS I UNDERSTAND IT SAID NO.

03 :08 PM 18 BY MR. BACON:

03:08 PM 19 Q.

SO YOU DON'T KNOW IF THE ERRORS THAT WERE POINTED

03:08 PM 20 OUT EARLIER TODAY BY YOU HAVE NOT BEEN CORRECTED OR HAVE

03:09 PM 21 BEEN CORRECTED IN THE SECOND DATA BASE?

03:09 PM 22 A.

I DON'T KNOW, BECAUSE WE USED THE FIRST.

03:09 PM 23 Q.

ALL RIGHT. DID YOU CONSIDER DOING A STUDY OF THE

03:09 PM 24 FINAL DATA BASE?

03 :09 PM 2 5 A .

IT WAS -- BY THE TIME WE GOT IT, IT WAS TOO LATE TO

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157

03:09 PM 1 DO THAT.

03:09 PM 2 Q. 03:09 PM 3 03:09 PM 4

LET'S TAKE A LOOK AT --
THE COURT: WELL, LET ME INTERRUPT YOU.
\
MR. BACON: YES.

03:09 PM 5

THE COURT: I CAN REMEMBER THE NAME MCMASTER,

03:09 PM 6 AND HE APPEARS ON HERE, AND IT SAYS THAT HE WAS NOT

03:09 PM 7 SELECTED AND NOT HIRED.

03:10 PM 8

WAS A RICHARD C. MCMASTER IN YOUR

03:10 PM 9 RECOLLECTION -- HE WAS USED AS AN EXAMPLE ON EITHER 75 OR 03:10 PM 10 76. WAS HE HIRED OR NOT?

03:10 PM 11 03:10 PM 12 03:10 PM 13

THE WITNESS: THAT WAS ONE OF THE EXAMPLES WE TALKED ABOUT EARLIER.
THE COURT: YEAH.

03:10 PM 14

MS. BURRELL: YOUR HONOR, I'M SORRY. THE

03:10 PM 15 MCMASTER CAME FROM EXHIBIT 75, WHICH WAS JUST A HIRE

03:10 PM 16 WHICH HAD THE TWC JOB ORDER. IT'S NOT THE SAME AS THE

03: 10 PM 17 INFORMATION THAT' S CONTAINED IN THE EXHIBIT 7 THAT MR.

03: 10 PM 18 BACON JUST PRODUCED.

03:10 PM 19 03:10 PM 20

THE COURT: ALL RIGHT. PROCEED. MR. BACON: YOUR HONOR, EARLIER TODAY I MADE AN

03:10 PM 21 OBJECTION TO EXHIBITS 76 AND 77 AS THAT THEY WERE NOT

03:11 PM 22 RELIABLE, AND IN PART, AND PRINCIPALLY THEy'RE NOT

03: 11 PM 23 RELIABLE BECAUSE THEy'RE BASED ON THE OLDER VERSION OF DR.

03:11 PM 24 03:11 PM 25

BAKER'S DATA. I CAN SHORT-CIRCUIT THIS PROCESS.

IF THE COURT

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03:11 PM 1 DOES NOT ADMIT THOSE EXHIBITS, THERE'S NO NEED FOR ME TO

03:11 PM 2 FURTHER QUESTION --

03:11 PM 3

THE COURT: OH, 11M GOING TO ADMIT THEM.

03:11 PM 4

MR. BACON: I BEG YOUR PARDON?

03:11 PM 5

THE COURT: I AM GOING TO ADMIT THEM, BECAUSE

03:11 PM 6 THEY ARE ADVANCE SHOTS AT DR. BAKER, AND I UNDERSTAND

03:11 PM 7 THAT. AND I HOPE IT DOESN'T GET BELABORED TOO MUCH. I

03: 11 PM 8 KNOW SHE MADE TWO REPORTS.

03:11 PM 9

MR. BACON: WELL, THEN 11M AFRAID, YOUR HONOR,

03:11 PM 10 WHAT 11M GOING TO HAVE TO DO THEN IS, 11M GOING TO HAVE TO

03: 11 PM 11 GO THROUGH THE AREAS THAT THEY HAVE ALLEGED ARE INCORRECT

03:11 PM 12 AND SHOW THAT THEY HAVE BEEN CORRECTED.

03:11 PM 13

THE COURT: WELL, ISN'T THAT FOR ME TO DETERMINE

03:11 PM 14 FROM ALL THE EVIDENCE AS TO THE RELIABILITY OF THE

03:11 PM 15 EXPERTS?

03:11 PM 16

MR. BACON: WELL, WE'RE NOT TALKING ABOUT

03:12 PM 17 RELIABILITY OF THE EXPERTS THOUGH, WE'RE ALSO TALKING

03:12 PM 18 ABOUT THE RELIABILITY OF THE DATA BASE.

03:12 PM 19

THE COURT: YEAH, OF THE EVIDENCE ON WHICH THEY

03:12 PM 20 BASE THEIR REPORTS.

03:12 PM 21

MR. BACON: MAY I HAVE

03:12 PM 22

THE COURT: I MEAN, AN EXPERT CAN OPINE ON

03:12 PM 23 ANYTHING HE I S SUPPOSEDLY AN EXPERT AT, BUT IF HE HAS THE

03: 12 PM 24 WRONG DATA, HIS OPINION IS SOMEWHAT FLAWED.

03:12 PM 25

MR. BACON: WELL, ONE OF THE THINGS THAT I NEED

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161

03:15 PM 1 BY MR. BACON:

03:15 PM 2 Q. NOW, WHAT I'VE HANDED YOU IS THE ORIGINAL COpy OF

03:15 PM 3 THOSE BID SHEETS. THERE IN THE RED FOLDER OF THAT

03:15 PM 4 EXHIBIT. DO YOU SEE THAT?

03:15 PM 5 A.

IT'S GOT A DIFFERENT BATES NUMBER ON IT?

03:15 PM 6 Q.

IT HAS A DIFFERENT BATES NUMBER. BUT DOES IT LOOK

03:15 PM 7 LIKE THE SAME DOCUMENT THAT YOU REVIEWED, ONLY IT'S AN

03:15 PM 8 ORIGINAL?

03:15 PM 9 A.

IT DOES.

03: 15 PM 10 Q.

ARE THE NAMES LEGIBLE ON THAT DOCUMENT?

03: 15 PM 11 A.

WHICH ONE?

03:15 PM 12 Q.

THE ONE -- THE ORIGINAL AS OPPOSED TO THE COPY.

03 : 15 PM 13 A .

THEY ARE MORE LEGIBLE.

03:15 PM 14 Q.

ARE THERE ANY NAMES THAT YOU SEE ON THAT LIST THAT

03: 16 PM 15 ARE DUPLICATES OF EACH OTHER, IN OTHER WORDS, PEOPLE THAT

03: 16 PM 16 SIGNED THE LIST TWICE?

03:16 PM 17 A.

I WOULD HAVE TO READ ALL THE NAMES. DO YOU WANT ME

03: 16 PM 18 TO DO THAT?

03:16 PM 19 Q.

COULD YOU PLEASE DO THAT?

03: 16 PM 20

WHAT I WOULD LIKE TO DO -- I'M SORRY -- SINCE NO

03:16 PM 21 ONE ELSE CAN SEE THE ORIGINAL, I'M GOING TO PUT IT UP ON

03: 16 PM 22
03: 16 PM 23 03:17 PM 24 03: 17 PM 25

AN OVERH EAD AND TH EN THE COURT: THAT'S NOT HELPFUL, UPSIDE DOWN. MR. BACON: OKAY. THE COURT: OR OUT OF FOCUS NOW.

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162

03:17 PM 1

LET THE EXPERT DO IT, MR. BACON.

03:17 PM 2 03: 17 PM 3 03:17 PM 4

BY MR. BACON: Q. LET ME JUST POINT OUT SOME THINGS HERE.
DO YOU SEE THIS NAME HERE, IT SAYS M. MENEFEE?

03:17 PM 5 CAN YOU SEE THAT?

03:17 PM 6 A.

YES.

03:17 PM 7 Q.

CAN YOU SEE THIS NAME BENJI?

03:17 PM 8 A.

IT'S VERY FAINT.

03:17 PM 9 Q.
03:17 PM 10 A.

OKAY. I BELIEVE.

03:17 PM 11 Q.

CAN YOU SEE THIS NAME KEVIN STOCK?

03:17 PM 12 A. 03:17 PM 13 Q.

YES. NOW, THIS WAS A TWO-PAGE BID SHEET, WASN'T IT?

03:17 PM 14 A. 03:17 PM 15 Q.

THE ONE YOU JUST SHOWED ME? YES.

03:17 PM 16 A.

YES.

03:17 PM 17 Q.

THIS IS THE SECOND PAGE OF THIS BID SHEET. DO YOU

03:17 PM 18 03: 17 PM 19
03:17 PM 20 03 : 17 PM 21

SEE THE NAME BENJI THERE AGAIN? A. AGAIN, IT'S VERY FAINT, BUT, YES, I BELIEVE. Q. DO YOU SEE THE NAME MENEFEE AGAIN? A . I SEE THAT, YES.

03 :17 PM 22 Q. OKAY. WHEN YOU LOOKED AT THESE BID SHEETS AND YOU

03:17 PM 23 03:18 PM 24 03: 18 PM 25

COUNTED, DID YOU CHECK FOR DUPLICATES OF NAMES? A. WHEN WE WERE GOING THROUGH THEM, YES. Q. ALL RIGHT. YOU DIDN'T CATCH THE DUPLICATES?

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03: 18 PM 1 A.

163 ON THE COpy THAT WE HAD, IT WAS FAIRLY ILLEGIBLE.

03:18 PM 2 Q. WOULD YOU HAND ME THAT EXHIBIT BACK?

03:18 PM 3

WHEN YOU COUNTED APPLICANTS, YOU WOULD COUNT AS

03:18 PM 4 03:18 PM 5 03:18 PM 6 03:18 PM 7 03:18 PM 8 03:18 PM 9 03: 18 PM 10

AN APPLICANT SOMEONE WHOSE NAME HAD BEEN SCRIBBLED OUT, DIDN'T YOU? A. WE WOULD COUNT -- I'M SORRY. WHAT DID YOU SAY? Q. WHEN YOU WOULD COUNT APPLICANTS, YOU WOULD COUNT SOMEONE AS AN APPLICANT EVEN IF THEIR NAME HAD BEEN SCRATCHED OUT? A. I DON'T THINK THAT'S TRUE, NO. IF WE COULDN'T READ

03:18 PM 11 THEIR NAME, WE COULDN'T COUNT THEM AS AN APPLICANT.

03:18 PM 12 Q.

BUT IF YOU COULD READ THEIR NAME THROUGH THE

03:18 PM 13 SCRATCHING OUT, YOU WOULD COUNT THEM AS AN APPLICANT?

03: 18 PM 14 A. IF WE COULD DETERMINE THEIR NAME, WE WOULD REVIEW

03:18 PM 15 THEM, YES.

03:18 PM 16 Q. AND IN FACT, ONE OF THE THINGS YOU DID IN EXHIBITS

03:18 PM 17 76 AND 77 IS, YOU WENT THROUGH AND YOU POINTED OUT

03:19 PM 18 THROUGHOUT THAT EXHIBIT PLACES WHERE PEOPLE WHO HAD BEEN

03: 19 PM 19 CROSSED OUT HAD NOT BEEN INCLUDED IN THE APPLICANT DATA

03:19 PM 20 BASE?

03:19 PM 21 A. WE DID NOTE ANYTHING LIKE THAT, YES.

03:19 PM 22 Q.

YOU DID DO THAT OR YOU DID NOT DO THAT?

03:19 PM 23 A. WE WENT THROUGH AND CHECKED THINGS LIKE THAT, YES.

03:19 PM 24 Q. AND LET ME ASK YOU, WHEN YOU WERE DOING THAT, WERE

03: 19 PM 25 YOU SIMPLY POINTING OUT THAT THERE WERE NAMES CROSSED OUT

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03:19 PM 1 OR WERE YOU SUGGESTING THAT DR. BAKER SHOULD HAVE INCLUDED

03:19 PM 2 THE CROSS-OUTS IN HER APPLICANT POOL?

03:19 PM 3 A. WE WERE REVIEWING WHAT WE HAD AND NOTING WHERE

03:19 PM 4 THINGS LIKE THAT HAPPENED.

03:19 PM 5 Q. OKAY. I'M NOT SURE YOU'VE ANSWERED MY QUESTION

03:19 PM 6 THERE. I UNDERSTAND YOU WERE --

03:19 PM 7

IT'S ONE THING TO NOTE WHAT YOU OBSERVED, AND

03:19 PM 8 YOU OBSERVED THAT SOME PEOPLE, IN FACT, A LOT OF TIMES

03:19 PM 9 PEOPLE HAD CROSSED OUT THEIR NAMES OR SOMEONE HAD CROSSED 03:19 PM 10 OUT THEIR NAMES?

03:19 PM 11 A.

THAT HAPPENED, YES.

03:19 PM 12 Q.

YES. THE QUESTION I HAVE IS, WAS IT YOUR

03:19 PM 13 POSITION DID YOU THINK THAT DR. BAKER SHOULD HAVE

03:19 PM 14 INCLUDED SOMEONE WHOSE NAME HAD BEEN CROSSED OUT AS PART

03: 19 PM 15 OF THE APPLICANT POOL?

03:20 PM 16

MS. BURRELL: I JUST WANT TO OBJECT TO THAT TO

03:20 PM 17 THE EXTENT THAT MS. DUNGAN TESTIFIED THAT SHE SUPERVISED

03: 20 PM 18 SEVERAL PEOPLE IN CREATING THIS DATA BASE, AND SHE CAN'T

03:20 PM 19 TESTIFY AS TO WHAT THEY THOUGHT. SHE CAN ONLY TESTIFY AS

03:20 PM 20 TO WHAT SHE THOUGHT IF SHE WAS THE ONE THAT MADE THAT

03:20 PM 21 ANALYSIS OR MADE THAT DECISION.

03:20 PM 22

THE WITNESS: I CAN'T RECALL DOING ONE OF THOSE

03:20 PM 23 MYSELF, NO.

03: 20 PM 24 BY MR. BACON:

03: 20 PM 25 Q.

OKAY. WERE THERE -- WERE THE PEOPLE THAT WERE

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03:20 PM 1 WORKING ON THIS, WERE THEY WORKING UNDER YOUR DIRECTION?

03:20 PM 2 A.

THAT'S CORRECT.

03:20 PM 3 Q.

DID PEOPLE RAISE QUESTIONS AS TO HOW THEY SHOULD

03:20 PM 4 COUNT SOMETHING OR NOT COUNT SOMETHING DURING THE PROCESS?

03:20 PM 5 A.

THEY DID SOMETIMES, YES.

03:20 PM 6 Q.

DO YOU RECALL THAT ISSUE OF CROSSING-OUTS COMING Up?

03:20 PM 7 A. 03:20 PM 8 Q.

I DON'T RECALL AT THIS TIME, NOT RIGHT NOW. AND YOU DON'T RECALL IF YOU DEVELOPED A CONSISTENT

03:20 PM 9 POSITION AS TO HOW YOU WERE GOING TO HANDLE IT?

03:20 PM 10 A.

I DON'T RECALL.

03:20 PM 11 Q.

OKAY. COULD YOU PUT UP 12236, WHICH IS I THINK PAGE

03 :21 PM 12 3 OF HER ANALYSIS? THIS IS PAGE 3 OF EXHIBIT 76.

03:21 PM 13

LET ME GIVE YOU A DIFFERENT -- WHERE'S THE

03:22 PM 14 13--

03:22 PM 15

I WOULD LIKE TO LOOK AT 117-B. THIS WON'T

03:22 PM 16 YOU DON'T HAVE IT. THIS IS THE BID SHEET OR SUMMARY SHEET

03:22 PM 17 FOR L13044.

03:22 PM 18 A.

OKAY.

03: 22 PM 19 Q.

AND THIS IS THE ONE WHERE YOU SAID THAT MR. EVANS

03:22 PM 20 AND MR. PHIPPS HAD BEEN ERRONEOUSLY INCLUDED AS WINNERS OF

03: 22 PM 21 THE BID. DO YOU REMEMBER THIS ONE?

03:22 PM 22 A. 03:22 PM 23 Q.

I DO. ALL RIGHT. CAN YOU LOOK AT DR. BAKER'S CURRENT DATA

03:22 PM 24 BASE AND DETERMINE IF THIS -- IF THEY ARE STILL SHOWN AS

03:22 PM 25 WINNERS IN THE DATA BASE?

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03:22 PM 1 A. DO YOU HAVE THE PAGE? DO YOU WANT ME TO FLIP

03: 22 PM 2 THROUGH HERE?

03:22 PM 3 Q.

I THINK I DO. PAGE 155 OUT OF 304.

03:23 PM 4 A.

OKAY.

03: 23 PM 5 Q. NOW, LOOKING AT THE CURRENT VERSION OF THE DATA

03:23 PM 6 BASE, WHO APPEARS TO BE THE WINNER FOR 13044?

03:23 PM 7 A. THERE IS A "y" IN THE "SELECTED" COLUMN FOR STEVEN

03:23 PM 8 BARFIELD.

03: 23 PM 9 Q. WAS MR. BARFIELD THE PERSON WHO WAS SHOWN ON THE

03:23 PM 10 ACTUAL BID SHEET DOCUMENT AS THE WINNER?

03:24 PM 11 A.

HIS NAME IS ON HERE. IT DOESN'T INDICATE, UNLESS

03:24 PM 12 I'M JUST MISSING IT, THAT HE WAS THE WINNER.

03: 24 PM 13 Q.

NOW, THIS IS ONE OF THOSE BID SHEETS THAT YOU

03:24 PM 14 ACTUALLY LOOKED AT CYBORG, OR CYBORG BEING LUFKIN'S USUAL

03:24 PM 15 DATA BASE SYSTEM, AND WAS MR. BARFIELD SHOWN AS A WINNER

03:24 PM 16 AT THAT TIME IN THAT DATA BASE?

03:24 PM 17 A.

YES.

03:24 PM 18 Q. OKAY. SO DOES IT APPEAR TO YOU THAT THE ERRORS THAT

03:24 PM 19 YOU NOTED BEFORE HAVE BEEN CORRECTED IN THE CURRENT DATA

03:24 PM 20 BASE?

03:25 PM 21 A.

IT APPEARS SO.

03:25 PM 22

MS. BURRELL: COULD I JUST -- YOU'RE ASKING

03:25 PM 23 FOR -- HE ASKED HER ABOUT ALL OF THE ERRORS.

03:25 PM 24

THE COURT: I DON'T KNOW WHETHER HE IS OR NOT.

03:25 PM 25

MS. BURRELL: WELL, I'M JUST --

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03:25 PM 1

THE COURT: YOU WENT IN GREAT LENGTH AND SOME

03:25 PM 2 DEGREE OF SPECIFICITY ABOUT POINTING OUT THE ERRORS IN DR.

03:25 PM 3 BAKER'S DATA BASE, AND IF THIS IS THE NEW ONE, HE'S

03:25 PM 4 ENTITLED TO SHOW THAT IT'S BEEN CORRECTED.

03:25 PM 5

MS. BURRELL: I UNDERSTAND THAT. I'M JUST

03:25 PM 6 OBJECTING TO THE USE OF THE TERM "ALL THE ERRORS" AS

03:25 PM 7 OPPOSED TO THIS PARTICULAR ERROR THAT HE JUST POINTED OUT

03:25 PM 8 TO HER.

03:25 PM 9

THE COURT: I DON'T KNOW WHETHER THEy'VE ALL

03:25 PM 10 BEEN CORRECTED OR NOT. TIME WILL TELL.

03:25 PM 11

MS. BURRELL: OKAY.

03:25 PM 12 BY MR. BACON:

03:25 PM 13 Q.

ALL RIGHT. WAS THIS PARTICULAR --

03:25 PM 14

THE COURT: THE OBJECTION IS OVERRULED.

03:25 PM 15

MR. BACON: EXCUSE ME, YOUR HONOR.

03:25 PM 16 BY MR. BACON:

03:25 PM 17 Q. WAS THIS PARTICULAR ERROR CORRECTED?

03:25 PM 18 A.

IT LOOKS LIKE IT.

03 : 25 PM 19 Q• OKAY. ALL RIGHT. PLEASE PUT PAGE 3 UP AGAIN.

03:26 PM 20 THAT'S NOT GOING TO SHOW UP AT ALL.

03:26 PM 21

OKAY. THIS IS PAGE 3 OF YOUR EXHIBIT NUMBER 76.

03:26 PM 22 IT'S NOT REALLY SHOWING UP VERY WELL.

03:26 PM 23

OKAY. COULD I ASSUME

03:26 PM 24 03 :26 PM 25

I'M AFRAID NOT. THE COURT: ARE YOU TESTING FOR MY NYSTAGMUS?

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03:26 PM 1 BY MR. BACON:

03:26 PM 2 Q.

LET ME JUST SORT OF POINT OUT ON THAT FIRST ROW,

03:26 PM 3 WHICH IS 12236-37, AND YOU POINTED OUT HERE THAT THERE ARE

03:27 PM 4 ELEVEN NAMES ON BAKER DATA THAT ARE NOT ON THE BID, AND

03: 27 PM 5 THEN YOU LIST THOSE NAMES?

03:27 PM 6 A.

YES.

03: 27 PM 7 Q.

ALL RIGHT. LETIS SEE. LETIS JUST PASS ON THAT FOR

03:27 PM 8 NOW. OH, ITIS DOING BETTER.

03:27 PM 9 03:27 PM 10

OKAY. DID YOU LOOK AT -I WOULD LIKE TO LOOK AT

03:27 PM 11

lIVE LOST MY PLACE NOW.

03:28 PM 12

11M GOING TO PASS -- 11M GOING TO STRIKE THAT

03:28 PM 13 QUESTION BECAUSE I CANIT FIND THE DOCUMENT THAT I WANT.

03:28 PM 14

I WANT TO ASK YOU A FEW QUESTIONS ABOUT THE BID

03: 28 PM 15 SHEETS.

03:28 PM 16

ON SOME OF THE BID SHEETS YOU WOULD HAVE A LIST

03:28 PM 17 OF NAMES IN ORDER, AND THEN YOU WOULD HAVE EXPLANATIONS TO

03:28 PM 18 THE SIDE OF EACH NAME? FOR EXAMPLE, YOU MIGHT SEE THE

03:28 PM 19 WORD "LATERAL"?

03:28 PM 20 A. 03:28 PM 21 Q. 03:28 PM 22 A. 03: 28 PM 23 Q.

RIGHT. DO YOU REMEMBER SEEING THE WORLD "LATERAL"? I DO. AND WHAT WAS YOUR INTERPRETATION OF THE WORD

03:28 PM 24 "LATERAL"?

03: 28 PM 2 5 A •

THAT IT WAS A LATERAL MOVE.

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03:28 PM 1 03:28 PM 2 03:28 PM 3 03:28 PM 4 03:28 PM 5 03:29 PM 6 03 :29 PM 7 03:29 PM 8 03:29 PM 9 03:29 PM 10

169 Q. OKAY. WHEN THE PEOPLE HAD THE WORD "LATERAL" NEXT TO THEM, DID YOU CONSIDER THOSE PEOPLE AS PEOPLE WHO SHOULD GET THE BID? A. WE CHECKED THEIR NAME. Q. OKAY. BUT DID YOU KNOW THAT PEOPLE WHO ARE TRYING TO MOVE LATERALLY TYPICALLY CANNOT GET A BID? A. I HAVE HEARD THAT. Q. ALL RIGHT. SO THAT THE EXPLANATION OF THE WORD "LATERAL" WASN'T NECESSARILY MEANING ANYTHING ABOUT THAT PERSON OTHER THAN THE FACT THAT THAT PERSON WAS

03:29 PM 11 DISQUALIFIED? WERE YOU AWARE OF THAT?

03:29 PM 12 A.

I HEARD THAT A LATERAL MOVE WAS PART OF THE

03:29 PM 13 EVALUATION OF WHETHER SOMEBODY SHOULD GET A BID OR NOT. 03: 29 PM 14 Q. THERE WERE A NUMBER OF PLACES WHERE YOU POINT OUT

03:29 PM 15 THAT THE WORD "DEMOTION" IS NEXT TO SOMEONE' S NAME ON A

03:29 PM 16 BID SHEET SUMMARY SHEET. DO YOU REMEMBER THAT?

03 :29 PM 17 A • 03:29 PM 18 Q.

YES. AND THEN OVER ON THE SIDE YOU DID SOME RESEARCH IN

03:29 PM 19 CYBORG, AND YOU POINT OUT THERE'S NO DEMOTION FOR THAT

03: 29 PM 20 PERSON IN CYBORG?

03: 29 PM 21 A.

RIGHT.

03: 29 PM 22 Q. DID IT OCCUR TO YOU THAT MAYBE THE WORLD "DEMOTION"

03:29 PM 23 ON THE SIDE MEANT THAT THAT PERSON, IF THEY TOOK THAT JOB,

03:29 PM 24 WOULD BE GETTING A DEMOTION I AND THAT'S WHY THEY COULDN'T

03:29 PM 25 HAVE THE JOB?

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03:29 PM 1 03:29 PM 2 03:30 PM 3 03:30 PM 4 03:30 PM 5 03:30 PM 6 03: 30 PM 7 03: 30 PM 8 03:30 PM 9

170 A. I GUESS IT'S POSSIBLE. Q. ALL RIGHT. YOU DIDN'T THINK OF THAT AT THE TIME? A. WE CHECKED. Q. YOU CHECKED? WHAT DID YOU CHECK? A. I'M NOT SURE WHAT YOU'RE ASKING ME ACTUALLY. Q. ALL RIGHT. DID YOU EVER READ THE COLLECTIVE BARGAINING AGREEMENT BEFORE READING THESE BID SHEETS? A. NO. I HAVEN'T READ THE WHOLE COLLECTIVE BARGAINING AGREEMENT, NO.

03: 30 PM 10 Q. DID YOU HAVE ANY KNOWLEDGE ABOUT HOW THE COLLECTIVE

03:30 PM 11 BARGAINING AGREEMENT WORKED WHEN YOU WERE LOOKING AT THE

03: 30 PM 12 BID SHEETS?

03: 30 PM 13 A. I UNDERSTAND THAT A DEMOTION IS SOMETIMES NOT

03: 30 PM 14 ALLOWED.

03:30 PM 15 Q. ALL RIGHT. SO WHY WOULD YOU POINT OUT THAT THERE

03:30 PM 16 WAS NO DEMOTION FOR THAT PARTICULAR INDIVIDUAL IN CYBORG

03: 30 PM 17 WHEN IT APPEARED THAT THE PERSON WAS SIMPLY BEING

03: 30 PM 18 DISQUALIFIED BECAUSE THE JOB, IF THEY TOOK THAT JOB, WOULD

03:30 PM 19 HAVE BEEN A DEMOTION FOR THEM?

03:30 PM 20 A. BECAUSE WE WERE TRACKING ALL THE INFORMATION JUST TO

03: 30 PM 21 CHECK EVERYTHING THAT WAS ON THERE.

03: 30 PM 22 Q. AND SIMILARLY FOR "LATERAL," WHAT WERE YOU LOOKING

03:30 PM 23 FOR IN CYBORG WHEN THE WORD "LATERAL" APPEARED NEXT TO

03:30 PM 24 SOMEONE?

03: 31 PM 25 A. I DON'T RECALL ACTUALLY DOING ONE OF THOSE MYSELF.

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03: 31 PM 1

MS. BURRELL: I JUST WANT TO MAKE AN OBJECTION,

03:31 PM 2 BECAUSE YOU'RE ASSUMING THAT -- THE QUESTION ASSUMES THAT

03:31 PM 3 YOU WERE LOOKING -- THAT SHE WAS LOOKING INTO CYBORG FOR

03:31 PM 4 INFORMATION WITH RESPECT TO LATERALS, AND THAT ASSUMES

03:31 PM 5 FACTS NOT IN EVIDENCE. I DON'T BELIEVE THAT THAT WAS HER

03: 31 PM 6 TESTIMONY.

03:31 PM 7

THE COURT: THIS IS CROSS. I'M GOING TO

03:31 PM 8 OVERRULE IT.

03:31 PM 9

THE WITNESS: I DON'T RECALL DOING A LATERAL

03:31 PM 10 MYSELF, SO I CAN'T ANSWER YOUR QUESTION.

03:31 PM 11 BY MR. BACON:

03:31 PM 12 Q.

DID YOU EVER SEE THE WORD IIBYPASS" APPEAR NEXT TO

03: 31 PM 13 SOMEONE?

03: 31 PM 14 A.

I DON'T REMEMBER SEEING THAT, NO.

03 : 31 PM 15 Q• ALL RIGHT. ONE OF THE THINGS THAT YOU POINTED OUT,

03:31 PM 16 OR ONE OF THE THINGS THAT YOU DID IN THE SECOND PART OF

03: 31 PM 17 YOUR STUDY WAS, YOU COMPARED THE CYBORG RESULTS WITH DR.

03: 31 PM 18 BAKER' S RESULTS?

03: 31 PM 19 A.

RIGHT.

03:31 PM 20 Q.

AND YOU TRIED TO SEE IF THERE WERE ANY

03:31 PM 21 INCONSISTENCIES BETWEEN CYBORG AND DR. BAKER?

03:32 PM 22 A.

RIGHT.

03: 32 PM 23 Q. AND, FOR EXAMPLE, YOU KNOW, SOMETIMES DR. BAKER HAD

03:32 PM 24 SOMEONE BEING PROMOTED ON, YOU KNOW, MARCH 7TH TO A

03: 32 PM 25 PARTICULAR POSITION, AND CYBORG HAD, YOU KNOW, A SIMILAR

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03:32 PM 1 03:32 PM 2 03: 32 PM 3 03:32 PM 4 03:32 PM 5 03:32 PM 6 03:32 PM 7 03: 32 PM 8 03:32 PM 9 03: 32 PM 10

172 PROMOTION, IF NOT ON THAT DAY, WITHIN SEVERAL DAYS? A. THEY WERE SOMETIMES DIFFERENCES IN DATES, YES. Q. AND SOMETIMES THEY WERE CLOSE AND SOMETIMES THEY WEREN'T SO CLOSE? A. THAT'S RIGHT. Q. NOW, I'M ASSUMING THAT WHEN THEY WERE CLOSE, YOU CONCLUDED THAT DR. BAKER'S DATA BASE WAS AGREEING WITH CYBORG, THERE WAS A CONSISTENCY? A. IF THEY WERE CLOSE, YES. Q. OKAY. BUT THERE WERE TIMES THAT THERE MIGHT BE

03: 32 PM 11 SEVERAL MONTHS SEPARATING THE PROMOTION OR THE DATE THAT

03: 32 PM 12 SOMEONE GOT A JOB IN DR. BAKER'S DATA BASE AND LUFKIN'S

03: 32 PM 13 PERSONNEL DATA BASE?

03: 32 PM 14 A. I DO REMEMBER THAT'S HAPPENED, YES.

03: 32 PM 15 Q. AND AM I CORRECT THAT IT HAPPENED A LOT IN CERTAIN

03:32 PM 16 KINDS OF JOBS?

03:33 PM 17 A.

I DON'T KNOW FOR SURE.

03:33 PM 18 Q. ALL RIGHT. YOU DO NOT RECALL WHICH JOBS IT OCCURRED

03:33 PM 19 IN MOST FREQUENTLY?

03:33 PM 20 A.

WHEN --

03:33 PM 21

ASK THE QUESTION AGAIN. EXCUSE ME.

03 :33 PM 22 Q• YOU DO NOT HAVE A RECOLLECTION, YOU DO NOT RECALL IN

03: 33 PM 23 WHICH JOBS YOU WOULD HAVE THE TIME LAPSE THAT MIGHT BE

03: 33 PM 24 SEVERAL MONTHS LONG OR SOMETIMES FOUR OR FIVE OR SIX

03:33 PM 25 MONTHS LONG? YOU DO NOT RECALL THAT?

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03: 33 PM 1 A.

I DON'T RECALL SPECIFIC JOBS, NO.

03: 33 PM 2 Q.

DO YOU RECALL THAT THERE WERE SOME INSTANCES WHERE

03: 33 PM 3 YOU WOULD LOOK IN CYBORG AND THE PERSON WOULD GET A

03:33 PM 4 DIFFERENT JOB THAN THE JOB THAT THEY HAD IN DR. BAKER'S

03: 33 PM 5 DATA BASE?

03:33 PM 6 A.

I BELIEVE THAT'S HAPPENED, YES.

03: 33 PM 7 Q. AND, FOR EXAMPLE, A LOT OF TIMES YOU WOULD HAVE

03: 33 PM 8 CASES WHERE SOMEONE MIGHT BID ON A MACHINE OPERATOR JOB

03: 33 PM 9 AND IN CYBORG THEY WERE SHOWN AS A MACHINIST TRAINEE?

03: 33 PM 10 A.

THAT'S HAPPENED, YES.

03:33 PM 11 Q.

THAT WAS A VERY COMMON OCCURRENCE?

03:33 PM 12 A.

I'M NOT SAYING THAT. YOU ARE. YES.

03:33 PM 13 Q.

AND YOU POINTED THAT OUT AS A DISCREPANCY?

03:34 PM 14 A.

YES.

03:34 PM 15 Q. ALL RIGHT. NOW, YOU DON'T KNOW IF THERE'S NO

03: 34 PM 16 DISCREPANCY AT ALL THERE, YOU'RE JUST POINTING OUT WHAT

03: 34 PM 17 YOU WERE OBSERVING?

03:34 PM 18 A.

RIGHT.

03:34 PM 19 Q.

YOU DON'T REALLY KNOW HOW JOBS -- YOU KNOW, WHETHER

03: 34 PM 20 SOMEONE MIGHT BECOME A TRAINEE EVEN AFTER BEING PROMOTED

03: 34 PM 21 INTO A MACHINE OPERATOR JOB?

03:34 PM 22 A.

NO. WE WERE JUST SIMPLY EVALUATING THE BID SHEETS.

03:34 PM 23 Q. 03:34 PM 24 03: 34 PM 25

YOU WERE JUST KEEPING THE RECORDS? MR. BACON: YES, SIR? THE COURT: HOW LONG DO YOU INTEND TO BE?

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03:34 PM 1

MR. BACON: I DON'T KNOW, YOUR HONOR. IT COULD

03:34 PM 2 BE SOME TIME.

03:34 PM 3

THE COURT: WELL--

03: 34 PM 4

MR. BACON: IT MIGHT BE A GOOD TIME FOR A BREAK.

03:34 PM 5

THE COURT: WHY DO YOU THINK I HELD UP MY HAND?

03:34 PM 6
03:34 PM 7

WELL, BETWEEN FOURTEEN AND TWELVE MINUTES.
THE eso: ALL RISE.

03:34 PM 8

(RECESS)

04:07 PM 9

THE COURT: I HAD TELEPHONE CONVERSATIONS WITH

04:07 PM 10 TWO, THREE, FOUR, FIVE -- WITH FORMER CLERKS, ALL OF WHOM

04:07 PM 11 HAVE CASES PENDING HERE, ONE OF WHOM I'VE CONSISTENTLY

04:07 PM 12 RULED AGAINST.

04:07 PM 13

MR. BACON: WHICH ONE?

04:07 PM 14

THE COURT: WELL, THAT'S NOT RELEVANT TO

04:07 PM 15 ANYTHING BEFORE YOU.

04:07 PM 16

I'M SORRY IT WAS SO LONG, SIR.

04:07 PM 17 BY MR. BACON:

04:07 PM 18 Q.

MS. DUNGAN, EXHIBIT 76, WHICH I GUESS IS A HUNDRED

04:08 PM 19 AND SEVEN PAGES LONG, ONE OF THE THINGS I WANT TO CLARIFY

04:08 PM 20 ABOUT THIS EXHIBIT, THE FACT THAT YOU HAVE A BATES NUMBER

04:08 PM 21 DOCUMENT INCLUDED IN THIS EXHIBIT DOESN'T MEAN THAT YOU

04:08 PM 22 ARE CHALLENGING DR. BAKER'S INTERPRETATION OF THE BID

04:08 PM 23 SHEET DOCUMENTS FOR THAT PARTICULAR BATES NUMBER, IS THAT

04:08 PM 24 CORRECT?

04 : 08 PM 2 5 A • I'M NOT SURE WHAT YOU'RE ASKING. CAN YOU REPHRASE

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04:08 PM 1 04:08 PM 2 04:08 PM 3 04:08 PM 4 04:08 PM 5 04:08 PM 6 04:08 PM 7 04:08 PM 8 04:08 PM 9 04:08 PM 10

THAT? Q. WELL, THE QUESTION IS, THIS IS A VERY THICK DOCUMENT, AND A. EXHIBIT 76 YOU HAVE? Q. EXHIBIT 76. A. OKAY. Q. AND THE FACT THAT YOU HAVE LISTED A BATES NUMBER DOCUMENT
WELL, LET'S LOOK AT THE FIRST PAGE, FOR EXAMPLE. A. ALL RIGHT.

04:08 PM 11 Q. THE VERY FIRST DOCUMENT, BATES NUMBER 12198.

04 :08 PM 12 A.

OKAY.

04:08 PM 13 Q. AND ACCORDING TO YOU, YOU LOOKED AT THE BID SHEET

04:08 PM 14 AND THE BID SHEET SHOWS KITRICK MURPHY?

04 :08 PM 15 A.

RIGHT.

04: 08 PM 16 Q. AND YOU LOOKED AT THE WINNER IN THE BAKER DATA AND

04:09 PM 17 IT SHOWS KITRICK MURPHY?

04: 09 PM 18 A. THAT'S WHAT IT SAYS.

04:09 PM 19 Q. ALL RIGHT. SO BASED ON YOUR REVIEW OF THE BID SHEET

04:09 PM 20 IN DR. BAKER'S DATA, YOU'RE NOT SAYING THAT DR. BAKER

04:09 PM 21 MISINTERPRETED THAT PARTICULAR BID SHEET?

04 :09 PM 22 A. I'M NOT CHARACTERIZING DR. BAKER'S TESTIMONY OR WHAT

04:09 PM 23 SHE'S PUT IN HER REPORT. ALL I DID WAS CHECK THE DATA

04:09 PM 24 THAT WE HAD.

04: 09 PM 25 Q. AND SIMILARLY IN THE SECOND ONE, YOU SAY JUSTIN

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04:09 PM 1 LOONEY IS SHOWN AS THE WINNER, YOU DON'T HAVE ANY REASON

04:09 PM 2 TO SUSPECT THAT JUSTIN LOONEY WAS NOT THE WINNER BECAUSE

04: 09 PM 3 YOU SAY YOU DIDN'T HAVE TH E ORIGINAL DOCUMENT?

04:09 PM 4 A.

ALL WE DID WAS REVIEW WHAT WE HAD.

04:09 PM 5 Q.

OKAY.

04:09 PM 6 A. I'M NOT CHARACTERIZING DR. BAKER'S TESTIMONY.

04:09 PM 7 Q. AND DID YOU TRY TO FIND DOCUMENT L12200 WHEN YOU

04:09 PM 8 COULDN'T FIND IT?

04:09 PM 9 A.

I'M SURE WE DID, YES.

04:09 PM 10 Q. OKAY. DID YOU ASK ANYBODY TO REQUEST IT FROM US IF

04:09 PM 11 YOU HAD LOST A COpy OF IT?

04:09 PM 12 A.

I DON'T -- I DON'T REMEMBER DOING THAT, NO.

04:09 PM 13 Q.

BUT BASED ON THE INFORMATION --

04:09 PM 14

AND ONE OF THE REASONS I'M POINTING OUT THIS

04:10 PM 15 PARTICULAR ONE IS THAT YOU HAVE -- SOME OF THESE ARE

04:10 PM 16 HIGHLIGHTED, AND I'M ASSUMING YOU HIGHLIGHTED THINGS TO

04:10 PM 17 DRAW OUR ATTENTION TO THEM, IS THAT CORRECT?

04: 10 PM 18 A. THAT'S RIGHT.

04:10 PM 19 Q.

ALL RIGHT. AND YOU CAN'T TELL FROM

04:10 PM 20

YOU HAVE NO CONCLUSION THAT DR. BAKER

04:10 PM 21 MISINTERPRETED BID SHEET 12200, DO YOU?

04 : 10 PM 22 A • I'M NOT MAKING CONCLUSIONS, I'M JUST CHECKING WHAT

04:10 PM 23 WE HAVE.

04 :10 PM 24 Q • YEAH. AND, IN FACT, YOU EVEN LOOKED IN CYBORG DATA

04:10 PM 25 BASE AND THE CYBORG DATA BASE SHOWED JUSTIN LOONEY WAS THE

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177

04:10 PM 1 WINNER?

04:10 PM 2 A.

THAT'S WHAT IT SHOWED.

04:10 PM 3 Q. AND, YOU KNOW, 12201, NO PROBLEM. AM I TO ASSUME

04:10 PM 4 THAT IF IT'S NOT SHADED, THAT YOU FOUND NO PROBLEM?

04:10 PM 5 A. YES. WE USED THE SHADING TO HIGHLIGHT THE THINGS,

04:10 PM 6 THE PROBLEMS THAT WE FOUND.

04:10 PM 7 Q. BECAUSE YOU WOULD FOCUS PRIMARILY REALLY ON THE

04:10 PM 8 SHADED ONES?

04:10 PM 9 A. 04:10 PM 10 Q.

THAT'S WHY WE DID IT, YES. AND THE FACT THAT IT'S SHADED DOESN'T MEAN

04: 10 PM 11 NECESSARILY THAT DR. BAKER MISINTERPRETED THE DATA?

04:10 PM 12 A. AGAIN, I'M NOT CHARACTERIZING DR. BAKER'S TESTIMONY

04:10 PM 13 OR ANYTHING THAT SHE'S DONE.

04:10 PM 14 Q.

SO YOU WHAT YOU REALLY WERE DOING HERE, YOU WERE

04:11 PM 15 TAKING NOTES, THE BID SHEETS, AND COMPARING THEM TO DR.

04:11 PM 16 BAKER, AND THIS WAS SORT OF YOUR NOTE-TAKING DEVICE? 04 :11 PM 17 A • WE CHECKED THE BID SHEETS, DR. BAKER'S DATA AND THE

04: 11 PM 18 LUFKIN DATA BASE.

04:11 PM 19 Q.

OKAY. AND JUST SO WE'RE CLEAR, THIS IS YOUR

04:11 PM 20 ANALYSIS BASED ON THE EARLIER VERSION OF DR. BAKER'S DATA?

04 : 11 PM 21 A • IT'S THE ONLY VERSION WE HAD UNTIL I THINK IT WAS

04:11 PM 22 NOVEMBER 22ND WHEN WE RECEIVED IT FROM YOUR OFFICE.

04: 11 PM 23 Q • BY THE WAY, WERE YOU AWARE THAT DR. DROGIN PROVIDED

04:11 PM 24 A SUPPLEMENTAL REPORT AT THE END OF OCTOBER?

04 : 11 PM 2 5 A •

I'M AWARE OF THAT, YES.

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178

04:11 PM 1 Q. ALL RIGHT. AND THESE PARTICULAR EXHIBITS, 76 AND

04:11 PM 2 77, THEY WEREN'T READY AT THE TIME THE OTHER EXHIBITS WERE

04: 11 PM 3 PRODUCED, WERE THEY?

04:11 PM 4 A.

THE OTHER EXHIBITS, MEANING

04:11 PM 5 Q. MOST OF THE EXHIBITS. WERE YOU RESPONSIBLE FOR

04:11 PM 6 PUTTING THE EXHIBITS TOGETHER WHEN THEY WERE TO BE

04:11 PM 7 PRODUCED?

04:11 PM 8 A.

I WAS PART OF THAT, YES.

04:11 PM 9 Q. ALL RIGHT. THESE TWO EXHIBITS WERE NOT READY AT

04:11 PM 10 THAT TIME?

04:11 PM 11 A. RIGHT. THESE WERE PRODUCED -- I FORGET THE EXACT

04: 12 PM 12 DATE. BUT, YEAH.

04:12 PM 13 Q. WOULD IT BE LIKE NOVEMBER 17TH, NOVEMBER 18TH,

04:12 PM 14 AROUND THAT TIME?

04:12 PM 15 A.

I CAN'T REMEMBER FOR SURE, BUT, YEAH.

04:12 PM 16 Q. ALL RIGHT. WOULD YOU AGREE THAT, TO THE EXTENT THAT

04: 12 PM 17 YOU DID FIND ANY ERRORS IN LUFKIN'S DATA BASE, THAT THEY

04:12 PM 18 MISSED A NAME OR MISSELECTED SOMEONE, THAT IT WOULD MAKE

04:12 PM 19 SENSE TO CORRECT THOSE MISTAKES?

04: 12 PM 20 A.

I GUESS. IT MAKES SENSE TO CORRECT MISTAKES, SURE.

04: 12 PM 21 Q • WELL, WOULD YOU THINK THAT DR. BAKER'S STATISTICAL

04:12 PM 22 ANALYSIS MAY BE MORE RELIABLE IF ANY ERRORS HAVE BEEN

04:12 PM 23 CORRECTED?

04:12 PM 24

MS. BURRELL: OBJECTION, YOUR HONOR. THAT CALLS

04: 12 PM 25 FOR A LEGAL CONCLUSION AS TO WHETHER --

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04: 12 PM 1

THE COURT REPORTER: I CAN'T HEAR YOU. WOULD

04:12 PM 2 YOU SPEAK UP?

04: 12 PM 3

MS. BURRELL: I SAID OBJECTION, IT CALLS FOR A

04:12 PM 4 LEGAL CONCLUSION AS TO WHETHER THE DATA BASE IS RELIABLE

04:12 PM 5 OR NOT.

04:13 PM 6

THE COURT: THIS IS AN EMPLOYEE OF YOUR OWN LAW

04: 13 PM 7 FIRM. IT WOULD SEEM TO ME THAT, WHILE IT MAY CALL FOR A,

04: 13 PM 8 QUOTE, LEGAL CONCLUSION, I'M THE ONE THAT'S GOING TO

04:13 PM 9 DECIDE ON WHICH EXPERT IS MORE RELIABLE AND THE

04: 13 PM 10 INFORMATION THAT THAT'S BASED UPON.

04:13 PM 11

AND I UNDERSTAND DR. BAKER'S DEPOSITION IS

04: 13 PM 12 SCHEDULED IMMINENTLY ON THE SECOND REPORT.

04:13 PM 13

IS THAT CORRECT?

04:13 PM 14

MR. BACON: I BELIEVE SO, YOUR HONOR.

04: 13 PM 15

THE COURT: SO THE OBJECTION IS NOTED.

04:13 PM 16

I'M GOING TO LET HIM CROSS-EXAMINE THE PERSON

04: 13 PM 17 WHO SPONSORED THESE EXHIBITS AND SUPERVISED THE

04:13 PM 18 PREPARATION OF THEM.

04: 13 PM 19
04:13 PM 20

I THINK I UNDERSTAND WHAT THEY ARE. MS. BURRELL: THANK YOU, YOUR HONOR.

04:14 PM 21

THE COURT: SO I'M GOING TO OVERRULE IT.

04:14 PM 22

THE WITNESS: WOULD YOU ASK IT AGAIN? I'M

04:14 PM 23 SORRY.

04:14 PM 24 BY MR. BACON:

04 : 14 PM 25 Q. THE QUESTION I HAVE, AND I'VE FORGOTTEN THE EXACT

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180

04:14 PM 1 04:14 PM 2

FORM IT WAS IN, BUT WOULD YOU AGREE THAT -THE COURT: HIS QUESTION IS, BASICALLY, IF YOU

04:14 PM 3 MADE SOME MISTAKES OR ERRORS OR OMISSIONS, AND THEY WERE

04:14 PM 4 BROUGHT TO YOUR ATTENTION, WOULD IT BE BETTER TO CORRECT

04:14 PM 5 THEM BEFORE PRESENTING THEM TO THE PRESIDING JUDGE?

04:14 PM 6

THE WITNESS: I BELIEVE THAT WOULD BE THE BETTER

04:14 PM 7
04:14 PM 8

WAY.

THE COURT: PROCEED TO SOMETHING ELSE.

04:14 PM 9

MR. BACON: OKAY.

04:14 PM 10 BY MR. BACON:

04: 14 PM 11 Q •

DO YOU KNOW HOW MANY OF THE PROBLEMS THAT YOU NOTED

04: 14 PM 12 IN 76 AND 77 WERE CORRECTED?

04:14 PM 13 A.

I DON'T, BECAUSE I HAVEN'T HAD A CHANCE TO GO

04:14 PM 14 THROUGH ALL THE CORRECTIONS THAT HAVE BEEN MADE.

04:14 PM 15

MR. BACON: YOUR HONOR, I HAVE EXHAUSTED ALL THE

04:14 PM 16 TIME THAT WE HAVE ALLOCATED FOR THIS WITNESS IN LIGHT OF

04:15 PM 17 THE COURT'S CONSTRAINTS ON TIME IN THIS CASE.

04: 15 PM 18

I WOULD REQUEST ADDITIONAL TIME TO QUESTION THIS

04:15 PM 19 WITNESS, BECAUSE, QUITE FRANKLY, WHAT WE REALLY NEED TO

04: 15 PM 20 DO, SINCE THIS IS A SUMMARY EXPERT, A SUMMARY EXHIBIT THAT

04: 15 PM 21 THEy'RE TESTIFYING FROM AND THAT THEy'RE PROFFERING, WE

04:15 PM 22 WOULD REALLY NEED TO SHOW HOW IT IS INACCURATE. IT WAS

04:15 PM 23 INACCURATE EVEN IN THE ORIGINAL VERSION, AND IT'S STILL

04: 15 PM 24 MUCH MORE INACCURATE TODAY. I BELIEVE THERE MAY BE SOME

04:15 PM 25 NINETY-ONE, OR IN EXCESS OF NINETY AREAS WHERE WE COULD

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181

04:15 PM 1 SHOW INCONSISTENCIES WHICH WOULD CHALLENGE THIS EXHIBIT,

04:15 PM 2 BUT I DON'T HAVE THE TIME TO DO THAT.

04:15 PM 3

ALTERNATIVELY, IF THE COURT DENIES MY REQUEST

04:15 PM 4 FOR ADDITIONAL TIME, THAT WOULD NOT COUNT AGAINST OUR

04:15 PM 5 TWENTY HOURS --

04:15 PM 6

THE COURT: WELL, WAIT A MINUTE. WAIT A MINUTE.

04:15 PM 7 THE ADDITIONAL TIME IS DIFFICULT FOR ME TO UNDERSTAND THAT

04:16 PM 8 YOU NEED, WHEN LUFKIN WAS -- WHEN YOU AND MR. HAMEL AS

04:16 PM 9 LUFKIN'S LAWYERS DIDN'T FURNISH THE UP-TO-DATE REPORT OF 04: 16 PM 10 DR. BAKER UNTIL --

04:16 PM 11

IT'S DATED, OR THIS INFORMATION IS DATED THE

04: 16 PM 12 22ND OF NOVEMBER AND THE REPORT IS DATED THE 24TH I

04:16 PM 13 UNDERSTAND OF NOVEMBER.

04: 16 PM 14

AND I'M GOING TO GIVE YOU SOME ADDITIONAL TIME,

04:16 PM 15 BUT IT'S GOING TO BE ON YOUR TIME DURING A PERIOD OF A

04:16 PM 16 RECESS OF THIS CASE, AND NOT ON THE COURT'S TIME. IT'S

04:17 PM 17 GOING TO BE AFTER DR. BAKER'S DEPOSITION IS TAKEN ON

04:17 PM 18 TUESDAY.

04:17 PM 19

MR. BACON: THAT'S FINE.

04:17 PM 20

AND THIS WOULD NOT COUNT AGAINST OUR TWENTY

04:17 PM 21 04:17 PM 22

HOURS, IS THAT WHAT YOU I RE SAYING? THE COURT: NO, I'M NOT SAYING THAT.

I'M SAYING

04:17 PM 23 I'LL GIVE YOU TIME TO REVIEW IT, AND GIVE THE PLAINTIFF

04:17 PM 24 TIME TO REVIEW THIS NEWLY-PROFFERED DEFENDANT'S EXHIBIT 7,

04:17 PM 25 AND COMPLETE THE DEPOSITION OF DR. BAKER, THE SECOND ONE,

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182

04:17 PM 1 ON HER SECOND REPORT.

04:17 PM 2

SO THAT'S THE RECESS THAT I'M GOING TO DECLARE.

04:17 PM 3

MR. BACON: OKAY.

04:17 PM 4

THE COURT: I TOLD YOU THAT THIS WOULD NOT ALL

04:17 PM 5 BE TRIED AT ONE TIME.

04:17 PM 6

MR. GARRIGAN: YOUR HONOR, THE PLAINTIFFS DO NOT

04:18 PM 7 SEEK A RECESS IN THIS CASE. WE--

04:18 PM 8

THE COURT: WELL, THE COURT SEEKS A RECESS. I

04:18 PM 9 04:18 PM 10 04:18 PM 11

HAVE TO GO TO TYLER ON MONDAY. I HAVE A CRIMINAL DOCKET SET ON TUESDAY.
I HAVE SEVERAL HUNDRED OTHER CASES ON MY DOCKET.

04:18 PM 12 I AM GOING TO RECEIVE QUITE A FEW MORE FROM JUDGE HANNAH'S

04:18 PM 13 DOCKET I FEAR.

04:18 PM 14

MR. GARRIGAN: I GUESS MAYBE I'M NOT

04:18 PM 15 UNDERSTANDING. ARE YOU TALKING ABOUT A RECESS UNTIL NEXT

04:18 PM 16 WEDNESDAY, OR ARE YOU TALKING ABOUT A RECESS BEYOND THAT?

04:18 PM 17

THE COURT: OH, I DON'T -- I MEAN, CERTAINLY

04: 18 PM 18 UNTIL NEXT WEDNESDAY. BUT I'LL BE BACK IN BEAUMONT MONDAY

04:18 PM 19 NIGHT, AND DURING THE DAY TUESDAY I HOPE TO HAVE TIME

04:19 PM 20 ENOUGH TO DECIDE WHEN WE'LL RESUME THE TRIAL.

04: 19 PM 21

HE'S ENTITLED TO MORE TIME TO REVIEW. YOU'RE

04:19 PM 22 ENTITLED TO TIME TO REVIEW BAKER'S DEPOSITION.

04: 19 PM 23

MR. GARRIGAN: IT WOULD BE OUR POSITION THAT WE

04: 19 PM 24 WOULD LIKE TO PROCEED WITH TRIAL AS QUICKLY AS THE COURT

04: 19 PM 25 CAN PERMIT.

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183

04:19 PM 1

THE COURT: YES, SIR, I UNDERSTAND.

04:19 PM 2

MR. BACON: ALL RIGHT. THANK YOU, YOUR HONOR.

04:19 PM 3

THE COURT: DO YOU HAVE ANY MORE QUESTIONS OF

04:19 PM 4 THIS WITNESS AT THIS TIME?

04:19 PM 5

MS. BURRELL: YES, I DO, YOUR HONOR.

04:19 PM 6

REDIRECT EXAMINATION

04:20 PM 7 BY MS. BURRELL:

04:20 PM 8 Q. MS. DUNGAN, EARLIER MR. BACON ASKED YOU ABOUT

04:20 PM 9
04: 20 PM 10 04:20 PM 11 04:20 PM 12

INSTANCES WHERE THERE WAS THE NOTATION "LATERAL" WRITTEN ON A BID SHEET. DO YOU REMEMBER THAT? A. I DO. Q. ARE THERE INSTANCES WHERE THE BID SHEET INDICATED

04:20 PM 13 THAT THE POSITION FOR AN INDIVIDUAL WOULD BE A LATERAL AND

04:20 PM 14 THAT PERSON WAS INCLUDED AS A WINNER IN DR. BAKER'S DATA

04:20 PM 15 BASE?

04:20 PM 16 A.

I BELIEVE THAT'S TRUE, YES.

04:20 PM 17 Q. WERE THERE INSTANCES WHERE THE BID SHEET INDICATED

04:20 PM 18 THAT A POSITION WOULD BE A LATERAL FOR AN INDIVIDUAL, BUT

04:20 PM 19 THAT PERSON WAS NOT INDICATED AS A WINNER IN DR. BAKER'S

04:20 PM 20 DATA BASE?

04:20 PM 21 A. 04 : 20 PM 22 Q .

I BELIEVE THAT'S TRUE AS WELL. DID YOU NOTE THOSE INSTANCES WHERE IT INDICATED THAT

04:20 PM 23 THERE WAS A LATERAL IN PART TO KEEP TRACK OF THOSE 04:20 PM 24 INSTANCES?

04: 20 PM 25 A.

YES.

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184

04:21 PM 1 Q.

YOU MENTIONED EARLIER IN YOUR TESTIMONY THAT YOU

04:21 PM 2 SUPERVISED PARALEGALS IN PERFORMING THIS ANALYSIS, IS THAT

04: 21 PM 3 CORRECT?

04:21 PM 4 A.

THAT'S CORRECT.

04:21 PM 5 Q. AND YOU ALSO DESCRIBED EARLIER FOR THE COURT THE

04:21 PM 6 METHODOLOGY THAT YOU FOLLOWED IN TERMS OF HOW YOU ANALYZED

04:21 PM 7 THE DATA?

04:21 PM 8 A.

THAT'S CORRECT.

04:21 PM 9 Q. DID YOU DISCUSS WITH THE PARALEGALS A SET OF

04:21 PM 10 PROTOCOLS THAT YOU WOULD FOLLOW IN TERMS OF GOING THROUGH

04:21 PM 11 THE DATA?

04: 21 PM 12 A.

YES, WE DID INITIALLY, AND THEN OVER THE WEEKS THAT

04:21 PM 13 IT TOOK TO DO THIS WE WOULD MEET WHENEVER QUESTIONS CAME

04: 21 PM 14 UP. I WOULD TALK TO THEM WHENEVER QUESTIONS CAME UP.

04:21 PM 15 Q. NOW, EARLIER WE TALKED ABOUT EXAMPLES OF

04:21 PM 16 DISCREPANCIES THAT YOU FOUND IN THE ANALYSIS. WERE THOSE

04:21 PM 17 THE ONLY DISCREPANCIES THAT YOU FOUND?

04:21 PM 18 A.

NO, THOSE WERE JUST EXAMPLES.

04:21 PM 19 Q.
04: 21 PM 20 A .

AND DID YOU FIND MANY MORE DISCREPANCIES? THERE WERE A NUMBER OF THEM, YES.

04:22 PM 21

MS. BURRELL: PASS THE WITNESS.

04:22 PM 22

MR. BACON: I'LL RESERVE ANY QUESTIONS FOR WHEN

04:22 PM 23 04:22 PM 24 04:22 PM 25

WE RESUME. THE COURT: YOU'RE EXCUSED TEMPORARILY. WHO DO YOU HAVE NEXT?

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185

04:22 PM 1

MR. GARRIGAN: KELVIN POPE.

2

THE COURT: COME AROUND, MR. POPE.

3

4

KELVIN POPE. PLAINTIFF WITNESS. SWORN

5

6

DIRECT EXAMINATION

04: 22 PM 7 BY MR. GARRIGAN:

04:22 PM 8 Q.

WOULD YOU PLEASE TELL US YOUR NAME?

04:23 PM 9 A.

KELVIN POPE.

04:23 PM 10 Q.

MR. POPE, WHERE DO YOU WORK?

04:23 PM 11 A.

LUFKIN INDUSTRIES, TRAILER DIVISION.

04:23 PM 12 Q.

ALL RIGHT. BEFORE I ASK YOU SOME QUESTIONS ABOUT

04:23 PM 13 YOUR WORK AND HOW YOU GOT YOUR JOB, TELL ME A LITTLE BIT

04:23 PM 14 ABOUT YOURSELF. HOW OLD A MAN ARE YOU?

04:23 PM 15 A.

THIRTY-THREE.

04:23 PM 16 Q.

WHERE DO YOU LIVE?

04:23 PM 17 A.

LUFKIN, TEXAS.

04 : 23 PM 18 Q.

WHO DO YOU LIVE WITH?

04:23 PM 19 A. 04:23 PM 20 Q.

MY WIFE AND KIDS. WHAT'S YOUR EDUCATIONAL BACKGROUND?

04: 23 PM 21 A .

I'VE GOT ONE YEAR OF COLLEGE, THIRTY-TWO HOURS.

04 : 23 PM 22 Q•
04:23 PM 23 A. 04:23 PM 24

ALL RIGHT. AND DID YOU FINISH HIGH SCHOOL ALSO? YES.
THE COURT: ISN'T THAT A PREREQUISITE FOR ENTRY

04:23 PM 25 TO COLLEGE, EXCEPT IN RARE CASES?

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04:23 PM 1

186 MR. GARRIGAN: I THINK SO. I JUST WANTED TO

04: 23 PM 2 MAKE SURE EVERYBODY KNEW HE MET THAT REQUIREMENT.

04:24 PM 3

THE COURT: ALL RIGHT.

04:24 PM 4 BY MR. GARRIGAN:

04:24 PM 5 Q. WHEN DID YOU START WORKING AT LUFKIN INDUSTRIES?

04:24 PM 6 A.

JULY 21ST.

04:24 PM 7 Q.

OF THIS YEAR?

04:24 PM 8 A.

OF 2003, YES.

04:24 PM 9 Q. THANK YOU. NOW, HOW DID YOU GO ABOUT GETTING YOUR 04:24 PM 10 JOB AT LUFKIN INDUSTRIES?

04:24 PM 11 A.

THE TWC CALLED ME.

04:24 PM 12 Q. OKAY. BEFORE TWC CALLED YOU, DID YOU FILL OUT AN

04:24 PM 13 APPLICATION OR REGISTER THERE?

04:24 PM 14 A.

I REGISTERED IN JACKSONVILLE AT TWC.

04:24 PM 15 Q. ALL RIGHT. AND AFTER THAT YOU RECEIVED A CALL?

04:24 PM 16 A.

YES.

04:24 PM 17 Q.

DO YOU KNOW WHICH TWC OFFICE CALLED YOU?

04: 24 PM 18 A • THE ONE IN LUFKIN, TEXAS.

04:24 PM 19 Q. AND WHAT DID THEY TELL YOU WHEN THEY CALLED YOU?

04 : 25 PM 20 A • THEY TOLD ME THEY HAD POSITIONS OPEN FOR HELPERS AND

04:25 PM 21 WELDERS.

04: 25 PM 22 Q• WHO HAD POSITIONS OPEN?

04 : 25 PM 23 A .

LUFKIN INDUSTRIES.

04: 25 PM 24 Q. AND HOW DID YOU RESPOND TO THAT INFORMATION?

04 : 25 PM 2 5 A • SHE ASKED ME WAS I INTERESTED, AND AT THE TIME I WAS

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187

04:25 PM 1 LOOKING FOR A JOB, AND I TOLD HER, YES, I WAS.

04:25 PM 2 Q.

ALL RIGHT. WHAT WAS THE NEXT STEP?

04:25 PM 3 A.

THE NEXT DAY I WENT DOWN FOR AN INTERVIEW.

04:25 PM 4 Q.

AND WHO DID YOU INTERVIEW WITH?

04:25 PM 5 A.

MR. VIRON BARBAY.

04: 25 PM 6 Q. WHEN YOU SHOWED UP FOR THE INTERVIEW, WHAT WAS THE

04:25 PM 7 FIRST THING YOU DID?

04: 25 PM 8 A.

WENT TO THE FRONT DESK AND GOT AN APPLICATION AND

04:25 PM 9 04:25 PM 10

FILLED IT OUT. Q. IS THAT A LUFKIN INDUSTRIES APPLICATION?

04:25 PM 11 A.

YES.

04:25 PM 12 Q. 04:26 PM 13 A.

THEN WHAT WAS THE NEXT STEP? I WAITED.

04: 26 PM 14

(LAUGHTER)

04:26 PM 15 BY MR. GARRIGAN:

04:26 PM 16 Q.

HOW LONG DID YOU WAIT?

04:26 PM 17 A.

APPROXIMATELY AN HOUR AND A HALF.

04:26 PM 18 Q.

AND WHAT WERE YOU WAITING FOR?

04:26 PM 19 A.

I WAS WAITING TO BE INTERVIEWED.

04:26 PM 20 Q.

BY MR. BAR BAY?

04:26 PM 21 A.

YES.

04:26 PM 22 Q.

AND DID YOU EVENTUALLY INTERVIEW WITH MR. BARBAY?

04 : 26 PM 23 A •

YES.

04 : 26 PM 24 Q. HOW LONG DID THAT INTERVIEW LAST?

04: 26 PM 25 A.

APPROXIMATELY TEN MINUTES.

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1BB

04:26 PM 1 Q. OKAY. BEFORE I GET TO THAT, LET ME ASK ABOUT THE

04:26 PM 2 APPLICATION YOU FILLED OUT. DID YOU WRITE DOWN WHAT KIND

04:26 PM 3 OF JOBS YOU WERE INTERESTED IN?

04:26 PM 4 A.

YES.

04:26 PM 5 Q.

WHAT DID YOU WRITE DOWN?

04:26 PM 6 A.

FORKLIFT OPERATOR AND MACHINIST HELPER.

04:26 PM 7 Q.

HOW DID YOU KNOW --

04:26 PM 8

THE COURT: HAD YOU HAD EXPERIENCE OPERATING A

04:26 PM 9 04:26 PM 10

FORKLIFT? THE WITNESS: YES, SIR.

04:26 PM 11

THE COURT: WHEREABOUTS?

04:26 PM 12

THE WITNESS: WESTCRAFT MANUFACTURING IN ALEDO,

04:27 PM 13 TEXAS.

04:27 PM 14

THE COURT: AND WHAT WAS THE OTHER POSITION

04:27 PM 15 BESIDES FORKLIFT?

04:27 PM 16

THE WITNESS: MACHINIST.

04:27 PM 17

THE COURT: MACHINIST?

04:27 PM 18

THE WITNESS: YES, SIR.

04:27 PM 19

THE COURT: YOU HAD HAD EXPERIENCE IN THAT?

04: 27 PM 20

THE WITNESS: YES, SIR.

04:27 PM 21

THE COURT: WHAT TYPE?

04:27 PM 22

THE WITNESS: AN ENGINE LATHE.

04:27 PM 23

THE COURT: WHEREABOUTS?

04:27 PM 24 04:27 PM 25

THE WITNESS: WESTCRAFT. THE COURT: WHAT DOES WESTCRAFT BUILD?

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189

04:27 PM 1

THE WITNESS: HYDRAULIC CYLINDERS.

04: 27 PM 2

THE COURT: FOR WHAT?

04:27 PM 3

THE WITNESS: FORKLIFTS, TRACTORS, DUMPTRUCKS.

04:27 PM 4

THE COURT: SUV'S?

04:27 PM 5

THE WITNESS: OH, NO. NO. NO.

04: 27 PM 6

(LAUGHTER)

04:27 PM 7

THE COURT: ALL RIGHT. GO AHEAD.

04:27 PM 8 BY MR. GARRIGAN:

04:27 PM 9 Q.

ALL RIGHT. NOW, HOW DID YOU KNOW TO PUT DOWN

04:27 PM 10 MACHINIST HELPER AND FORKLIFT OPERATOR ON YOUR

04:27 PM 11 APPLICATION?

04: 27 PM 12 A.

BECAUSE ON THE FRONT OF THE APPLICATION IT HAD A

04:27 PM 13 BROCHURE ADVERTISING DIFFERENT POSITIONS THERE AT THE

04:27 PM 14 TRAILER DIVISION.

04:28 PM 15 Q.

OKAY. AND OUT OF ALL THE POSITIONS DESCRIBED, WHY

04:28 PM 16 DID YOU PUT DOWN MACHINIST HELPER AND FORKLIFT OPERATOR?

04 : 28 PM 17 A • BECAUSE I ENJOY DOING THAT MORE.

04:28 PM 18 Q.

ALL RIGHT. DID YOU -- WHEN YOU FILLED OUT YOUR

04:28 PM 19 APPLICATION, DID YOU ALSO INDICATE YOUR EXPERIENCE AS A

04:28 PM 20 WELDER?

04 : 28 PM 21 A .

YES.

04 : 28 PM 22 Q .

HOW MUCH WELDING EXPERIENCE DID YOU PUT IN THE

04:28 PM 23 04:28 PM 24 04: 28 PM 25

APPLICATION? A. SEVEN YEARS. Q. ALL RIGHT. AND THEN YOU SAT DOWN AND WAITED FOR AN

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190

04:28 PM 1 HOUR AND A HALF AND YOUR INTERVIEW STARTED?

04:28 PM 2 A.

YES.

04: 28 PM 3 Q. TELL US WHAT HAPPENED IN THE INTERVIEW.

04:28 PM 4 A. I WENT IN AND I INTRODUCED MYSELF, WE INTRODUCED

04: 28 PM 5 OURSELVES, AND WE TALKED.

04: 28 PM 6

VIRON LOOKED AT MY APPLICATION AND SAID "WE

04:29 PM 7 WEREN'T HIRING FOR MACHINIST HELPER AND FORKLIFT

04:29 PM 8 OPERATOR," AND I TOLD HIM THAT I HAD SEVEN YEARS OF

04: 29 PM 9 WELDING EXPERIENCE.

04:29 PM 10 Q.

AND HOW DID HE RESPOND SO THAT?

04:29 PM 11 A.

HE PROCEEDED TO TELL ME ABOUT THE TEST, THE WELDING

04:29 PM 12 TEST.

04:29 PM 13 Q.

OKAY. DID HE TELL YOU YOU WERE GOING TO HAVE -- IF

04:29 PM 14 YOU WANTED TO BE A WELDER, YOU HAD TO TAKE A WELDING TEST?

04:29 PM 15 A.

HE SAID IF I WANTED TO BE A WELDER, I HAD TO TAKE

04:29 PM 16 THE WELDING TEST.

04: 29 PM 17 Q.

DID HE ENCOURAGE YOU TO TRY TO HIRE ON AS A WELDER?

04:29 PM 18 A.

NO.

04:29 PM 19 Q.

DID HE DISCOURAGE YOU?

04:29 PM 20 A.

YES.

04: 29 PM 21 Q.

HOW DID HE DISCOURAGE YOU?

04:29 PM 22 A.

HE DESCRIBED THE TEST TO ME AS BEING A VERY

04:29 PM 23 DIFFICULT WELDING TEST.

04 : 29 PM 24 Q .

HAD YOU TAKEN WELDING TESTS BEFORE?

04: 29 PM 25 A.

NO.

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04:29 PM 1

THE COURT: HAD YOU DONE WELDING BEFORE?

04:29 PM 2

THE WITNESS: YES.

04:29 PM 3

THE COURT: WHAT TYPE OF WELDING?

04:29 PM 4

THE WITNESS: MIG.

04:30 PM 5

THE COURT: SIR?

04:30 PM 6

THE WITNESS: MIG WELDING, WIRE WELDING.

04:30 PM 7

THE COURT: OH.

04: 30 PM 8 BY MR. GARRIGAN:

04: 30 PM 9 Q.

IS THAT WHERE YOU -- YOU HAD SEVEN YEARS OF MIG

04: 30 PM 10 WELDING EXPERIENCE?

04: 30 PM 11 A •

YES.

04 : 30 PM 12 Q •

BUT YOU HAD NEVER TAKEN A WELDING TEST?

04: 30 PM 13 A.

I'VE NEVER TAKEN A WELDING TEST.

04:30 PM 14 Q.

ALL RIGHT. DO YOU CONSIDER YOURSELF A PRETTY GOOD

04:30 PM 15 WELDER?

04:30 PM 16 A.

YES, I THINK SO.

04 : 30 PM 17 Q •

HOW DID HE DESCRIBE THE TEST TO YOU THAT MADE YOU

04: 30 PM 18 NERVOUS ABOUT IT?

04: 30 PM 19 A.

HE DESCRIBED THE TEST. HE TOLD ME THERE WAS A STICK

04:30 PM 20 TEST, SAID THEY DO AN X-RAY TEST, A BEND TEST AND A STRESS

04:30 PM 21 TEST.

04 : 30 PM 22 Q •

HE SAID A STICK TEST?

04: 30 PM 23 A •
04 : 30 PM 24 Q • 04 : 30 PM 2 5 A •

YES. OKAY. STICK WELDING STICK WELDING.

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04:30 PM 1 04: 30 PM 2 04:30 PM 3 04:31 PM 4 04:31 PM 5 04: 31 PM 6 04: 31 PM 7 04: 31 PM 8 04:31 PM 9 04:31 PM 10

Q. -- IS DIFFERENT THAN MIG OR WIRE WELDING, CORRECT? A. CORRECT. Q. ALL RIGHT. AND I'M SORRY. HE SAID -- AND WHAT OTHER KINDS OF TESTS DID HE MENTION? A. A BEND TEST, AN X-RAY TEST. Q. NOW -- AND YOU'VE NEVER TAKEN THOSE TESTS BEFORE? A. CORRECT. Q. DID YOU KNOW ANYTHING ABOUT X-RAY TESTS? A. ONLY FROM WHERE I OBSERVED FROM A FRIEND OF MINE TAKING AN X-RAY TEST.

04:31 PM 11 Q. AND WHAT DO YOU KNOW ABOUT X-RAY TESTS?

04: 31 PM 12 A.

IT PRETTY MUCH HAS TO BE A PERFECT WELD.

04:31 PM 13 Q.

OKAY. DO YOU THINK YOU WOULD BE ABLE TO PASS AN

04: 31 PM 14 X-RAY TEST WITH YOUR MIG WELDING?

04:31 PM 15 A.

I'M NOT SURE.

04:31 PM 16 Q.

OKAY. HOW ABOUT YOUR STICK WELDING?

04:31 PM 17 A.

I DON'T HAVE A LOT OF EXPERIENCE IN STICK WELDING.

04: 31 PM 18 I DOUBT IT.

04:31 PM 19 Q.

IS THAT WHAT YOU TOLD MR. BARBAY?

04:31 PM 20 A.

I TOLD HIM I DIDN'T HAVE A LOT OF EXPERIENCE IN

04: 31 PM 21 STICK WELDING.

04:32 PM 22 Q.

NOW, WHAT WAS MR. BARBAY'S ADVICE TO YOU ABOUT WHAT

04:32 PM 23 JOBS TO SEEK AT LUFKIN?

04:32 PM 24 A. HIS ADVICE FOR ME, TO HIRE IN AS A HELPER AND GET

04:32 PM 25 SOME PRACTICE AS A WELDER AND THEN TAKE THE TEST, GET MY

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193

04:32 PM 1 FOOT IN THE DOOR.

04: 32 PM 2 Q. ALL RIGHT. WHAT -- HOW MUCH DOES A HELPER PAY?

04: 32 PM 3 A.

EIGHT DOLLARS AND FORTY CENTS.

04: 32 PM 4 Q.

HOW MUCH DOES WELDER PAY?

04:32 PM 5 A. 04:32 PM 6 Q. 04:32 PM 7 A. 04:32 PM 8 Q. 04:32 PM 9 A. 04: 33 PM 10 Q. 04: 33 PM 11 A.

ELEVEN DOLLARS AND FORTY-FOUR CENTS. SO A THREE-DOLLAR-AN-HOUR DIFFERENCE IN PAY? YES. AND HOW MANY KIDS DO YOU HAVE TO SUPPORT? SIX. OKAY. DID YOU TAKE MR. BARBAY'S ADVICE? YES.

04: 33 PM 12 Q. YOU SAID YOU WOULD ACCEPT THE HELPER -- EXCUSE ME --

04:33 PM 13 YEAH, THE HELPER POSITION?

04:33 PM 14 A. YES.

04: 33 PM 15 Q • OKAY. NOW, HOW DOES HELPER, THE HELPER POSITION

04:33 PM 16 THAT HE WAS SUGGESTING THAT YOU PURSUE, HOW DOES THAT

04: 33 PM 17 DIFFER FROM THE MACHINIST HELPER POSITION THAT YOU PUT ON

04: 33 PM 18 THE APPLICATION?

04 : 33 PM 19 A • I DON'T THINK THERE'S A DIFFERENCE. A HELPER IS A 04:33 PM 20 HELPER.

04: 33 PM 21 Q. ALL RIGHT. WELL, ACTUALLY, WHEN YOU FILLED OUT YOUR

04: 33 PM 22 APPLICATION, DID YOU LEAVE THAT ON THE APPLICATION, THE

04: 33 PM 23 04: 34 PM 24 04 : 34 PM 2 5

MACHINIST HELPER AND THE FORKLIFT OPERATOR? A • NO. MR. BARBAY ASKED ME TO SCRATCH IT OUT. Q • AND WHAT DID HE TELL YOU TO WRITE IN THERE?

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04: 34 PM 1 A.

HELPER, JUST HELPER, TRAILER DIVISION.

04: 34 PM 2 Q.

OKAY. SO THAT WAS MR. BARBAY'S IDEA AND SUGGESTION,

04: 34 PM 3 NOT YOU R OWN?

04:34 PM 4 A.

YES.

04: 34 PM 5 Q.

DID YOU DO WHAT HE TOLD YOU?

04: 34 PM 6 A.

YES.

04: 34 PM 7 Q.

AND THEN DID YOU ACCEPT THE JOB AS A HELPER?

04:34 PM 8 A.

YES.

04: 34 PM 9 Q.

DID YOU GO THROUGH AN ORIENTATION PROCESS?

04: 34 PM 10 A •

YES.

04:34 PM 11 Q.

WHAT DID THAT CONSIST OF, VERY BRIEFLY?

04:34 PM 12 A.

BRIEFLY, JUST THE RULES, THE RULES AND REGULATIONS

04:34 PM 13 OF THE COMPANY, PAY SCALE, INSURANCE.

04: 34 PM 14 Q •

DID THEY GIVE YOU A DRUG TEST?

04: 34 PM 15 A .

AND A DRUG TEST, YES. THE DRUG TEST WAS THE DAY OF

04: 34 PM 16 THE INTERVIEW.

04: 34 PM 17 Q • AND HOW LONG DID THE ORIENTATION TAKE?

04:34 PM 18 A.

IT TOOK ABOUT THREE AND A HALF HOURS.

04: 35 PM 19 Q •

DURING THE ORIENTATION PROCESS DID ANYONE FROM

04:35 PM 20 LUFKIN COME TALK TO YOU ABOUT YOUR WELDING EXPERIENCE?

04: 35 PM 21 A •

NO.

04 : 35 PM 22 Q •

DID MR. BAR BAY COME TALK TO YOU ABOUT YOUR WELDING

04: 35 PM 23 04: 35 PM 24

EXPERIENCE DURING YOUR ORIENTATION?

A •

NO.

04: 35 PM 2 5 Q • WHEN YOU -- HOW LONG AFTER THE INTERVIEW DID YOU

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04: 35 PM 1 04: 35 PM 2

195 REPORT FOR WORK? A. INCLUDING THE WEEKEND, THAT'S FIVE DAYS I BELIEVE,

04:35 PM 3 04: 35 PM 4 04:35 PM 5 04:35 PM 6 04:35 PM 7 04:36 PM 8 04: 36 PM 9 04: 36 PM 10 04: 36 PM 11

FOUR OR FIVE DAYS. Q. ALL RIGHT. AND ON YOUR FIRST DAY OF WORK, WHAT DIVISION DID YOU REPORT TO? A. CARPENTER'S DOCK, TRAILER DIVISION. Q. DID ANYBODY THERE TALK TO YOU ABOUT YOUR WELDING EXPERIENCE? A. YES. Q. HOW DID THAT COME UP? A. THE GUYS WAS ASKING ME WHERE DID I WORK BEFORE I

04:36 PM 12 04: 36 PM 13 04: 36 PM 14

CAME TO THE TRAILER DIVISION. Q. AND WHAT DID YOU TELL THEM? A. I TOLD THEM THAT I WORKED AT WESTCRAFT, AND I

04: 36 PM 15 DESCRIBED IT TO THEM.

04: 36 PM 16

AND THEY ASKED ME WHAT DID I DO THERE, AND I

04: 36 PM 17 TOLD THEM THAT I WELDED.

04: 36 PM 18

AND THEY ASKED ME WHY DIDN'T I HIRE IN AS A

04:36 PM 19 WELDER.

04: 36 PM 20 Q.

ALL RIGHT. AFTER YOU STARTED AS A HELPER, DID

04:36 PM 21 04: 36 PM 22 04: 36 PM 2 3 04: 36 PM 24

ANYBODY ENCOURAGE YOU TO GO FOR WELDER?

A .

YES.

Q • WHO?

A. KENNETH RICH, HOWARD PRICE, LARRY, I CAN'T RECALL

04:36 PM 25 HIS LAST NAME, A GUY NAMED AL, JUST SEVERAL OF THE GUYS

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196

04:36 PM 1 THAT HAD BEEN THERE FOR YEARS.

04: 36 PM 2 Q.

OKAY. DID YOU TELL THEM HOW MUCH WELDING EXPERIENCE

04:36 PM 3 YOU HAD?

04:36 PM 4 A.

YES.

04:36 PM 5 Q.

AND HOW DID THEY RESPOND TO THAT?

04:36 PM 6 A. WELL, THEY SAID THAT ANYBODY THAT HAD THAT MUCH

04:37 PM 7 EXPERIENCE SHOULD BE ABLE TO PASS THE TEST WITH FLYING

04:37 PM 8 COLORS.

04: 37 PM 9 Q.

DID YOU GO TAKE THE TEST?

04:37 PM 10 A. 04:37 PM 11 Q. 04:37 PM 12 A.

I TOOK THE TEST THAT THURSDAY. HOW DID YOU DO ON THE TEST? I WAS TOLD I DID PRETTY GOOD.

04: 37 PM 13 Q.

WHO TOLD YOU THAT?

04:37 PM 14 A. 04: 37 PM 15 04: 37 PM 16

MR. ROSS, LOUIS ROSS. THE COURT: WHO IS HE AND WHAT'S HIS JOB? THE WITNESS: HE'S THE WELDING TECHNICIAN.

04: 37 PM 17 BY MR. GARRIGAN:

04:37 PM 18 Q.

IS HE THE ONE THAT GAVE YOU THE TEST?

04: 37 PM 19 A.
04:37 PM 20 Q.

YES. DID HE ENCOURAGE YOU TO TAKE THE TEST?

04 : 37 PM 21 04 : 37 PM 22
04: 37 PM 23 04 : 37 PM 24 04: 37 PM 2 5

A .

YES.

Q • OKAY. DID HE HAVE A CHANCE TO SEE YOU WELD BEFORE

YOU TOOK TH E TEST?

A • THE DAY BEFORE I TOOK THE TEST.

Q . AND WHAT WERE HIS COMMENTS ABOUT YOUR WELDING WHEN

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04:37 PM 1 HE JUST SAW THE PRACTICING YOU WERE DOING?

04:37 PM 2 A.

HE SAID AS FAR AS THE PRACTICE, AS FAR AS HE WAS

04:38 PM 3 CONCERNED THAT I HAD ALREADY PASSED THE TEST.

04:38 PM 4 Q. OKAY. AT ANY POINT UP UNTIL YOU ACTUALLY TOOK THE

04:38 PM 5 TEST DID MR. BARBAY COME BACK AND ENCOURAGE YOU TO TAKE

04:38 PM 6 THE TEST?

04:38 PM 7 A.

I NEVER TALKED TO MR. BAR BAY AGAIN.

04:38 PM 8 Q.

AFTER THE INTERVIEW?

04:38 PM 9
04: 38 PM 10 04: 38 PM 11

A. AFTER THE INTERVIEW. Q. NOW, THE TEST, THE WELDING TEST THAT YOU TOOK, WAS IT AS MR. BARBAY DESCRIBED IT TO YOU?

04:38 PM 12 A. 04: 38 PM 13 Q. 04:38 PM 14 A. 04:38 PM 15 Q. 04: 38 PM 16 A. 04: 38 PM 17 Q. 04: 38 PM 18 A • 04: 38 PM 19 Q. 04:38 PM 20 A.

NO. WAS THERE AN X-RAY TEST? NO. WAS THERE A BEND TEST? NO. WAS THERE A STRESS TEST? NO. WHAT KIND OF TEST WAS THERE? I MADE AN UPHILL AND A DOWNHILL PASS WITH THE MIG.

04: 38 PM 21 Q.

AND HOW DID THEY TEST IT?

04:38 PM 22 A.
04: 38 PM 23 Q.

VISUAL. IS THAT A LOT EASIER THAN WHAT MR. BARBAY HAD

04: 38 PM 24 DESCRIBED TO YOU?

04:38 PM 25 A.

YES.

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198

04: 39 PM 1 Q.

DID YOU DO ANY STICK WELDING WHEN YOU TOOK THE TEST?

04: 39 PM 2 A.

NO.

04: 39 PM 3 Q.

DID YOU GET THE -- AFTER YOU PASSED THE TEST, DID

04:39 PM 4 YOU GET RECLASSIFIED?

04:39 PM 5 A.

YES.

04:39 PM 6 Q.

NOW, LET ME BACK UP A LITTLE BIT.

04:39 PM 7

THE COURT: WHAT WERE YOU RECLASSIFIED AS?

04: 39 PM 8

THE WITNESS: WELDER, CLASS "A" WELDER.

04:39 PM 9

THE COURT: THANK YOU. PROCEED.

04:39 PM 10 BY MR. GARRIGAN:

04:39 PM 11 Q.

ALL RIGHT. YOU WENT UP --

04:39 PM 12

THE COURT: WHAT'S THE DIFFERENCE BETWEEN A

04: 39 PM 13 HELPER AND A CLASS "A" WELDER IN PAY?

04:39 PM 14 04: 39 PM 15

THE WITNESS: THREE DOLLARS AND FOUR CENTS. THE COURT: I GUESS THAT'S UP?

04: 39 PM 16

THE WITNESS: THAT'S UP, YES, SIR.

04:39 PM 17

THE COURT: IT'S NOT DOWN?

04:39 PM 18

THE WITNESS: NO.

04:39 PM 19

THE COURT: ALL RIGHT. GO AHEAD.

04: 39 PM 20 BY MR. GARRIGAN:

04: 39 PM 21 Q.

DID VIRON BARBAY TELL YOU THAT THERE WOULD BE SOME

04:39 PM 22 KIND OF PENALTY IF YOU HIRED IN AS A WELDER AND YOU DIDN'T

04:39 PM 23 PASS THE TEST?

04:39 PM 24 A.

YES.

04: 39 PM 25 Q •

WHAT DID HE TELL YOU?

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199

04:39 PM 1 A.

HE TOLD ME IF I TOOK THE WELDING TEST AND DIDN'T

04:40 PM 2 PASS IT, I WOULD HAVE TO WAIT SIXTY DAYS TO REAPPLY,

04:40 PM 3 WHEREAS IF I HIRED IN AS A HELPER AND TOOK THE TEST AND

04:40 PM 4 FAILED IT, I ONLY HAD TO WAIT SIX WEEKS.

04:40 PM 5 Q.

DID HE TELL YOU THAT LUFKIN HAS A RULE THAT YOU'RE

04:40 PM 6 ON PROBATION FOR THE FIRST NINETY DAYS AND YOU'RE NOT

04:40 PM 7 SUPPOSED TO BE ABLE TO TRANSFER OR SEEK A TRANSFER DURING

04:40 PM 8 THE FIRST NINETY DAYS?

04:40 PM 9 A. 04:40 PM 10 Q.

NO. SO LUCKILY, WITHIN A WEEK OR TWO, YOU DID PASS THE

04:40 PM 11 TEST AND THEY PROMOTED YOU ANYWAY?

04:40 PM 12 A. 04:40 PM 13

YES. THE COURT: WHO WAS THE PERSON THAT TOLD YOU

04 :40 PM 14 THAT YOU WERE PROMOTED?

04:40 PM 15

THE WITNESS: NO ONE ACTUALLY TOLD ME, I JUST

04:40 PM 16 HAD AN INCREASE IN PAY ON MY NEXT CHECK.

04:40 PM 17

THE COURT: ALL RIGHT.

04: 40 PM 18 BY MR. GARRIGAN:

04: 40 PM 19 Q .

ACTIONS SPEAK LOUDER THAN WORDS, DON'T THEY?

04:41 PM 20 A.

EXACTLY.

04:41 PM 21 Q.

NOW, DID THE OTHER -- DID THE OTHER WELDERS TAKE A

04:41 PM 22 STICK TEST?

04:41 PM 23

MS. MAHONY: OBJECTION, HEARSAY, AND LACK OF

04:41 PM 24 FOUNDATION.

04:41 PM 25

THE COURT: OVERRULED.

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200

04:41 PM 1

DID YOU KNOW --

04:41 PM 2

DID YOU SEE THEM TAKE THE TEST, ANYBODY ELSE

04:41 PM 3 TAKE A TEST?

04:41 PM 4

THE WITNESS: NO. I DIDN'T ACTUALLY SEE THEM

04:41 PM 5 TAKE THE TEST, NO.

04:41 PM 6

THE COURT: ALL RIGHT.

04:41 PM 7

MS. MAHONY: THEN I REURGE MY OBJECTION.

04:41 PM 8

THE COURT: WELL, HE SAID HE DIDN'T SEE THEM, SO

04:41 PM 9 04 :41 PM 10

I ASSUME HE DIDN'T SEE THEM, AND ANYTHING WOULD BE BASED ON HEARSAY.

04:41 PM 11

BUT GO AHEAD.

04:41 PM 12 BY MR. GARRIGAN:

04:41 PM 13 Q.

OKAY. SINCE -- SO NOW YOU'VE BEEN WORKING AT LUFKIN

04:41 PM 14 INDUSTRIES SINCE JULY?

04:41 PM 15 A.

YES.

04:41 PM 16 Q.

WHERE ARE YOU ASSIGNED?

04:41 PM 17 A.

THE DOOR DEPARTMENT.

04:42 PM 18 Q.

IS THAT ANYWHERE NEAR THE CARPENTRY DOCK?

04:42 PM 19 A.

IT'S RIGHT BESIDE THE CARPENTRY DOCK.

04:42 PM 20 Q.

WHAT ARE THE WORKING CONDITIONS LIKE AT THE

04:42 PM 21 CARPENTRY DOCK OF THE TRAILER DIVISION?

04:42 PM 22 A.

SOMETIMES HOT, NOT BAD WORKING CONDITIONS. I WORKED

04:42 PM 23 THERE FIRST.

04:42 PM 24 Q.

IS IT HOT, NOISY, DIRTY, DUSTY?

04:42 PM 25

MS. MAHONY: OBJECTION, LEADING.

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04:42 PM 1

THE COURT: SUSTAINED.

04:42 PM 2

IF IT'S OPEN TO THE OUTSIDE AIR, AND YOU WERE

04:42 PM 3 HIRED IN JULY, AND YOU BECAME A WELDER

04:42 PM 4

I'VE BEEN TO LUFKIN IN JULY. I'VE BEEN TO

04:42 PM 5 LUFKIN IN AUGUST. I'VE BEEN THERE IN SEPTEMBER. IT IS

04:42 PM 6 HOT.

04:42 PM 7 04:42 PM 8

THE WITNESS: IT'S HOT. THE COURT: OUTSIDE IT'S HOT, INSIDE IT'S HOT,

04:42 PM 9 UNLESS IT'S AN AIR-CONDITIONED PLACE. AND I IMAGINE

04:43 PM 10 WORKING AROUND WELDING AND WELDERS, OPENING TO THE

04:43 PM 11 OUTSIDE, IT WOULD BE HOT.

04:43 PM 12

AND IF IT'S NEXT TO THE PARKING LOT, IT WOULD BE

04:43 PM 13 DUSTY, IS MY GUESS.

04: 43 PM 14 BY MR. GARRIGAN:

04:43 PM 15 Q.

OKAY. WELL, MY QUESTION, DO YOU CONSIDER THE WORK

04:43 PM 16 04:43 PM 17

CONDITIONS TO BE PARTICULARLY TOUGH OR ONEROUS?

A.

NO.

04:43 PM 18 Q.

HAVE YOU SEEN ANY INDICATIONS OF RACISM OR PREJUDICE

04:43 PM 19 AT LUFKIN SINCE YOU'VE WORKED THERE?

04 : 43 PM 20 04:43 PM 21 04:43 PM 22
04:43 PM 23 04:43 PM 24

A •

NO.

Q. WHO'S YOUR SUPERVISOR?

A.

BILLY DURHAM.

Q. DOES HE TREAT YOU THE SAME WAY HE TREATS THE WHITE

WORKERS?

04:43 PM 25 A.

NO.

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202

04:43 PM 1 Q.

HOW DOES HE TREAT YOU DIFFERENTLY?

04 :44 PM 2 A. WELL, HE TENDS TO TALK TO THE WHITE WORKERS A LITTLE

04:44 PM 3 MORE THAN HE DOES ME.

04:44 PM 4 Q.

DOES HE TALK TO YOU AT ALL?

04:44 PM 5 A.

SOMETIMES. NOT MUCH.

04:44 PM 6 Q.

WHEN HE HAS TO TELL SOMETHING TO YOU OR GIVE YOU

04:44 PM 7 INFORMATION, HOW DOES HE DO THAT?

04:44 PM 8 A.

HE TELLS THE OTHER WELDER AND THE OTHER WELDER WILL

04:44 PM 9 04:44 PM 10

RELAY THE MESSAGE TO ME. Q. ARE THESE --

04:44 PM 11

WHAT'S THE RACE OF THESE OTHER WELDERS?

04:44 PM 12 A.

HE'S WHITE.

04:44 PM 13 Q.

OKAY.

04:44 PM 14

MR. GARRIGAN: PASS THE WITNESS, YOUR HONOR.

04:44 PM 15 THANK YOU VERY MUCH.

04 :44 PM 16

THE COURT: HAVE THEY GOT MORE SENIORITY THAN

04:44 PM 17 YOU DO?

04:44 PM 18

THE WITNESS: THEy'VE GOT MORE SENIORITY, YES.

04:44 PM 19

THE COURT: ALL RIGHT.

04:44 PM 20

CROSS-EXAMINATION

04 :44 PM 21 BY MS. MAHONY:

04 : 4 5 PM 22 Q. GOOD AFTERNOON, MR. POPE, MICHELLE MAHONY. I THINK

04:45 PM 23 WE MET AT YOUR DEPOSITION A COUPLE OF MONTHS AGO.

04 : 45 PM 24 A •

YES, MA'AM.

04: 45 PM 25 Q.

FIRST I WANT TO GO BACK TO THE INTERVIEW PROCESS.

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203

04:45 PM 1 YOU SAID YOU WERE HIRED AT LUFKIN THROUGH THE TWC. NOW,

04:45 PM 2 THE FIRST YOU HEARD ABOUT A JOB AT LUFKIN WAS FROM A TWC

04:45 PM 3 REPRESENTATIVE, ISN'T THAT CORRECT?

04:45 PM 4 A.

CORRECT.

04:45 PM 5 Q. AND THE TWC REPRESENTATIVE CALLED YOU ON THE PHONE

04:45 PM 6 AND TOLD YOU THEY HAD JOB OPENINGS FOR WELDERS AND HELPERS

04:45 PM 7 IN THE TRAILER DIVISION, ISN'T THAT CORRECT?

04:45 PM 8 A.

CORRECT.

04:45 PM 9 Q. AND THE NEXT THING, THE TWC REPRESENTATIVE YOU

04:45 PM 10 TESTIFIED ASKED YOU IF YOU WANTED TO COME FOR AN

04 :45 PM 11 INTERVIEW, AND YOU SAID YES, CORRECT?

04:45 PM 12 A.

CORRECT.

04:45 PM 13 Q.

NOW, THE TWC REPRESENTATIVE, SHE DIDN'T ASK YOU TO

04:45 PM 14 BRING ANYTHING TO THAT INTERVIEW, DID SHE? I MEAN, SHE

04:46 PM 15 DIDN IT ASK YOU TO BRING YOUR WELDING GEAR FOR INSTANCE,

04:46 PM 16 DID SHE?

04:46 PM 17 A.

NO.

04:46 PM 18 Q.

SO YOU WENT TO THE TWC THE NEXT DAY AND YOU FILLED

04:46 PM 19 OUT THE APPLICATION, CORRECT?

04 : 46 PM 20 A .

CORRECT.

04:46 PM 21 Q.

AND ALONG WITH THE APPLICATION WAS A PIECE OF PAPER

04:46 PM 22 THAT HAD JOB LISTINGS ON IT, CORRECT, THAT JUST DESCRIBED

04:46 PM 23 THE COMPANY?

04:46 PM 24 A.

DESCRIBED LUFKIN INDUSTRIES OILFIELD AND THE

04:46 PM 25 FOUNDRY, YES.

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204

04:46 PM 1 Q.

AN INFORMATIONAL BROCHURE, CORRECT?

04:46 PM 2 A.

CORRECT.

04:46 PM 3 Q.

BUT YOU UNDERSTOOD FROM WHAT THE TWC REPRESENTATIVE

04:46 PM 4 HAD TOLD YOU WHEN YOU CAME IN TO INTERVIEW THAT LUFKIN WAS

04:46 PM 5 HIRING FOR WELDERS AND HELPERS IN THE TRAILER DIVISION,

04:46 PM 6 ISN'T THAT RIGHT, MR. POPE?

04:46 PM 7 A.

CORRECT.

04:46 PM 8 Q.

NOW, WHEN YOU WENT IN TO INTERVIEW WITH MR. BARBAY,

04:46 PM 9 HE LOOKED AT YOUR APPLICATION AND HE LOOKED WHERE YOU HAD 04:46 PM 10 WRITTEN IN MACHINIST HELPER AND FORKLIFT OPERATOR, WHICH

04:47 PM 11 YOU HAD SEEN ON THIS INFORMATION SHEET AND JUST WRITTEN IT

04:47 PM 12 04:47 PM 13

ON THE APPLICATION, CORRECT? A. CORRECT.

04:47 PM 14 Q.

AND HE TOLD YOU THAT THERE WEREN'T ANY OPENINGS FOR

04:47 PM 15 THOSE POSITIONS, ISN'T THAT RIGHT?

04:47 PM 16 A.

THAT'S CORRECT.

04:47 PM 17 Q.

AND THAT'S WHEN YOU TOLD MR. BAR BAY ABOUT YOUR

04:47 PM 18 WELDING EXPERIENCE, ISN'T THAT CORRECT?

04:47 PM 19 A.

YES.

04 : 47 PM 20 Q • AND MR. BARBAY EXPLAINED TO YOU WHAT IT TAKES TO BE

04:47 PM 21 A WELDER AT LUFKIN, CORRECT?

04:47 PM 22

MR. GARRIGAN: OBJECTION. SHE'S

04:47 PM 23 MISCHARACTERIZING THE EVIDENCE. THE FACT IS, MR. BARBAY

04:47 PM 24 DID NOT TELL HIM WHAT IT TOOK TO BE A WELDER AT LUFKIN.

04:47 PM 25

THE COURT: WELL, HE SAID HE --

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04:47 PM 1 04:47 PM 2

WELDER?

DID HE TELL YOU OR NOT WHAT IT TOOK TO BE A

04:47 PM 3

THE WITNESS: HE TOLD ME ABOUT THE TEST.

04:47 PM 4

THE COURT: THAT YOU HAD TO PASS A TEST?

04:48 PM 5

THE WITNESS: YES, SIR.

04:48 PM 6

THE COURT: THE OBJECTION IS OVERRULED.

04:48 PM 7 BY MS. MAHONY:

04:48 PM 8 Q. AND MR. POPE, I MEAN, MR. BARBAY WAS CORRECT, I

04:48 PM 9 04:48 PM 10 04:48 PM 11 04: 48 PM 12

MEAN, BASED ON YOUR OWN EXPERIENCE, TO BE CLASSIFIED AS A WELDER AT LUFKIN YOU HAVE TO PASS A WELDING TEST, ISN'T THAT CORRECT? A. I WOULD HAVE TO PASS A BEND TEST, AN X-RAY TEST AND

04:48 PM 13 A STRESS TEST AND A STICK TEST. THAT WAS INCORRECT. IT

04:48 PM 14 WAS A VISUAL TEST.

04:48 PM 15 Q.

SO IT'S YOUR TESTIMONY HERE TODAY THAT WHEN MR.

04:48 PM 16 BARBAY TOLD YOU THAT YOU WOULD HAVE TO TAKE A TEST, THAT

04:48 PM 17 HE TOLD YOU YOU WOULD HAVE TO TAKE A BEND TEST AND A

04:48 PM 18 04:48 PM 19

STRESS TEST AND AN X-RAY TEST? DID I GET THEM ALL, MR. POPE?

04:48 PM 20 04:48 PM 21 04:48 PM 22
04:49 PM 23 04:49 PM 24

A. AND STICK.

Q. AND A STICK TEST?

A.

UH-HUH.

MS. MAHONY: YOUR HONOR, MAY I APPROACH THE

WITNESS?

04:49 PM 25

THE COURT: MA'AM?

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04:49 PM 1 BY MS. MAHONY:

04:49 PM 2 Q. MR. POPE, DO YOU RECALL GIVING A DEPOSITION IN THIS

04:49 PM 3 CASE ON AUGUST 14, 2003?

04:49 PM 4 A.

YES.

04:49 PM 5 Q. I'LL REPRESENT TO YOU THAT THIS IS A COpy OF THAT,

04:49 PM 6 OF YOUR DEPOSITION.

04:49 PM 7

WILL YOU PLEASE TURN TO PAGE 50?

04:49 PM 8 A.

50?

04:49 PM 9 Q.

50 OF YOUR DEPOSITION. AND LOOK AT LINE 5. NOW,

04:49 PM 10 THE QUESTION AT LINE 5: "OKAY. SO MR. BARBAY TOLD YOU

04:49 PM 11 THAT YOU WOULD HAVE TO TAKE A TEST?"

04:49 PM 12

WHAT DID YOU SAY IN RESPONSE? PLEASE READ YOUR

04:49 PM 13 ANSWER, MR. POPE.

04:49 PM 14 A.

"I ASKED HIM ABOUT THE TEST."

04: 49 PM 15 Q. OKAY. AND THE NEXT QUESTION, LINE 8: "AND WHAT HE

04:50 PM 16 TOLD YOU, A SERIES OF THREE TESTS?"

04: 50 PM 17

WILL YOU PLEASE READ YOUR ANSWER, MR. POPE?

04: 50 PM 18 A • "YES, HE SAID THEY DO A BEND TEST, A STRESS TEST."

04: 50 PM 19 Q. AND THAT'S YOUR TESTIMONY, "HE SAID THEY DO A BEND

04: 50 PM 20 TEST AND A STRESS TEST," AND IN YOUR DEPOSITION, THAT

04: 50 PM 21 SENTENCE "THEY DO A BEND TEST AND A STRESS TEST," THAT'S

04:50 PM 22 IN QUOTES, CORRECT? YOU WERE QUOTING MR. BARBAY DURING

04:50 PM 23 YOUR DEPOSITION, IS THAT CORRECT?

04: 50 PM 24 A •

THAT'S CORRECT.

04: 50 PM 25 Q. THE QUESTION AT LINE 12: "DID HE TELL YOU ANYTHING

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04: 50 PM 1 ELSE ABOUT THE TEST?"

04:50 PM 2

WILL YOU PLEASE READ YOUR ANSWER, MR. POPE?

04: 50 PM 3 A.

"BASICALLY A BEND AND A STRESS TEST."

04: 50 PM 4 Q. THE NEXT QUESTION -- WELL, WE'LL STOP RIGHT THERE.

04: 50 PM 5

NOW, WE'VE JUST READ THROUGH 50, LINE 5 THROUGH

04:50 PM 6 LINE 14. DID WE READ THROUGH YOUR TESTIMONY CORRECTLY,

04: 50 PM 7 MR. POPE?

04:50 PM 8 A.

YES.

04: 50 PM 9 Q.

AND

04: 50 PM 10

MR. GARRIGAN: YOUR HONOR, AGAIN I NEED TO MAKE

04: 51 PM 11 AN OBJECTION ON THE GROUNDS OF OPTIONAL COMPLETENESS.

04: 51 PM 12

THE COURT: WELL, YOU CAN MAKE IT AND YOU CAN

04: 51 PM 13 INTRODUCE ANYTHING YOU WANT TO OUT OF THE SAME DEPOSITION

04:51 PM 14 AS A PRIOR CONSISTENT STATEMENT ON YOUR OWN TIME, BUT NOT

04:51 PM 15 ON THE DEFENDANT'S TIME.

04: 51 PM 16

MR. GARRIGAN: ALL RIGHT. THANK YOU.

04: 51 PM 17 BY MS. MAHONY:

04:51 PM 18 Q. MR. POPE, IN YOUR DEPOSITION, IN THE WHAT WE JUST

04:51 PM 19 READ, THERE'S NO MENTION OF AN X-RAY TEST, IS THERE?

04:51 PM 20 A.

I FAILED TO MENTION THAT I GUESS.

04: 51 PM 21 Q.

OKAY.

04: 51 PM 22 A.

BUT I DID SAY A SERIES OF THREE TESTS.

04: 51 PM 23 Q . NOW, MR. POPE, AFTER MR. BARBAY TOLD YOU ABOUT THE

04: 51 PM 24 TEST, YOU TOLD HIM "I'M NOT SURE I CAN PASS THE TEST," IS

04: 51 PM 2 5 THAT AN ACCURATE STATEMENT?

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04:51 PM 1 A.

208 THAT'S AN ACCURATE STATEMENT. I WASN'T FOR SURE

04: 51 PM 2 THAT I COULD PASS THE TEST.

04:51 PM 3 Q. AND THAT'S BECAUSE ALL YOUR PRIOR EXPERIENCE HAD

04: 51 PM 4 BEEN IN MIG WELDING, CORRECT?

04:52 PM 5 A.

STICK WELDING.

04:52 PM 6 Q. I THOUGHT YOUR PRIOR EXPERIENCE --

04:52 PM 7 A.

IS IN MIG, YES.

04:52 PM 8 Q. SO YOU DIDN'T HAVE ANY STICK WELDING EXPERIENCE?

04:52 PM 9 A.

JUST AT HOME. I HAD A WELDING MACHINE AT HOME.

04: 52 PM 10 Q. AND YOU'VE DONE SOME STICK WELDING SINCE YOU'VE BEEN

04: 52 PM 11 AT LUFKIN INDUSTRIES, ISN'T THAT CORRECT?

04: 52 PM 12 A.

THAT'S CORRECT.

04:52 PM 13 Q. AND AT THE TIME OF THIS INTERVIEW YOU HAD NEVER

04:52 PM 14 TAKEN A BEND TEST, HAD YOU?

04:52 PM 15 A.

NO.

04:52 PM 16 Q.

NEVER TAKEN A STRESS TEST?

04:52 PM 17 A.

NO.

04: 52 PM 18 Q. IN FACT, YOU HAD NEVER TAKEN ANY KIND OF WELDING

04: 52 PM 19 TEST, ISN'T THAT CORRECT, MR. POPE?

04:52 PM 20 A.

THAT'S CORRECT.

04:52 PM 21 Q. NOW, MR. BARBAY'S RESPONSE TO THAT WAS: "WELL, IF

04:52 PM 22 YOU AREN'T SURE YOU CAN PASS THE TEST, YOU CAN HIRE ON AS

04:52 PM 23 A HELPER AND GET YOUR FOOT IN THE DOOR AND PRACTICE AND

04: 52 PM 24 THEN TAKE THE TEST"? THAT WAS MR. BARBAY' S RESPONSE,

04:52 PM 25 WASN'T IT, MR. POPE?

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209

04:52 PM 1 A.

YES.

04:53 PM 2 Q. AND YOU TOLD MR. BARBAY "THAT'S WHAT I WANT TO DO,"

04:53 PM 3 ISN'T THAT CORRECT, MR. POPE?

04:53 PM 4 A.

THAT'S CORRECT.

04:53 PM 5 Q.

NOW, DURING YOUR INTERVIEW WITH MR. BARBAY, MR.

04:53 PM 6 BARBAY DIDN'T TALK ABOUT ANY OTHER DIVISIONS AT LUFKIN,

04:53 PM 7 DID HE?

04:53 PM 8 A.

JUST THE TRAILER DIVISION.

04:53 PM 9 Q.

JUST THE TRAILER DIVISION. MR. BARBAY NEVER LED YOU

04: 53 PM 10 TO BELIEVE THAT YOU WOULD BE WORKING ANYWHERE OTHER THAN

04: 53 PM 11 THE TRAILER DIVISION, DID HE?

04: 53 PM 12 A.

HE TOLD ME HE DIDN'T KNOW WHERE I WOULD BE WORKING.

04: 53 PM 13 Q.

WELL, YOU KNEW YOU WOULD BE WORKING IN THE TRAILER

04: 53 PM 14 DIVISION?

04:53 PM 15 A.

IN THE TRAILER DIVISION, YES.

04: 53 PM 16 Q.

OKAY. AND MR. BARBAY IN FACT NEVER TALKED ABOUT THE

04: 53 PM 17 FOUNDRY DIVISION AT ANY POINT DURING YOUR INTERVIEW, DID

04:53 PM 18 HE?

04: 53 PM 19 A.

NO.

04 : 53 PM 20 Q.

FINALLY, A LAST QUESTION ON THIS INTERVIEW, YOU SAID

04:53 PM 21 THAT YOU WERE -- YOU TESTIFIED THAT YOU WERE DISCOURAGED

04: 54 PM 22 BY MR. BARBAY. NOW, YOU WERE DISCOURAGED --

04: 54 PM 23

WELL, YOUR TESTIMONY IS THAT WHAT MR. BARBAY DID

04:54 PM 24 TO DISCOURAGE YOU IS THAT HE TOLD YOU ABOUT THE WELDING

04:54 PM 25 TEST?

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04:54 PM 1 A. HE TOLD ME IT WAS A DIFFICULT WELDING TEST.

04:54 PM 2 Q. OKAY. BUT THAT'S IT, HE SAID THERE'S A DIFFICULT

04:54 PM 3 TEST?

04:54 PM 4 A. YES, AND IF I FAILED IT, I HAVE TO WAIT SIXTY DAYS

04:54 PM 5 BEFORE I COULD REAPPLY, NO JOB. AT THE TIME I WAS

04: 54 PM 6 UNEMPLOYED.

04:54 PM 7 Q. AND YOU DECIDED TO SIGN ON AS A HELPER AND PRACTICE

04: 54 PM 8 AND TAKE THE WELDING TEST THAT WAY?

04:54 PM 9 A.

RIGHT, GET MY FOOT IN THE DOOR.

04: 54 PM 10 Q. AND YOU STARTED TO WORK IN THE TRAILER DIVISION ON

04: 54 PM 11 JULY 21, 2003, CORRECT?

04: 54 PM 12 A •

CORRECT.

04: 54 PM 13 Q. AND I THINK ACTUALLY ON YOUR FIRST DAY AFTER WORK

04: 54 PM 14 DIDN'T YOU DO SOME PRACTICE WELDING?

04:54 PM 15 A.

THAT'S INCORRECT.

04:54 PM 16 Q.

WHAT ABOUT ON YOUR SECOND DAY?

04: 54 PM 17 A .

THAT'S CORRECT.

04: 54 PM 18 Q.

SO YOUR SECOND DAY AT LUFKIN YOU DID SOME PRACTICE

04:54 PM 19 WELDING, AND YOU DID IT AT LUFKIN'S FACILITIES, DIDN'T

04: 54 PM 20 YOu?

04: 54 PM 21 A.

THAT'S CORRECT.

04 : 54 PM 22 Q• AND YOU DID IT USING LUFKIN'S EQUIPMENT, DIDN'T YOU?

04 : 55 PM 23 A .

WELDING EQUIPMENT, YES.

04 : 55 PM 24 Q. WELDING EQUIPMENT, THAT'S CORRECT.

04: 55 PM 25

AND YOU TESTIFIED SEVERAL OF YOUR CO-FELLOW

WENDELL R. PARKS, OFFICIAL COURT REPORTER 409-654-2834

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211

04:55 PM 1 EMPLOYEES ENCOURAGED YOU TO PRACTICE AND TO TAKE THE

04: 55 PM 2 WELDING TEST, RIGHT?

04:55 PM 3 A. THEY ENCOURAGED ME TO TAKE THE TEST, YES.

04: 55 PM 4 Q. AND YOU MENTIONED ONE MAN, KENNETH RICH. NOW,

04:55 PM 5 KENNETH RICH, HE'S A LEAD MAN, IS THAT CORRECT?

04:55 PM 6 A.

KIND OF A LEAD MAN, YES.

04:55 PM 7 Q. KIND OF A LEAD MAN? AND HE'S WHITE, ISN'T HE?

04: 55 PM 8
04: 55 PM 9 04: 55 PM 10

A. YES. Q. AND AFTER THE SECOND DAY, YOU PRACTICED AGAIN THE NEXT DAY, DIDN'T YOU?

04:55 PM 11 A.

NO, I DIDN'T PRACTICE.

04:55 PM 12 Q.

WELL, AFTER YOU PRACTICED ON THAT SECOND DAY, THE

04:55 PM 13 THIRD DAY, DIDN'T YOU THE NEXT TIME YOU PRACTICED, YOU

04: 55 PM 14 PRACTICED WITH MR. ROSS, THE WELDING TECHNICIAN, DIDN'T

04: 55 PM 15 YOu?

04 : 55 PM 16 A • I MADE A WELD FOR HIM. IT WASN'T A PRACTICE. I WAS

04: 55 PM 17 JUST MAKING A WELD. IT WAS KIND OF A PRETEST I GUESS. 04: 55 PM 18 Q• KIND OF A PRETEST, BECAUSE YOU KNEW IF YOU TOOK THE

04:55 PM 19 TEST AND YOU DIDN'T PASS IT, YOU WOULD HAVE TO WAIT SIXTY

04: 55 PM 20 DAYS BEFORE YOU COULD TAKE IT AGAIN?

04: 56 PM 21 A.

SIX WEEKS.

04: 56 PM 22 Q.

OR YOU WOULD HAVE TO WAIT SIX WEEKS? THAT'S WHAT

04: 56 PM 23 YOU'RE UNDERSTANDING, CORRECT?

04:56 PM 24 04: 56 PM 25 A.

SO HE LET YOU TAKE A PRACTICE WELD? EXCUSE ME?

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04: 56 PM 1 Q. SO HE LET YOU TAKE A PRACTICE WELD SO YOU WOULD KNOW

04: 56 PM 2 IF YOU COULD TAKE THE TEST AND --

04: 56 PM 3 A. HE TOLD ME TO SHOW HIM WHAT I COULD DO AS FAR AS A

04: 56 PM 4 WELDER.

04: 56 PM 5 Q.

OKAY.

04: 56 PM 6 A. AND I SHOWED HIM WHAT I COULD DO.

04:56 PM 7 Q. AND AGAIN, THAT WAS AT LUFKIN'S FACILITIES, WASN'T

04: 56 PM 8 IT?

04:56 PM 9 A. 04: 56 PM 10 Q.

YES. AND IT WAS USING LUFKIN'S EQUIPMENT, WASN'T IT?

04: 56 PM 11 A.

YES.

04: 56 PM 12 Q.

AND MR. ROSS SET YOU UP FOR A TEST THE NEXT DAY,

04: 56 PM 13 DIDN'T HE?

04: 56 PM 14 A.

YES.

04: 56 PM 15 Q.

AND YOU PASSED THE TEST?

04: 56 PM 16 A.

YES.

04 : 56 PM 17 Q•

ISN'T THAT CORRECT?

04: 56 PM 18

MS. MAHONY: YOUR HONOR, I WANT TO APPROACH.

04: 56 PM 19 BY MS. MAHONY:

04:56 PM 20 Q.

I WANT TO I JUST WANT TO REFRESH YOUR

04:56 PM 21 RECOLLECTION. MR. POPE, THIS IS A CLASS "A" WELDING TEST,

04:56 PM 22 AND THAT'S YOUR NAME AT THE TOP. WHAT'S THE DATE ON THIS

04: 56 PM 23 TEST?

04: 56 PM 24 A.

7-24-03.

04 : 57 PM 2 5 Q. OKAY. THANK YOU. SO JULY 24, 2003. SO LET ME

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04: 57 PM 1 SUMMARIZE THIS. YOU STARTED WORK AT LUFKIN ON JULY 21,

04: 57 PM 2 2003, ISN'T THAT CORRECT?

04: 57 PM 3 A.

THAT'S CORRECT.

04: 57 PM 4 Q. YOU PRACTICED ONCE, YOUR SECOND DAY OF WORK, AND YOU

04: 57 PM 5 PRACTICED AGAIN SOMETIME THE SECOND, MAYBE THE THIRD DAY.

04: 57 PM 6 THIS SAYS YOU TOOK THE TEST ON A THURSDAY. BASICALLY YOU

04: 57 PM 7 04: 57 PM 8

STARTED ON A MONDAY? MR. GARRIGAN:

OBJECTION.

SHE'S TRYING TO READ

04:57 PM 9 THAT DOCUMENT INTO EVIDENCE. IT'S COMPLETELY HEARSAY.

04: 57 PM 10 04: 57 PM 11 04:57 PM 12

IT'S NOT A MATTER OF EVIDENCE. IT'S ASSUMING THE COURT: OH, IT'S WHAT HE'S ALREADY TESTIFIED
TO.

04: 57 PM 13

YOU TOOK THE TEST AND YOU PASSED IT THE THIRD

04:57 PM 14 04: 57 PM 15 04: 57 PM 16

DAY YOU WORKED THERE, IS THAT CORRECT? THE WITNESS: THE FOURTH DAY, SIR. THE COURT: THE FOURTH DAY? ALL RIGHT.

04: 57 PM 17 BY MS. MAHONY:

04:57 PM 18 Q.

OKAY. SO YOU STARTED WORK ON MONDAY, YOU TOOK THE

04:57 PM 19 TEST ON THURSDAY, YOU WERE PROMOTED TO WELDER, AND YOU

04: 57 PM 20
04: 57 PM 21 04: 57 PM 22
04:57 PM 23 04: 57 PM 24 04: 57 PM 25

WERE GIVEN A THREE-DOLLAR RAISE, AND ALL THIS OCCURRED WITHIN--
THE COURT: THREE-O-FOUR. MS. MAHONY: PARDON? THE COURT: THREE-O-FOUR. BY MS. MAHONY:

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04: 58 PM 1 Q.

A THREE-DOLLAR-AND-FOUR-CENTS RAISE. ACTUALLY, YOU

04:58 PM 2 WERE MAKING ELEVEN DOLLARS AND FORTY-FOUR CENTS AN HOUR,

04: 58 PM 3 OR YOU WERE WHEN YOU GOT THE WELDING RAISE AND PROMOTION?

04: 58 PM 4 A.

YES.

04: 58 PM 5 Q. THE CLASSIFICATION. OKAY. SO BASICALLY, IF I HEAR

04: 58 PM 6 YOU RIGHT, MR. POPE, EVERYTHING THAT MR. BARBAY TOLD YOU

04: 58 PM 7 AT THAT INTERVIEW WAS EXACTLY WHAT HAPPENED? YOU HIRED ON

04: 58 PM 8 AS A HELPER, YOU GOT TO PRACTICE WELDING, YOU TOOK THE

04:58 PM 9 WELDING TEST, YOU BECAME A WELDER, YOU GOT A THREE-DOLLAR 04: 58 PM 10 RAISE, ALL WITHIN FOUR DAYS OF STARTING AT LUFKIN

04: 58 PM 11 INDUSTRIES?

04: 58 PM 12 A.

BUT THERE WAS NO BEND TEST, NO STRESS TEST, NO

04: 58 PM 13 X-RAY. I TALKED TO MR. ROSS AND HE SAID THE ONLY THING

04: 58 PM 14 THEY DO IS A VISUAL.

04: 58 PM 15 Q.

AGAIN, MR. POPE

04: 58 PM 16

MS. MAHONY: NO FURTHER QUESTIONS.

04: 58 PM 17

THE COURT: ANYTHING FURTHER? ANYTHING OUT OF

04: 58 PM 18 04: 59 PM 19
04: 59 PM 20

THE DEPOSITION FOR OPTIONAL COMPLETENESS? MR. GARRIGAN: YES, YOUR HONOR. MAY I APPROACH THE WITNESS? I'LL BE VERY QUICK

04: 59 PM 21 HERE.

04: 59 PM 22

THE COURT: ALL RIGHT.

04: 59 PM 23

REDIRECT EXAMINATION

04: 59 PM 24 BY MR. GARRIGAN:

04: 59 PM 2 5 Q • I'VE GOT THE TINY VERSION OF THE DEPOSITION

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04: 59 PM 1 TRANSCRIPT. BUT LET ME DIRECT YOUR ATTENTION TO PAGE 52.

04: 59 PM 2 A.

OKAY.

04:59 PM 3 Q. NOW, BEFORE MS. MAHONY CITED SOME TESTIMONY FROM

04:59 PM 4 PAGE 50. AT PAGE 52, LINE 13 THROUGH 17, SHE READ YOU, OR

04:59 PM 5 SHE ASKED YOU THIS QUESTION: "WELL, WHY WEREN'T YOU SURE

04:59 PM 6 YOU COULD PASS THE TEST?"

04:59 PM 7

AND WHAT WAS YOUR ANSWER TO HER?

04:59 PM 8 A.

"BECAUSE I WAS TOLD THEY DO A BEND AND A STRESS

04:59 PM 9 TEST, AND IF I'M NOT MISTAKEN, I THINK HE SAID AN X-RAY,

04:59 PM 10 TOO."

04: 59 PM 11 Q. SO YOU DID TELL HER ABOUT THE X-RAY TEST DURING YOUR

05:00 PM 12 DEPOSITION, DIDN'T YOU?

05 :00 PM 13 A.

CORRECT.

05:00 PM 14 Q.

NOW, WAS THE TEST DESCRIBED BY MR. BARBAY ACCURATE?

05:00 PM 15

MS. MAHONY: OBJECTION.

05 :00 PM 16

THE WITNESS: NO.

05:00 PM 17

MS. MAHONY ASKED AND ANSWERED. WE COVERED THAT

05:00 PM 18 ON DIRECT.

05 :00 PM 19

MR. GARRIGAN: I'LL PASS THE WITNESS, YOUR

05 :00 PM 20 HONOR.

05:00 PM 21

THE COURT: THE OBJECTION IS SUSTAINED.

05:00 PM 22

HOWEVER, YOU WERE TOLD THERE WOULD BE AN X-RAY

05 :00 PM 23 TEST?

05 :00 PM 24

THE WITNESS: YES, SIR.

05:00 PM 25

THE COURT: WAS THERE?

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05:00 PM 1

THE WITNESS: NO, SIR.

05:00 PM 2

THE COURT: YOU WERE TOLD THERE WOULD BE A

05:00 PM 3 STRESS TEST?

05:00 PM 4

THE WITNESS: YES, SIR.

05 :00 PM 5

THE COURT: WAS THERE?

05:00 PM 6

THE WITNESS: NO, SIR.

05:00 PM 7

THE COURT: YOU WERE TOLD THERE WOULD BE A BEND

05 :00 PM 8 TEST?

05:00 PM 9

THE WITNESS: YES, SIR.

05:00 PM 10

THE COURT: WAS THERE?

05 :00 PM 11

THE WITNESS: NO, SIR.

05:00 PM 12

THE COURT: DID YOU GET PROMOTED WITHOUT ANY OF

05:00 PM 13 THOSE TESTS?

05:00 PM 14

THE WITNESS: YES, SIR.

05 :00 PM 15

THE COURT: IN VIEW OF MY QUESTIONS, DO ANY

05:00 PM 16 COUNSEL HAVE ANY TESTS, I MEAN, ANY QUESTIONS?

05:00 PM 17

MR. GARRIGAN: NONE FROM THE PLAINTIFF.

05 :00 PM 18

MS. MAHONY: JUST ONE.

05 :00 PM 19

RECROSS EXAMINATION

05:00 PM 20 BY MS. MAHONY:

05:00 PM 21 Q.

MR. POPE, AFTER YOU TOOK THE TEST, THE WELDING TEST,

05 :01 PM 22 YOU LEFT THE PLANT IMMEDIATELY AFTER THAT, CORRECT?

05:01 PM 23 A.

EXCUSE ME?

05:01 PM 24 Q.

AFTER YOU TOOK THE WELDING TEST, YOU LEFT

05:01 PM 25 IMMEDIATELY AFTER THAT, DIDN'T YOU?

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217

05:01 PM 1 A.

LEFT? WHAT DO YOU MEAN?

05 :01 PM 2 Q.

LEFT THE FACILITY. YOU WENT HOME?

05 :01 PM 3 A.

YES.

05:01 PM 4 Q. AND THE WELD, IT WAS STILL HOT AT THAT TIME,

05:01 PM 5 CORRECT, AND MR. ROSS HAD TAKEN IT INTO THE OFFICE TO LOOK

05 :01 PM 6 IT OVER, CORRECT?

05 :01 PM 7 A.

lIM NOT SURE.

05 :01 PM 8 Q. OKAY. SO YOU REALLY DONIT KNOW WHAT MR. ROSS,

05:01 PM 9 05 :01 PM 10 05 :01 PM 11 05:01 PM 12

EXACTLY WHAT HE DID? A. I KNOW WHAT HE TOLD ME. Q. OKAY.
MS. MAHONY: NO FURTHER QUESTIONS.

05:01 PM 13

REDIRECT EXAMINATION

05 :01 PM 14 BY MR. GARRIGAN:

05:01 PM 15 Q.

WHAT DID MR. ROSS TELL YOU ABOUT THE TEST?

05: 01 PM 16 A.

THEY DO A VISUAL TEST.

05:01 PM 17

MS. MAHONY: OBJECTION, HEARSAY. MR. ROSS IS A

05:01 PM 18 CLASS MEMBER.

05:01 PM 19 05:01 PM 20

THE COURT: SUSTAINED. IS HE REACHABLE BY SUBPOENA?

05 :01 PM 21

MS. MAHONY: SURE.

05 :01 PM 22

THE COURT: ALL RIGHT. ANYTHING ELSE?

05:01 PM 23

MR. GARRIGAN: NOT FROM THE PLAINTIFFS. THANK

05:01 PM 24 YOU.

05:01 PM 25

THE COURT: THE LAST QUESTION AND ANSWER ARE

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05:01 PM 1 SUSTAINED, WON'T BE CONSIDERED. THEy'RE HEARSAY.

05:02 PM 2

ANYTHING FURTHER?

05:02 PM 3

MR. GARRIGAN: YOUR HONOR, I WOULD POINT OUT

05:02 PM 4 THAT IT'S NOT HEARSAY. MR. ROSS IS A SUPERVISOR. HE TOLD

05:02 PM 5 THIS MAN IT WAS ONLY A VISUAL TEST. THAT'S AN ADMISSION

05:02 PM 6 BY --

05:02 PM 7

THE COURT: I'VE RULED ON THAT.

05:02 PM 8

MR. GARRIGAN: OKAY.

05:02 PM 9

THE COURT: AND I'VE ASKED SOME QUESTIONS.

05:02 PM 10

MR. GARRIGAN: NO FURTHER QUESTIONS.

05:02 PM 11

THE COURT: DO YOU HAVE ANYTHING ELSE?

05 :02 PM 12

MS. MAHONY: NOTHING FURTHER, YOUR HONOR.

05:02 PM 13

THE COURT: YOU'RE EXCUSED.

05:02 PM 14

WE'RE ADJOURNED UNTIL WEDNESDAY MORNING AT 9:00

05:02 PM 15 O'CLOCK.

05:02 PM 16

MR. GARRIGAN: THANK YOU, YOUR HONOR.

05 :02 PM 17

MR. HAMEL: YOUR HONOR, YOU HAD EARLIER

05:02 PM 18 MENTIONED THAT YOU MIGHT BE SEATING A JURY ON WEDNESDAY

05: 02 PM 19 MORNING. DO YOU WANT US TO COME WEDNESDAY MORNING OR DO

05:02 PM 20 YOU WANT

05:02 PM 21

THE COURT: I'LL LET YOU KNOW TUESDAY.

05:02 PM 22

MR. HAMEL: WELL, I JUST

05:02 PM 23

THE COURT: I MEAN, SOMETIME TUESDAY. I'LL LET

05:02 PM 24 YOU KNOW IF --

05:02 PM 25

I WON'T BE SEATING A JURY. I MIGHT BE SELECTING

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219

05 :02 PM 1 A JURY FOR A LATER HEARING.

05:02 PM 2

MR. HAMEL: I JUST WANTED TO KNOW IF YOU WANTED

05:03 PM 3 US TO CALL YOUR CHAMBERS SO YOU DIDN'T HAVE TO CALL US.

05:03 PM 4 WE COULD CALL ON TUESDAY AFTERNOON IF YOU WANTED.

05 :03 PM 5

THE COURT: I'LL E-MAIL YOU.

05:03 PM 6

MR. HAMEL: THAT WILL BE GREAT.

05:03 PM 7

THANK YOU, YOUR HONOR. THAT'S FINE.

05:03 PM 8

THE COURT: I DON'T HAVE ANY IDEA WHAT YOUR

05 :03 PM 9 05:03 PM 10

E-MAIL ADDRESS IS. THE CSO: ALL RISE.

05:03 PM 11

THE COURT: WE'RE IN RECESS UNTIL WEDNESDAY

05:03 PM 12 MORNING AT 9:00 O'CLOCK, UNLESS YOU GET WORD OTHERWISE.

05:03 PM 13

THANK YOU VERY MUCH.

14

(RECESS UNTIL 9:00 A.M., DECEMBER 10, 2003)

15

16

17

CERTIFICATE

18

I CERTIFY THAT THE FOREGOING IS A CORRECT

19 TRANSCRIPT FROM THE RECORD OF PROCEEDINGS IN THE

20 21 22

ABOVE-ENTITLED MATTER.

"'\~

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~y~ 1V\'CJ\

23 WENDELL R. PARKS, CP CM

DATE

24

25

WENDELL R. PARKS, OFFICIAL COURT REPORTER 409-654-2834

 
 Case 9:97-cv-00063-RC Document 745 Filed 12/21/11 Page 1 of 50 PageID #: 16894

**NOT FOR PRINTED PUBLICATION**

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION

SYLVESTER MCCLAIN, on his own

§

behalf and on behalf of a class of similarly §

situated persons, et al.,

§

§

Plaintiffs,

§

v.

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LUFKIN INDUSTRIES,

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Defendant.

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CIVIL ACTION NO. 9:97-CV-063 JUDGE CLARK

AMENDED INJUNCTION The Fifth Circuit, in vacating the Court’s earlier injunction, remanded to this Court “to craft an adequate remedial order that will eliminate discrimination without hobbling Lufkin’s legitimate promotion policies.” McClain v. Lufkin Industries, Inc., 519 F.3d 264, 284 (5th Cir. 2008). The Court of Appeals left to this Court “the task of reviewing afresh the propriety of the injunction, and if it is found necessary, of balancing plaintiffs’ requests for stronger measures to ensure Lufkin’s compliance with the imprecision of the liability finding.” Id. In carrying out the Fifth Circuit’s mandate, the Court has held multiple status conferences with the parties in an attempt to narrow the disputed issues and identify areas of agreement. In addition, subject to and without waiver of the parties’ rights to appeal, the parties have reached agreements, incorporated into stipulations, on certain other issues related to the scope and terms of injunctive relief1.

1 The Court’s Injunction [Doc. # 683] entered on December 18, 2009, provides that, after conferring with one another and the Ombudsperson, the parties may submit to the court agreed upon modifications to the Injunction by stipulation. On November 7, 2011, the parties submitted a joint stipulation regarding modification of the injunction. [Doc. # 737]. This joint stipulation requests that the court modify the injunction to accommodate revisions in a newly negotiated collective bargaining agreement. These changes are reflected in this Amended Injunction.

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In this Amended Injunction, the Court (1) incorporates and combines the parties’ stipulations and agreements, so that all issues previously resolved or determined are set forth in this Order, (2) provides for the specific injunctive relief to be implemented by Defendant Lufkin Industries, Inc. (“Lufkin” or “Defendant”) and (3) provides for the procedures and methods by which this Injunction shall be implemented, monitored and enforced.
Therefore, pursuant to Federal Rules of Civil Procedure 65, the Court enters this Amended Injunction to partially remedy the discrimination found by Judge Cobb, and affirmed by the Fifth Circuit, towards black employees when determining promotions for hourly and salaried positions. It is therefore ORDERED as follows:
I. Injunctive Provisions A. Ombudsperson
1. Appointment of Ombudsperson a. The Court appoints Tony P. Rosenstein to serve as an outside Ombudsperson to monitor compliance with this Injunction and to hear complaints from class members regarding matters described in Section I.A.2.a. below. Mr. Rosenstein has read and signed the attached Scope and Limits of Appointment as Ombudsperson. The Court is satisfied that his appointment will adequately safeguard the judicial process. b. Lufkin shall be responsible for the prompt payment of reasonable fees and expenses the Ombudsperson incurs in connection with his duties and responsibilities under this Order. The Ombudsperson shall provide an invoice detailing his time spent and expenses incurred to Lufkin with each request for payment.
2. Duties and Responsibilities of the Ombudsperson
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a. Complaint Investigation i. The Ombudsperson shall have the authority to receive, investigate, provisionally determine and recommend measures to resolve the following types of complaints: (1) complaints from Lufkin employees regarding Lufkin’s non-compliance with this injunction, (2) complaints from black employees regarding promotion and promotion related discrimination, and (3) complaints of retaliation from employees who allege that they have been retaliated against for making a complaint regarding noncompliance with a specific mandate of this injunction or a promotion-related matter to the Ombudsperson, Lufkin or one of the unions representing Lufkin’s employees. ii. Lufkin and its officers, agents, managers and supervisors shall not engage in or be a party to any act, policy, practice or procedure that discriminates or retaliates against (1) any employee of Lufkin who, in good faith, contacts the Ombudsperson regarding Lufkin’s alleged non-compliance with this injunction; (2) any black employee who, in good faith, contacts the Ombudsperson with regard to alleged promotion and promotion related discrimination; and (3) anyone who, in good faith, contacts the Ombudsperson regarding complaints of alleged retaliation for making a complaint regarding non-compliance with a specific mandate of this injunction or a promotion-related matter to the Ombudsperson,
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Lufkin or one of the unions representing Lufkin’s hourly employees. iii. In giving the Ombudsperson this authority, the Court does not intend for him to displace the unions’ statutory obligation to represent Lufkin’s hourly employees or to provide a substitute for the grievance processes set forth in the collective bargaining agreement. iv. Lufkin shall provide to its employees in writing a toll free number that employees can use to contact the Ombudsperson and other information as provided for in Section I.H.2. below and in Appendix 1 to this Order. v. In order to investigate any complaint, the Ombudsperson shall have the authority to conduct additional fact finding which may include requesting documents or other information from Lufkin and interviewing employees, supervisors or other Lufkin personnel. The Ombudsperson shall also have the authority to take such actions as appropriate to assist the resolution of the complaint, including recommending appropriate corrective action to Lufkin. If the Ombudsperson concludes after investigation that Lufkin has not complied with the injunction or has engaged in promotion related discrimination or retaliation, the Ombudsperson shall request that Lufkin take recommended remedial action and in the absence of such action report the matter to the Court and Class Counsel.
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3. Monitoring a. The Ombudsperson shall be responsible for monitoring Lufkin’s implementation of, and compliance with, this Order and any other subsequent or superseding remedial orders of the Court. In connection with this responsibility, the Ombudsperson shall have the authority to: i. Review any documents maintained by Lufkin as described in Section I.E. below; ii. Audit Lufkin’s promotion procedures, practices and relateddecisions; iii. Conduct independent analyses of data related to Lufkin’s promotion procedures, practices and related-decisions; iv. Request additional information and data from Lufkin in order to carry out his audit and/or independent analyses of Lufkin’s promotion procedures, practices and related-decisions. v. Confer with Lufkin’s Internal Monitor selected pursuant to Section II.G. below, and other Lufkin managers for the purpose of reviewing with them Lufkin’s implementation of, and compliance with, this Order and any other subsequent or superseding remedial orders of the Court. vi. Receive information from, and confer with, Class Counsel or Lufkin’s counsel regarding Lufkin’s implementation of, and compliance with, this Order and any other subsequent or superseding remedial orders of the Court.
4. Reporting
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a. The Ombudsperson shall report quarterly to the Court with respect to (1) any complaints requiring remedial action and the action taken thereon by Lufkin, and (2) Lufkin’s compliance with the Promotion Procedures set forth in Section I.B. below.
b. Class Counsel and Lufkin’s counsel shall be given a copy of these reports and an opportunity to confer and respond at least five (5) days prior to filing with the Court.
c. The unions’ counsel shall be given a copy of any reports that document promotion-related complaints made by hourly employees.
B. Compliance with Promotion Procedures 1. Lufkin shall comply with the following Promotion Procedures for employees assigned to its facilities in Angelina County, Texas, until further order of the Court as provided in Section III or the expiration of this Injunction. 2. For purposes of this order, a. “Bidder” means an employee who places, and does not withdraw, his or her name on a bid posted pursuant to Article 25, Section 1 of the 20112014 Master Collective Bargaining Agreement and/or any similar provision of any amended or subsequent collective bargaining agreement between Lufkin and its unions (hereafter “Master CBA”). b. “Career Path” means those jobs set forth in Appendix 2. c. “Departmental Seniority” is as defined in the Master CBA, Article 22, Section 1(b). However, employees on the Boilermaker Department who work in the Fabrication Shops at Oilfield and Power Transmission will
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promote from within their respective shops, pursuant to Boilermakers Letter of Stipulation No. 10. d. “Eligible Employee” means: i. For hourly job classifications on the IAM machining seniority
roster and in the IAM Assembly and Distribution career paths on the Assembly and Shipping Department seniority roster, an Eligible Employee is an employee seeking to move: 1) Within the employee’s current career path on a seniority
roster for which the employee has Departmental Seniority into an hourly job classification which has a maximum rate of pay greater than the maximum rate of pay for the employee’s current job classification, unless the employee is exercising his right under Article 25, Section 3(i)(2) to bid on another schedule/shift/crew for the same classification that the employee currently holds and the employee has met the requirements of that section; or 2) Into a different career path than the employee’s current career path for which the employee has Departmental Seniority on the seniority roster for the job classification into which the employee is seeking to move. ii. Subject to Article 25, Section 3, an employee bidding on an IAM job classification will not be Eligible under any of the following circumstances:
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1) The employee submitted a bid for multiple concurrently posted positions and failed to prioritize any of those selections as required;
2) The employee was disqualified from another position within six months of bidding on the job. However, the employee will be eligible to return to their former position, if it has not been filled. Once their pre-bid position becomes available, or another position within the department within which they have previous experience with the Company becomes available, the returning employee will be moved to that position, and the Company will not have to post this specific position. It is recognized that this provision is an exception to the prescriptions for promotions in Sections I.B.3-10. If a position within a returning employees’ previous pre-bid classification becomes available during the disqualification period, the returning employee will be permitted to make a lateral bid to the other shift and take that lateral position if the employee is the successful bidder for that position.
3) The employee was disqualified for the second time from another position within twelve months of bidding on the job. However, the employee will be eligible to return to their former position, if it has not been filled. Once their pre-bid position becomes available, or another position
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within the department within which they have previous experience with the Company becomes available, the returning employee will be moved to that position, and the Company will not have to post this specific position. If a position within a returning employees’ previous pre-bid classification becomes available during the disqualification period, the returning employee will be permitted to make a lateral bid to the other shift and take that lateral position if the employee is the successful bidder for that position. 4) The employee was a successful bidder and was awarded a job, but has been prevented from accepting the job by the Company, unless the employee has been waiting for more than thirty (30) days. iii. An employee bidding on an IAM job classification may not decline that job if it is awarded and may not voluntarily return to the employee’s old classification. iv. In addition to sub-sections (i) (1) and (2) above, an Eligible Employee is an employee in the Machinist or Shaft Finisher job classification who has Departmental Seniority on the seniority roster for the hourly job classification he is seeking and he is exercising his rights under IAM Letter of Stipulation No. 2. v. For hourly job classifications on all seniority rosters other than the IAM machining seniority roster including movements from job classifications in the Assembly or Distribution career paths not
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Case 9:97-cv-00063-RC Document 745 Filed 12/21/11 Page 10 of 50 PageID #: 16903
addressed in subsection (i) above, an Eligible Employee is an employee seeking to move from: 1) An hourly job classification not in a Line of Progression
into an hourly job classification that (a) is on a seniority roster for which the employee has Departmental Seniority or is permitted to bid on pursuant to GMP Letter of Stipulation No. 22 and (b) has a greater maximum rate of pay than the employee’s current hourly job classification; 2) An hourly job classification not in a Line of Progression into an hourly job classification that is in a Line of Progression, that (a) is on a seniority roster for which the employee has Departmental Seniority or is permitted to bid on pursuant to GMP Letter of Stipulation No. 22 and (b) the highest hourly job classification in such Line of Progression, has a greater maximum rate of pay than the employee’s current job classification; 3) An hourly job classification that is in a Line of Progression into an hourly job classification that: (a) is on a seniority roster for which the employee has Departmental Seniority or is permitted to bid on pursuant to GMP Letter of Stipulation No. 22 and (b) has a greater maximum rate of pay than the maximum rate of pay for the highest job classification in the employee’s current Line of Progression; or
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4) An hourly job classification that is in a Line of Progression into an hourly job classification that is in a different Line of Progression (the “Receiving Line of Progression”), that (a) is on a seniority roster for which the employee has Departmental Seniority or is permitted to bid on pursuant to GMP Letter of Stipulation No. 22 and (b) the highest hourly job classification in the Receiving Line of Progression has a greater maximum rate of pay than the maximum rate of pay for the highest hourly job classification in the employee’s current Line of Progression.
vi. In addition to sub-sections (iii) (1) and (2) above, an Eligible Employee is an employee in the Chip-Grind Finish job classification who has Departmental Seniority on the seniority roster for the hourly job classification he is seeking and he is exercising his rights under GMP Letter of Stipulation No. 19.
e. “Line of Progression” means: i. For the Fabrication Department: Fork Lift, and Inspector lines; ii. For the Foundry Department: the Core Machine Operator, Molding Machine Operator, Welder, Electrician, Mechanic (Class B to Master Maintenance Specialist), and Fork Lift lines; and iii. For the Pattern Shop Department: the Pattern Maker and Pattern Tender lines.
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f. “Subordinate Job Classification” means a job classification that an employee is required to hold before promotion to a higher hourly job classification.
3. For promotions to the hourly job classifications set forth in Appendix 3, Lufkin shall offer the promotion to the Eligible Employee Bidder with the highest Departmental Seniority. If that bidder is permitted to decline the promotion, Lufkin shall offer the position to the Eligible Employee Bidder with the next highest Departmental Seniority until all Eligible Employee Bidders have been offered the promotion. If no Eligible Employee Bidder accepts the position, the position may be filled pursuant to the Master CBA. Lufkin shall post the name of the Eligible Employee Bidder who is awarded the promotion on the main bulletin board for the applicable department.
4. For promotions to the hourly job classifications set forth in Appendix 4 and 4a, Lufkin shall offer the promotion to the Eligible Employee Bidder with the highest Departmental Seniority who has passed the applicable test or skill demonstration as set forth in Appendix 4 or as provided for in Section I.C.3. below. If that bidder is permitted to decline the promotion, Lufkin shall offer the position to the Eligible Employee Bidder with the next highest Departmental Seniority who has passed the applicable test or skill demonstration until all Eligible Employee Bidders passing the applicable test or skill demonstration have been offered the promotion. If no Eligible Employee Bidder accepts the position, the position may be filled pursuant to the Master CBA. Lufkin shall post the name of the Eligible Employee Bidder who is awarded the promotion on the main bulletin board for the applicable department.
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5. For promotions to the Crane Operator or Hydraulic Manipulator Operator job classifications in the Foundry Department, Lufkin shall promote the employee in the Learner job classification for the position with the highest Departmental Seniority provided the employee has completed a minimum of ninety (90) days service in the Learner job classification for the position. In order to be promoted to Crane Operator, the employee must also successfully complete the Crane Operator Learner Task Proficiency Check Off list, attached as Exhibit 5. If the employee in the Learner classification for the position does not have the requisite ninety (90) days service in the Learner job classification, Lufkin shall promote the employee in the Learner job classification with the next highest Departmental Seniority who meets the minimum ninety (90) days service in the Learner classification for the position.
6. For promotions to the hourly job classifications set forth in Appendix 6, Lufkin shall offer the promotion to the Eligible Employee Bidder with the highest Departmental Seniority who has at least ninety (90) days service in the Subordinate Job Classification and meets the other criteria as set forth in Appendix 6. If that bidder is permitted to decline the position, Lufkin shall offer the position to the Eligible Employee Bidder with the next highest Departmental Seniority who has at least ninety (90) days service in the Subordinate Job Classification until all Eligible Employee Bidders with ninety (90) days service in the Subordinate Job Classification have been offered the promotion. If no employee in the Subordinate Job Classification has bid for the position or has the requisite length of service, Lufkin may treat the posting as a bid for the Subordinate Job Classification and award the promotion to the Eligible Employee
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Bidder with the highest Departmental Seniority or elect to hire for the position. If Lufkin elects to offer the Subordinate Job Classification to the Eligible Employee Bidder and that bidder declines the position Lufkin shall offer the position to the Eligible Employee Bidder with the next highest Departmental Seniority until all Eligible Employee Bidders have been offered the promotion to the Subordinate Job Classification. If no Eligible Employee Bidder accepts the position, the position may be filled pursuant to the Master CBA consistent with the provisions of this Order. Lufkin shall post the name of the Eligible Employee Bidder who is awarded the promotion on the main bulletin board for the applicable department. 7. For promotions to the Melter A job classification, Lufkin shall promote the employee in the Melter B job classification with the highest Departmental Seniority provided the employee has passed the Melter A test and demonstrated ability as set forth in the Melter A demonstration standards attached as Appendix 7. 8. For promotion to the job classification Machinist (for gear hobs and grinders), as provided in IAM Letter of Stipulation No. 5, Lufkin shall offer the promotion to Sykes generator operators in order of Departmental Seniority and if none accept the promotion shall post and award the position as provided in paragraph 3 above. 9. For promotion to the hourly job classifications set forth in Appendix 8: a. If the Eligible Employee Bidder who is awarded the promotion is moving
in the same career path and his current rate of pay is less than the maximum rate of pay for the Trainee job classification, he shall be classified initially in the Trainee job classification within the career path.
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b. If the Eligible Employee Bidder who is awarded the promotion is moving in the same career path and his current rate of pay is higher than the maximum Trainee job classification rate of pay, he shall be placed in the job classification on which he bid. 2
c. If the Eligible Employee Bidder who is awarded the promotion is moving into a different career path, he will be classified initially in the Trainee classification at the minimum hourly rate for the Trainee classification. 3
d. Lufkin shall post the name of the Eligible Employee Bidder who is awarded the promotion on the main bulletin board for the applicable department.
10. For promotions to the hourly job classifications set forth in Appendix 9, Lufkin shall review and analyze the promotions, including the person who was promoted to the position, all persons offered but declining the position and all other persons qualified for the promotion by race on an annual basis and provide its written assessment and the underlying data used to make its assessment to the Ombudsperson. If the Ombudsperson determines that there is a racially disparate pattern in the promotions adverse to black employees, she shall review the promotion decisions that have been made in light of the requirements of the job and, if warranted, recommend remedial action to Lufkin. If Lufkin declines to
2 For example, an Eligible Employee Bidder classified as a Machine Operator Class C earning $ 14.49 per hour, who in 2009, accepts Lufkin’s offer of a Machine Operator Class A position will initially be classified as a Machine Operator Trainee because the 2009 maximum rate of pay for Machine Operator Trainee is greater than the employee’s current rate of pay. If the Machine Operator Class C was earning $15.88 per hour at the time of his successful 2009 bid, he would be classified as a Machine Operator Class A because his current rate of pay is greater than the current maximum rate of pay for the Machine Operator Trainee classification. 3 For example, an Eligible Employee Bidder who is in a Class II Assembler position at the time he accepts in 2009, Lufkin’s offer of a Machine Operator Class A position will initially be classified as a Machine Operator Trainee and paid $12.19 per hour, which is the 2009 minimum rate of pay for the Trainee classification.
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implement such remedial action, the Ombudsperson shall report his findings, proposed remedial action and Lufkin’s response to the Court, Lufkin and Class Counsel. Lufkin shall retain the right to defend against implementation of the recommended remedial action, including on the ground that the racial disparities found by the Ombudsperson were not statistically significant or, in light of the job’s requirements, valid criteria were used to make the promotion decisions. For purposes of this sub-section “other persons qualified for the promotion” means persons: (a) in the Subordinate Job Classification if the promotion is within a career path or into a specialist or master position or (b) in the Machine Operator A job classification if the promotion is to Machinist. 11. For job classifications in a career path, Lufkin shall retain all records and data necessary to analyze and shall analyze on an annual basis to determine whether there are any racial disparities in (a) the length of time in which discretionary merit and other pay increases are awarded to employees in Trainee classifications, for which such discretionary merit and other pay increases are provided for by the Master CBA and (b) the length of time employees spend in Trainee classifications before they are promoted out the of the classification. Lufkin shall report these analyses to the Ombudsperson. If the Ombudsperson determines that there is a racially disparate pattern with respect either to the time to pay increases or promotion from the trainee classification adverse to black employees, she shall investigate to determine the causes of such disparities and, if warranted, recommend remedial action to Lufkin. If Lufkin declines to implement such remedial action, the Ombudsperson shall report his findings, proposed remedial action and Lufkin’s response to the Court, Lufkin and Class Counsel. Lufkin
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shall retain the right to defend against implementation of the recommended remedial action, including on the ground that the racial disparities found by the Ombudsperson were not statistically significant or valid criteria were used for making the decisions. C. Testing Protocols 1. Lufkin shall comply the testing protocol described in Appendix 10 in its administration of any tests or skill demonstrations it uses for determining promotions to any of the jobs listed in Appendices 4, 5 and 7 or to be developed pursuant to Section I.C.3. below. 2. Lufkin shall analyze the results of each paper and pencil test and skill demonstration it administers by the race of the persons who take, pass and fail the test or skill demonstration and provide its written analysis and the underlying data used to conduct the analysis to the Ombudsperson. If the Ombudsperson determines there is a racially disparate pattern in the passing rate for such test or skill demonstration adverse to black employees, she shall review the job, the test, and the degree of the disparate pattern to determine whether to require Lufkin to validate the test or skill demonstration and if so, recommend such validation, including determining whether there is another suitable test or skill demonstration that has less adverse impact. If Lufkin declines to follow the Ombudsperson’s recommendation, the Ombudsperson shall report his findings, the recommended remedial action and Lufkin’s response to the Court, Lufkin and Class Counsel. Lufkin shall retain the right to defend against implementation of the recommended remedial action, including on the ground that the racial disparities
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found by the Ombudsperson were not statistically significant or that the test or skill demonstration is valid. 3. If during the term of this Order, Lufkin has a need to develop a test or skill demonstration for any of the job classifications listed on Appendix 4a, or any newly established or changed job classifications, Lufkin shall provide copies of the test or outline of the skill demonstration to the Ombudsperson and Class Counsel at least fourteen (14) days prior to Lufkin’s commencement of use of the test or skill demonstration. Class Counsel may provide comments on the test or skill demonstration to the Ombudsperson and Lufkin. D. Manager Training 1. Initial Training a. Within thirty (30) days of the entry of this injunction, Lufkin shall provide
Initial Training to all of its officers, executives, managers and supervisors in Angelina County on the terms of this Injunction including the promotion and testing procedures. b. Lufkin’s counsel or a member of Lufkin’s management who is knowledgeable about this litigation will provide the Initial Training. c. Lufkin shall provide such Initial Training to all new officers, executives, managers and supervisors in Angelina County, who have not previously received the Initial Training, within thirty (30) days of their hire or promotion. 2. Other Manager Training a. Lufkin shall engage the services of Dr. Winfred Arthur to develop and provide live training for its officers, executives, managers and supervisors
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that addresses the Court’s liability findings and reduction of subjectivity in decision making in the workplace. Dr. Arthur shall advise Lufkin on the appropriate specific content of the training and written materials to provide to trainees. Training for officers, executives and managers shall be a one day program and for supervisors a half day program. b. Lufkin shall provide this training within one hundred eighty (180) days of the date of entry of this Order. c. Lufkin shall provide similar training in videotape format to any newly hired or promoted officers, executives, managers and supervisors (who have not previously received the training) within thirty (30) days of their hire or promotion. d. Lufkin shall provide written verification to the Ombudsperson of the completion of the training and that all of its officers, executives, managers and supervisors received such training. E. Recordkeeping 1. Lufkin shall maintain paper and data records that reflect promotion-related decisions including bid sheets, postings and other written communications reflecting employee interest in promotions, forms documenting decisions, structured interview questions and responses, data analyses, paper and pencil tests, records of skill tests, job descriptions for salaried jobs, formal training, and all documentation pertaining to any internal employee complaints, including but not limited to, union grievances, arising from promotion-related decisions and the investigation and resolution of such complaints.
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2. Lufkin shall retain such documents, records and data for the duration of this Order.
F. Annual Executive EEO Updates a. Lufkin’s Internal Monitor will prepare an Annual Executive Report for Lufkin’s executive team. b. For purposes of this Order, Lufkin’s “executive team” means officers of the Company. c. The Annual Executive Report shall contain, as a minimum, summaries of any adverse impact analysis of promotions that has been provided to the Ombudsperson, and any reports provided by the Ombudsperson to the Court. Copies of any analyses or reports referred to in the Annual Executive Report will be attached to the report. d. A copy of this Report shall be concurrently provided to the Ombudsperson, who may submit comments or recommendations based on the Report, in which case such comments or recommendations shall also be provided to, and reviewed by, the executive team.
G. Internal Monitoring 1. Within fourteen (14) days of entry of this Injunction, Lufkin shall designate an Internal Monitor. At the same time, Lufkin shall advise the Court, the Ombudsperson and Class Counsel of the identity of the Internal Monitor. 2. The Internal Monitor shall be responsible for the following: a. Monitoring Lufkin’s compliance with the terms of this Injunction and coordinating with the Court-appointed Ombudsperson.
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b. Monitoring Lufkin’s compliance with the promotion and testing procedures, training procedures, data analyses, recordkeeping and reporting required by this Injunction.
c. Serving as Lufkin’s liaison with the Ombudsperson and responding to any requests for information from the Ombudsperson.
d. Overseeing the preparation of and submitting quarterly reports to the Ombudsperson which will include data on all promotions awarded in the prior quarter. This data will include the name of each person who was promoted, their race, the position from which they were promoted, the position to which they were promoted, as well as the name, race, and classification of each unsuccessful candidate for the promotion.
e. Conducting an adverse impact analysis of Lufkin’s promotion data every six months to determine if there are any statistically significant shortfalls in promotions of black employees not the product of a bona fide seniority system.
f. Reporting to Lufkin’s Chief Executive Officer and senior management staff regarding Lufkin’s implementation of, and compliance with, the Court’s remedial orders and concurrently sending a copy of such report to the Ombudsperson.
g. Conducting and reporting to the Ombudsperson the annual analyses required under Sections I.B.10. and 11. and I.C.2. of this Order.
h. Preparing the Annual Executive Report required under Section II.F. of this Order.
H. Communications
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1. Lufkin shall provide a copy of this Injunction to all officers, executives, supervisors and managers as part of the Initial Training required under Section I.D.1. of this Order. Lufkin shall also provide copies of any subsequent remedial orders of the Court modifying or amending this Order to its officers, executives, supervisors and managers, and to the unions.
2. Within fourteen (14) days of the entry of this Injunction, Lufkin shall provide to all employees a copy of the notice attached as Appendix 1 which summarizes the terms of this injunction and identifies the Ombudsperson, explains his role, and provides a phone number and other contact information for him. II. Jurisdiction
This Court specifically retains jurisdiction to enforce this permanent injunction. III. Modification of this Order
In the event that changed or other circumstances make a modification of this Order necessary to ensure its purposes are fully effectuated, the parties shall attempt in good faith to reach agreement on such modification suitably tailored to the changed or other circumstance, including by conferring with one another and the Ombudsperson, and submit the modification to the Court by stipulation. If the parties are not able to reach such agreement, any party may move the Court to modify the Order.
IV. Term of this Order This Order shall remain in effect for five (5) years from the date December 18, 2009, when the Court first entered this Injunction.
So ORDERED and SIGNED this 21 day of December, 2011.
___________________________________ Ron Clark, United States District Judge
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 Case 9:97-cv-00063-RC Document 761 Filed 12/19/12 Page 1 of 53 PageID #: 17185

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION

SYLVESTER MCCLAIN, on his own

§

behalf and on behalf of a class of similarly §

situated persons, et al.,

§

§

Plaintiffs,

§

vs.

§

§

LUFKIN INDUSTRIES,

§

§

Defendant.

§

CIVIL ACTION NO. 9:97-CV-063 JUDGE CLARK

THIRD AMENDED INJUNCTION The Fifth Circuit, in vacating the Court’s earlier injunction, remanded to this Court “to craft an adequate remedial order that will eliminate discrimination without hobbling Lufkin’s legitimate promotion policies.” McClain v. Lufkin Industries, Inc., 519 F.3d 264, 284 (5th Cir. 2008). The Court of Appeals left to this Court “the task of reviewing afresh the propriety of the injunction, and if it is found necessary, of balancing plaintiffs’ requests for stronger measures to ensure Lufkin’s compliance with the imprecision of the liability finding.” Id. In carrying out the Fifth Circuit’s mandate, the Court has held multiple status conferences with the parties in an attempt to narrow the disputed issues and identify areas of agreement. In addition, subject to and without waiver of the parties’ rights to appeal, the parties have reached agreements, incorporated into stipulations, on certain other issues related to the scope and terms of injunctive relief.1

1 The Court’s Injunction [Doc #683] entered on December 18, 2009, provides that, after conferring with one another and the Ombudsperson, the parties may submit to the court agreed upon modifications to the Injunction by stipulation. On November 7, 2011, the parties submitted a joint stipulation regarding modification of the injunction [Doc. #737]. Those changes were reflected in the Amend Injunction. [Doc. #745]. On April 25, 2012, the parties submitted a second joint stipulation [Doc. #750] which was reflected in the Second Amended Injunction (Doc.

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In this Order, the Court (1) incorporates and combines the parties’ stipulations, so that all issues previously resolved or determined are set forth in this Order, (2) provides for the specific injunctive relief to be implemented by Defendant Lufkin Industries, Inc. (“Lufkin” or “Defendant”) and (3) provides for the procedures and methods by which this Injunction shall be implemented, monitored and enforced.
Therefore, pursuant to Federal Rules of Civil Procedure 65, the Court enters this permanent injunction to partially remedy the discrimination found by Judge Cobb, and affirmed by the Fifth Circuit, towards black employees when determining promotions for hourly and salaried positions. It is therefore ORDERED as follows:
I. Injunctive Provisions A. Ombudsperson
1. Appointment of Ombudsperson a. The Court appoints Tony P. Rosenstein to serve as an outside Ombudsperson to monitor compliance with this Injunction and to hear complaints from class members regarding matters described in Section I.A.2.a. below. Mr. Rosenstein has read and signed the attached Scope and Limits of Appointment as Ombudsperson. The Court is satisfied that his appointment will adequately safeguard the judicial process. b. Lufkin shall be responsible for the prompt payment of reasonable fees and expenses the Ombudsperson incurs in connection with his duties and responsibilities under this Order. The Ombudsperson shall provide an
#754]. On August 30, 2012, the Parties submitted a Third Joint Stipulation [Doc. # 758] requesting that the injunction be modified in two respects: (1) Class II Assemblers will be allowed to bid on Inspector jobs through October 2, 2014; and (2) Class I Assemblers will no longer be classified as Appendix 9 jobs. Instead, for promotions to Class I Assembler, Lufkin shall offer training opportunities for promotion to Class II Assemblers in seniority Order.
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invoice detailing his time spent and expenses incurred to Lufkin with each request for payment. 2. Duties and Responsibilities of the Ombudsperson a. Complaint Investigation i. The Ombudsperson shall have the authority to receive, investigate,
provisionally determine and recommend measures to resolve the following types of complaints: (1) complaints from Lufkin employees regarding Lufkin’s non-compliance with this injunction, (2) complaints from black employees regarding promotion and promotion related discrimination, and (3) complaints of retaliation from employees who allege that they have been retaliated against for making a complaint regarding noncompliance with a specific mandate of this injunction or a promotion-related matter to the Ombudsperson, Lufkin or one of the unions representing Lufkin’s employees. ii. Lufkin and its officers, agents, managers and supervisors shall not engage in or be a party to any act, policy, practice or procedure that discriminates or retaliates against (1) any employee of Lufkin who, in good faith, contacts the Ombudsperson regarding Lufkin’s alleged non-compliance with this injunction; (2) any black employee who, in good faith, contacts the Ombudsperson with regard to alleged promotion and promotion related discrimination; and (3) anyone who, in good faith, contacts the Ombudsperson
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regarding complaints of alleged retaliation for making a complaint regarding non-compliance with a specific mandate of this injunction or a promotion-related matter to the Ombudsperson, Lufkin or one of the unions representing Lufkin’s hourly employees. iii. In giving the Ombudsperson this authority, the Court does not intend for him to displace the unions’ statutory obligation to represent Lufkin’s hourly employees or to provide a substitute for the grievance processes set forth in the collective bargaining agreement. iv. Lufkin shall provide to its employees in writing a toll free number that employees can use to contact the Ombudsperson and other information as provided for in Section I.H.2. below and in Appendix 1 to this Order. v. In order to investigate any complaint, the Ombudsperson shall have the authority to conduct additional fact finding which may include requesting documents or other information from Lufkin and interviewing employees, supervisors or other Lufkin personnel. The Ombudsperson shall also have the authority to take such actions as appropriate to assist the resolution of the complaint, including recommending appropriate corrective action to Lufkin. If the Ombudsperson concludes after investigation that Lufkin has not complied with the injunction or has engaged in
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promotion related discrimination or retaliation, the Ombudsperson shall request that Lufkin take recommended remedial action and in the absence of such action report the matter to the Court and Class Counsel. 3. Monitoring a. The Ombudsperson shall be responsible for monitoring Lufkin’s implementation of, and compliance with, this Order and any other subsequent or superseding remedial orders of the Court. In connection with this responsibility, the Ombudsperson shall have the authority to: i. Review any documents maintained by Lufkin as described in Section I.E. below; ii. Audit Lufkin’s promotion procedures, practices and relateddecisions; iii. Conduct independent analyses of data related to Lufkin’s promotion procedures, practices and related-decisions; iv. Request additional information and data from Lufkin in order to carry out his audit and/or independent analyses of Lufkin’s promotion procedures, practices and related-decisions. v. Confer with Lufkin’s Internal Monitor selected pursuant to Section II.G. below, and other Lufkin managers for the purpose of reviewing with them Lufkin’s implementation of, and compliance with, this Order and any other subsequent or superseding remedial orders of the Court.
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vi. Receive information from, and confer with, Class Counsel or Lufkin’s counsel regarding Lufkin’s implementation of, and compliance with, this Order and any other subsequent or superseding remedial orders of the Court.
4. Reporting a. The Ombudsperson shall report quarterly to the Court with respect to (1) any complaints requiring remedial action and the action taken thereon by Lufkin, and (2) Lufkin’s compliance with the Promotion Procedures set forth in Section I.B. below. b. Class Counsel and Lufkin’s counsel shall be given a copy of these reports and an opportunity to confer and respond at least five (5) days prior to filing with the Court. c. The unions’ counsel shall be given a copy of any reports that document promotion-related complaints made by hourly employees.
B. Compliance with Promotion Procedures 1. Lufkin shall comply with the following Promotion Procedures for employees assigned to its facilities in Angelina County, Texas, until further order of the Court as provided in Section III or the expiration of this Injunction. 2. For purposes of this order, a. “Bidder” means an employee who places, and does not withdraw, his or her name on a bid posted pursuant to Article 25, Section 1 of the 20112014 Master Collective Bargaining Agreement and/or any similar provision of any amended or subsequent collective bargaining agreement between Lufkin and its unions (hereafter “Master CBA”). -6-

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b. “Career Path” means those jobs set forth in Appendix 2. c. “Departmental Seniority” is as defined in the Master CBA, Article 22,
Section 1(b). However, employees on the Boilermaker Department who work in the Fabrication Shops at Oilfield and Power Transmission will promote from within their respective shops, pursuant to Boilermakers Letter of Stipulation No. 10. d. “Eligible Employee” means: i. For hourly job classifications on the IAM machining seniority
roster and in the IAM Assembly and Distribution career paths on the Assembly and Shipping Department seniority roster, an Eligible Employee is an employee seeking to move: 1) Within the employee’s current career path on a seniority
roster for which the employee has Departmental Seniority into an hourly job classification which has a maximum rate of pay greater than the maximum rate of pay for the employee’s current job classification, unless the employee is exercising his right under Article 25, Section 3(i)(2) to bid on another schedule/shift/crew for the same classification that the employee currently holds and the employee has met the requirements of that section; or 2) Into a different career path than the employee’s current career path for which the employee has Departmental
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Seniority on the seniority roster for the job classification into which the employee is seeking to move. ii. Subject to Article 25, Section 3, an employee bidding on an IAM job classification will not be Eligible under any of the following circumstances: 1) The employee submitted a bid for multiple concurrently posted positions and failed to prioritize any of those selections as required; 2) The employee was disqualified from another position within six months of bidding on the job. However, the employee will be eligible to return to their former position, if it has not been filled. Once their pre-bid position becomes available, or another position within the department within which they have previous experience with the Company becomes available, the returning employee will be moved to that position, and the Company will not have to post this specific position. It is recognized that this provision is an exception to the prescriptions for promotions in Sections I.B.3-10. If a position within a returning employees’ previous pre-bid classification becomes available during the disqualification period, the returning employee will be permitted to make a lateral bid
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to the other shift and take that lateral position if the employee is the successful bidder for that position. 3) The employee was disqualified for the second time from another position within twelve months of bidding on the job. However, the employee will be eligible to return to their former position, if it has not been filled. Once their pre-bid position becomes available, or another position within the department within which they have previous experience with the Company becomes available, the returning employee will be moved to that position, and the Company will not have to post this specific position. If a position within a returning employees’ previous pre-bid classification becomes available during the disqualification period, the returning employee will be permitted to make a lateral bid to the other shift and take that lateral position if the employee is the successful bidder for that position. 4) The employee was a successful bidder and was awarded a job, but has been prevented from accepting the job by the Company, unless the employee has been waiting for more than thirty (30) days. iii. An employee bidding on an IAM job classification may not decline that job if it is awarded and may not voluntarily return to the employee’s old classification.
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iv. In addition to sub-sections (i) (1) and (2) above, an Eligible Employee is an employee in the Machinist or Shaft Finisher job classification who has Departmental Seniority on the seniority roster for the hourly job classification he is seeking and he is exercising his rights under IAM Letter of Stipulation No. 2.
v. For hourly job classifications on all seniority rosters other than the IAM machining seniority roster including movements from job classifications in the Assembly or Distribution career paths not addressed in subsection (i) above, an Eligible Employee is an employee seeking to move from: 1) An hourly job classification not in a Line of Progression into an hourly job classification that (a) is on a seniority roster for which the employee has Departmental Seniority or is permitted to bid on pursuant to GMP Letter of Stipulation No. 22 and (b) has a greater maximum rate of pay than the employee’s current hourly job classification; 2) An hourly job classification not in a Line of Progression into an hourly job classification that is in a Line of Progression, that (a) is on a seniority roster for which the employee has Departmental Seniority or is permitted to bid on pursuant to GMP Letter of Stipulation No. 22 and (b) the highest hourly job classification in such Line of
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Progression, has a greater maximum rate of pay than the employee’s current job classification; 3) An hourly job classification that is in a Line of Progression into an hourly job classification that: (a) is on a seniority roster for which the employee has Departmental Seniority or is permitted to bid on pursuant to GMP Letter of Stipulation No. 22 and (b) has a greater maximum rate of pay than the maximum rate of pay for the highest job classification in the employee’s current Line of Progression;2 or 4) An hourly job classification that is in a Line of Progression into an hourly job classification that is in a different Line of Progression (the “Receiving Line of Progression”), that (a) is on a seniority roster for which the employee has Departmental Seniority or is permitted to bid on pursuant to GMP Letter of Stipulation No. 22 and (b) the highest hourly job classification in the Receiving Line of Progression has a greater maximum rate of pay than the maximum rate of pay for the highest hourly job classification in the employee’s current Line of Progression.
2 Notwithstanding this provision, a Class II Assembler is eligible to sign a bid for an Inspector job in the Final Assembly and Shipping Department through October 2, 2014.
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vi. In addition to sub-sections (iii) (1) and (2) above, an Eligible Employee is an employee in the Chip-Grind Finish job classification who has Departmental Seniority on the seniority roster for the hourly job classification he is seeking and he is exercising his rights under GMP Letter of Stipulation No. 19.
e. “Line of Progression” means: i. For the Fabrication Department: Fork Lift, and Inspector lines; ii. For the Foundry Department: the Core Machine Operator, Molding Machine Operator, Welder, Electrician, Mechanic (Class B to Master Maintenance Specialist), and Fork Lift lines; and iii. For the Pattern Shop Department: the Pattern Maker and Pattern Tender lines.
f. “Subordinate Job Classification” means a job classification that an employee is required to hold before promotion to a higher hourly job classification.
3. For promotions to the hourly job classifications set forth in Appendix 3, Lufkin shall offer the promotion to the Eligible Employee Bidder with the highest Departmental Seniority. If that bidder is permitted to decline the promotion, Lufkin shall offer the position to the Eligible Employee Bidder with the next highest Departmental Seniority until all Eligible Employee Bidders have been offered the promotion. If no Eligible Employee Bidder accepts the position, the position may be filled pursuant to the Master CBA. Lufkin shall post the name of
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the Eligible Employee Bidder who is awarded the promotion on the main bulletin board for the applicable department. 4. For promotions to the hourly job classifications set forth in Appendix 4 and 4a, Lufkin shall offer the promotion to the Eligible Employee Bidder with the highest Departmental Seniority who has passed the applicable test or skill demonstration as set forth in Appendix 4 or as provided for in Section I.C.3. below. If that bidder is permitted to decline the promotion, Lufkin shall offer the position to the Eligible Employee Bidder with the next highest Departmental Seniority who has passed the applicable test or skill demonstration until all Eligible Employee Bidders passing the applicable test or skill demonstration have been offered the promotion. If no Eligible Employee Bidder accepts the position, the position may be filled pursuant to the Master CBA. Lufkin shall post the name of the Eligible Employee Bidder who is awarded the promotion on the main bulletin board for the applicable department. 5. For promotions to the Crane Operator or Hydraulic Manipulator Operator job classifications in the Foundry Department, Lufkin shall promote the employee in the Learner job classification for the position with the highest Departmental Seniority provided the employee has completed a minimum of ninety (90) days service in the Learner job classification for the position. In order to be promoted to Crane Operator, the employee must also successfully complete the Crane Operator Learner Task Proficiency Check Off list, attached as Exhibit 5. If the employee in the Learner classification for the position does not have the requisite ninety (90) days service in the Learner job classification, Lufkin shall promote the
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employee in the Learner job classification with the next highest Departmental Seniority who meets the minimum ninety (90) days service in the Learner classification for the position. 6. For promotions to the hourly job classifications set forth in Appendix 6, Lufkin shall offer the promotion to the Eligible Employee Bidder with the highest Departmental Seniority who has at least ninety (90) days service in the Subordinate Job Classification and meets the other criteria as set forth in Appendix 6. If that bidder is permitted to decline the position, Lufkin shall offer the position to the Eligible Employee Bidder with the next highest Departmental Seniority who has at least ninety (90) days service in the Subordinate Job Classification until all Eligible Employee Bidders with ninety (90) days service in the Subordinate Job Classification have been offered the promotion. If no employee in the Subordinate Job Classification has bid for the position or has the requisite length of service, Lufkin may treat the posting as a bid for the Subordinate Job Classification and award the promotion to the Eligible Employee Bidder with the highest Departmental Seniority or elect to hire for the position. If Lufkin elects to offer the Subordinate Job Classification to the Eligible Employee Bidder and that bidder declines the position Lufkin shall offer the position to the Eligible Employee Bidder with the next highest Departmental Seniority until all Eligible Employee Bidders have been offered the promotion to the Subordinate Job Classification. If no Eligible Employee Bidder accepts the position, the position may be filled pursuant to the Master CBA consistent with the provisions of this Order. Lufkin shall post the name of the Eligible Employee
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Bidder who is awarded the promotion on the main bulletin board for the applicable department. 7. For promotions to the Melter A job classification, Lufkin shall promote the employee in the Melter B job classification with the highest Departmental Seniority provided the employee has passed the Melter A test and demonstrated ability as set forth in the Melter A demonstration standards attached as Appendix 7. 8. For promotion to the job classification Machinist (for gear hobs and grinders), as provided in IAM Letter of Stipulation No. 5, Lufkin shall offer the promotion to Sykes generator operators in order of Departmental Seniority and if none accept the promotion shall post and award the position as provided in paragraph 3 above. 9. For promotion to the hourly job classifications set forth in Appendix 8: a. If the Eligible Employee Bidder who is awarded the promotion is moving
in the same career path and his current rate of pay is less than the maximum rate of pay for the Trainee job classification, he shall be classified initially in the Trainee job classification within the career path. b. If the Eligible Employee Bidder who is awarded the promotion is moving in the same career path and his current rate of pay is higher than the maximum Trainee job classification rate of pay, he shall be placed in the job classification on which he bid. 3
3 For example, an Eligible Employee Bidder classified as a Machine Operator Class C earning $ 14.49 per hour, who in 2009, accepts Lufkin’s offer of a Machine Operator Class A position will initially be classified as a Machine Operator Trainee because the 2009 maximum rate of pay for Machine Operator Trainee is greater than the employee’s current rate of pay. If the Machine Operator Class C was earning $15.88 per hour at the time of his successful 2009 bid, he would be classified as a Machine Operator Class A because his current rate of pay is greater than the current maximum rate of pay for the Machine Operator Trainee classification.
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c. If the Eligible Employee Bidder who is awarded the promotion is moving into a different career path, he will be classified initially in the Trainee classification at the minimum hourly rate for the Trainee classification. 4
d. Lufkin shall post the name of the Eligible Employee Bidder who is awarded the promotion on the main bulletin board for the applicable department.
10. For promotions to Class I Assembler, Lufkin shall offer training opportunities for promotion to the position to eligible Class II Assemblers in seniority order. A Class II Assembler will be deemed eligible for a training opportunity if the employee has attained 3 years classification seniority, i.e., three years in the Class II Assembler position, although the Company may waive the 3 year requirement in the event that there are no employees in the Class II Assembler position who meet that requirement, provided that the Company offers training opportunities in order of seniority to employees in the Class II Assembler position. An employee will be given up to 60 days to complete the training program. If the candidate does not successfully complete the training program, they will remain as Class II assemblers, and will not be reconsidered for an Assembler Class I position for up to six months from the date he or she is determined not to have successfully completed the training program. For each opening of a Class I Assembler position, Lufkin will document and report to the Ombudsperson and Plaintiffs the race and classification seniority date of: (a) all employees then in the Class II Assembler position, (b) the person(s) selected for the Class I Assembler training
4 For example, an Eligible Employee Bidder who is in a Class II Assembler position at the time he accepts in 2009, Lufkin’s offer of a Machine Operator Class A position will initially be classified as a Machine Operator Trainee and
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program, and (c) any person selected to train for the job who is ultimately not successful.” 11. For promotions to the hourly job classifications set forth in Appendix 9, Lufkin shall review and analyze the promotions, including the person who was promoted to the position, all persons offered but declining the position and all other persons qualified for the promotion by race on an annual basis and provide its written assessment and the underlying data used to make its assessment to the Ombudsperson. If the Ombudsperson determines that there is a racially disparate pattern in the promotions adverse to black employees, she shall review the promotion decisions that have been made in light of the requirements of the job and, if warranted, recommend remedial action to Lufkin. If Lufkin declines to implement such remedial action, the Ombudsperson shall report his findings, proposed remedial action and Lufkin’s response to the Court, Lufkin and Class Counsel. Lufkin shall retain the right to defend against implementation of the recommended remedial action, including on the ground that the racial disparities found by the Ombudsperson were not statistically significant or, in light of the job’s requirements, valid criteria were used to make the promotion decisions. For purposes of this sub-section “other persons qualified for the promotion” means persons: (a) in the Subordinate Job Classification if the promotion is within a career path or into a specialist or master position or (b) in the Machine Operator A job classification if the promotion is to Machinist. 12. For job classifications in a career path, Lufkin shall retain all records and data necessary to analyze and shall analyze on an annual basis to determine whether
paid $12.19 per hour, which is the 2009 minimum rate of pay for the Trainee classification.
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there are any racial disparities in (a) the length of time in which discretionary merit and other pay increases are awarded to employees in Trainee classifications, for which such discretionary merit and other pay increases are provided for by the Master CBA and (b) the length of time employees spend in Trainee classifications before they are promoted out the of the classification. Lufkin shall report these analyses to the Ombudsperson. If the Ombudsperson determines that there is a racially disparate pattern with respect either to the time to pay increases or promotion from the trainee classification adverse to black employees, she shall investigate to determine the causes of such disparities and, if warranted, recommend remedial action to Lufkin. If Lufkin declines to implement such remedial action, the Ombudsperson shall report his findings, proposed remedial action and Lufkin’s response to the Court, Lufkin and Class Counsel. Lufkin shall retain the right to defend against implementation of the recommended remedial action, including on the ground that the racial disparities found by the Ombudsperson were not statistically significant or valid criteria were used for making the decisions. C. Testing Protocols 1. Lufkin shall comply the testing protocol described in Appendix 10 in its administration of any tests or skill demonstrations it uses for determining promotions to any of the jobs listed in Appendices 4, 5 and 7 or to be developed pursuant to Section I.C.3. below. 2. Lufkin shall analyze the results of each paper and pencil test and skill demonstration it administers by the race of the persons who take, pass and fail the test or skill demonstration and provide its written analysis and the underlying data
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used to conduct the analysis to the Ombudsperson. If the Ombudsperson determines there is a racially disparate pattern in the passing rate for such test or skill demonstration adverse to black employees, she shall review the job, the test, and the degree of the disparate pattern to determine whether to require Lufkin to validate the test or skill demonstration and if so, recommend such validation, including determining whether there is another suitable test or skill demonstration that has less adverse impact. If Lufkin declines to follow the Ombudsperson’s recommendation, the Ombudsperson shall report his findings, the recommended remedial action and Lufkin’s response to the Court, Lufkin and Class Counsel. Lufkin shall retain the right to defend against implementation of the recommended remedial action, including on the ground that the racial disparities found by the Ombudsperson were not statistically significant or that the test or skill demonstration is valid. 3. If during the term of this Order, Lufkin has a need to develop a test or skill demonstration for any of the job classifications listed on Appendix 4a, or any newly established or changed job classifications, Lufkin shall provide copies of the test or outline of the skill demonstration to the Ombudsperson and Class Counsel at least fourteen (14) days prior to Lufkin’s commencement of use of the test or skill demonstration. Class Counsel may provide comments on the test or skill demonstration to the Ombudsperson and Lufkin. D. Manager Training 1. Initial Training a. Within thirty (30) days of the entry of this injunction, Lufkin shall provide
Initial Training to all of its officers, executives, managers and supervisors -19-

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in Angelina County on the terms of this Injunction including the promotion and testing procedures. b. Lufkin’s counsel or a member of Lufkin’s management who is knowledgeable about this litigation will provide the Initial Training. c. Lufkin shall provide such Initial Training to all new officers, executives, managers and supervisors in Angelina County, who have not previously received the Initial Training, within thirty (30) days of their hire or promotion. 2. Other Manager Training a. Lufkin shall engage the services of Dr. Winfred Arthur to develop and provide live training for its officers, executives, managers and supervisors that addresses the Court’s liability findings and reduction of subjectivity in decision making in the workplace. Dr. Arthur shall advise Lufkin on the appropriate specific content of the training and written materials to provide to trainees. Training for officers, executives and managers shall be a one day program and for supervisors a half day program. b. Lufkin shall provide this training within one hundred eighty (180) days of the date of entry of this Order. c. Lufkin shall provide similar training in videotape format to any newly hired or promoted officers, executives, managers and supervisors (who have not previously received the training) within thirty (30) days of their hire or promotion.
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d. Lufkin shall provide written verification to the Ombudsperson of the completion of the training and that all of its officers, executives, managers and supervisors received such training.
E. Recordkeeping 1. Lufkin shall maintain paper and data records that reflect promotion-related decisions including bid sheets, postings and other written communications reflecting employee interest in promotions, forms documenting decisions, structured interview questions and responses, data analyses, paper and pencil tests, records of skill tests, job descriptions for salaried jobs, formal training, and all documentation pertaining to any internal employee complaints, including but not limited to, union grievances, arising from promotion-related decisions and the investigation and resolution of such complaints. 2. Lufkin shall retain such documents, records and data for the duration of this Order.
F. Annual Executive EEO Updates a. Lufkin’s Internal Monitor will prepare an Annual Executive Report for Lufkin’s executive team. b. For purposes of this Order, Lufkin’s “executive team” means officers of the Company. c. The Annual Executive Report shall contain, as a minimum, summaries of any adverse impact analysis of promotions that has been provided to the Ombudsperson, and any reports provided by the Ombudsperson to the Court. Copies of any analyses or reports referred to in the Annual Executive Report will be attached to the report. -21-

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d. A copy of this Report shall be concurrently provided to the Ombudsperson, who may submit comments or recommendations based on the Report, in which case such comments or recommendations shall also be provided to, and reviewed by, the executive team.
G. Internal Monitoring 1. Within fourteen (14) days of entry of this Injunction, Lufkin shall designate an Internal Monitor. At the same time, Lufkin shall advise the Court, the Ombudsperson and Class Counsel of the identity of the Internal Monitor. 2. The Internal Monitor shall be responsible for the following: a. Monitoring Lufkin’s compliance with the terms of this Injunction and coordinating with the Court-appointed Ombudsperson. b. Monitoring Lufkin’s compliance with the promotion and testing procedures, training procedures, data analyses, recordkeeping and reporting required by this Injunction. c. Serving as Lufkin’s liaison with the Ombudsperson and responding to any requests for information from the Ombudsperson. d. Overseeing the preparation of and submitting quarterly reports to the Ombudsperson which will include data on all promotions awarded in the prior quarter. This data will include the name of each person who was promoted, their race, the position from which they were promoted, the position to which they were promoted, as well as the name, race, and classification of each unsuccessful candidate for the promotion. e. Conducting an adverse impact analysis of Lufkin’s promotion data every six months to determine if there are any statistically significant shortfalls -22-

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in promotions of black employees not the product of a bona fide seniority system. f. Reporting to Lufkin’s Chief Executive Officer and senior management staff regarding Lufkin’s implementation of, and compliance with, the Court’s remedial orders and concurrently sending a copy of such report to the Ombudsperson. g. Conducting and reporting to the Ombudsperson the annual analyses required under Sections I.B.10. and 11. and I.C.2. of this Order. h. Preparing the Annual Executive Report required under Section II.F. of this Order. H. Communications 1. Lufkin shall provide a copy of this Injunction to all officers, executives, supervisors and managers as part of the Initial Training required under Section I.D.1. of this Order. Lufkin shall also provide copies of any subsequent remedial orders of the Court modifying or amending this Order to its officers, executives, supervisors and managers, and to the unions. 2. Within fourteen (14) days of the entry of this Injunction, Lufkin shall provide to all employees a copy of the notice attached as Appendix 1 which summarizes the terms of this injunction and identifies the Ombudsperson, explains his role, and provides a phone number and other contact information for him.
II. Jurisdiction This Court specifically retains jurisdiction to enforce this permanent injunction.
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Case 9:97-cv-00063-RC Document 761 Filed 12/19/12 Page 24 of 53 PageID #: 17208 III. Modification of this Order
In the event that changed or other circumstances make a modification of this Order necessary to ensure its purposes are fully effectuated, the parties shall attempt in good faith to reach agreement on such modification suitably tailored to the changed or other circumstance, including by conferring with one another and the Ombudsperson, and submit the modification to the Court by stipulation. If the parties are not able to reach such agreement, any party may move the Court to modify the Order.
IV. Term of this Order This Order shall remain in effect for five (5) years from the date December 18, 2009, when the Court first entered this Injunction.
So ORDERED and SIGNED this 19 day of December, 2012.
___________________________________ Ron Clark, United States District Judge
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 Case 9:97-cv-00063-RC Document 767 Filed 07/17/13 Page 1 of 54 PageID #: 17341

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION

SYLVESTER MCCLAIN, on his own

§

behalf and on behalf of a class of similarly §

situated persons, et al.,

§

§

Plaintiffs,

§

vs.

§

§

LUFKIN INDUSTRIES,

§

§

Defendant.

§

CIVIL ACTION NO. 9:97-CV-063 JUDGE CLARK

FOURTH AMENDED INJUNCTION The Fifth Circuit, in vacating the Court’s earlier injunction, remanded to this Court “to craft an adequate remedial order that will eliminate discrimination without hobbling Lufkin’s legitimate promotion policies.” McClain v. Lufkin Industries, Inc., 519 F.3d 264, 284 (5th Cir. 2008). The Court of Appeals left to this Court “the task of reviewing afresh the propriety of the injunction, and if it is found necessary, of balancing plaintiffs’ requests for stronger measures to ensure Lufkin’s compliance with the imprecision of the liability finding.” Id. In carrying out the Fifth Circuit’s mandate, the Court has held multiple status conferences with the parties in an attempt to narrow the disputed issues and identify areas of agreement. In addition, subject to and without waiver of the parties’ rights to appeal, the parties have reached agreements, incorporated into stipulations, on certain other issues related to the scope and terms of injunctive relief.1

1 The Court’s Injunction [Doc #683] entered on December 18, 2009, provides that, after conferring with one another and the Ombudsperson, the parties may submit to the court agreed upon modifications to the Injunction by stipulation. On November 7, 2011, the parties submitted a joint stipulation regarding modification of the injunction [Doc. #737]. Those changes were reflected in the Amend Injunction. [Doc. #745]. On April 25, 2012, the parties submitted a second joint stipulation [Doc. #750] which was reflected in the Second Amended Injunction (Doc.

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In this Order, the Court (1) incorporates and combines the parties’ stipulations, so that all issues previously resolved or determined are set forth in this Order, (2) provides for the specific injunctive relief to be implemented by Defendant Lufkin Industries, Inc. (“Lufkin” or “Defendant”) and (3) provides for the procedures and methods by which this Injunction shall be implemented, monitored and enforced.
Therefore, pursuant to Federal Rules of Civil Procedure 65, the Court enters this permanent injunction to partially remedy the discrimination found by Judge Cobb, and affirmed by the Fifth Circuit, towards black employees when determining promotions for hourly and salaried positions. It is therefore ORDERED as follows:
I. Injunctive Provisions A. Ombudsperson
1. Appointment of Ombudsperson a. The Court appoints Tony P. Rosenstein to serve as an outside Ombudsperson to monitor compliance with this Injunction and to hear complaints from class members regarding matters described in Section I.A.2.a. below. Mr. Rosenstein has read and signed the attached Scope and Limits of Appointment as Ombudsperson. The Court is satisfied that his appointment will adequately safeguard the judicial process.
#754]. On August 30, 2012, the Parties submitted a Third Joint Stipulation [Doc. # 758] requesting that the injunction be modified in two respects: (1) Class II Assemblers will be allowed to bid on Inspector jobs through October 2, 2014; and (2) Class I Assemblers will no longer be classified as Appendix 9 jobs. Instead, for promotions to Class I Assembler, Lufkin shall offer training opportunities for promotion to Class II Assemblers in seniority Order. On July 3, 2013, the Parties submitted a Fourth Joint Stipulation requesting that the Injunction be modified in three respects: (1) Maintenance Mechanic Class B be reclassified as an Appendix 9 job; (2) Incumbent Inspectors may request to take tests to qualify as an Inspector Specialist without signing a bid sheet; and (3) the Testing Protocol be amended to allow employees who fail the Inspector Specialist test to take the test before six months under certain circumstances. [Doc. # 766]. This Fourth Amended Injunction incorporates those changes.
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b. Lufkin shall be responsible for the prompt payment of reasonable fees and expenses the Ombudsperson incurs in connection with his duties and responsibilities under this Order. The Ombudsperson shall provide an invoice detailing his time spent and expenses incurred to Lufkin with each request for payment.
2. Duties and Responsibilities of the Ombudsperson a. Complaint Investigation i. The Ombudsperson shall have the authority to receive, investigate, provisionally determine and recommend measures to resolve the following types of complaints: (1) complaints from Lufkin employees regarding Lufkin’s non-compliance with this injunction, (2) complaints from black employees regarding promotion and promotion related discrimination, and (3) complaints of retaliation from employees who allege that they have been retaliated against for making a complaint regarding noncompliance with a specific mandate of this injunction or a promotion-related matter to the Ombudsperson, Lufkin or one of the unions representing Lufkin’s employees. ii. Lufkin and its officers, agents, managers and supervisors shall not engage in or be a party to any act, policy, practice or procedure that discriminates or retaliates against (1) any employee of Lufkin who, in good faith, contacts the Ombudsperson regarding Lufkin’s alleged non-compliance with this injunction; (2) any black
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employee who, in good faith, contacts the Ombudsperson with regard to alleged promotion and promotion related discrimination; and (3) anyone who, in good faith, contacts the Ombudsperson regarding complaints of alleged retaliation for making a complaint regarding non-compliance with a specific mandate of this injunction or a promotion-related matter to the Ombudsperson, Lufkin or one of the unions representing Lufkin’s hourly employees. iii. In giving the Ombudsperson this authority, the Court does not intend for him to displace the unions’ statutory obligation to represent Lufkin’s hourly employees or to provide a substitute for the grievance processes set forth in the collective bargaining agreement. iv. Lufkin shall provide to its employees in writing a toll free number that employees can use to contact the Ombudsperson and other information as provided for in Section I.H.2. below and in Appendix 1 to this Order. v. In order to investigate any complaint, the Ombudsperson shall have the authority to conduct additional fact finding which may include requesting documents or other information from Lufkin and interviewing employees, supervisors or other Lufkin personnel. The Ombudsperson shall also have the authority to take such actions as appropriate to assist the resolution of the
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complaint, including recommending appropriate corrective action to Lufkin. If the Ombudsperson concludes after investigation that Lufkin has not complied with the injunction or has engaged in promotion related discrimination or retaliation, the Ombudsperson shall request that Lufkin take recommended remedial action and in the absence of such action report the matter to the Court and Class Counsel. 3. Monitoring a. The Ombudsperson shall be responsible for monitoring Lufkin’s implementation of, and compliance with, this Order and any other subsequent or superseding remedial orders of the Court. In connection with this responsibility, the Ombudsperson shall have the authority to: i. Review any documents maintained by Lufkin as described in Section I.E. below; ii. Audit Lufkin’s promotion procedures, practices and relateddecisions; iii. Conduct independent analyses of data related to Lufkin’s promotion procedures, practices and related-decisions; iv. Request additional information and data from Lufkin in order to carry out his audit and/or independent analyses of Lufkin’s promotion procedures, practices and related-decisions. v. Confer with Lufkin’s Internal Monitor selected pursuant to Section II.G. below, and other Lufkin managers for the purpose of
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reviewing with them Lufkin’s implementation of, and compliance with, this Order and any other subsequent or superseding remedial orders of the Court. vi. Receive information from, and confer with, Class Counsel or Lufkin’s counsel regarding Lufkin’s implementation of, and compliance with, this Order and any other subsequent or superseding remedial orders of the Court. 4. Reporting a. The Ombudsperson shall report quarterly to the Court with respect to (1) any complaints requiring remedial action and the action taken thereon by Lufkin, and (2) Lufkin’s compliance with the Promotion Procedures set forth in Section I.B. below. b. Class Counsel and Lufkin’s counsel shall be given a copy of these reports and an opportunity to confer and respond at least five (5) days prior to filing with the Court. c. The unions’ counsel shall be given a copy of any reports that document promotion-related complaints made by hourly employees. B. Compliance with Promotion Procedures 1. Lufkin shall comply with the following Promotion Procedures for employees assigned to its facilities in Angelina County, Texas, until further order of the Court as provided in Section III or the expiration of this Injunction. 2. For purposes of this order, a. “Bidder” means an employee who places, and does not withdraw, his or her name on a bid posted pursuant to Article 25, Section 1 of the 2011-
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2014 Master Collective Bargaining Agreement and/or any similar provision of any amended or subsequent collective bargaining agreement between Lufkin and its unions (hereafter “Master CBA”). b. “Career Path” means those jobs set forth in Appendix 2. c. “Departmental Seniority” is as defined in the Master CBA, Article 22, Section 1(b). However, employees on the Boilermaker Department who work in the Fabrication Shops at Oilfield and Power Transmission will promote from within their respective shops, pursuant to Boilermakers Letter of Stipulation No. 10. d. “Eligible Employee” means: i. For hourly job classifications on the IAM machining seniority
roster and in the IAM Assembly and Distribution career paths on the Assembly and Shipping Department seniority roster, an Eligible Employee is an employee seeking to move: 1) Within the employee’s current career path on a seniority
roster for which the employee has Departmental Seniority into an hourly job classification which has a maximum rate of pay greater than the maximum rate of pay for the employee’s current job classification, unless the employee is exercising his right under Article 25, Section 3(i)(2) to bid on another schedule/shift/crew for the same classification that the employee currently holds and the employee has met the requirements of that section; or
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2) Into a different career path than the employee’s current career path for which the employee has Departmental Seniority on the seniority roster for the job classification into which the employee is seeking to move.
ii. Subject to Article 25, Section 3, an employee bidding on an IAM job classification will not be Eligible under any of the following circumstances: 1) The employee submitted a bid for multiple concurrently posted positions and failed to prioritize any of those selections as required; 2) The employee was disqualified from another position within six months of bidding on the job. However, the employee will be eligible to return to their former position, if it has not been filled. Once their pre-bid position becomes available, or another position within the department within which they have previous experience with the Company becomes available, the returning employee will be moved to that position, and the Company will not have to post this specific position. It is recognized that this provision is an exception to the prescriptions for promotions in Sections I.B.3-10. If a position within a returning employees’ previous pre-bid classification becomes available during the disqualification period, the
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returning employee will be permitted to make a lateral bid to the other shift and take that lateral position if the employee is the successful bidder for that position. 3) The employee was disqualified for the second time from another position within twelve months of bidding on the job. However, the employee will be eligible to return to their former position, if it has not been filled. Once their pre-bid position becomes available, or another position within the department within which they have previous experience with the Company becomes available, the returning employee will be moved to that position, and the Company will not have to post this specific position. If a position within a returning employees’ previous pre-bid classification becomes available during the disqualification period, the returning employee will be permitted to make a lateral bid to the other shift and take that lateral position if the employee is the successful bidder for that position. 4) The employee was a successful bidder and was awarded a job, but has been prevented from accepting the job by the Company, unless the employee has been waiting for more than thirty (30) days.
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iii. An employee bidding on an IAM job classification may not decline that job if it is awarded and may not voluntarily return to the employee’s old classification.
iv. In addition to sub-sections (i) (1) and (2) above, an Eligible Employee is an employee in the Machinist or Shaft Finisher job classification who has Departmental Seniority on the seniority roster for the hourly job classification he is seeking and he is exercising his rights under IAM Letter of Stipulation No. 2.
v. For hourly job classifications on all seniority rosters other than the IAM machining seniority roster including movements from job classifications in the Assembly or Distribution career paths not addressed in subsection (i) above, an Eligible Employee is an employee seeking to move from: 1) An hourly job classification not in a Line of Progression into an hourly job classification that (a) is on a seniority roster for which the employee has Departmental Seniority or is permitted to bid on pursuant to GMP Letter of Stipulation No. 22 and (b) has a greater maximum rate of pay than the employee’s current hourly job classification; 2) An hourly job classification not in a Line of Progression into an hourly job classification that is in a Line of Progression, that (a) is on a seniority roster for which the employee has Departmental Seniority or is permitted to bid
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on pursuant to GMP Letter of Stipulation No. 22 and (b) the highest hourly job classification in such Line of Progression, has a greater maximum rate of pay than the employee’s current job classification; 3) An hourly job classification that is in a Line of Progression into an hourly job classification that: (a) is on a seniority roster for which the employee has Departmental Seniority or is permitted to bid on pursuant to GMP Letter of Stipulation No. 22 and (b) has a greater maximum rate of pay than the maximum rate of pay for the highest job classification in the employee’s current Line of Progression;2 or 4) An hourly job classification that is in a Line of Progression into an hourly job classification that is in a different Line of Progression (the “Receiving Line of Progression”), that (a) is on a seniority roster for which the employee has Departmental Seniority or is permitted to bid on pursuant to GMP Letter of Stipulation No. 22 and (b) the highest hourly job classification in the Receiving Line of Progression has a greater maximum rate of pay than the maximum rate of pay for the highest hourly job
2 Notwithstanding this provision, a Class II Assembler is eligible to sign a bid for an Inspector job in the Final Assembly and Shipping Department through October 2, 2014.
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classification in the employee’s current Line of Progression. vi. In addition to sub-sections (iii) (1) and (2) above, an Eligible Employee is an employee in the Chip-Grind Finish job classification who has Departmental Seniority on the seniority roster for the hourly job classification he is seeking and he is exercising his rights under GMP Letter of Stipulation No. 19. e. “Line of Progression” means: i. For the Fabrication Department: Fork Lift, and Inspector lines; ii. For the Foundry Department: the Core Machine Operator, Molding Machine Operator, Welder, Electrician, Mechanic (Class B to Master Maintenance Specialist), and Fork Lift lines; and iii. For the Pattern Shop Department: the Pattern Maker and Pattern Tender lines. f. “Subordinate Job Classification” means a job classification that an employee is required to hold before promotion to a higher hourly job classification. 3. For promotions to the hourly job classifications set forth in Appendix 3, Lufkin shall offer the promotion to the Eligible Employee Bidder with the highest Departmental Seniority. If that bidder is permitted to decline the promotion, Lufkin shall offer the position to the Eligible Employee Bidder with the next highest Departmental Seniority until all Eligible Employee Bidders have been offered the promotion. If no Eligible Employee Bidder accepts the position, the
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position may be filled pursuant to the Master CBA. Lufkin shall post the name of the Eligible Employee Bidder who is awarded the promotion on the main bulletin board for the applicable department. 4. For promotions to the hourly job classifications set forth in Appendix 4 and 4a, Lufkin shall offer the promotion to the Eligible Employee Bidder with the highest Departmental Seniority who has passed the applicable test or skill demonstration as set forth in Appendix 4 or as provided for in Section I.C.3. below. If that bidder is permitted to decline the promotion, Lufkin shall offer the position to the Eligible Employee Bidder with the next highest Departmental Seniority who has passed the applicable test or skill demonstration until all Eligible Employee Bidders passing the applicable test or skill demonstration have been offered the promotion. If no Eligible Employee Bidder accepts the position, the position may be filled pursuant to the Master CBA. Lufkin shall post the name of the Eligible Employee Bidder who is awarded the promotion on the main bulletin board for the applicable department. Subject to the foregoing, any employee who is currently classified as an Inspector may request to take the test to qualify as an Inspector Specialist without the position being posted. 5. For promotions to the Crane Operator or Hydraulic Manipulator Operator job classifications in the Foundry Department, Lufkin shall promote the employee in the Learner job classification for the position with the highest Departmental Seniority provided the employee has completed a minimum of ninety (90) days service in the Learner job classification for the position. In order to be promoted to Crane Operator, the employee must also successfully complete the Crane
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Operator Learner Task Proficiency Check Off list, attached as Exhibit 5. If the employee in the Learner classification for the position does not have the requisite ninety (90) days service in the Learner job classification, Lufkin shall promote the employee in the Learner job classification with the next highest Departmental Seniority who meets the minimum ninety (90) days service in the Learner classification for the position. 6. For promotions to the hourly job classifications set forth in Appendix 6, Lufkin shall offer the promotion to the Eligible Employee Bidder with the highest Departmental Seniority who has at least ninety (90) days service in the Subordinate Job Classification and meets the other criteria as set forth in Appendix 6. If that bidder is permitted to decline the position, Lufkin shall offer the position to the Eligible Employee Bidder with the next highest Departmental Seniority who has at least ninety (90) days service in the Subordinate Job Classification until all Eligible Employee Bidders with ninety (90) days service in the Subordinate Job Classification have been offered the promotion. If no employee in the Subordinate Job Classification has bid for the position or has the requisite length of service, Lufkin may treat the posting as a bid for the Subordinate Job Classification and award the promotion to the Eligible Employee Bidder with the highest Departmental Seniority or elect to hire for the position. If Lufkin elects to offer the Subordinate Job Classification to the Eligible Employee Bidder and that bidder declines the position Lufkin shall offer the position to the Eligible Employee Bidder with the next highest Departmental Seniority until all Eligible Employee Bidders have been offered the promotion to
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the Subordinate Job Classification. If no Eligible Employee Bidder accepts the position, the position may be filled pursuant to the Master CBA consistent with the provisions of this Order. Lufkin shall post the name of the Eligible Employee Bidder who is awarded the promotion on the main bulletin board for the applicable department. 7. For promotions to the Melter A job classification, Lufkin shall promote the employee in the Melter B job classification with the highest Departmental Seniority provided the employee has passed the Melter A test and demonstrated ability as set forth in the Melter A demonstration standards attached as Appendix 7. 8. For promotion to the job classification Machinist (for gear hobs and grinders), as provided in IAM Letter of Stipulation No. 5, Lufkin shall offer the promotion to Sykes generator operators in order of Departmental Seniority and if none accept the promotion shall post and award the position as provided in paragraph 3 above. 9. For promotion to the hourly job classifications set forth in Appendix 8: a. If the Eligible Employee Bidder who is awarded the promotion is moving
in the same career path and his current rate of pay is less than the maximum rate of pay for the Trainee job classification, he shall be classified initially in the Trainee job classification within the career path. b. If the Eligible Employee Bidder who is awarded the promotion is moving in the same career path and his current rate of pay is higher than the
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maximum Trainee job classification rate of pay, he shall be placed in the job classification on which he bid. 3 c. If the Eligible Employee Bidder who is awarded the promotion is moving into a different career path, he will be classified initially in the Trainee classification at the minimum hourly rate for the Trainee classification. 4 d. Lufkin shall post the name of the Eligible Employee Bidder who is awarded the promotion on the main bulletin board for the applicable department. 10. For promotions to Class I Assembler, Lufkin shall offer training opportunities for promotion to the position to eligible Class II Assemblers in seniority order. A Class II Assembler will be deemed eligible for a training opportunity if the employee has attained 3 years classification seniority, i.e., three years in the Class II Assembler position, although the Company may waive the 3 year requirement in the event that there are no employees in the Class II Assembler position who meet that requirement, provided that the Company offers training opportunities in order of seniority to employees in the Class II Assembler position. An employee will be given up to 60 days to complete the training program. If the candidate does not successfully complete the training program, they will remain as Class II assemblers, and will not be reconsidered for an Assembler Class I position for up
3 For example, an Eligible Employee Bidder classified as a Machine Operator Class C earning $ 14.49 per hour, who in 2009, accepts Lufkin’s offer of a Machine Operator Class A position will initially be classified as a Machine Operator Trainee because the 2009 maximum rate of pay for Machine Operator Trainee is greater than the employee’s current rate of pay. If the Machine Operator Class C was earning $15.88 per hour at the time of his successful 2009 bid, he would be classified as a Machine Operator Class A because his current rate of pay is greater than the current maximum rate of pay for the Machine Operator Trainee classification. 4 For example, an Eligible Employee Bidder who is in a Class II Assembler position at the time he accepts in 2009, Lufkin’s offer of a Machine Operator Class A position will initially be classified as a Machine Operator Trainee and paid $12.19 per hour, which is the 2009 minimum rate of pay for the Trainee classification.
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to six months from the date he or she is determined not to have successfully completed the training program. For each opening of a Class I Assembler position, Lufkin will document and report to the Ombudsperson and Plaintiffs the race and classification seniority date of: (a) all employees then in the Class II Assembler position, (b) the person(s) selected for the Class I Assembler training program, and (c) any person selected to train for the job who is ultimately not successful.” 11. For promotions to the hourly job classifications set forth in Appendix 9, Lufkin shall review and analyze the promotions, including the person who was promoted to the position, all persons offered but declining the position and all other persons qualified for the promotion by race on an annual basis and provide its written assessment and the underlying data used to make its assessment to the Ombudsperson. If the Ombudsperson determines that there is a racially disparate pattern in the promotions adverse to black employees, she shall review the promotion decisions that have been made in light of the requirements of the job and, if warranted, recommend remedial action to Lufkin. If Lufkin declines to implement such remedial action, the Ombudsperson shall report his findings, proposed remedial action and Lufkin’s response to the Court, Lufkin and Class Counsel. Lufkin shall retain the right to defend against implementation of the recommended remedial action, including on the ground that the racial disparities found by the Ombudsperson were not statistically significant or, in light of the job’s requirements, valid criteria were used to make the promotion decisions. For purposes of this sub-section “other persons qualified for the promotion” means
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persons: (a) in the Subordinate Job Classification if the promotion is within a career path or into a specialist or master position or (b) in the Machine Operator A job classification if the promotion is to Machinist. 12. For job classifications in a career path, Lufkin shall retain all records and data necessary to analyze and shall analyze on an annual basis to determine whether there are any racial disparities in (a) the length of time in which discretionary merit and other pay increases are awarded to employees in Trainee classifications, for which such discretionary merit and other pay increases are provided for by the Master CBA and (b) the length of time employees spend in Trainee classifications before they are promoted out the of the classification. Lufkin shall report these analyses to the Ombudsperson. If the Ombudsperson determines that there is a racially disparate pattern with respect either to the time to pay increases or promotion from the trainee classification adverse to black employees, she shall investigate to determine the causes of such disparities and, if warranted, recommend remedial action to Lufkin. If Lufkin declines to implement such remedial action, the Ombudsperson shall report his findings, proposed remedial action and Lufkin’s response to the Court, Lufkin and Class Counsel. Lufkin shall retain the right to defend against implementation of the recommended remedial action, including on the ground that the racial disparities found by the Ombudsperson were not statistically significant or valid criteria were used for making the decisions. C. Testing Protocols 1. Lufkin shall comply the testing protocol described in Appendix 10 in its administration of any tests or skill demonstrations it uses for determining
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promotions to any of the jobs listed in Appendices 4, 5 and 7 or to be developed pursuant to Section I.C.3. below. 2. Lufkin shall analyze the results of each paper and pencil test and skill demonstration it administers by the race of the persons who take, pass and fail the test or skill demonstration and provide its written analysis and the underlying data used to conduct the analysis to the Ombudsperson. If the Ombudsperson determines there is a racially disparate pattern in the passing rate for such test or skill demonstration adverse to black employees, she shall review the job, the test, and the degree of the disparate pattern to determine whether to require Lufkin to validate the test or skill demonstration and if so, recommend such validation, including determining whether there is another suitable test or skill demonstration that has less adverse impact. If Lufkin declines to follow the Ombudsperson’s recommendation, the Ombudsperson shall report his findings, the recommended remedial action and Lufkin’s response to the Court, Lufkin and Class Counsel. Lufkin shall retain the right to defend against implementation of the recommended remedial action, including on the ground that the racial disparities found by the Ombudsperson were not statistically significant or that the test or skill demonstration is valid. 3. If during the term of this Order, Lufkin has a need to develop a test or skill demonstration for any of the job classifications listed on Appendix 4a, or any newly established or changed job classifications, Lufkin shall provide copies of the test or outline of the skill demonstration to the Ombudsperson and Class Counsel at least fourteen (14) days prior to Lufkin’s commencement of use of the
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test or skill demonstration. Class Counsel may provide comments on the test or skill demonstration to the Ombudsperson and Lufkin. D. Manager Training 1. Initial Training a. Within thirty (30) days of the entry of this injunction, Lufkin shall provide
Initial Training to all of its officers, executives, managers and supervisors in Angelina County on the terms of this Injunction including the promotion and testing procedures. b. Lufkin’s counsel or a member of Lufkin’s management who is knowledgeable about this litigation will provide the Initial Training. c. Lufkin shall provide such Initial Training to all new officers, executives, managers and supervisors in Angelina County, who have not previously received the Initial Training, within thirty (30) days of their hire or promotion. 2. Other Manager Training a. Lufkin shall engage the services of Dr. Winfred Arthur to develop and provide live training for its officers, executives, managers and supervisors that addresses the Court’s liability findings and reduction of subjectivity in decision making in the workplace. Dr. Arthur shall advise Lufkin on the appropriate specific content of the training and written materials to provide to trainees. Training for officers, executives and managers shall be a one day program and for supervisors a half day program. b. Lufkin shall provide this training within one hundred eighty (180) days of the date of entry of this Order.
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c. Lufkin shall provide similar training in videotape format to any newly hired or promoted officers, executives, managers and supervisors (who have not previously received the training) within thirty (30) days of their hire or promotion.
d. Lufkin shall provide written verification to the Ombudsperson of the completion of the training and that all of its officers, executives, managers and supervisors received such training.
E. Recordkeeping 1. Lufkin shall maintain paper and data records that reflect promotion-related decisions including bid sheets, postings and other written communications reflecting employee interest in promotions, forms documenting decisions, structured interview questions and responses, data analyses, paper and pencil tests, records of skill tests, job descriptions for salaried jobs, formal training, and all documentation pertaining to any internal employee complaints, including but not limited to, union grievances, arising from promotion-related decisions and the investigation and resolution of such complaints. 2. Lufkin shall retain such documents, records and data for the duration of this Order.
F. Annual Executive EEO Updates a. Lufkin’s Internal Monitor will prepare an Annual Executive Report for Lufkin’s executive team. b. For purposes of this Order, Lufkin’s “executive team” means officers of the Company.
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c. The Annual Executive Report shall contain, as a minimum, summaries of any adverse impact analysis of promotions that has been provided to the Ombudsperson, and any reports provided by the Ombudsperson to the Court. Copies of any analyses or reports referred to in the Annual Executive Report will be attached to the report.
d. A copy of this Report shall be concurrently provided to the Ombudsperson, who may submit comments or recommendations based on the Report, in which case such comments or recommendations shall also be provided to, and reviewed by, the executive team.
G. Internal Monitoring 1. Within fourteen (14) days of entry of this Injunction, Lufkin shall designate an Internal Monitor. At the same time, Lufkin shall advise the Court, the Ombudsperson and Class Counsel of the identity of the Internal Monitor. 2. The Internal Monitor shall be responsible for the following: a. Monitoring Lufkin’s compliance with the terms of this Injunction and coordinating with the Court-appointed Ombudsperson. b. Monitoring Lufkin’s compliance with the promotion and testing procedures, training procedures, data analyses, recordkeeping and reporting required by this Injunction. c. Serving as Lufkin’s liaison with the Ombudsperson and responding to any requests for information from the Ombudsperson. d. Overseeing the preparation of and submitting quarterly reports to the Ombudsperson which will include data on all promotions awarded in the prior quarter. This data will include the name of each person who was -22-

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promoted, their race, the position from which they were promoted, the position to which they were promoted, as well as the name, race, and classification of each unsuccessful candidate for the promotion. e. Conducting an adverse impact analysis of Lufkin’s promotion data every six months to determine if there are any statistically significant shortfalls in promotions of black employees not the product of a bona fide seniority system. f. Reporting to Lufkin’s Chief Executive Officer and senior management staff regarding Lufkin’s implementation of, and compliance with, the Court’s remedial orders and concurrently sending a copy of such report to the Ombudsperson. g. Conducting and reporting to the Ombudsperson the annual analyses required under Sections I.B.10. and 11. and I.C.2. of this Order. h. Preparing the Annual Executive Report required under Section II.F. of this Order. H. Communications 1. Lufkin shall provide a copy of this Injunction to all officers, executives, supervisors and managers as part of the Initial Training required under Section I.D.1. of this Order. Lufkin shall also provide copies of any subsequent remedial orders of the Court modifying or amending this Order to its officers, executives, supervisors and managers, and to the unions. 2. Within fourteen (14) days of the entry of this Injunction, Lufkin shall provide to all employees a copy of the notice attached as Appendix 1 which summarizes the
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terms of this injunction and identifies the Ombudsperson, explains his role, and provides a phone number and other contact information for him.
II. Jurisdiction This Court specifically retains jurisdiction to enforce this permanent injunction.
III. Modification of this Order In the event that changed or other circumstances make a modification of this Order necessary to ensure its purposes are fully effectuated, the parties shall attempt in good faith to reach agreement on such modification suitably tailored to the changed or other circumstance, including by conferring with one another and the Ombudsperson, and submit the modification to the Court by stipulation. If the parties are not able to reach such agreement, any party may move the Court to modify the Order.
IV. Term of this Order This Order shall remain in effect for five (5) years from the date December 18, 2009, when the Court first entered this Injunction.
So ORDERED and SIGNED this 17 day of July, 2013.
___________________________________ Ron Clark, United States District Judge
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I, Tony P. Rosenstein, declare under the penalty of perjury under the laws of the United States of America that 1 have read this document, that the statements in paragraph 1 are true and correct, and that I agree to comply with the terms of paragraph 2.

Dateu .

Tonf P. Rosenstein

So ORDERED this I t ^ day of P*4**.l'y' , 20O^_.

Ron Clark United States District Judge

 
 Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 1 of 69
APPEAL,BENCH,MEDIATION,REOPEN
U.S. District Court [LIVE] Eastern District of TEXAS (Lufkin) CIVIL DOCKET FOR CASE #: 9:97−cv−00063−RC

McClain, et al v. Lufkin Industries Assigned to: Judge Ron Clark Demand: $0 Case in other court: 5th Circuit, 05−−41417
5th Circuit, 05−41417 09−40524 09−40524 10−40036 5th Circuit, 10−40086 Cause: 42:2000 Job Discrimination (Race) Mediator Allen Butler, . Mediator Gloria Portela Technical Advisor Tony P Rosenstein
Plaintiff Sylvester McClain on his own behalf and on behalf of a class of similarly situated persons

Date Filed: 02/26/1997 Date Terminated: 01/15/2010 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question
represented by Tony P Rosenstein Jordan, Lynch & Cancienne PLLC 1330 Post Oak Boulevard Suite 2575 Houston, TX 77056 713/229−1582 Fax: 17132297782 Email: tony.rosenstein@bakerbotts.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Meetali Jain Goldstein, Demchak, Baller, Borgen & Dardarian 300 Lakeside Dr, Ste 1000 Oakland, CA 94612 510.763.9800 Fax: 510.835.1417 Email: mjain@gdblegal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Morris J Baller Goldstein Demchak Baller Borgen 300 Lakeside Dr Suite 1000 Oakland, CA 94612 510−763−9800 Fax: 15108351417 Email: mjb@gdblegal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nina Rabin Goldstein, Demchak, Baller, Borgen & Dardarian

Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 2 of 69

300 Lakeside Dr, Ste 1000 Oakland, CA 94612 510.763.9800 Fax: 510.835.1417 Email: nrabin@gdblegal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Timothy Borne Garrigan Stuckey Garrigan & Castetter 2803 North Street PO Box 631902 Nacogdoches, TX 75963−1902 936/560−6020 Fax: 19365609578 Email: tim@sgclaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Darci E Burrell Saperstein Goldstein Demchak & Baller 300 Lakeside Dr Ste 1000 Oakland, CA 94612 510/763−9800 Fax: 15108351417 Email: deb@gdblegal.com TERMINATED: 10/04/2004

Joshua G Konecky Schneider & Wallace 180 Montgomery Street Suite 2000 San Francisco, CA 94104 415/421−7100 Fax: 415/421−7105 Email: jkonecky@schneiderwallace.com TERMINATED: 10/04/2004

Linda M Dardarian Saperstein Goldstein Demchak & Baller 300 Lakeside Dr Ste 1000 Oakland, CA 94612 510/763−9800 Fax: 15108351417 TERMINATED: 10/04/2004

Teresa Demchak Goldstein, Demchak, Baller, Borgen & Dardarian 300 Lakeside Drive Suite 1000 Oakland, CA 94612 510/763−9800 Fax: 15108351417 Email: dem@gdblegal.com ATTORNEY TO BE NOTICED

Plaintiff
Buford Thomas on his own behalf and on behalf of a class of similarly situated persons

represented by Meetali Jain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 3 of 69

Plaintiff
Patrick . Ross on his own behalf and on behalf of a class of similarly situated persons

Morris J Baller (See above for address) LEAD ATTORNEY
Nina Rabin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Timothy Borne Garrigan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Darci E Burrell (See above for address) TERMINATED: 10/04/2004
Joshua G Konecky (See above for address) TERMINATED: 10/04/2004
Linda M Dardarian (See above for address) TERMINATED: 10/04/2004
Teresa Demchak (See above for address) ATTORNEY TO BE NOTICED
represented by Meetali Jain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Morris J Baller (See above for address) LEAD ATTORNEY
Nina Rabin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Timothy Borne Garrigan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Darci E Burrell (See above for address) TERMINATED: 10/04/2004
Joshua G Konecky (See above for address) TERMINATED: 10/04/2004
Linda M Dardarian (See above for address) TERMINATED: 10/04/2004
Teresa Demchak

Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 4 of 69

(See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Mary Thomas on her own behalf and on behalf of a class of similarly situated persons

represented by Meetali Jain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Morris J Baller (See above for address) LEAD ATTORNEY

Nina Rabin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Timothy Borne Garrigan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Darci E Burrell (See above for address) TERMINATED: 10/04/2004

Joshua G Konecky (See above for address) TERMINATED: 10/04/2004

Linda M Dardarian (See above for address) TERMINATED: 10/04/2004

Teresa Demchak (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Eddie K Mask on his own behalf and on behalf of a class of similarly situated persons

represented by Meetali Jain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Morris J Baller (See above for address) LEAD ATTORNEY

Nina Rabin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Timothy Borne Garrigan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Darci E Burrell (See above for address) TERMINATED: 10/04/2004

Joshua G Konecky

Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 5 of 69

(See above for address) TERMINATED: 10/04/2004

Linda M Dardarian (See above for address) TERMINATED: 10/04/2004

Teresa Demchak (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Leroy Garner on his own behalf and on behalf of a class of similarly situated persons

represented by Meetali Jain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Morris J Baller (See above for address) LEAD ATTORNEY

Nina Rabin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Timothy Borne Garrigan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Darci E Burrell (See above for address) TERMINATED: 10/04/2004

Joshua G Konecky (See above for address) TERMINATED: 10/04/2004

Linda M Dardarian (See above for address) TERMINATED: 10/04/2004

Teresa Demchak (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Sherry Calloway Swint on her own behalf and on behalf of a class of similarly situated persons

represented by Meetali Jain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Morris J Baller (See above for address) LEAD ATTORNEY

Nina Rabin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Timothy Borne Garrigan (See above for address)

Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 6 of 69

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Darci E Burrell (See above for address) TERMINATED: 10/04/2004

Joshua G Konecky (See above for address) TERMINATED: 10/04/2004

Linda M Dardarian (See above for address) TERMINATED: 10/04/2004

Teresa Demchak (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Walter Butler on his own behalf and on behalf of a class of similarly situated persons also known as "A"

represented by Meetali Jain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Morris J Baller (See above for address) LEAD ATTORNEY

Nina Rabin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Timothy Borne Garrigan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Darci E Burrell (See above for address) TERMINATED: 10/04/2004

Joshua G Konecky (See above for address) TERMINATED: 10/04/2004

Linda M Dardarian (See above for address) TERMINATED: 10/04/2004

Teresa Demchak (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Florine Thompson on her own behalf and on behalf of a class of similarly situated persons

represented by Meetali Jain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Morris J Baller (See above for address) LEAD ATTORNEY

Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 7 of 69

Plaintiff Clarence Owens on his own behalf and on behalf of a class of similarly situated persons also known as "C"
Plaintiff

Nina Rabin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Timothy Borne Garrigan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Darci E Burrell (See above for address) TERMINATED: 10/04/2004
Joshua G Konecky (See above for address) TERMINATED: 10/04/2004
Linda M Dardarian (See above for address) TERMINATED: 10/04/2004
Teresa Demchak (See above for address) ATTORNEY TO BE NOTICED
represented by Meetali Jain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Morris J Baller (See above for address) LEAD ATTORNEY
Nina Rabin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Timothy Borne Garrigan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Darci E Burrell (See above for address) TERMINATED: 10/04/2004
Joshua G Konecky (See above for address) TERMINATED: 10/04/2004
Linda M Dardarian (See above for address) TERMINATED: 10/04/2004
Teresa Demchak (See above for address) ATTORNEY TO BE NOTICED

Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 8 of 69

Clifford R Duirden on his own behalf and on behalf of a class of similarly situated persons

represented by Meetali Jain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Morris J Baller (See above for address) LEAD ATTORNEY

Nina Rabin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Timothy Borne Garrigan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Darci E Burrell (See above for address) TERMINATED: 10/04/2004

Joshua G Konecky (See above for address) TERMINATED: 10/04/2004

Linda M Dardarian (See above for address) TERMINATED: 10/04/2004

Teresa Demchak (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Earl Potts on his own behalf and on behalf of a class of similarly situated persons

represented by Meetali Jain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Morris J Baller (See above for address) LEAD ATTORNEY

Nina Rabin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Timothy Borne Garrigan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Darci E Burrell (See above for address) TERMINATED: 10/04/2004

Joshua G Konecky (See above for address) TERMINATED: 10/04/2004

Linda M Dardarian

Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 9 of 69

(See above for address) TERMINATED: 10/04/2004

Teresa Demchak (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Roald Mark on his own behalf and on behalf of a class of similarly situated persons

represented by Meetali Jain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Morris J Baller (See above for address) LEAD ATTORNEY

Nina Rabin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Timothy Borne Garrigan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Darci E Burrell (See above for address) TERMINATED: 10/04/2004

Joshua G Konecky (See above for address) TERMINATED: 10/04/2004

Linda M Dardarian (See above for address) TERMINATED: 10/04/2004

Teresa Demchak (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Pla Class

represented by Meetali Jain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Morris J Baller (See above for address) LEAD ATTORNEY

Nina Rabin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Timothy Borne Garrigan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Darci E Burrell

Plaintiff All Pla's

Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 10 of 69
(See above for address) TERMINATED: 10/04/2004
Joshua G Konecky (See above for address) TERMINATED: 10/04/2004
Linda M Dardarian (See above for address) TERMINATED: 10/04/2004
Teresa Demchak (See above for address) ATTORNEY TO BE NOTICED
represented by Timothy Borne Garrigan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Kan Goldstein, Demchak, Baller, Borgen & Dardarian 300 Lakeside Dr, Ste 1000 Oakland, CA 94612 510−763−9800 Fax: 510−835−1417 Email: jkan@gdblegal.com ATTORNEY TO BE NOTICED
Morris J Baller (See above for address) ATTORNEY TO BE NOTICED
Teresa Demchak (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Lufkin Industries Inc

represented by Douglas Edward Hamel Vinson & Elkins − Houston 1001 Fannin St Suite 2300 Houston, TX 77002 713/758−2036 Fax: 17136155388 Email: dhamel@velaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher V Bacon Vinson & Elkins − Houston 1001 Fannin St Suite 2300 Houston, TX 77002 713/758−1148 Fax: 17136155014 Email: cbacon@velaw.com ATTORNEY TO BE NOTICED

Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 11 of 69

John H Smither Vinson & Elkins 1001 Fannin St Suite 2300 Houston, TX 77002−6760 713/758−2222 Fax: 17136155204 TERMINATED: 03/27/2003

Defendant Rod Tanner

Defendant Mimi C Satter

Movant
Glass, Molders, Pottery, Plastics & Allied Workers International Union, Local No 429, AFL−CIO/CLC TERMINATED: 11/18/2003

represented by Mimi C Satter Satter & Andrews 271 S Salina St 6th Floor Syracuse, NY 13202 315−471−0405 Fax: 13154717849 Email: msatter@satterandrews.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant
International Association of Machinists and Aerospace Workers, Local Lodge No 1999, AFL−CIO/CLC TERMINATED: 11/18/2003

represented by Rod Tanner Tanner and Associates, PC 6300 Ridglea Place, Suite 407 Ft Worth, TX 76116 8173778833 Fax: 8173771136 Email: rtanner@rodtannerlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Wade Arnold Forsman Attorney at Law P.O. Box 918 Sulphur Springs, TX 75483−0918 903.689.4144 Fax: 903.689.7001 Email: wade@forsmanlaw.com TERMINATED: 09/01/2004

Movant
International Association of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, Local No 587, AFL−CIO/CLC TERMINATED: 11/18/2003

represented by Joseph Donald Carona , Jr Attorney at Law 1009 W Green Orange, TX 77630−5619 409/883−4394 Fax: 14098834814 Email: dcarjr@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed # Docket Text

Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 12 of 69

02/26/1997 02/26/1997 02/26/1997 02/26/1997
02/26/1997 03/03/1997 03/05/1997 03/21/1997 03/21/1997 04/21/1997 04/23/1997 05/14/1997 05/16/1997 06/09/1997 06/16/1997
06/18/1997
06/23/1997 07/07/1997 07/18/1997 07/21/1997
07/21/1997 07/22/1997 08/01/1997

1 Original Complaint filed (former empl) (Entered: 02/26/1997)
Filing Fee Paid; FILING FEE $ 150.00 RECEIPT # 74144 (former empl) (Entered: 02/26/1997)
Summons issued for Lufkin Industries & returned to atty for pltf for service of same (former empl) (Entered: 02/26/1997)
2 In compliance with Article One of the Civil Justice Expense and Delay Reduction Plan, and after a review of the pleadings, this action has been assigned to track 3 for case management purposes. (former empl) (Entered: 02/26/1997)
Magistrate consent form mailed to Sylvester McClain, Buford Thomas . (former empl) (Entered: 02/26/1997)
3 Demand for jury trial by Sylvester McClain, Buford Thomas (djh) (Entered: 03/03/1997)
4 Return of service executed as to Lufkin Industries 3/3/97 Answer due on 3/24/97 for Lufkin Industries (djh) (Entered: 03/05/1997)
5 Answer to pltf's orig cmplt by Lufkin Industries (Mailed track assignment form.) (former empl) (Entered: 03/21/1997)
Magistrate consent form mailed to Lufkin Industries . (former empl) (Entered: 03/21/1997)
6 Notice of disclosure by Lufkin Industries (djh) (Entered: 04/21/1997)
7 Notice of disclosure by Sylvester McClain, Buford Thomas (djh) (Entered: 04/23/1997)
8 MOTION by Sylvester McClain and Buford Thomas for leave to file first amended complaint (djh) (Entered: 05/14/1997)
MANAGEMENT CONFERENCE set at 1:30 6/16/97 before Judge Thad Heartfield. cc: TH, attys (jmv) (Entered: 05/16/1997)
9 Motion by Lufkin Industries to dismiss class action claims . (former empl) (Entered: 06/09/1997)
MANAGEMENT CONFERENCE held in chambers before Magistrate Judge Wendell C. Radford for Judge Thad Heartfield. The court to enter a docket control order. (former empl) (Entered: 06/19/1997)
10 Docket Control Order entered setting Pretrial conference at 10:30 1/12/98 for Lufkin Industries, for Buford Thomas, for Sylvester McClain ( signed by Magistrate Judge Wendell C. Radford 6/16/97 ) cc: attys 6/19/97 (pkb) (Entered: 06/19/1997)
11 Response by Sylvester McClain and Buford Thomas in opposition to [9−1] motion to dismiss class action claims (djh) (Entered: 06/23/1997)
12 MOTION by Lufkin Industries for leave to file reply to pla's response in opposition to dft's mo to dismiss class action claims (djh) (Entered: 07/07/1997)
13 Supplemental response to dft's [9−1] motion to dismiss class action claims by plaintiff Sylvester McClain, & plaintiff Buford Thomas (djh) (Entered: 09/10/1997)
14 ORDER granting dft's unopposed alternative motion to file a reply limited to 30 pages, and denying [12−1] motion for leave to file a reply brief to pla's response in opposition to mo to dismiss class action claims in excess of 30 pages. ( signed by Judge Thad Heartfield 7/18/97) cc: attys 7/22/97 (pkb) (Entered: 07/22/1997)
16 Reply by Lufkin Industries to plas' response [9−1] in opposition to dft's motion to dismiss class action clms. (djh) (Entered: 07/28/1997)
15 Notice of supplemental disclosure by Sylvester McClain, Buford Thomas (djh) (Entered: 07/22/1997)
17 Order referring case to Allen Butler as mediator. The mediation conference may occur any time between 10/1/97 and 12/1/97 (signed by Judge Thad Heartfield) cc: attys

Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 13 of 69

10/09/1997 10/22/1997
10/22/1997
10/22/1997 10/22/1997 10/22/1997 11/03/1997 11/04/1997 11/05/1997
11/07/1997 11/14/1997 11/14/1997 11/24/1997 11/25/1997 11/26/1997
11/26/1997

8/4/97 (bjc) (Entered: 08/04/1997)
18 MOTION by Lufkin Industries unopposed to expedite motion to amend docket control order (djh) (Entered: 10/09/1997)
19 ORDER denying [9−1] motion to dismiss class action claims, The parties must file a discovery plan relating to the question of class certification set discovery due for 11/3/97 Pla's must file their motion for class certification set motion filing deadline for 11/14/97 , Dfts must respond to the motion. Response to motion due by 11/28/97 . A hearing will be held on the motion in Beaumont, TX Motion hearing set for 12/15/97 at 1:00 ( signed by Judge Thad Heartfield 10/22/97 ) cc: attys 10/22/97 (pkb) (Entered: 10/22/1997)
20 ORDER, vacating the deadline in this case's docket control order for dispositive motions denying [18−1] motion to expedite motion to amend docket control order ( signed by Judge Thad Heartfield 10/22/97) cc: attys 10/22/97 (pkb) (Entered: 10/22/1997)
21 ORDER granting [8−1] motion for leave to file first amended supplemental complaint ( signed by Judge Thad Heartfield 10/22/97) cc: attys 10/22/97 (pkb) (Entered: 10/22/1997)
22 ORDER reassigning this action to track 5 for case management purposes. ( signed by Judge Thad Heartfield 10/22/97) cc: attys 10/22/97 (pkb) (Entered: 10/22/1997)
154 Supplemental Complaint filed by Sylvester McClain (kjr) (Entered: 10/16/2000)
23 Discover plan relating to the question of class certification (djh) (Entered: 11/03/1997)
24 JOINT AGREED MOTION by Sylvester McClain, Buford Thomas, Lufkin Industries, & Allen Butler for additional time to mediate disputes (djh) (Entered: 11/04/1997)
25 ORDER granting [24−1] motion for additional time to mediate disputes. The order referring case to mediation is MODIFIED to permit the mediation conference to take place at any time up to and including the 45th day following the court's ruling on class certification issues. ( signed by Judge Thad Heartfield 11/5/97 ) cc: attys 11/6/97 (pkb) (Entered: 11/06/1997)
26 ORDER approving the parties' discovery plan relating to the question of class certification. ( signed by Judge Thad Heartfield 11/7/97 ) cc: attys 11/7/97 (pkb) (Entered: 11/07/1997)
HOTLINE CONFERENCE: before Magistrate Judge Harry W. McKee (er) (Entered: 11/14/1997)
27 MOTION by Sylvester McClain & Buford Thomas to certify class action (former empl) (Entered: 11/14/1997)
28 MOTION by Sylvester McClain, Buford Thomas to compel production of personnel databases in compliance w/the discovery plan relating to the question of class certification (djh) (Entered: 11/24/1997)
29 Response by Lufkin Industries to [28−1] motion to compel production of personnel databases in compliance w/the discovery plan relating to the question of class certification (djh) (Entered: 11/25/1997)
30 ORDER granting [28−1] motion to compel production of personnel databases in compliance w/the discovery plan relating to the question of class certification, Set notice of compliance due for 12/5/97 for Lufkin Industries Ordered that the defendant shall provide copies of its affirmative action plans and the two letters from the OFCCP and defendant's responses thereto. Production required by this order shall be completed by 12/5/97( signed by Magistrate Judge Harry W. McKee ) cc all parties 11/26/97 (tln) (Entered: 11/26/1997)
31 Reply by Sylvester McClain & Buford Thomas to [29−1] motion response (dft's response to pltfs' motion to compel production of personnel databases) (former empl) (Entered: 11/26/1997)

Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 14 of 69

11/26/1997
12/01/1997 12/02/1997 12/05/1997 12/05/1997 12/05/1997 12/08/1997
12/10/1997 12/10/1997 12/10/1997 12/12/1997 12/17/1997 12/19/1997 12/22/1997 12/22/1997 12/23/1997 12/23/1997
01/21/1998 02/02/1998 02/10/1998

ORDER referring pla's motion to compel production of personnel databases in compliance with the discovery pla relating to the question of class certification: to Magistrate Judge Harry W. McKee ( signed by Judge Thad Heartfield 11/26/97) cc: attys 12/1/97 (pkb) (Entered: 12/01/1997)
32 Response by Lufkin Industries to pla's [27−1] motion to certify class action (djh) (Entered: 12/01/1997)
33 MOTION by Sylvester McClain and Buford Thomas to reset class certification hearing (djh) (Entered: 12/02/1997)
34 MOTION by Lufkin Industries for reconsideration of [30−1] court's discovery order (djh) (Entered: 12/05/1997)
35 Response by Lufkin Industries to [33−1] motion to reset class certification hearing (djh) (Entered: 12/05/1997)
37 ORDER granting [33−1] mo to reset class certification hrg. The class certification hrg will begin at 10:30 on 1/6/98 (signed by Judge Thad Heartfield) cc: attys 12/8/97 (bjc) (Entered: 12/08/1997)
36 ORDER granting [34−1] motion for reconsideration of [30−1] court's discovery order for the dft redact the portions of its affirmative action plans entitled "Analyses and Plan Audit" before producing the plans to pla. No other provisions of the Court's discovery order entered on 11/26/97 is modified by this order (signed by Magistrate Judge Harry W. McKee) cc: attys, TH, HWM 12/8/97 (djh) (Entered: 12/08/1997)
38 Response by Sylvester McClain to [34−1] motion for reconsideration of [30−1] court's discovery order (former empl) (Entered: 12/10/1997)
38 MOTION by Sylvester McClain for reconsideration of [37−1] order (resetting clas certification hrg on 1/6/98 at 10:30 am) (former empl) (Entered: 12/10/1997)
39 Response in opposition by Sylvester McClain to [35−1] Request for additional discovery by Lufkin Industries (former empl) (Entered: 12/10/1997)
40 ORDER denying motion for reconsideration of [30−1] court's discovery order wherein dft was ordered to produce it Affirmative Action Plans to pltf. (signed by Magistrate Judge Harry W. McKee) cc: attys, HWM & TH (former empl) (Entered: 12/12/1997)
Terminated document #38 − moot by order this date (jec) (Entered: 04/01/1999)
41 ORDER resetting mo hrg for 10:00 2/18/98 for [27−1] motion to certify class action (signed by Judge Thad Heartfield) cc: attys 12/22/97 (bjc) (Entered: 12/22/1997)
Final Pre−trial conference set at 10:30 1/12/98 before Judge Thad Heartfield. cc: TH, attys (jmv) (Entered: 12/22/1997)
Jury selection set at 9:00 1/13/98 before Judge Thad Heartfield (jmv) (Entered: 12/22/1997)
42 ORDER, vacating [10−1] Scheduling order . ( signed by Judge Thad Heartfield 12/23/97 ) cc: attys 12/24/97 (pkb) (Entered: 12/24/1997)
43 ORDER that plas' must file evidence supporting their motion for class certification with accompanying brief, set evidence and brief due for 1/21/98 , set status conference to discuss the format for the hearing on pla's motion for class certification for 10:00 2/10/98 before Judge Thad Heartfield ( signed by Judge Thad Heartfield 12/23/97 ) cc: attys 12/24/97 (pkb) (Entered: 12/24/1997)
44 Brief filed by Sylvester McClain, Buford Thomas explaining how evidence relates to each class certification criterion (djh) (Entered: 01/21/1998)
45 Response by Lufkin Industries to pla's [44−1] brief explanation how evidence relates to class certification criteron (djh) (Entered: 02/02/1998)
Status conference held before Magistrate Judge Wendell C. Radford for Judge Thad Heartfield. The parties discussed the format of the hearing to be held on the evidence for the class certification with the court. The court to enter an order. (former empl) (Entered: 02/11/1998)

Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 15 of 69

02/10/1998 02/18/1998
02/18/1998 02/18/1998 02/18/1998 02/18/1998 02/23/1998 05/01/1998
05/01/1998 06/03/1998 06/18/1998 06/24/1998
06/29/1998 06/30/1998 06/30/1998
07/01/1998 07/01/1998 07/09/1998 07/09/1998
07/13/1998

46 Minutes Re: [0−0] status conference by Magistrate Judge Wendell C. Radford on 2/10/98 (Ct rep/ECRO: Tonya Piper) (former empl) (Entered: 02/11/1998)
Motion hearing re: [27−1] motion to certify class action held before Judge Thad Heartfield. Parties present testimony and evidence. Parties state arguments. Court reserves ruling. Court adjourned. (jmv) (Entered: 02/19/1998)
47 Exhibit list by Sylvester McClain, Buford Thomas (jmv) (Entered: 02/19/1998)
48 Witness list filed by Sylvester McClain, Buford Thomas (jmv) (Entered: 02/19/1998)
49 Witness list filed by Lufkin Industries (jmv) (Entered: 02/19/1998)
50 Minutes Re: [0−0] motion hearing by Judge Thad Heartfield on 2/18/98 (Ct rep/ECRO: J.Kelley) (jmv) (Entered: 02/19/1998)
51 ORDER denying [35−2] motion for additional discovery ( signed by Judge Thad Heartfield ) cc: attys (rll) (Entered: 02/24/1998)
52 ORDER transferring the case to the docket of the Honorable Howell Cobb for future handling & disposition pursuant to General Order 98−5. (signed by Judge Thad Heartfield) cc: attys, HC & TH (former empl) (Entered: 05/01/1998)
Case reassigned to Judge Howell Cobb (former empl) (Entered: 05/01/1998)
53 Supplemental Response by Lufkin Industries to [27−1] motion to certify class action (former empl) (Entered: 06/03/1998)
54 Supplemental brief in support of pla's motion for class certification filed by Sylvester McClain, Buford Thomas (djh) (Entered: 06/18/1998)
55 ORDER Motion hearing set for 2:00 7/13/98 for [38−1] motion for reconsideration of [37−1] order, set for 2:00 7/13/98 for [27−1] motion to certify class action , set expert witness list due for 6/30/98 for Allen Butler ., for Lufkin Industries, for Buford Thomas, for Sylvester McClain ( signed by Judge Howell Cobb ) cc: attys (rll) (Entered: 06/25/1998)
56 Transcript of hearing on class certification before Judge Thad Heartfield filed (djh) (Entered: 06/30/1998)
57 Proposed witness list for 6/13/98 class certification hearing filed by Sylvester McClain, Buford Thomas (djh) (Entered: 06/30/1998)
60 ORDER that the information requested in this order be submitted to the ct at the class cetification hearing which is to commence on Monday, 7/13/98 at 2:00 p.m. in the US District Court, Lufkin, TX. Further ORDERED that the dft shall not destroy, delete, alter change or make new notations on documents, personnel records, electronic materials and magnetic recordings which are in any way, involved in the alleged discriminatory practices alleged by pla (signed by Judge Howell Cobb) cc: attys, HC 7/2/98 (djh) (Entered: 07/02/1998)
58 Witness list for class certification hearing filed by Lufkin Industries (djh) (Entered: 07/01/1998)
59 MOTION by Sylvester McClain, Buford Thomas for leave to file 1st amended supplemental complaint adding Eric Knighton as a pla (djh) (Entered: 07/01/1998)
61 Response by Lufkin Industries to [59−1] motion for leave to file 1st amended supplemental complaint adding Eric Knighton as a pla (djh) (Entered: 07/09/1998)
62 ORDER that due unforseen and tragic circumstances pla's counsel has been called out of town and therefore the class certification hearing set in this case for 7/13/98 will be postponed and rescheduled as soon as possible (signed by Judge Howell Cobb) cc: attys, HC 7/9/98 (djh) (Entered: 07/09/1998)
63 PARTIALLY UNOPPOSED MOTION by Sylvester McClain, Buford Thomas to extend time to reply to dft's response to plas' mo for lv to add Eric Knighton as a pla (djh) (Entered: 07/13/1998)

Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 16 of 69

07/24/1998 07/27/1998 08/11/1998 08/11/1998 08/18/1998 08/18/1998 08/19/1998 08/19/1998 08/20/1998
08/20/1998 08/20/1998 08/20/1998 08/20/1998 08/20/1998 08/20/1998 10/08/1998 10/14/1998 10/14/1998
10/14/1998

64 ORDER that motions to exceed page limit is denied. ( signed by Judge Howell Cobb ) cc: attys 7/27/98 (former empl) (Entered: 07/27/1998)
65 ORDER that class certification hearing is set for 8/18/98 at 10:30. ( signed by Judge Howell Cobb ) cc: attys 7/27/98 (former empl) (Entered: 07/27/1998)
66 Reply by Sylvester McClain, Buford Thomas to response to [59−1] motion for leave to file 1st amended supplemental complaint adding Eric Knighton as a pla (djh) (Entered: 08/11/1998)
67 Supplemental proposed witness list filed by Sylvester McClain, Buford Thoma for 8/18/98 class certification hearing (djh) (Entered: 08/11/1998)
Motion hearing re: [27−1] motion to certify class action held before Judge Howell Cobb. Plaintiff and Defendant presented testimony and evidence. Hearing continued until 9:00am 8/19/98 (former empl) (Entered: 08/19/1998)
68 Minutes Re: [0−0] motion hearing by Judge Howell Cobb held on 8/18/98 (Ct rep: Whitney Garza w/Excel Reporting & Assoc., Lufkin, TX) (former empl) (Entered: 08/19/1998)
Motion hearing re: [27−1] motion to certify class action held before Judge Howell Cobb. Plaintiff and Defendant presented testimony and evidence. Plaintiff rests. Hearing continued until 8/20/98 at 9:00 am (former empl) (Entered: 08/20/1998)
69 Minutes Re: [0−0] motion hearing by Judge Howell Cobb held on 8/19/98 (Ct rep: Whitney Garza w/Excel Reporting & Assoc., Lufkin, TX) (former empl) (Entered: 08/20/1998)
3rd day Motion hearing re: [27−1] motion to certify class action held before Judge Howell Cobb. Parties completed testimony and evidence. Defense rested. The Court took the matter under advisement and will enter an order at a later date. (former empl) (Entered: 08/21/1998)
70 Witness list filed by Sylvester McClain, Buford Thomas (former empl) (Entered: 08/21/1998)
71 Exhibit list by Sylvester McClain, Buford Thomas (former empl) (Entered: 08/21/1998)
72 Witness list filed by Lufkin Industries (former empl) (Entered: 08/21/1998)
73 Exhibit list by Lufkin Industries (former empl) (Entered: 08/21/1998)
74 ORDER for Examination of Facility ( signed by Judge Howell Cobb ) cc: HC, attys via hand delivered 8/20/98 (former empl) (Entered: 08/21/1998)
75 Minutes Re: [0−0] 3rd day motion hearing held by Judge Howell Cobb on 8/20/98 (Ct rep: Whitney Garza w/Excel Reporting & Assoc., Lufkin, TX) (former empl) (Entered: 08/21/1998)
76 MOTION by Sylvester McClain, Buford Thomas for relief from retaliation against witnesses (djh) (Entered: 10/08/1998)
77 Response by Buford Thomas to [76−1] motion for relief from retaliation against witnesses (djh) (Entered: 10/14/1998)
78 ORDER that Roald Mark will be returned to work consistent with his present medical condition to his assignment in the general foundry at the rate of $9.25 per hour. Nothing in this order shall prohibit or interfere with Mr. Mark bidding on other jobs, or receiving raises or advancing in any way or being subject to job transfer, demotion, or layoff according to the governing terms of the collective bargaining agreement. ( signed by Judge Howell Cobb ) cc: attys 10/14/98 (former empl) (Entered: 10/14/1998)
Motion hearing re: [76−1] motion for relief from retaliation against witnesses held before Judge Howell Cobb. Plaintiff and Defendant presented testimony and evidence. Rule invoked. Order was entered orally on the record (former empl) (Entered: 10/19/1998)

Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 17 of 69

10/14/1998 10/14/1998 10/14/1998 10/14/1998 10/14/1998 10/14/1998 10/19/1998 01/25/1999 02/11/1999
02/11/1999 02/22/1999 02/23/1999 03/31/1999 03/31/1999 03/31/1999
03/31/1999 03/31/1999 03/31/1999 04/08/1999

79 Witness list filed by Sylvester McClain, Buford Thomas (former empl) (Entered: 10/19/1998)
80 Witness list filed by Lufkin Industries (former empl) (Entered: 10/19/1998)
81 Exhibit list by Sylvester McClain, Buford Thomas (former empl) (Entered: 10/19/1998)
82 Exhibit list by Lufkin Industries (former empl) (Entered: 10/19/1998)
83 Minutes Re: Motion hearing held before Judge Howell Cobb on 10/14/98 (Ct rep: Wendell Parks) (former empl) (Entered: 10/19/1998)
Terminated motion document #76 − order entered orally 10/14/98 (jec) (Entered: 07/02/1999)
Notice of Mailing of Document #81 (copies of exhibits) to Tim Garrigan (former empl) (Entered: 10/19/1998)
84 MOTION by Sylvester McClain, Buford Thomas for leave to file motion for relief from retaliation against witnesses and motion to show cause why dft should not be held in contempt in excess of 15 pages (kjr) (Entered: 01/25/1999)
85 ORDER granting [84−1] motion for leave to file motion for relief from retaliation against witnesses and motion to show cause why dft should not be held in contempt in excess of 15 pages ( signed by Judge Howell Cobb ) cc: HC and attys (rll) (Entered: 02/16/1999)
86 Second MOTION by Sylvester McClain & Buford Thomas for relief from retaliation against witnesses and to show cause why dft Lufkin Industries should not be held in contempt (kjr) (Entered: 02/22/1999)
87 Response by Lufkin Industries to [86−1] motion for relief from retaliation against witnesses, [86−2] motion to show cause why dft Lufkin Industries should not be held in contempt (kjr) (Entered: 02/22/1999)
88 Reply by Sylvester McClain & Buford Thomas to response to [86−1] motion for relief from retaliation against witnesses and [86−2] motion to show cause why dft Lufkin Industries should not be held in contempt (kjr) (Entered: 02/23/1999)
89 Memorandum Opinion Regarding Certification of Class Action ( signed by Judge Howell Cobb ) cc: HC and attys (rll) Modified on 04/01/1999 (Entered: 04/01/1999)
90 ORDER granting [27−1] motion to certify class action (signed by Judge Howell Cobb ) cc: HC and attys (rll) (Entered: 04/01/1999)
91 ORDER DESIGNATING CLASS REPRESENTATIVES. The court hereby designates the following as additional class representatives: Patrick Ross; Mary Thomas; Eddie K. Mask; Leroy Garner; Sherry Calloway Swint; John Doe a/k/a "A"; John Doe II a/k/a "B"; John Doe III a/k/a "C"; Clifford R. Duirden; Earl Potts; and Roald Mark. In the event any John Doe wishes to withdraw his willingness to be a class representative, and the ineitable discovery of his true name, leave of the court is hereby granted to each to file such motion to withdraw in camera. (signed by Judge Howell Cobb ) cc: HC and attys (rll) (Entered: 04/01/1999)
92 ORDER denying [59−1] motion for leave to file 1st amended supplemental complaint adding Eric Knighton as a pla (signed by Judge Howell Cobb ) cc: HC and attys (rll) (Entered: 04/01/1999)
93 ORDER denying [63−1] motion to extend time to reply to dft's response to plas' mo for lv to add Eric Knighton as a pla (signed by Judge Howell Cobb ) cc: HC and attys (rll) (Entered: 04/01/1999)
95 Memorandum Opinion and Order Re: Class Certification ( signed by Judge Howell Cobb ) cc: HC and attys (rll) (Entered: 04/09/1999)
94 ORDER SUBSTITUTING OPINION. The court hereby substitutes the attached opinion for the original one filed 3/31/99. (signed by Judge Howell Cobb 4/7/99 ) cc: HC and attys (rll) (Entered: 04/09/1999)

Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 18 of 69

06/28/1999 09/29/1999
10/14/1999 11/03/1999 11/05/1999 11/05/1999 11/10/1999 11/17/1999 02/11/2000 02/11/2000 03/07/2000 03/09/2000 03/09/2000
03/10/2000
03/10/2000 03/10/2000 03/13/2000
04/04/2000 05/26/2000

96 USCA ORDER that the petition filed by petitioner Lufkin Industries for permission to appeal is denied. (USCA #99−33). Before Higinbotham, Jones & Dennis. Issued 6/23/99 cc HC (kjr) (Entered: 06/28/1999)
97 ORDER granting [86−1] motion for relief from retaliation against witnesses, granting [86−2] motion to show cause why dft Lufkin Industries should not be held in contempt and setting contempt hearing for 1:30 10/28/99 before Judge Howell Cobb in Lufkin (signed by Judge Howell Cobb) cc HC, parties 9/29/99 (kjr) (Entered: 09/29/1999)
98 Transcript filed of motion hrg held on 10/14/98 before Judge Cobb. Court Reporter: Wendell Parks (191 pages) (kjr) (Entered: 10/15/1999)
99 MOTION by Sylvester McClain to exceed page limitation for filing plas' second motion to compel production of personnel databases (kjr) (Entered: 11/03/1999)
100 MOTION by Lufkin Industries for protective order (kjr) (Entered: 11/05/1999)
100 (filed early) Response by Lufkin Industries to Plas' motion to compel production (kjr) (Entered: 11/05/1999)
101 Response by Pla Class to [100−1] motion for protective order (kjr) (Entered: 11/10/1999)
102 MOTION by Lufkin Industries for leave to file reply to pla class' response in opposition to dft's motion to enter protective order (kjr) (Entered: 11/17/1999)
103 MOTION by Glass, Molders, to appear as amicus curiae (djh) (Entered: 02/11/2000)
104 Memorandum by Glass, Molders, in support of [103−1] motion to appear as amicus curiae (djh) (Entered: 02/11/2000)
105 Plas' Response to [103−1] motion to appear as amicus curiae (kjr) (Entered: 03/07/2000)
110 Second MOTION by Plaintiffs to compel production of personnel databases (kjr) Modified on 03/13/2000 (Entered: 03/13/2000)
111 ORDER granting [100−1] motion for protective order, granting [99−1] motion to exceed page limitation for filing plas' second motion to compel production of personnel databases, granting [110−1] motion to compel production of personnel databases. The court orders the dfts to produce the personnel databases subject to the provisions in this protective order. (signed by Judge Howell Cobb ) cc HC, parties 3/13/00 (kjr) (Entered: 03/13/2000)
106 ORDER denying [103−1] motion to appear as amicus curiae. The addition of an Amicus Curiae may further delay the progress of this litigation. The Court is confident that it can interpret the Collective Bargaining Agreement. (signed by Judge Howell Cobb) cc; attys, HC 3/10/00 (djh) (Entered: 03/10/2000)
107 ORDER granting [102−1] motion for leave to file reply to pla class' response in opposition to dft's motion to enter protective order (signed by Judge Howell Cobb ) cc: attys, HC 3/10/00 (djh) (Entered: 03/10/2000)
108 Response by Lufkin Industries in opposition to [100−1] motion for protective order (djh) (Entered: 03/10/2000)
109 ORDER denying [86−1] motion for relief from retaliation against witnesses and withdrawing [97−1] order granting pla's second motion for relief from retaliation against witnesses (signed by Judge Howell Cobb ) cc HC, parties 3/13/0 (kjr) (Entered: 03/13/2000)
112 MOTION by Sylvester McClain for reconsideration of [109−1] order withdrawing [97−1] order granting pla's second motion for relief from retaliation against witnesses (kjr) (Entered: 04/04/2000)
113 ORDER granting [112−1] motion for reconsideration of [109−1] order withdrawing [97−1] order granting pla's second motion for relief from retaliation against witnesses. The Court grants [86−1] motion for relief from retaliation against witnesses and [86−2] motion to show cause why dft Lufkin Industries should not be held in contempt. Contempt hearing set for 7/6/00 at 10:00 in Beaumont (signed by Judge

Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 19 of 69

05/31/2000
06/22/2000 06/30/2000 07/03/2000 07/17/2000 07/20/2000
07/21/2000 07/21/2000 07/21/2000 07/24/2000 07/25/2000 07/26/2000 07/27/2000 07/27/2000
07/27/2000 07/27/2000 07/27/2000 07/27/2000 07/27/2000 07/27/2000

Howell Cobb ) cc HC, parties 5/26/00 (kjr) (Entered: 05/26/2000)
114 ORDERED that the show cause hearing scheduled in this matter in Beaumont TX on 7/6/00 is continued to 7/27/00 . Dft Lufkin Industries shall appear and show cause why it should not be held in contempt. The hearing is scheduled for 10:00 am 7/27/00 in Beaumont TX. (signed by Judge Howell Cobb ) cc HC, parties 5/31/00 (kjr) (Entered: 05/31/2000)
115 MOTION by Lufkin Industries to amenda the temporal scope of the class pursuant to Federal Rule of Civil Procedure 23(c)(1) (djh) (Entered: 06/22/2000)
116 Notice by Sylvester McClain, Buford Thomas of request for additional time to respond to motion to amend the temporal scope of the class and motion to dismiss disparate treatment class claims. (kjr) (Entered: 06/30/2000)
117 MOTION by Lufkin Industries to dismiss plas' disparate treatment class claims (kjr) (Entered: 07/03/2000)
118 MOTION by Lufkin Industries to stay show cause hearing (djh) (Entered: 07/17/2000)
119 ORDER directing parties to be prepared to argue all pending motions at hearing scheduled for 7/27/00 in Beaumont. In addition the court may wish to conduct a case management type conference. (signed by Judge Howell Cobb ) cc HC, parties 7/20/00 (kjr) (Entered: 07/20/2000)
120 Transcript of 8/18/98 Hearing on Class Certification filed . Court Reporter: Whitney Durham Garza ( 213 pages) (kjr) (Entered: 07/21/2000)
121 Transcript of 8/19/98 Hearing on Class Certification filed . Court Reporter: Whitney Durham Garza (304 pages) (kjr) Modified on 07/21/2000 (Entered: 07/21/2000)
122 Transcript of 8/20/98 Hearing on Class Certification filed . Court Reporter: Whitney Durham Garza ( 138 pages) (kjr) (Entered: 07/21/2000)
123 Plas' Response to [117−1] motion to dismiss plas' disparate treatment class claims (kjr) (Entered: 07/24/2000)
124 Response by Sylvester McClain, Buford Thomas in opposition to [115−1] motion to amenda the temporal scope of the class pursuant to Federal Rule of Civil Procedure 23(c)(1) (djh) (Entered: 07/25/2000)
125 Response by Sylvester McClain, Buford Thomas to [118−1] motion to stay show cause hearing (kjr) (Entered: 07/26/2000)
126 Reply by Lufkin Industries to response to [115−1] motion to amenda the temporal scope of the class pursuant to Federal Rule of Civil Procedure 23(c)(1) (djh) (Entered: 07/28/2000)
Motion hearing re: [118−1] motion to stay show cause hearing, [117−1] motion to dismiss plas' disparate treatment class claims, [115−1] motion to amenda the temporal scope of the class pursuant to Federal Rule of Civil Procedure 23(c)(1) held before Judge Howell Cobb. The Court took the motions under advisement. The Court will amend the order as stated on the record. The Court will not sever the plaintiffs and will try only one lawsuit. The Court proceeded into the bench trial (former empl) (Entered: 07/31/2000)
Bench trial held before Judge Howell Cobb. The parties presented testimony and evidence. The Court will allow the parties to submit written briefs and will take the contempt matter under advisement (former empl) (Entered: 07/31/2000)
127 Witness list filed by plaintiff (former empl) (Entered: 07/31/2000)
128 Exhibit list by plaintiffs (former empl) Modified on 07/31/2000 (Entered: 07/31/2000)
129 Witness list filed by Lufkin Industries (former empl) (Entered: 07/31/2000)
130 Exhibit list by Lufkin Industries (former empl) (Entered: 07/31/2000)
131 Minutes Re: [0−0] motion hearing and [0−0] bench trial held by Judge Howell Cobb on 7/27/00 (Ct rep: Wendell Parks) (former empl) (Entered: 07/31/2000)

Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 20 of 69

07/27/2000
08/02/2000
08/17/2000 08/31/2000 08/31/2000 09/20/2000 09/22/2000 09/28/2000 09/28/2000 10/02/2000 10/02/2000 10/02/2000 10/02/2000 10/02/2000 10/03/2000
10/03/2000 10/03/2000
10/05/2000 10/05/2000 10/05/2000
10/05/2000 10/05/2000

Oral order denying [118−1] motion to stay show cause hearing, denying [117−1] motion to dismiss plas' disparate treatment class claims from the bench (kjr) (Entered: 01/23/2001)
132 ORDER denying [115−1] motion to amend the temporal scope of the class pursuant to Federal Rules of Civil Procedure 23(c)(1) (signed by Judge Howell Cobb ) cc HC, parties 8/2/00 (kjr) (Entered: 08/02/2000)
133 Post−Hearing Brief filed by Sylvester McClain in Support of Finding Dft Lufkin Industries in Contempt (kjr) (Entered: 08/17/2000)
134 Post Hearing Brief filed by Lufkin Industries (djh) (Entered: 08/31/2000)
135 MOTION by Lufkin Industries to strike [133−1] evidence offered in plas' post−hearing brief (djh) (Entered: 08/31/2000)
136 Post−Hearing Brief filed by plaintiff class in support of finding dft in contempt (kjr) (Entered: 09/21/2000)
137 Response by Lufkin Industries to [135−1] motion to strike [133−1] evidence offered in plas' post−hearing brief (djh) (Entered: 09/22/2000)
138 Response by Lufkin Industries to [136−1] Plas' Supplemental Post−Hearing Brief (kjr) (Entered: 09/28/2000)
139 Reply by Lufkin Industries to response to [135−1] motion to strike [133−1] evidence offered in plas' post−hearing brief (kjr) (Entered: 09/28/2000)
140 MOTION by Sylvester McClain, Buford Thomas to exceed page limitation (kjr) (Entered: 10/02/2000)
141 MOTION by Sylvester McClain, Buford Thomas for Linda M Dardarian to appear pro hac vice (kjr) (Entered: 10/03/2000)
PHV Filing Fee paid by atty Linda M Dardarian; PHV FILING FEE $ 10.00 RECEIPT # 91109 (kjr) (Entered: 10/03/2000)
142 MOTION by Sylvester McClain, Buford Thomas for Teresa Demchak to appear pro hac vice (kjr) (Entered: 10/03/2000)
PHV Filing Fee paid by atty Teresa Demchak; PHV FILING FEE $ 10.00 RECEIPT # 91110 (kjr) (Entered: 10/03/2000)
143 ORDER granting [140−1] motion to exceed page limitation to file Pla Class Supplemental Opposition` Lufkin Industries' Motion to Dismiss Class Disparate Treatment Claims and Pla Class Motion to Bifurcate Trial and for Discretionary Notice (signed by Judge Howell Cobb ) cc HC, parties 10/3/00 (kjr) (Entered: 10/03/2000)
144 MOTION by Sylvester McClain, Buford Thomas to bifurcate and for discretionary notice (kjr) (Entered: 10/03/2000)
145 Supplemental response to [117−1] motion to dismiss plas' disparate treatment class claims by plaintiff Sylvester McClain, plaintiff Buford Thomas (kjr) (Entered: 10/03/2000)
146 MOTION by Sylvester McClain, Buford Thomas for Darci E Burrell to appear pro hac vice (kjr) (Entered: 10/05/2000)
PHV Filing Fee paid by atty Darci E Burrell; PHV FILING FEE $ 10.00 RECEIPT # 91115 (kjr) (Entered: 10/05/2000)
147 Supplemental response to [135−1] motion to strike [133−1] evidence offered in plas' post−hearing brief by plaintiff Sylvester McClain, plaintiff Buford Thomas (kjr) (Entered: 10/05/2000)
148 Second Supplemental Post−Hearing Brief filed by Sylvester McClain, Buford Thomas (kjr) (Entered: 10/05/2000)
148 MOTION by Sylvester McClain, Buford Thomas to strike three pages of documents attached to dft's response to pla's supplemental post−hearing brief (kjr) (Entered:

Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 21 of 69

10/05/2000 10/10/2000 10/10/2000 10/10/2000 10/11/2000
11/06/2000 11/16/2000 11/27/2000 12/07/2000 12/07/2000 12/08/2000 12/08/2000 02/27/2001 02/28/2001 03/08/2001
03/08/2001 03/14/2003 03/14/2003

10/05/2000)
149 MOTION by Lufkin Industries to extend time to file responses to pla's supplemental opposition to motion to dismiss disparate treatment claims and motion to bifurcate trial and for discretionary notice (kjr) Modified on 11/05/2002 (Entered: 10/05/2000)
150 ORDER granting [141−1] motion for Linda M Dardarian to appear pro hac vice (signed by Judge Howell Cobb ) cc HC, parties 10/10/00 (kjr) (Entered: 10/10/2000)
151 ORDER granting [142−1] motion for Teresa Demchak to appear pro hac vice (signed by Judge Howell Cobb ) cc HC, parties 10/10/00 (kjr) (Entered: 10/10/2000)
152 ORDER granting [146−1] motion for Darci E Burrell to appear pro hac vice (signed by Judge Howell Cobb ) cc HC, parties 10/10/00 (kjr) (Entered: 10/10/2000)
153 ORDER granting [149−1] motion to extend time to file responses to pla's supplemental opposition to motion to dismiss disparate treatment claims and motion to bifurcate trial and for discretionary notice, Response to motion reset to 11/3/00 for [144−1] motion to bifurcate, reset to 11/3/00 for [144−2] motion for discretionary notice, reset to 11/3/00 for [117−1] motion to dismiss plas' disparate treatment class claims (signed by Judge Howell Cobb ) cc: HC and attys (rll) Modified on 11/05/2002 (Entered: 10/12/2000)
155 Response by Lufkin Industries to [144−1] motion to bifurcate, [144−2] motion for discretionary notice (kjr) (Entered: 11/06/2000)
156 MOTION by Sylvester McClain, Buford Thomas to extend time to file reply to response to pla class' supplemental opposition (kjr) (Entered: 11/20/2000)
157 ORDER granting [156−1] motion to extend time to file reply to response to pla class' supplemental opposition and has until 12/8/00 to file their reply (signed by Judge Howell Cobb) cc; attys, HC 11/27/00 (djh) (Entered: 11/27/2000)
158 MOTION by Sylvester McClain, Buford Thomas to dismiss individual claims for compensatory and punitive damages (djh) (Entered: 12/08/2000)
158 MOTION by Sylvester McClain, Buford Thomas for leave to file 2nd amended supplemental complaint (djh) (Entered: 12/08/2000)
Partial filing fee paid per court order; PARTIAL FILING FEE $40.00 RECEIPT # 91187 (djh) (Entered: 12/08/2000)
159 Reply by Sylvester McClain, Buford Thomas to response to [117−1] motion to dismiss plas' disparate treatment class claims (djh) (Entered: 12/08/2000)
160 ORDER granting [135−1] motion to strike [133−1] evidence offered in plas' post−hearing brief (signed by Judge Howell Cobb ) cc HC, parties 2/27/01 (kjr) (Entered: 02/27/2001)
161 JOINT MOTION to stay proceedings (kjr) (Entered: 02/28/2001)
162 ORDER granting [161−1] motion to stay proceedings and administratively closing case pending mediation. In the event mediation is unsuccessful, the parties are granted leave to move to reinstate the case on the court's active docket no earlier than 6 months after this order has been entered or after the mediator declares an impasse, provided the party filing the motion has first conferred with the other party prior to filing any motion. (signed by Judge Howell Cobb ) cc HC, parties 3/8/01 (kjr) Modified on 11/05/2002 (Entered: 03/08/2001)
Case Administratively Closed per #162 Order (kjr) (Entered: 03/08/2001)
163 ORDER, reopening case and setting bench trial for 9:00 4/21/03 before Judge Howell Cobb in Beaumont ( signed by Judge Howell Cobb ) cc HC, parties 3/14/03 (kjr) (Entered: 03/14/2003)
164 Fax noticing receipt of #163 Order reopening case to attorney Teresa Demchak for plaintiff Pla Class, Darci E Burrell for plaintiff Pla Class, Linda M Dardarian for plaintiff Pla Class, Timothy Borne Garrigan for plaintiff Roald Mark, John H Smither for defendant Lufkin Industries, Christopher V Bacon for defendant Lufkin Industries

Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 22 of 69

03/14/2003 03/19/2003
03/19/2003
03/26/2003 03/27/2003
03/27/2003 03/28/2003
03/28/2003 03/28/2003
03/28/2003 03/28/2003
04/04/2003 04/07/2003 04/08/2003 04/10/2003

3/14/03 . (kjr) (Entered: 03/14/2003)
Case reopened pursuant to Court Order (kjr) (Entered: 04/01/2003)
165 ORDER setting a scheduling and status conference for 3/27/03 at 10:00 a.m. in the first floor courtroom U S Courthouse Beaumont, TX status conference for 10:00 3/27/03 before Judge Howell Cobb. The above captioned matter is set for trial on 4/21/03 (signed by Judge Howell Cobb) cc; attys, HC 3/19/03 (djh) Modified on 03/20/2003 (Entered: 03/19/2003)
166 Fax noticing receipt of #165 order to attorney Carl Steffen Yaller for movant Glass, Molders, Teresa Demchak for plaintiff Pla Class, Darci E Burrell for plaintiff Pla Class, Linda M Dardarian for plaintiff Pla Class, Timothy Borne Garrigan for plaintiff Roald Mark, John H Smither for defendant Lufkin Industries, Christopher V Bacon for defendant Lufkin Industries 3/19/03 . (djh) (Entered: 03/19/2003)
167 AGREED MOTION to continue trial setting to a date no earlier than 9/1/03 (kjr) (Entered: 03/27/2003)
Status conference held before Judge Howell Cobb. The parties argued to the Court. The Court continued the case from the April setting and will reset the case for trial in October, 2003. The Court is also going to check on having Magistrate Judge Radford handle pretrial matters. The parties will complete a docket control order and return it to the Court (former empl) (Entered: 03/28/2003)
168 Minutes Re: [0−0] status conference held by Judge Howell Cobb on 3/27/03 (Ct rep/ECRO: Wendell Parks) (former empl) (Entered: 03/28/2003)
169 ORDER granting [158−1] motion for leave to file 2nd amended supplemental complaint, granting [158−1] motion to dismiss individual claims for compensatory and punitive damages. Plaintiffs McClain's and Thomas' individual claims for compensatory and punitive damages are dismissed. (signed by Judge Howell Cobb) cc; attys, HC 3/28/03 (djh) Modified on 03/31/2003 (Entered: 03/28/2003)
170 Second Amended Supplemental Complaint filed by Pla Class (djh) Modified on 04/01/2003 (Entered: 03/28/2003)
171 Fax noticing receipt of #169 order to attorney Teresa Demchak for plaintiff Pla Class, Darci E Burrell for plaintiff Pla Class, Timothy Borne Garrigan for plaintiff Roald Mark, Douglas Edward Hamel for defendant Lufkin Industries, Christopher V Bacon for defendant Lufkin Industries 03/28/03 . (djh) (Entered: 03/28/2003)
PHV Filing Fee paid by atty Joshua G Konecky; PHV FILING FEE $ 25.00 RECEIPT # 106564 (kjr) (Entered: 03/31/2003)
172 Application by Sylvester McClain, Buford Thomas, Patrick . Ross, Mary Thomas, Eddie K Mask, Leroy Garner, Sherry Calloway Swint, John Doe, John Doe II, John Doe III, Clifford R Duirden, Earl Potts, Roald Mark, Pla Class, Glass, Molders, for Joshua G Konecky (kjr) (Entered: 03/31/2003)
Proposed Discovery Plan/Scheduling Order (kjr) (Entered: 04/04/2003)
173 Acknowledgement by Linda Dardarian, atty for Pla Class of receipt on 4/1/03 of #169 Order (kjr) (Entered: 04/07/2003)
174 Amended Answer to Plaintiffs' Second Amended Supplemental Complaint by Lufkin Industries (kjr) (Entered: 04/10/2003)
175 Scheduling order setting following deadlines: Non−Jury Trial, 9:00 am, Beaumont, in October; Final Pretrial order due on or before 9/30/03 for Pla Class, for Lufkin Industries ; Join parties by 4/15/03 ; Deadline for filing dispositive motions 8/29/03 ; responses to dispositive motions 9/15/03; Discovery cutoff 8/15/03 ; Identify trial witnesses by 6/2/03 for Pla Class, 7/2/03 for Lufkin Industries ; Amend pleadings by 4/15/03 ; Expert witness list by 5/30/03 for Pla Class, 7/16/03 for Lufkin Industries ; expert witnesses report due 5/30/03 statistical experts, 6/16/03 all other experts; Mediation to be completed by 5/15/03; privilege logs to be exchanged by 5/15/03. A final pretrial conference will be scheduled approximately 7 to 14 days prior to docket call. ( signed by Judge Howell Cobb ) cc HC, parties 4/10/03 (kjr) (Entered: 04/10/2003)

Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 23 of 69

04/11/2003
04/15/2003 04/15/2003 04/16/2003
04/16/2003 04/17/2003 04/23/2003 04/23/2003 04/25/2003
04/25/2003
04/29/2003 04/30/2003 04/30/2003 05/12/2003 05/12/2003 05/27/2003 05/28/2003

176 Fax noticing receipt of #175 Scheduling Order to attorney Joshua G Konecky for plaintiff Pla Class, Timothy Borne Garrigan for plaintiff Pla Class, Teresa Demchak for plaintiff Pla Class, Darci E Burrell for plaintiff Pla Class, Linda M Dardarian for plaintiff Pla Class, Douglas Edward Hamel for defendant Lufkin Industries, Christopher V Bacon for defendant Lufkin Industries 4/10/03 . (kjr) (Entered: 04/11/2003)
Proposed Amended Docket Control Order (djh) (Entered: 04/15/2003)
177 Notice by Lufkin Industries of substitution of attorney in charge to Doyle E Hamel (djh) Modified on 04/21/2003 (Entered: 04/15/2003)
178 AMENDED Docket Control Order setting non−jury trail for 10/03 at 9:00 am in Beaumont, TX; Joint pretrial order, proposed findings of fact and conclusions of law (motions in limine due one day before final pretrial conference) due 9/30/3; Join additional parties by 5/1/03; Response to dispositive motions by 9/15/03; Dispositive motions and any other motions that may require a hearing by 8/15/03; dft to identify trial witnesses by 7/15/03; pla to identify trial witnesses by 6/15/03; Discovery deadline 8/15/03 (except pla's may take depos of dft's expert through 9/15); dft to answer amended pleadings due 5/1/03; amended pleadings due 4/15/03; dft to designate expert witnesses (expert reports due also) due 8/1/03 (statistical experts) 8/15/03 (all other experts); pla to designate expert witnesses by 6/16/03 (statistical experts) 7/16/03 (all other experts); Privilege logs to be exchanged by parties at the same time as corresponding discovery or disclosures; completion mediation by 5/15/03 (signed by Judge Howell Cobb) cc; attys, HC 4/16/03 (djh) Modified on 04/21/2003 (Entered: 04/16/2003)
179 Stipulations of Confidentiality (djh) Modified on 04/21/2003 (Entered: 04/16/2003)
180 Stipulation and proposed order (djh) (Entered: 04/17/2003)
183 Letter from Hon Howell Cobb to attorneys regarding concerns about the future handling of case (kjr) (Entered: 04/28/2003)
184 Response by Lufkin Industries to [183−1] letter (kjr) (Entered: 04/28/2003)
181 ORDER granting [180−1] stipulation that all references to class representative John Doe A in the second amended complaint shall be considered and are allegations made by and on behalf of Walter Butler, all references to class representative John Doe C in the second amended complaint shall be considered and are allegations made by and behalf of Clarence Owens. Paragraph 108 of the second amended complaint is stricken (signed by Judge Howell Cobb) cc; attys, HC 4/25/03 (djh) (Entered: 04/25/2003)
182 Fax noticing receipt of #181 order to attorney Joshua G Konecky for plaintiff Pla Class, Timothy Borne Garrigan for plaintiff Pla Class, Teresa Demchak for plaintiff Pla Class, Darci E Burrell for plaintiff Pla Class, Linda M Dardarian for plaintiff Pla Class, Douglas Edward Hamel for defendant Lufkin Industries, Christopher V Bacon for defendant Lufkin Industries 4/25/03 . (djh) (Entered: 04/25/2003)
185 Supplemental response to [183−1] letter by plaintiff Pla Class (kjr) (Entered: 04/30/2003)
186 Initial response by Pla Class to [183−1] letter (kjr) (Entered: 04/30/2003)
Minute entry: terminating [167−1] motion to continue trial setting to a date no earlier than 9/1/03 per request from chambers. Doc #178 granted the motion (mrp) (Entered: 04/30/2003)
187 MOTION by Lufkin Industries to compel answers to interrogatories (kjr) (Entered: 05/13/2003)
188 Notice by Lufkin Industries of privilege log with respect to plas' first request for production of documents (kjr) (Entered: 05/15/2003)
189 Response by Pla Class to [187−1] motion to compel answers to interrogatories (kjr) (Entered: 05/27/2003)
190 Response by Lufkin Industries to [187−1] motion to compel production of certain portions of "Lufkin's Affirmative Action Plans" from 1998 to present (djh) Modified

Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 24 of 69

06/03/2003 06/09/2003
06/13/2003 06/20/2003 06/23/2003 06/23/2003
06/25/2003
06/25/2003 06/25/2003
06/26/2003 07/01/2003 07/03/2003 07/03/2003 07/03/2003 07/10/2003 07/11/2003

on 06/03/2003 (Entered: 05/30/2003)
191 MOTION by Pla Class to exceed page limitation for Reply to Response to Motion to Compel (kjr) (Entered: 06/04/2003)
192 MOTION by Sylvester McClain for protective order pursuant to Fed. R. Civ. P. 26(c) directing that dft Lufkin Industries, Inc be prohibited from seeking discovery from absent class members without first obtaining leave of the court and that the absent class members not be required to respond to dft's first request for production of documents (djh) (Entered: 06/09/2003)
193 Notice by Lufkin Industries of filing of dft's privilege log with respect to plas' third request for production of documents (kjr) (Entered: 06/16/2003)
194 MOTION by Lufkin Industries to exceed page limitation for Motion to Serve Written Discovery on the Class and Response to Plaintiffs' Motion for Protective Order (kjr) (Entered: 06/20/2003)
195 Notice by Pla Class of compliance with statistical expert disclosures (djh) (Entered: 06/23/2003)
196 Reply by Pla Class to response to [192−1] motion for protective order pursuant to Fed. R. Civ. P. 26(c) directing that dft Lufkin Industries, Inc be prohibited from seeking discovery from absent class members without first obtaining leave of the court and that the absent class members not be required to respond to dft's first request for production of documents (djh) (Entered: 06/24/2003)
198 ORDER granting [194−1] motion to exceed page limitation for Motion to Serve Written Discovery on the Class and Response to Plaintiffs' Motion for Protective Order. ( signed by Judge Howell Cobb ) cc HC, parties 6/25/03 (kjr) (Entered: 07/01/2003)
200 MOTION by Lufkin Industries for leave to serve written discovery on the class (kjr) (Entered: 07/01/2003)
200 Response by Lufkin Industries to [192−1] motion for protective order pursuant to Fed. R. Civ. P. 26(c) directing that dft Lufkin Industries, Inc be prohibited from seeking discovery from absent class members without first obtaining leave of the court and that the absent class members not be required to respond to dft's first request for production of documents (kjr) (Entered: 07/01/2003)
199 Notice of of supplemental disclosure by Pla Class (djh) (Entered: 06/26/2003)
201 Response by Pla Class to [200−1] motion for leave to serve written discovery on the class (kjr) (Entered: 07/01/2003)
202 Objection by Lufkin Industries to trial in Beaumont, TX (djh) (Entered: 07/03/2003)
202 Objection to Trial in Beaumont and motion by Lufkin Industries to transfer case to Lufkin for trial (djh) Modified on 07/08/2003 (Entered: 07/03/2003)
203 Second MOTION by Lufkin Industries to compel responses to its first set of interrogatories nos 1 and 2 (djh) (Entered: 07/03/2003)
204 Response by Pla Class to [203−1] motion to compel responses to its first set of interrogatories nos 1 and 2 (kjr) (Entered: 07/10/2003)
205 ORDER granting [117−1] motion to dismiss plas' disparate treatment class claims to the extent that any disparate treatment or individual claims, if asserted, will be severed from this case. Any such claims will be considered to have been part of this action until severed, thereby tolling the limitations periods. Potential damages in this action will be limited to those available under disparate impact claims. Order, denying [144−1] motion to bifurcate, granting [144−2] motion for discretionary notice, granting [192−1] motion for protective order to the extent that dft shall seek approval from the court before engaging in discovery, beyond that granted at the hearing, of absent class members. Plaintiff representatives shall furnish the names & addresses of all class members, but dft shall not seek additional information, including social securitiy numbers, without showing of good cause for such discovery. Order, granting [191−1] motion to exceed page limitation for Reply to Response to Motion to Compel,

Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 25 of 69

07/11/2003 07/11/2003 07/11/2003
07/11/2003 07/14/2003
07/16/2003 07/18/2003 07/18/2003
07/18/2003 07/22/2003
07/22/2003 07/22/2003 07/24/2003 07/28/2003 07/28/2003

denying [187−1] motion to compel answers to interrogatories, denying [200−1] motion for leave to serve written discovery on the class, subject to dft obtaining approval from the court, granting [203−1] motion to compel responses to dft's first set of interrogatories nos 1 and 2 to the extent that plas shall be required to supplement their responses to the interrogatories within 10 days, denying [202−1] motion to transfer case to Lufkin for trial. Plas' request to discover redacted portions of Lufkin Industries Affirmative Action Plans, written 5/5/03, is granted to the extent that dft shall furnish the requested materials for in camera inspection by the court. Any individual who is to testify at trial shall be designated and made available for deposition. In addition, dft may take the deposition of up to 20 absent class members. Pla may also take up to 20 depositions. ( signed by Judge Howell Cobb ) cc HC, parties 7/14/03 (kjr) (Entered: 07/14/2003)
206 Reply by Pla Class to response to [187−1] motion to compel redacted portions of Lufkin Industries' Affirmative Action Plans (kjr) (Entered: 07/14/2003)
212 ORDER granting [191−1] motion to exceed page limitation for Reply to Response to Motion to Compel ( signed by Judge Howell Cobb ) (Note: response filed 7/11/03 − Doc #206) (kjr) (Entered: 07/22/2003)
Motion hearing re: pending motions held before Judge Howell Cobb. The Court order the parties to furnish all names requested. The Court also ordered the parties to post the opt−out notice. The parties will work together on the notice (former empl) (Entered: 07/23/2003)
216 Minutes Re: [0−0] motion hearing held by Judge Howell Cobb on 7/11/03 (Ct rep/ECRO: Wendell Parks) (former empl) (Entered: 07/23/2003)
207 Fax noticing receipt of #205 Order to attorney Teresa Demchak for plaintiff Pla Class, Darci E Burrell for plaintiff Pla Class, Linda M Dardarian for plaintiff Pla Class, Douglas Edward Hamel for defendant Lufkin Industries, John H Smither for defendant Lufkin Industries, Christopher V Bacon for defendant Lufkin Industries 7/14/03 (note: mailed to Garrigan & Konecky) (kjr) (Entered: 07/14/2003)
208 MOTION by Lufkin Industries for leave to serve a second set of 11 contention interrogatories on the named plaintiffs (kjr) (Entered: 07/16/2003)
209 Witness list filed by Lufkin Industries (kjr) (Entered: 07/18/2003)
210 MOTION by Pla Class for reconsideration of [205−1] order dismissing plas' systemic disparate treatment claim and class claim for front pay , or, alternatively, to certify the order for interlocutory appeal and to stay the proceedings pending such appeal (kjr) (Entered: 07/18/2003)
211 Notice by Pla Class of compliance with non−statistical expert disclosures (kjr) (Entered: 07/18/2003)
213 ORDER referring case for mediation to Magistrate Judge Wendell C. Radford. The court appoints Timothy Garrigan as lead counsel to work with mediator & counsel to coordinate a date. The mediator shall submit a report within five days of mediation. ( signed by Judge Howell Cobb ) cc HC, WCR, parties 7/22/03 (kjr) (Entered: 07/22/2003)
214 Fax noticing receipt of #212 Order 7/22/03 to attys of record (kjr) (Entered: 07/22/2003)
215 Fax noticing receipt of 213 7/22/03 to attys of record (kjr) (Entered: 07/22/2003)
217 Motion by Lufkin Industries to extend the dispositve motion deadline to 9/5/03 (djh) (Entered: 07/24/2003)
218 ORDER granting [217−1] motion to extend the dispositve motion deadline to 9/5/03, Response to dispositive motion is 9/5/03 (signed by Judge Howell Cobb) cc; attys, HC 7/28/03 (djh) (Entered: 07/28/2003)
219 Response by Lufkin Industries to [210−1] motion for reconsideration of [205−1] order dismissing plas' systemic disparate treatment claim and class claim for front pay (djh) (Entered: 07/28/2003)

Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 26 of 69

07/29/2003 07/29/2003 07/29/2003 07/30/2003 07/30/2003 07/30/2003
08/01/2003
08/04/2003 08/06/2003 08/20/2003 08/25/2003 08/25/2003 08/25/2003
08/26/2003 08/26/2003
09/02/2003 09/03/2003 09/04/2003 09/04/2003 09/05/2003

220 Opposition by Pla Class to [208−1] motion for leave to serve a second set of 11 contention interrogatories on the named plaintiffs (djh) (Entered: 07/29/2003)
221 Declaration of Teresa Demchak (djh) (Entered: 07/29/2003)
222 ORDER granting [208−1] motion for leave to serve a second set of 11 contention interrogatories on the named plaintiffs (signed by Judge Howell Cobb) cc: Attys, HC 7/29/03 (djh) (Entered: 07/29/2003)
223 Application by Pla Class for Morris J Baller to appear pro hac vice (djh) (Entered: 07/30/2003)
PHV Filing Fee paid by atty Morris Baller; PHV FILING FEE $ 25.00 RECEIPT # 95960 (djh) (Entered: 07/30/2003)
224 ORDER that plas' request for production of portions of the documents listed in Lufkin's privilege lopgs is denied. Lufkin is instructed to disclose to plas what previously produced information was used in the analysis of each yearly plan (igned by Judge Howell Cobb) cc; attys, HC 7/30/03 (djh) (Entered: 07/30/2003)
225 ORDER denying [210−1] motion for reconsideration of [205−1] order dismissing plas' systemic disparate treatment claim and class claim for front pay, denying [210−2] motion to certify the order for interlocutory appeal and to stay the proceedings pending such appeal (signed by Judge Howell Cobb) cc; attys, HC 8/1/03 (djh) (Entered: 08/01/2003)
226 Reply by Pla Class to response to [210−1] motion for reconsideration of [205−1] order dismissing plas' systemic disparate treatment claim and class claim for front pay (kjr) (Entered: 08/04/2003)
227 Notice of compliance by Lufkin Industries with statistical expert disclosures (kjr) (Entered: 08/06/2003)
228 Mediation Conference set for 10:00 9/4/03 before Magistrate Judge Wendell C. Radford in Beaumont (kjr) (Entered: 08/20/2003)
229 MOTION by Lufkin Industries for protective order quashing plas' notice of deposition of Douglas Smith and precluding plas from deposing Smith on any future date (kjr) (Entered: 08/25/2003)
230 Proposed Notice to Class by Lufkin Industries (kjr) (Entered: 08/25/2003)
231 ORDER denying [229−1] motion for protective order quashing plas' notice of deposition of Douglas Smith and precluding plas from deposing Smith on any future date ( signed by Judge Howell Cobb ) cc HC, parties 8/25/03 (kjr) (Entered: 08/25/2003)
232 Response by Pla Class to [230−1] Proposed Notice (kjr) (Entered: 08/26/2003)
233 Fax noticing receipt of #231 Order to attorney Morris J Baller for plaintiff Pla Class, Joshua G Konecky for plaintiff Pla Class, Timothy Borne Garrigan for plaintiff Pla Class, Teresa Demchak for plaintiff Pla Class, Darci E Burrell for plaintiff Pla Class, Linda M Dardarian for plaintiff Pla Class, Douglas Edward Hamel for defendant Lufkin Industries, Christopher V Bacon for defendant Lufkin Industries 8/25/03 . (kjr) (Entered: 08/26/2003)
234 Notice of compliance with expert disclosures by Lufkin Industries (kjr) (Entered: 09/02/2003)
Received Revised Amended Docket Control Order (kjr) (Entered: 09/03/2003)
Mediation conference held before Magistrate Judge Wendell C. Radford on 09/04/03 10:00 (ksd) (Entered: 09/05/2003)
235 Minutes Re: [0−0] mediation conference by Magistrate Judge Wendell C. Radford on 09/04/03 (Ct rep/ECRO: Kyla Dean) (ksd) (Entered: 09/05/2003)
236 MOTION by Lufkin Industries to strike testimony of Dr Richard Drogin (kjr) (Entered: 09/08/2003)

Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 27 of 69

09/05/2003 09/11/2003 09/11/2003 09/11/2003
09/11/2003 09/15/2003
09/16/2003 09/16/2003 09/16/2003 09/17/2003 09/18/2003 09/19/2003
09/19/2003 09/19/2003
09/23/2003 09/24/2003 09/24/2003
09/24/2003 09/24/2003 09/24/2003 09/25/2003

237 MOTION by Lufkin Industries for summary judgment (kjr) (Entered: 09/08/2003)
238 Objections by Lufkin Industries to Court's proposed notice of class action (kjr) (Entered: 09/11/2003)
Transcript requested of 2/5/02 Scheduling Conference (kjr) (Entered: 09/11/2003)
239 Letter from Judge Cobb to dft's attorney advising that because of volume and size the submitted motion for summary judgment would not be considered (kjr) (Entered: 09/12/2003)
Terminated document #237 Motion for Summary Judgment − see #239 Letter from Court (kjr) (Entered: 09/12/2003)
240 Pla Class Comments and Suggestions Regarding the Court's Proposed Notice to the Class, Plaintiffs' Proposed Class Notice and Opt Out Schedule and Pla Class Response to Dft's [238−1] Objections to the Proposed Notice (kjr) (Entered: 09/15/2003)
241 Reply by Lufkin Industries to response to proposed notice of class action (djh) (Entered: 09/16/2003)
242 MOTION by Pla Class for clarification , for reconsideration of [205−1] order (djh) (Entered: 09/16/2003)
243 MOTION by Lufkin Industries for summary judgment (djh) Modified on 09/22/2003 (Entered: 09/16/2003)
244 Notice by Lufkin Industries of submission of Appendix to Dft's Summary Judgment Exhibits (kjr) Modified on 09/22/2003 (Entered: 09/17/2003)
245 Additional Comments by Pla Class on Court's Proposed Notice of Class Action (kjr) (Entered: 09/18/2003)
246 ORDER that any motion to exceed page limit to file dfts' motion for summary judgment is rescinded, canceled and held for naught. Any motion for summary judgment will consist of no more than 30 pages of 8 1/2 by 11 typed materials, including all exhibits thereto, until and unless this court is directed or ordered to accept sucyh voluminous and burdensome motion (signed by Judge Howell Cobb) cc; attys, HC 9/19/03 (djh) (Entered: 09/19/2003)
Terminated document #243 & #244 per Judge Cobb (djh) (Entered: 09/19/2003)
247 Fax noticing receipt of #246 order to attorney Morris J Baller for plaintiff Pla Class, Joshua G Konecky for plaintiff Pla Class, Timothy Borne Garrigan for plaintiff Pla Class, Teresa Demchak for plaintiff Pla Class, Darci E Burrell for plaintiff Pla Class, Linda M Dardarian for plaintiff Pla Class, Douglas Edward Hamel for defendant Lufkin Industries, Christopher V Bacon for defendant Lufkin Industries 9/19/03 . (djh) (Entered: 09/22/2003)
248 Response by Pla Class to [236−1] motion to strike testimony of Dr Richard Drogin (kjr) (Entered: 09/23/2003)
249 MOTION by Lufkin Industries for leave to depose trial witnesses identified in plas' responses to dft's second set of interrogatories (kjr) (Entered: 09/24/2003)
250 ORDERED that dft is required to furnish a list of all African American employees from 3/6/94 to date. ( signed by Judge Howell Cobb ) cc HC, parties 9/24/03 (kjr) (Entered: 09/24/2003)
251 Fax noticing receipt of #250 Order 9/24/03 to all attys of record (kjr) (Entered: 09/24/2003)
252 Response by Lufkin Industries to [246−1] order (kjr) (Entered: 09/24/2003)
253 MOTION by Lufkin Industries for leave to file Motion for Partial Summary Judgment (kjr) (Entered: 09/24/2003)
254 Dft Lufkin Industries' Comments on the Court's Proposed Notice of Class Action and Response to Plaintiffs' Additional Comments on the Court's Proposed Notice of Class Action (kjr) (Entered: 09/25/2003)

Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 28 of 69

09/26/2003 09/29/2003 09/29/2003 09/29/2003
09/29/2003
09/29/2003 09/29/2003 09/29/2003 09/29/2003 09/29/2003 09/30/2003 09/30/2003 09/30/2003 09/30/2003 10/03/2003 10/07/2003 10/07/2003 10/09/2003 10/09/2003

255 Response by Pla Class to [253−1] motion for leave to file Motion for Partial Summary Judgment (kjr) (Entered: 09/26/2003)
256 Reply by Lufkin Industries to response to [253−1] motion for leave to file Motion for Partial Summary Judgment (kjr) (Entered: 09/29/2003)
257 Dft Lufkin Industries' Objections to the Court's Revised Draft of the Notice of Class Action (kjr) (Entered: 09/29/2003)
258 MOTION by Pla Class to compel production of source data and disclosure of data collection methods underlying dft's statistical expert's report , for sanctions for untimley production of documents relevant to dft's experts' reports and analyses, the shredding of expert draft reports, unauthorized disclosure of privileged settlement communications to expert, and , to compel outstanding discovery pertaining to class member witness (kjr) (Entered: 09/29/2003)
259 Affidavit by Teresa Demchak Re: [258−1] motion to compel production of source data and disclosure of data collection methods underlying dft's statistical expert's report, [258−2] motion for sanctions for untimley production of documents relevant to dft's experts' reports and analyses, the shredding of expert draft reports, unauthorized disclosure of privileged settlement communications to expert, and, [258−3] motion to compel outstanding discovery pertaining to class member witness (kjr) (Entered: 09/29/2003)
260 MOTION by Pla Class in limine to exclude testimony of Dr. Mary Baker and Dr. Paul Richard Jeanneret (kjr) (Entered: 09/29/2003)
261 Affidavit by Lisa M Dungan Re: [260−1] motion in limine to exclude testimony of Dr. Mary Baker and Dr. Paul Richard Jeanneret (kjr) (Entered: 09/29/2003)
262 ORDER granting [253−1] motion for leave to file Motion for Partial Summary Judgment. Plas' response, if any, shall be due on 10/6/03. ( signed by Judge Howell Cobb ) cc HC, parties 9/29/03 (kjr) (Entered: 09/29/2003)
263 MOTION by Lufkin Industries for partial summary judgment (kjr) (Entered: 09/29/2003)
264 Fax noticing receipt of #262 Order 9/29/03 to attys of record (kjr) (Entered: 09/29/2003)
265 MOTION by Lufkin Industries to amend [90−1] order certifying class (kjr) (Entered: 09/30/2003)
266 Proposed pre−trial order received from Lufkin Industries, Pla Class (kjr) (Entered: 09/30/2003)
267 Plaintiff's Proposed Pre−Trial Findings of Fact and Conclusions of Law on Their Disparate Impact Case (kjr) Modified on 09/30/2003 (Entered: 09/30/2003)
268 Dft's Pre−Trial Proposed Findings of Fact and Conclusions of Law (kjr) (Entered: 09/30/2003)
269 Opposition by Pla Class to dft's [263−1] motion for partial summary judgment (djh) (Entered: 10/03/2003)
270 Plas' Opposition to Lufkin's [249−1] motion for leave to depose trial witnesses identified in plas' responses to dft's second set of interrogatories (djh) Modified on 10/07/2003 (Entered: 10/07/2003)
271 Reply by Lufkin Industries to response to [263−1] motion for partial summary judgment (djh) (Entered: 10/07/2003)
272 ORDER denying [249−1] motion for leave to depose trial witnesses identified in plas' responses to dft's second set of interrogatories (signed by Judge Howell Cobb) cc; attys, HC 10/9/03 (djh) (Entered: 10/09/2003)
273 (** VACATED PER #299 ORDER **) ORDER by the court that notice be mailed to each of the class members whose names are to be furnished by plas' attorneys on or before 10/21/03 and that the notice also be published in print on two occasions between 10/21 and 11/20/03 in the Houston County Courier and Jasper Newsboy and

Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 29 of 69

10/09/2003
10/09/2003
10/10/2003 10/14/2003 10/14/2003 10/14/2003 10/14/2003 10/14/2003 10/14/2003 10/14/2003
10/14/2003 10/14/2003 10/15/2003 10/15/2003 10/16/2003 10/16/2003 10/17/2003

be shown on at least 2 occasions in the local television station in Lufkinm and an affidavit of publication by the above named media be furnished to the Clerk of the Court of such publication and filed in the papers of this case. Costs associated with the Notice to members of the class will be taxed as costs (signed by Judge Howell Cobb) cc; attys, HC 10/9/03 (djh) Modified on 10/27/2003 (Entered: 10/09/2003)
274 Fax noticing receipt of #272 to attorney Morris J Baller for plaintiff Pla Class, Joshua G Konecky for plaintiff Pla Class, Timothy Borne Garrigan for plaintiff Pla Class, Teresa Demchak for plaintiff Pla Class, Darci E Burrell for plaintiff Pla Class, Linda M Dardarian for plaintiff Pla Class, Douglas Edward Hamel for defendant Lufkin Industries, Christopher V Bacon for defendant Lufkin Industries 10/9/03 . (djh) (Entered: 10/09/2003)
275 Fax noticing receipt of #272 order to attorney Morris J Baller for plaintiff Pla Class, Joshua G Konecky for plaintiff Pla Class, Timothy Borne Garrigan for plaintiff Pla Class, Teresa Demchak for plaintiff Pla Class, Darci E Burrell for plaintiff Pla Class, Linda M Dardarian for plaintiff Pla Class, Douglas Edward Hamel for defendant Lufkin Industries, Christopher V Bacon for defendant Lufkin Industries 10/9/03 . (djh) (Entered: 10/09/2003)
276 Surreply by Pla Class to response to [263−1] motion for partial summary judgment (djh) (Entered: 10/10/2003)
277 Response by Lufkin Industries to [260−1] motion in limine to exclude testimony of Dr. Mary Baker and Dr. Paul Richard Jeanneret (kjr) (Entered: 10/14/2003)
278 Response by Lufkin Industries to [242−1] motion for clarification, [242−2] motion for reconsideration of [205−1] order (kjr) (Entered: 10/14/2003)
279 Notice by Pla Class of submission of revisions to the Class Notice (kjr) (Entered: 10/14/2003)
280 Opposition by Pla Class to [265−1] motion to amend [90−1] order certifying class (kjr) (Entered: 10/14/2003)
281 Declaration of Darci E Burrell in support of plaintiffs' opposition to dft's motion to amend the class certification order (kjr) (Entered: 10/14/2003)
282 Declaration of Richard Drogin Re: [280−1] motion response (kjr) (Entered: 10/14/2003)
283 Response by Lufkin Industries to [258−1] motion to compel production of source data and disclosure of data collection methods underlying dft's statistical expert's report, [258−2] motion for sanctions for untimley production of documents relevant to dft's experts' reports and analyses, the shredding of expert draft reports, unauthorized disclosure of privileged settlement communications to expert, and, [258−3] motion to compel outstanding discovery pertaining to class member witness (kjr) (Entered: 10/15/2003)
284 Affidavit of Douglas E Hamel Re: [283−1] motion response (kjr) Modified on 10/15/2003 (Entered: 10/15/2003)
285 Response by Lufkin Industries to issues raised in Court's letter of 10/8/03 and plas' response of 10/9/03 (kjr) (Entered: 10/15/2003)
286 Reply by Pla Class to response to [260−1] motion in limine to exclude testimony of Dr. Mary Baker and Dr. Paul Richard Jeanneret (kjr) (Entered: 10/15/2003)
287 Reply by Pla Class to response to [242−1] motion for clarification, [242−2] motion for reconsideration of [205−1] order (kjr) (Entered: 10/15/2003)
288 Response by Pla Class to [285−1] letter from dft regarding trial dates and class notice (kjr) (Entered: 10/16/2003)
289 Reply by Lufkin Industries to response to [265−1] motion to amend [90−1] order certifying class (kjr) (Entered: 10/16/2003)
290 Response by Lufkin Industries to [288−1] letter re notice (kjr) (Entered: 10/17/2003)

Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 30 of 69

10/20/2003 10/20/2003 10/21/2003 10/21/2003 10/21/2003
10/22/2003
10/22/2003 10/22/2003 10/23/2003 10/27/2003 10/27/2003
10/27/2003

Received proposed Stipulation Regarding Geographic Scope of the Class & forwarded to Judge Cobb (kjr) (Entered: 10/20/2003)
291 Reply by Pla Class to response to [258−1] motion to compel production of source data and disclosure of data collection methods underlying dft's statistical expert's report (kjr) (Entered: 10/20/2003)
292 Sur−Reply by Pla Class to Dft's Reply to Plas' Response to [265−1] motion to amend [90−1] order certifying class (kjr) (Entered: 10/21/2003)
Received Revised Notice of Class Action from plaintiffs (kjr) (Entered: 10/21/2003)
293 (** VACATED PER #299 ORDER **) ORDERED that notice be mailed to each class member whose name is to be furnished by plas' attys on or before 11/1/03 and that the notice also be published in print on two occasions between 11/1/03 and 12/1/03 in the Lufkin Daily News and once between 11/1/03 and 12/1/03 in the Houston County Courier and the Jasper Newsboy and be shown on at least two occasions in the local tv station in Lufkin and an affidavit of publication by the above named news media furnished to the clerk of such publication and filed in the papers of this cause. Costs associated with the Notice to members are to be paid equally by the parties. Upon judgment, the prevailing party will be reimbursed for costs expended on notice to the class. The Order of 10/9/03 (Doc #273) pertaining to notice in this case is vacated. ( signed by Judge Howell Cobb ) cc HC, parties 10/21/03 (kjr) Modified on 10/27/2003 (Entered: 10/21/2003)
294 Fax noticing receipt of #293 Order & Notice to attorney Morris J Baller for plaintiff Pla Class, Joshua G Konecky for plaintiff Pla Class, Timothy Borne Garrigan for plaintiff Pla Class, Teresa Demchak for plaintiff Pla Class, Darci E Burrell for plaintiff Pla Class, Linda M Dardarian for plaintiff Pla Class, Douglas Edward Hamel for defendant Lufkin Industries, Christopher V Bacon for defendant Lufkin Industries 10/21/03 & 10/22/03 (kjr) (Entered: 10/22/2003)
295 Objections by Lufkin Industries to Plaintiffs' Amended Proposed Notice and Certain Rulings Related to the Amended Proposed Notice Made by the Court During the 10/20/03 Telephone Conference (kjr) (Entered: 10/22/2003)
Forwarded statement for costs of court envelopes to Lead Counsel for plas & dft − cost $16.63 each (kjr) (Entered: 10/22/2003)
296 Plaintiffs' Opposition to Dft's [295−1] Objections to the Class Notice and Related Rulings (kjr) (Entered: 10/23/2003)
297 ORDER as to geographic scope of the class. ( signed by Judge Howell Cobb ) cc HC, parties 10/27/03 (kjr) (Entered: 10/27/2003)
298 Fax noticing receipt of #297 Orer to attorney Carl Steffen Yaller for movant Glass, Molders, Morris J Baller for plaintiff Pla Class, Joshua G Konecky for plaintiff Pla Class, Timothy Borne Garrigan for plaintiff Pla Class, Teresa Demchak for plaintiff Pla Class, Darci E Burrell for plaintiff Pla Class, Linda M Dardarian for plaintiff Pla Class, Douglas Edward Hamel for defendant Lufkin Industries, Christopher V Bacon for defendant Lufkin Industries 10/27/03 . (kjr) (Entered: 10/27/2003)
299 ** AMENDED PER #324 ORDER REGARDING TELEVISED PUBLICATION OF CLASS NOTICE ** ORDER that notice be mailed to each of the class members whose names are to be furnished by plas' attorneys on or before 11/1/03, and that the notice also be published in print on two occasions between 11/1/03 and 12/1/03 in the Lufkin Daily News and once between 11/1/03 and 12/1/03 in the Houston County Courier, the Nacogdoches Daily Sentinel and the Jasper Newsboy and be shown and read on at least two occasions on KTRE, the local tv station in Lufkin, during or after a sports event, and an affidvit of publication by the above named news media furnished to the Clerk of the Court and filed in this case. Costs associated with the Notice will initially be borne by the plas, subject to being assessed as costs upon judgment. A third party administrator may be utilized to comply with this Order. Furthermore, the [293−1] order and [273−1] order pertaining to the notice in this case are vacated . ( signed by Judge Howell Cobb ) cc HC, parties 10/27/03 (kjr) Modified on 11/12/2003 (Entered: 10/27/2003)

Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 31 of 69

10/28/2003
10/29/2003
10/29/2003 10/29/2003
10/29/2003 10/29/2003 10/29/2003
10/29/2003
10/29/2003
10/30/2003 10/30/2003 10/30/2003

300 Fax noticing receipt of #299 Order to attorney Morris J Baller for plaintiff Pla Class, Joshua G Konecky for plaintiff Pla Class, Timothy Borne Garrigan for plaintiff Pla Class, Teresa Demchak for plaintiff Pla Class, Darci E Burrell for plaintiff Pla Class, Linda M Dardarian for plaintiff Pla Class, Douglas Edward Hamel for defendant Lufkin Industries, Christopher V Bacon for defendant Lufkin Industries 10/27/03 . (kjr) (Entered: 10/28/2003)
301 Dft Lufkin Industries sur−reply to plaintiffs' reply to dft's response to [258−1] motion to compel production of source data and disclosure of data collection methods underlying dft's statistical expert's report, [258−2] motion for sanctions for untimley production of documents relevant to dft's experts' reports and analyses, the shredding of expert draft reports, unauthorized disclosure of privileged settlement communications to expert, and (kjr) (Entered: 10/29/2003)
302 ORDER, reset pretrial conference for 10:00 11/13/03 before Judge Howell Cobb in Beaumont. ( signed by Judge Howell Cobb ) cc HC, parties 10/29/03 (kjr) (Entered: 10/29/2003)
303 ORDER granting [258−1] motion to compel production of source data and disclosure of data collection methods underlying dft's statistical expert's report, denying [258−2] motion for sanctions for untimley production of documents relevant to dft's experts' reports and analyses, the shredding of expert draft reports, unauthorized disclosure of privileged settlement communications to expert, and, Motion hearing set for 10:00 11/13/03 for [258−3] motion to compel outstanding discovery pertaining to class member witness ( signed by Judge Howell Cobb ) cc HC, parties 10/29/03 (kjr) (Entered: 10/29/2003)
304 MOTION by Pla Class to compel production of (1) documents from personnel files and continued access to those files, (2) salaried bid sheets, and (3) documents in computer readable format (kjr) (Entered: 10/29/2003)
305 ORDER granting [304−1] motion to compel production of (1) documents from personnel files and continued access to those files, (2) salaried bid sheets, and (3) documents in computer readable format ( signed by Judge Howell Cobb ) cc HC, parties 10/29/03 (kjr) (Entered: 10/29/2003)
306 Fax noticing receipt of #303 Order to attorney Morris J Baller for plaintiff Pla Class, Joshua G Konecky for plaintiff Pla Class, Timothy Borne Garrigan for plaintiff Pla Class, Teresa Demchak for plaintiff Pla Class, Darci E Burrell for plaintiff Pla Class, Linda M Dardarian for plaintiff Pla Class, Douglas Edward Hamel for defendant Lufkin Industries, Christopher V Bacon for defendant Lufkin Industries 10/29/03 . (kjr) (Entered: 10/29/2003)
307 Fax noticing receipt of #302 Order to attorney Morris J Baller for plaintiff Pla Class, Joshua G Konecky for plaintiff Pla Class, Timothy Borne Garrigan for plaintiff Pla Class, Teresa Demchak for plaintiff Pla Class, Darci E Burrell for plaintiff Pla Class, Linda M Dardarian for plaintiff Pla Class, Douglas Edward Hamel for defendant Lufkin Industries, Christopher V Bacon for defendant Lufkin Industries 10/29/03 . (kjr) (Entered: 10/29/2003)
308 Fax noticing receipt of #305 Order to attorney Morris J Baller for plaintiff Pla Class, Joshua G Konecky for plaintiff Pla Class, Timothy Borne Garrigan for plaintiff Pla Class, Teresa Demchak for plaintiff Pla Class, Darci E Burrell for plaintiff Pla Class, Linda M Dardarian for plaintiff Pla Class, Douglas Edward Hamel for defendant Lufkin Industries, Christopher V Bacon for defendant Lufkin Industries 10/29/03 . (kjr) (Entered: 10/29/2003)
309 ORDER denying [263−1] motion for partial summary judgment ( signed by Judge Howell Cobb ) cc HC, parties 10/30/03 (kjr) (Entered: 10/30/2003)
310 ORDER denying [265−1] motion to amend [90−1] order certifying class ( signed by Judge Howell Cobb ) cc HC, parties 10/30/03 (kjr) (Entered: 10/30/2003)
311 ORDER, that the final pretrial conference will be held 10:00 12/1/03 before Judge Howell Cobb in Beaumont ( signed by Judge Howell Cobb ) cc HC, parties 10/30/03 (kjr) (Entered: 10/30/2003)

Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 32 of 69

10/30/2003
10/30/2003
10/30/2003
10/30/2003 10/30/2003 10/30/2003 10/30/2003
10/31/2003 10/31/2003 10/31/2003 10/31/2003 11/03/2003 11/05/2003 11/05/2003

312 Fax noticing receipt of #310 Order to attorney Morris J Baller for plaintiff Pla Class, Joshua G Konecky for plaintiff Pla Class, Timothy Borne Garrigan for plaintiff Pla Class, Teresa Demchak for plaintiff Pla Class, Darci E Burrell for plaintiff Pla Class, Linda M Dardarian for plaintiff Pla Class, Douglas Edward Hamel for defendant Lufkin Industries, Christopher V Bacon for defendant Lufkin Industries 10/30/03 . (kjr) (Entered: 10/30/2003)
313 Fax noticing receipt of #311 Order to attorney Morris J Baller for plaintiff Pla Class, Joshua G Konecky for plaintiff Pla Class, Timothy Borne Garrigan for plaintiff Pla Class, Teresa Demchak for plaintiff Pla Class, Darci E Burrell for plaintiff Pla Class, Linda M Dardarian for plaintiff Pla Class, Douglas Edward Hamel for defendant Lufkin Industries, Christopher V Bacon for defendant Lufkin Industries 10/30/03 . (kjr) (Entered: 10/30/2003)
314 Fax noticing receipt of #309 Order to attorney Morris J Baller for plaintiff Pla Class, Joshua G Konecky for plaintiff Pla Class, Timothy Borne Garrigan for plaintiff Pla Class, Teresa Demchak for plaintiff Pla Class, Darci E Burrell for plaintiff Pla Class, Linda M Dardarian for plaintiff Pla Class, Douglas Edward Hamel for defendant Lufkin Industries, Christopher V Bacon for defendant Lufkin Industries 10/30/03 . (kjr) (Entered: 10/30/2003)
315 MOTION by Lufkin Industries to strike [304−1] motion to compel production of (1) documents from personnel files and continued access to those files, (2) salaried bid sheets, and (3) documents in computer readable format (kjr) (Entered: 10/30/2003)
316 MOTION by Lufkin Industries for reconsideration of [305−1] order , to vacate [305−1] order granting motion to compel (kjr) (Entered: 10/30/2003)
317 ORDER, Motion hearing set for 10:00 11/13/03 for [316−1] motion for reconsideration of [305−1] order, set for 10:00 11/13/03 for [316−2] motion to vacate [305−1] order granting motion to compel ( signed by Judge Howell Cobb ) cc HC, parties 10/30/03 (kjr) (Entered: 10/30/2003)
318 Fax noticing receipt of #317 Order to attorney Morris J Baller for plaintiff Pla Class, Joshua G Konecky for plaintiff Pla Class, Timothy Borne Garrigan for plaintiff Pla Class, Teresa Demchak for plaintiff Pla Class, Darci E Burrell for plaintiff Pla Class, Linda M Dardarian for plaintiff Pla Class, Douglas Edward Hamel for defendant Lufkin Industries, Christopher V Bacon for defendant Lufkin Industries 10/30/03 . (kjr) (Entered: 10/30/2003)
319 MOTION by Glass Molders Union, Machinists Union & Boilermakers Union to intervene with memorandum brief (djh) Modified on 11/04/2003 (Entered: 10/31/2003)
320 Application by Glass, Molders, Pottery, Plastics & Allied Workers International Union, Local 429 for Mimi C Satter to appear pro hac vice (djh) Modified on 10/31/2003 (Entered: 10/31/2003)
PHV Filing Fee paid by atty Mimi C Satter; PHV FILING FEE $ 25.00 RECEIPT # 101154 (djh) (Entered: 10/31/2003)
321 MOTION by Lufkin Industries to stay court's order granting plas' motion to compel dated 10/28/03 pending the hearing on dft's motion to reconsider scheduled for 11/13/03 (djh) (Entered: 10/31/2003)
322 Notice by Lufkin Industries of payment of invoice for envelopes in the amount of $16.63 (kjr) (Entered: 11/03/2003)
323 Objections by Lufkin Industries to plas' exhibits (djh) (Entered: 11/05/2003)
324 AMENDED ORDER REGARDING TELEVISED PUBLICAITON OF CLASS NOTICE −− ORDER that the order of 10/24/03 pertaining to Notice in this case is amended solely with respect that a summary version of the Notice as reflected in the attachment to this order, shall be read on at least two occasions on KTRE the local television station in Lufkin, TX during or after a college football game on Saturday, 11/22/03 (signed by Judge Howell Cobb) cc; attys, HC 11/5/03 (djh) Modified on 11/12/2003 (Entered: 11/05/2003)

Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 33 of 69

11/06/2003
11/06/2003
11/07/2003 11/07/2003 11/07/2003 11/07/2003 11/07/2003 11/07/2003 11/07/2003 11/07/2003 11/10/2003

325 Fax noticing receipt of #324 order to attorney Joseph Donald Carona Jr for movant Boilermakers Union, Wade Arnold Forsman for movant Machinists Union, Rod Tanner for movant Machinists Union, Mimi C Satter for movant Glass Molders Union, Morris J Baller for plaintiff Pla Class, Joshua G Konecky for plaintiff Pla Class, Timothy Borne Garrigan for plaintiff Pla Class, Teresa Demchak for plaintiff Pla Class, Darci E Burrell for plaintiff Pla Class, Linda M Dardarian for plaintiff Pla Class, Douglas Edward Hamel for defendant Lufkin Industries, John H Smither for defendant Lufkin Industries, Christopher V Bacon for defendant Lufkin Industries 11/5/03 . (djh) (Entered: 11/06/2003)
Mail returned: bad addresses for: Shawn D Allen, Rayford E Barlow, Derrick J Barnes, Sr, Paul C Bennett, Patrick D Bluford, Damari R Bryant, Somari T Bryant, Oscar G Buckley, Donnies R Burnett, Lerone D Burns, Jerome Christopher, Jesse L Cole, Demond J Crawford, Oliver W Duirden, Dexter A Edwards, Marvin E Garrett, Gregory A Gray, Derrick Hadnot, Otis J Hamilton, Rojean Hart Jr, Don A Houston, Dexter G Howard, James C Johnson II, Robert N Johnson, Richard L Jones, Russ L Jones, Robyn A Josey Sr, Ronald E King, Eddie L Loche Jr, Roald D Mark, Rickey D Menefee, Patrick D Montgomery, Kennth R Moye, Willis D Pea, Lavell E Ross, Patrick B Ross, Raphel E Ross, Terry L Sessions, John S Sigrest, Cedroc B Simpson, James A Specks, Freddie Spencer Jr, Marques D Teel, James O Thompson, Robert E Underwood, Jerome A Wade, Calvin L Walker, Willie S Washington, Christopher L Whitfield, Cedric J Williams, Luther R Williams, Derrick L Wilson, Kenny L Zeno (djh) (Entered: 11/06/2003)
Mail returned: bad address for Roosevelt R Adams, Donta V Clemons, Aron L Clinton Sr, Robert E Davis, Desmon D Goff, Willie M Jenkins, Robert Nobles, Williw Z Odom, Alan T Robinson, Timothy D Sanders, Shaye R Stanford, Ernest L Thomas, Remonia G Wade, Vonda K Whitfield, Archie A Williams, Kervin L Williams (djh) (Entered: 11/07/2003)
326 MOTION by Sylvester McClain, Buford Thomas in limine #2: to prohibit dft from producing into evidence or making comment or arguments re: dft's internal monitoring of its compliance with fair employment laws (djh) Modified on 11/07/2003 (Entered: 11/07/2003)
327 MOTION by Sylvester McClain, Buford Thomas in limine #3: to exclude dft from producing evidence or making comment or arguments re: any comparison between the racial composition of its workforce and the racial composition of the geographic labor market (djh) (Entered: 11/07/2003)
328 MOTION by Sylvester McClain, Buford Thomas in limine #4: to exclude dft from making comment or arguments re: plas' exhaustion of administrative remedies (djh) (Entered: 11/07/2003)
329 MOTION by Sylvester McClain, Buford Thomas in limine #5 to exclude dft producing into evidence or making comment or arguments re: class member or manager testimony relating to the number of hourly positions awarded on the basis of seniority (djh) (Entered: 11/07/2003)
330 MOTION by Sylvester McClain, Buford Thomas in limine #6 to exclude dft from producing into evidence or making comment or argument re: irrelevant class member testimony (djh) (Entered: 11/07/2003)
331 Declaration of Timothy B Garrigan in support of plas' opposition to (1) dft's motion for reconsideration and to vacate the court's order granting plas' motion to compel and (2) dft's motion to strike plas' motion to compel for exceeding the page limitation (djh) (Entered: 11/07/2003)
332 Opposition by Sylvester McClain, Buford Thomas to [316−1] motion for reconsideration of [305−1] order 's motion to strike plas' motion to compel for exceeding the page limitations (djh) (Entered: 11/07/2003)
Mail returned: bad addresses to Felicia A Bryant, Donald E Deckard, Robert L Evans, Juarez L Goodrich, Randy D Greer, Rosalind D Hadnot, Alan J Hafford, Billy R Hoosier, Cedric R Jackson, Byron K Lee, Darryl L Mark, Joseph R Moore, Darran W O'Neal, Cleveland A Payne, Richard E Polk, Ronn Powell, Kevin B Ratliff, Donnie R Sanders, James T Taylor Jr, Morris L Taylor, Yolanda Taylor, Cedric D Williams, Victor L Williams (djh) (Entered: 11/10/2003)

Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 34 of 69

11/10/2003 11/10/2003 11/10/2003 11/10/2003 11/10/2003
11/10/2003
11/12/2003
11/12/2003 11/12/2003
11/12/2003 11/12/2003 11/12/2003 11/12/2003 11/12/2003 11/13/2003 11/13/2003

333 Response by Sylvester McClain, Buford Thomas to [319−1] motion to intervene (djh) (Entered: 11/10/2003)
334 Affidavit by Timothy B Garrigan Re: [333−1] opposition to motion to intervene of IAM Local 1999, GMP Local 429 and Boilermakers Local 587 (djh) (Entered: 11/10/2003)
335 Letter from Lufkin Industries re: "Summary of Class Notice" (djh) (Entered: 11/10/2003)
336 Response by Sylvester McClain, Buford Thomas to dft's objections to plas' exhibits (djh) (Entered: 11/10/2003)
337 MOTION by Sylvester McClain, Buford Thomas in limine #7 to exclude dft from producing into evidence or making comment or argument re its bid sheet and applicant flow databases or in the alternative for a rebuttal adverse inference re the reliability of the databases and to exclude dft from producing into evidence or making comment or argument re information related to its bid sheet and applicant flow databases not produced prior to the date of this motion (djh) (Entered: 11/10/2003)
338 Declaration by Darci E Burrell Re: [337−1] motion in limine #7 to exclude dft from producing into evidence or making comment or argument re its bid sheet and applicant flow databases or in the alternative for a rebuttal adverse inference re the reliability of the databases and to exclude dft from producing into evidence or making comment or argument re information related to its bid sheet and applicant flow databases not produced prior to the date of this motion (djh) (Entered: 11/10/2003)
Mail returned as attempted not known to Shelton T Benton, Kim Brady, George L Burns, Antie D Cummings, Rodney R Freeman, Linda K McGowen, Jimmie D Morrison, Vincent D Wallace; returned forwarding order expired to Bryant K Tyler returned not deliverable as addressed to Leon Watley & Russell R Perkins; returned as insufficient address to Patrick Parris (kjr) Modified on 11/12/2003 (Entered: 11/12/2003)
339 Response by Lufkin Industries to [304−1] motion to compel production of (1) documents from personnel files and continued access to those files, (2) salaried bid sheets, and (3) documents in computer readable format (kjr) (Entered: 11/12/2003)
340 Reply by Lufkin Industries to response to [316−1] motion for reconsideration of [305−1] order, [316−2] motion to vacate [305−1] order granting motion to compel, [315−1] motion to strike [304−1] motion to compel production of (1) documents from personnel files and continued access to those files, (2) salaried bid sheets, and (3) documents in computer readable format (kjr) (Entered: 11/12/2003)
341 Objections by Pla Class to Dft's trial exhibits (kjr) (Entered: 11/12/2003)
342 Supplemental Objections by Pla Class to Dft's trial exhibits (kjr) (Entered: 11/12/2003)
343 MOTION by Pla Class in limine #8 (1) to exclude dft from producing into evidence or for an adverse inference regarding bid sheets dft altered after the commencement of litigation and (2) to exclude the bid sheets for failure to satisfy Federal Rules of Evidence 901 (kjr) (Entered: 11/12/2003)
344 Declaration of Teresa Demchak Re: [343−1] motion in limine #8 (1) to exclude dft from producing into evidence or for an adverse inference regarding bid sheets dft altered after the commencement of litigation and (2) to exclude the bid sheets for failure to satisfy Federal Rules of Evidence 901 (kjr) (Entered: 11/12/2003)
345 MOTION by Pla Class in limine #9 to exclude dft's statistical expert from testifying regarding any opinion based on the revised bid database (kjr) (Entered: 11/12/2003)
Mail returned on class notice: RTS−no forward order on file to Thaddeus S Fon; RTS −forwarding order expired to Travis L Cartwright (kjr) (Entered: 11/13/2003)
346 Response by Lufkin Industries to [326−1] motion in limine #2: to prohibit dft from producing into evidence or making comment or arguments re: dft's internal monitoring of its compliance with fair employment laws (kjr) (Entered: 11/13/2003)

Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 35 of 69

11/13/2003
11/13/2003 11/13/2003
11/13/2003 11/13/2003
11/13/2003 11/13/2003 11/13/2003 11/13/2003 11/13/2003 11/13/2003 11/13/2003 11/13/2003 11/14/2003 11/14/2003 11/17/2003 11/17/2003

347 Response by Lufkin Industries to [327−1] motion in limine #3: to exclude dft from producing evidence or making comment or arguments re: any comparison between the racial composition of its workforce and the racial composition of the geographic labor market (kjr) (Entered: 11/13/2003)
348 Response by Lufkin Industries to [328−1] motion in limine #4: to exclude dft from making comment or arguments re: plas' exhaustion of administrative remedies (kjr) (Entered: 11/13/2003)
349 Response by Lufkin Industries to [329−1] motion in limine #5 to exclude dft producing into evidence or making comment or arguments re: class member or manager testimony relating to the number of hourly positions awarded on the basis of seniority (kjr) (Entered: 11/13/2003)
350 Response by Lufkin Industries to [330−1] motion in limine #6 to exclude dft from producing into evidence or making comment or argument re: irrelevant class member testimony (kjr) (Entered: 11/13/2003)
351 Response by Lufkin Industries to [337−1] motion in limine #7 to exclude dft from producing into evidence or making comment or argument re its bid sheet and applicant flow databases or in the alternative for a rebuttal adverse inference re the reliability of the databases and to exclude dft from producing into evidence or making comment or argument re information related to its bid sheet and applicant flow databases not produced prior to the date of this motion (kjr) (Entered: 11/13/2003)
352 MOTION by Lufkin Industries to compel production of plas' trial exhibits 76 and 77 (kjr) (Entered: 11/13/2003)
353 Letter from Lufkin Industries in response to plas' letter dated 11/7/03 (kjr) (Entered: 11/13/2003)
Pretrial conference held before Judge Howell Cobb. The court made rulings on several pending motions. The court will enter an order ruling on pending motion to intervene. (dlc) (Entered: 11/18/2003)
358 Minutes Re: [0−0] Pretrial conference by Judge Howell Cobb on 11/13/03 (Ct rep/ECRO: Wendell Parks) (dlc) (Entered: 11/18/2003)
Oral order denying [236−1] motion to strike testimony of Dr Richard Drogin from the bench by Judge Howell Cobb (dlc) (Entered: 11/18/2003)
Oral order mooting [258−3] motion to compel outstanding discovery pertaining to class member witness from the bench by Judge Howell Cobb as pltf's counsel with the motion. (dlc) (Entered: 11/18/2003)
Oral order mooting [316−1] motion for reconsideration of [305−1] order, mooting [316−2] motion to vacate [305−1] order granting motion to compel from the bench by Judge Howell Cobb as dft withdrew the motion. (dlc) (Entered: 11/18/2003)
Oral order granting [352−1] motion to compel production of plas' trial exhibits 76 and 77 from the bench by Judge Howell Cobb (dlc) (Entered: 11/18/2003)
354 ORDER setting guidelines for use of time in trial of case. Dft's objections thereto are overruled. ( signed by Judge Howell Cobb ) cc HC, parties 11/14/03 (kjr) (Entered: 11/14/2003)
355 Fax noticing receipt of #354 Order 11/14/03 to attys of record (kjr) (Entered: 11/14/2003)
Mail returned: addressed as not deliverable as addrsd to Bryan V Blake & Tyron M Holcomb; addressed as attempted not known to Galen P Yarbrough (kjr) (Entered: 11/17/2003)
356 Affidavit by Dr Richard Drogin Re: [337−1] motion in limine #7 to exclude dft from producing into evidence or making comment or argument re its bid sheet and applicant flow databases or in the alternative for a rebuttal adverse inference re the reliability of the databases and to exclude dft from producing into evidence or making comment or argument re information related to its bid sheet and applicant flow databases not produced prior to the date of this motion (kjr) (Entered: 11/17/2003)

Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 36 of 69

11/17/2003 11/18/2003 11/18/2003 11/18/2003 11/18/2003 11/18/2003 11/19/2003
11/20/2003
11/20/2003 11/20/2003
11/21/2003 11/21/2003 11/24/2003 11/24/2003
11/24/2003 11/25/2003 11/25/2003 11/25/2003 11/25/2003 11/26/2003 11/26/2003 11/26/2003 11/26/2003

357 Transcript of motion hearing held on 11/13/03 filed . Court Reporter: Wendell R Parks ( 87 pages) (kjr) (Entered: 11/18/2003)
Mail returned: Insufficient address to Noal Price Jr; RTS to Elliot E Pruitt (kjr) (Entered: 11/18/2003)
359 Memorandum Opinion denying [319−1] motion to intervene ( signed by Judge Howell Cobb ) cc HC, parties 11/18/03 (kjr) (Entered: 11/18/2003)
360 ORDER denying [319−1] motion to intervene ( signed by Judge Howell Cobb ) cc HC, parties 11/18/03 (kjr) (Entered: 11/18/2003)
361 Fax noticing receipt of #359 Memorandum Opinion 11/18/03 to attys of record (kjr) (Entered: 11/18/2003)
362 Fax noticing receipt of #360 Order 11/18/03 to attys of record (kjr) (Entered: 11/18/2003)
Mail returned: Damari R Bryant, Ronald E King, Patrick D Montgomery, Kenneth R Moye, Charles J Releford, Timothy D Sanders, James A Specks, Vernon L Sturgis, Willie S Washington, Anthony L Wilmore (sealed) (Entered: 11/19/2003)
363 Notice of interlocutory appeal of [360−1] order denying motion to intervene, [359−1] order by Glass Molders Union, Machinists Union, Boilermakers Union (kjr) (Entered: 11/20/2003)
USCA appeal fee: Paid $255.00; Rcpt 101178 [363−1] appeal (kjr) (Entered: 11/20/2003)
Mail returned: refused to Hilera G Roberts; RTS to Larry R Thomas; Attempted not known to Calvin L Walker; No such address to Luther R Williams (kjr) (Entered: 11/20/2003)
Mail returned: Jammie Parks (djh) (Entered: 11/21/2003)
364 EMERGENCY MOTION by Glass Molders Union, Machinists Union, for stay (djh) Modified on 11/24/2003 (Entered: 11/21/2003)
365 Emergency MOTION by Lufkin Industries to stay action (kjr) (Entered: 11/24/2003)
Mail returned: No forward order on file addressed to Jamie T Jackson, Felicia A Berry, Demetrell A Castle; forwarding order expired to Devon K Darden, Derrick J Barnes Sr, Wilmoth M Bernard, Lerone D Burns; attempted not known to Shaye R Stanford; not at this address to Zebby C Gray; not deliverable as addressed to Dexter G Howard and Otis J Hamilton (kjr) (Entered: 11/24/2003)
366 Notice by Pla Class of submission of revised Exhibit B to Pretrial Order (letter only) (kjr) (Entered: 11/24/2003)
Transcript requested [363−1] appeal for 3/27/03 status conference & 11/13/03 hearing on motion to intervene (kjr) (Entered: 11/25/2003)
367 Letter Response by Lufkin Industries to [366−1] Letter Notice of submission of revised exhibit list (kjr) (Entered: 11/25/2003)
368 Notice by Lufkin Industries of compliance with statistical expert disclosures (kjr) (Entered: 11/25/2003)
373 Transcript of Status conference held 3/27/03 filed re: [363−1] appeal. Appeal record due on 12/10/03 ( 46 pages) (pkb) (Entered: 11/26/2003)
369 Response by Pla Class to Unions' [364−1] motion for stay (kjr) (Entered: 11/26/2003)
370 Response by Pla Class to Lufkin's [365−1] motion to stay action (kjr) (Entered: 11/26/2003)
371 Declaration of Teresa Demchak in Opposition to Lufkin's and IAM's and GMP's Motions for Stay (kjr) (Entered: 11/26/2003)
372 Declaration of Timothy B Garrigan in Opposition to Lufkin's and the Two Unions' Motions for Stay (kjr) (Entered: 11/26/2003)

Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 37 of 69

11/26/2003 11/26/2003 11/26/2003 12/01/2003 12/01/2003 12/01/2003 12/02/2003 12/03/2003 12/03/2003 12/04/2003
12/04/2003 12/04/2003 12/05/2003 12/05/2003 12/05/2003 12/09/2003
12/10/2003 12/10/2003 12/11/2003 12/11/2003 12/12/2003 12/12/2003 12/12/2003 12/15/2003

374 Letter from Lufkin Industries, Glass Molders Union, Machinists Union re emergency motions to stay (kjr) (Entered: 11/26/2003)
375 ORDER denying [365−1] motion to stay action, denying [364−1] motion for stay ( signed by Judge Howell Cobb ) cc HC, parties 11/26/03 (kjr) (Entered: 11/26/2003)
376 Fax noticing receipt of #375 Order 11/26/03 to all attys of record (kjr) (Entered: 11/26/2003)
377 Notice of opt out of class action filed by Alfred Johnson (kjr) (Entered: 12/01/2003)
Mail returned: Return to sender − not deliverable as addressed to Oscar G Buckley & Bobby G Cook; MLNFA to Patrick B Ross (kjr) (Entered: 12/01/2003)
378 Amended Exhibit list by Lufkin Industries (kjr) (Entered: 12/01/2003)
Mail returned: RTS Attempted Not Known to Morris L Taylor (kjr) (Entered: 12/02/2003)
Mail returned: Not deliverable as addressed to Leon Watley; No such address to Rosalind D Hadnot (kjr) (Entered: 12/03/2003)
379 Plaintiffs' Amended Proposed Findings of fact and conclusions of law on their disparate impact case (kjr) (Entered: 12/03/2003)
Mail returned: RTS not deliverable as addressed unable to fwd to Ronn Powell; Forarding order expired to Terry L Sessions; No such number to James T Talor Jr (kjr) (Entered: 12/04/2003)
1st day Bench trial held before Judge Howell Cobb. Pltf presented evidence. (dlc) (Entered: 12/05/2003)
380 Minutes Re: [0−0] 1st day bench trial by Judge Howell Cobb on 12/4/03 (Ct rep/ECRO: Wendell Parks) (dlc) (Entered: 12/05/2003)
Mail returned: Byron K Lee & Darran W O'Neal (djh) (Entered: 12/05/2003)
2nd day Bench trial held before Judge Howell Cobb. Pltf presented evidence. (dlc) (Entered: 12/10/2003)
381 Minutes Re: [0−0] 2nd day bench trial by Judge Howell Cobb on 12/5/03 (Ct rep/ECRO: Wendell Parks) (dlc) (Entered: 12/10/2003)
Mail returned: Insufficient address to Jamie T Jackson, Felicia A Berry; No forward order on file to Patrick Parris; No mail receptacle to Victor L Williams; Not deliverable as addressed, unable to forward to Russell R Perkins (kjr) (Entered: 12/09/2003)
3rd day Bench trial held before Judge Howell Cobb. Pltf presented evidence. (dlc) (Entered: 12/11/2003)
382 Minutes Re: [0−0] 3rd day bench trial by Judge Howell Cobb on 12/10/03 (Ct rep/ECRO: Wendell Parks) (dlc) (Entered: 12/11/2003)
4th day Bench trial held before Judge Howell Cobb. Pltf presented evidence. (dlc) (Entered: 12/12/2003)
383 Minutes Re: [0−0] 4th day bench trial by Judge Howell Cobb on 12/11/03 (Ct rep/ECRO: Wendell Parks) (dlc) (Entered: 12/12/2003)
Mail returned: RTS − Attempted not known to Jammie Parks & Bryan V Blake (kjr) (Entered: 12/12/2003)
5th day Bench trial held before Judge Howell Cobb. Pltf presented evidence and rested. (dlc) (Entered: 12/15/2003)
384 Minutes Re: [0−0] 5th day bench trial by Judge Howell Cobb on 12/12/03 (Ct rep/ECRO: Wendell Parks) (dlc) (Entered: 12/15/2003)
385 Transcript of Day 1 of Bench Trial filed before Judge Cobb. Court Reporter: Wendell P Parks ( 290 pages) (kjr) (Entered: 12/16/2003)

Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 38 of 69

12/16/2003 12/16/2003 12/16/2003 12/16/2003 12/17/2003 12/18/2003 12/23/2003 12/29/2003 12/30/2003 01/06/2004 01/14/2004 01/15/2004 01/22/2004 02/19/2004 03/11/2004
03/11/2004
08/12/2004
08/20/2004 08/24/2004

Mail returned: RTS not deliverable as addressed to Cedric R Jackson, Hilera G Roberts, Rickey D Menefee; Forwarding Order Expired to Kenric D McKenzie (kjr) (Entered: 12/16/2003)
Notice of Docketing ROA from USCA Re: [363−1] appeal USCA NUMBER: 03−41613 (kjr) (Entered: 12/16/2003)
386 USCA ORDER entered 12/2/03 denying motions to stay 12/4/03 trial setting pending appeal (kjr) (Entered: 12/16/2003)
387 Transcript of Day 2 of Bench Trial filed . Court Reporter: Wendell R Parks ( 219 pages) (kjr) (Entered: 12/17/2003)
Mail returned: Attempted not known to Wilmoth M Bernard; no indicated as to reason returned to Devon K Darden (kjr) (Entered: 12/17/2003)
Certified and transmitted record on appeal to U.S. Court of Appeals: [363−1] appeal (7 transcripts, 2 expandos, 14 vols) (kjr) (Entered: 12/18/2003)
388 Transcript of Bench Trial Day 3 (12/10/03) filed . Court Reporter: Wendell R Parks ( 286 pages) (kjr) (Entered: 12/29/2003)
389 Transcript of day 4 of bench trial (12/11/03) filed . Court Reporter: Wendell R Parks ( 251 pages) (kjr) (Entered: 12/30/2003)
Mail returned: Return to Sender not deliverable as addressed to Bobby G Cook (kjr) (Entered: 12/30/2003)
390 Transcript of Day 5 of Bench Trial (12/12/03) filed . Court Reporter: Wendell R Parks ( 259 pages) (kjr) (Entered: 01/07/2004)
Acknowledgement by USCA of receipt on 12/22/04 of record on appeal (kjr) (Entered: 01/14/2004)
391 Report Regarding Class Notice Procedure filed by plaintiff Pla Class (kjr) (Entered: 01/15/2004)
Mail returned: addressed to Robert E Underwood with notation "rts not deliverable as addrsd unable to forward" (kjr) (Entered: 01/22/2004)
Supplemental Record on Appeal transmitted to US Court of Appeals re 363 Notice of Interlocutory Appeal (Supplemental record contained Doc #379 Proposed Findings of Fact) (kjr, ) (Entered: 02/19/2004)
392 NOTICE by Glass, Molders, Pottery, Plastics & Allied Workers International Union, Local No 429, AFL−CIO/CLC, International Association of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, Local No 587, AFL−CIO/CLC, International Association of Machinists and Aerospace Workers, Local Lodge No 1999, AFL−CIO/CLC of submission of FRAP 10(b)(3)(A) Statement (kjr, ) (Entered: 03/11/2004)
393 NOTICE by Glass, Molders, Pottery, Plastics & Allied Workers International Union, Local No 429, AFL−CIO/CLC, International Association of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, Local No 587, AFL−CIO/CLC, International Association of Machinists and Aerospace Workers, Local Lodge No 1999, AFL−CIO/CLC of submission of Certificate of no transcript (kjr, ) (Entered: 03/11/2004)
394 ORDER denying as moot 242 Motion for Clarification and Reconsideration filed by Pla Class, denying 315 Motion to Strike filed by Lufkin Industries Inc, denying as moot 321 Motion to Stay filed by Lufkin Industries Inc, and denying 260 Motion to Exclude the Testimony of Dr Mary Baker and Dr. Paul Richard Jeanneret filed by Pla Class. Signed by Judge Howell Cobb on 8/12/04. (kjr, ) (Entered: 08/12/2004)
Minute Entry for proceedings held before Judge Howell Cobb : Telephone Conference held on 8/20/2004 regarding resuming the trial. Attys present will check with co−counsel for any problems with suggested date. (kjr, ) (Entered: 08/24/2004)
395 NOTICE OF TRIAL SETTING AND PROTECTIVE ORDER. Bench Trial set to continue 10/12/2004 09:00 AM in Ctrm 2 (Beaumont) before Judge Howell Cobb.

Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 39 of 69

09/22/2004
09/22/2004
09/24/2004 09/24/2004
10/04/2004 10/05/2004
10/11/2004 10/12/2004 10/12/2004
10/12/2004
10/13/2004 10/13/2004 10/13/2004 10/13/2004 10/13/2004 10/14/2004

Each side shall have up to 20 minutes to review or summarize the previous evidence presented prior to the recess of this trial at its previous setting. Signed by Judge Howell Cobb on 8/24/04. (kjr, ) (Entered: 08/24/2004)
396 ORDER denying 326 Motion in Limine, denying 327 Motion in Limine, denying 328 Motion in Limine, denying 329 Motion in Limine, denying 330 Motion in Limine, denying 337 Motion in Limine, denying 343 Motion in Limine, denying 345 Motion in Limine to the extent that prior to introducing evidence made the subject of such motions becomes relevant, counsel shall approach the bench and state the reason for introducing the evidence, and the court shall rule thereon. Signed by Judge Howell Cobb on 9/22/04. (kjr, ) (Entered: 09/22/2004)
Notified Attorney, Linda M Dardarian, Per GO 04−12, this court no longer accepts pleadings in paper form. The Clerk will no longer mail or fax notices or orders to parties. All notices and orders generated by this court shall be sent electronically. (kjr, ) (Entered: 09/22/2004)
Appeal Record Returned: 363 Notice of Interlocutory Appeal (22 vols & 1 box sealed)(djh, ) (Entered: 09/24/2004)
397 USCA JUDGMENT as to 363 Notice of Interlocutory Appeal filed by Glass, Molders, Pottery, Plastics & Allied Workers International Union, Local No 429, AFL−CIO/CLC, International Association of Machinists and Aerospace Workers, Local Lodge No 1999, AFL−CIO/CLC, International Association of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, Local No 587, AFL−CIO/CLC that the judgment of the district court is affirmed. Appellants pay to appellees the costs of appeal to be taxed by the clerk of this court. Mandate issued on 9/22/04 (djh, ) (Entered: 09/24/2004)
398 NOTICE by Pla Class To Remove Counsel From Court's Service List (Demchak, Teresa) (Entered: 10/04/2004)
Sent 5 boxes to Judge Cobb(Box 1 contains vols 1−6 (rcd sent to 5th Circ)(Box 2 contains vols 7−12(rcd sent to 5th Circ)(Box 3 contains vols 13−14, 1 supplemental vol, expando containing exhibits to #244 doc)(Box 4 contains expando with exhibits to #237 doc, and 7 transcripts)(Box 5 contains 5 transcripts, expando w/3 labled folders−motion hrg exhibits, expando of mail returned−opt out forms) (djh, ) (Entered: 10/05/2004)
399 MOTION for Judgment on Partial Findings by Lufkin Industries Inc. Responses due by 10/12/2004 (Bacon, Christopher) (Entered: 10/11/2004)
400 MOTION to Dismiss by Lufkin Industries Inc. Responses due by 10/12/2004 (Hamel, Douglas) (Entered: 10/12/2004)
401 **DOCUMENT DEFICIENT (no certificate of service). PLEASE IGNORE.** NOTICE by Lufkin Industries Inc Affidavit re Trial Time (Attachments: # 1 Exhibit Time Chart)(Mahony, Mary) Modified on 10/12/2004 (kjr, ). (Entered: 10/12/2004)
402 (Replaces deficient document #401.) NOTICE by Lufkin Industries Inc Affidavit re Trial Time (Attachments: # 1 Time Chart Attachment)(Mahony, Mary) Modified on 10/12/2004 (kjr, ). (Entered: 10/12/2004)
403 Minute Entry for proceedings held before Judge Howell Cobb: 6th Day Bench Trial held on 10/13/2004. Deft presented evidence. (Court Reporter Wendell Parks.) (rll) (Entered: 10/13/2004)
425 Witness List by Lufkin Industries Inc. (kjr, ) (Entered: 10/20/2004)
426 Plaintiffs' Exhibit List (kjr, ) (Entered: 10/20/2004)
427 Plaintiffs' Witness List (kjr, ) (Entered: 10/20/2004)
428 Exhibit List by Pla Class (kjr, ) (Entered: 10/20/2004)
404 Minute Entry for proceedings held before Judge Howell Cobb: 7th Day Bench Trial held on 10/14/2004. Defendant presented evidence. (Court Reporter Wendell Parks.)

Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 40 of 69

10/14/2004 10/14/2004 10/14/2004
10/14/2004
10/15/2004 10/15/2004 10/15/2004 10/15/2004 10/15/2004 10/15/2004
10/15/2004 10/15/2004 10/15/2004 10/15/2004 10/15/2004 10/15/2004 10/15/2004 10/15/2004 10/15/2004
10/15/2004

(rll) (Entered: 10/14/2004)
405 NOTICE by Lufkin Industries Inc Proposed Order re Documents (Bacon, Christopher) (Entered: 10/14/2004)
406 NOTICE by Lufkin Industries Inc Offer of Proof re David Jinkins (Bacon, Christopher) (Entered: 10/14/2004)
407 NOTICE by Lufkin Industries Inc Offer of Proof Regarding Walter Bulter (Attachments: # 1 Exhibit Deposition testimony −part 1 # 2 Errata Deposition testimony − part two)(Bacon, Christopher) (Entered: 10/14/2004)
408 NOTICE by Lufkin Industries Inc Offer of Proof for Lisa Dungan (Attachments: # 1 Supplement Continuation of Offer of Proof)(Bacon, Christopher) (Entered: 10/14/2004)
409 NOTICE by Lufkin Industries Inc Offer of Proof for Richard Gilley (Hamel, Douglas) (Entered: 10/15/2004)
410 NOTICE by Lufkin Industries Inc Offer of Proof for Kerry White (Hamel, Douglas) (Entered: 10/15/2004)
411 NOTICE by Lufkin Industries Inc Offer of Proof for Larry Long (Hamel, Douglas) (Entered: 10/15/2004)
412 NOTICE by Lufkin Industries Inc Offer of Proof for Steve Reynolds (Hamel, Douglas) (Entered: 10/15/2004)
413 Minute Entry for proceedings held before Judge Howell Cobb: 8th Bench Trial completed on 10/15/2004. (Court Reporter Wendell Parks.) (rll) (Entered: 10/15/2004)
414 NOTICE by Lufkin Industries Inc Offer of Proof for Leroy Garner (Attachments: # 1 Attachment Part 1 # 2 Attachment Part 2)(Hamel, Douglas) (Entered: 10/15/2004)
415 NOTICE by Lufkin Industries Inc Offer of Proof for Eddie Mask (Attachments: # 1 Deposition Testimony)(Hamel, Douglas) (Entered: 10/15/2004)
416 NOTICE by Lufkin Industries Inc Offer of Proof for Mary Williams (Attachments: # 1 Deposition Testimony)(Hamel, Douglas) (Entered: 10/15/2004)
417 NOTICE by Lufkin Industries Inc Offer of Proof for Earl Potts (Attachments: # 1 Deposition Testimony)(Hamel, Douglas) (Entered: 10/15/2004)
418 NOTICE by Lufkin Industries Inc Regarding Defendant's Exhibit 113 (Attachments: # 1)(Bacon, Christopher) (Entered: 10/15/2004)
419 NOTICE by Lufkin Industries Inc Offer of Proof for Patrick Ross (Attachments: # 1 Deposition Testimony)(Hamel, Douglas) (Entered: 10/15/2004)
420 NOTICE by Lufkin Industries Inc Offer of Proof for Curtis Thomas (Attachments: # 1 Deposition Testimony)(Hamel, Douglas) (Entered: 10/15/2004)
421 NOTICE by Lufkin Industries Inc Offer of Proof for Shirley Thomas (Attachments: # 1 Deposition Testimony)(Hamel, Douglas) (Entered: 10/15/2004)
422 NOTICE by Lufkin Industries Inc Offer of Proof for James White (Attachments: # 1 Deposition Testimony)(Hamel, Douglas) (Entered: 10/15/2004)
423 NOTICE by Lufkin Industries Inc Offer of Proof for Buford Thomas (Attachments: # 1 Deposition Testimony # 2)(Hamel, Douglas) (Entered: 10/15/2004)
424 ORDER REGARDING DEFENDANT'S DOCUMENTS. Dft's counsel will maintain custody of dft's documents that were admitted into evidence during the trial of this case. Signed by Judge Howell Cobb on 10/15/04. (kjr, ) (Entered: 10/15/2004)

Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 41 of 69

11/29/2004 11/29/2004 11/29/2004 11/29/2004 11/29/2004 11/29/2004 11/29/2004
11/29/2004
11/29/2004 11/29/2004 11/29/2004 11/29/2004 11/29/2004

429 NOTICE by Leroy Garner Plaintiffs' Counter−Offer of Proof Regarding Leroy Garner (Attachments: # 1 Exhibit No. 1 # 2 Exhibit No. 2 # 3 Exhibit No. 3 (Garner))(Garrigan, Timothy) (Entered: 11/29/2004)
430 NOTICE by Leroy Garner Plaintiffs' Counter−Offer of Proof Regarding Mary Williams (Attachments: # 1 Exhibit No. 1 (Mary Williams) # 2 Exhibit No. 2 (Mary Williams) # 3 Exhibit No. 3 (Mary Williams))(Garrigan, Timothy) (Entered: 11/29/2004)
431 NOTICE by Leroy Garner Plaintiffs' Counter−Offer of Proof Regarding Eddie Mask (Attachments: # 1 Exhibit No. 1 (Eddie Mask) # 2 Exhibit No. 2 (Eddie Mask))(Garrigan, Timothy) (Entered: 11/29/2004)
432 NOTICE by Leroy Garner Plaintiffs' Counter−Offer of Proof Regarding Patrick Ross (Attachments: # 1 Exhibit No. 1 (Patrick Ross) # 2 Exhibit No. 2 (Patrick Ross) # 3 Exhibit No. 3 (Patrick Ross))(Garrigan, Timothy) (Entered: 11/29/2004)
433 NOTICE by Leroy Garner Plaintiffs' Counter−Offer of Proof Regarding Curtis L. Thomas (Attachments: # 1 Exhibit No. 1 (Curtis Thomas))(Garrigan, Timothy) (Entered: 11/29/2004)
434 NOTICE by Leroy Garner Plaintiffs' Counter−Offer of Proof Regarding Shirley Thomas (Attachments: # 1 Exhibit No. 1 (Shirley Thomas))(Garrigan, Timothy) (Entered: 11/29/2004)
435 NOTICE by Leroy Garner Plaintiffs' Counter−Offer of Proof Regarding Buford Thomas (Attachments: # 1 Exhibit No. 1 (Buford Thomas) # 2 Exhibit No. 2 (Buford Thomas) # 3 Exhibit No. 3 (Buford Thomas) # 4 Exhibit No. 4 (Buford Thomas))(Garrigan, Timothy) (Entered: 11/29/2004)
436 NOTICE by Leroy Garner Plaintiffs' Counter−Offer of Proof Regarding Earl Potts (Attachments: # 1 Exhibit No. 1 (Earl Potts) # 2 Exhibit No. 2 (Earl Potts) # 3 Exhibit No. 3 (Earl Potts) # 4 Exhibit No. 4 (Earl Potts))(Garrigan, Timothy) (Entered: 11/29/2004)
437 NOTICE by Leroy Garner Plaintiffs' Counter−Offer of Proof Regarding Walter Butler (Attachments: # 1 Exhibit No. 1 (Walter Butler))(Garrigan, Timothy) (Entered: 11/29/2004)
438 **DOCUMENT DEFICIENT (no certificate of service). PLEASE IGNORE.** RESPONSE in Opposition re 400 MOTION to Dismiss Classs Representatives filed by Leroy Garner. (Attachments: # 1 Affidavit of Timothy Garrigan)(Demchak, Teresa) Modified on 11/30/2004 (kjr, ). (Entered: 11/29/2004)
439 DOCUMENT DEFICIENT (no certificate of service). PLEASE IGNORE.** NOTICE by Leroy Garner re 408 Notice (Other) Objections to Offer of Proof for Lisa Dungan (Demchak, Teresa) Modified on 11/30/2004 (kjr, ). (Entered: 11/29/2004)
440 NOTICE by Leroy Garner Plaintiffs' Counter−Offer of Proof Regarding James White (Attachments: # 1 Exhibit No. 1 (James White) # 2 Exhibit No. 2 (James White))(Garrigan, Timothy) Modified on 11/30/2004 (kjr, ). (Entered: 11/29/2004)
441 NOTICE by Leroy Garner Plaintiffs' Counter−Offer of Proof Regarding Walter Butler w/ Exh 1 and Exh 2 (Attachments: # 1 Exhibit No. 1 (Walter Butler)

Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 42 of 69

11/29/2004 11/29/2004 11/29/2004 11/29/2004 11/29/2004 11/29/2004 11/29/2004 11/29/2004
11/29/2004 11/30/2004 11/30/2004

# 2 Exhibit No. 2 (Walter Butler))(Garrigan, Timothy) (Entered: 11/29/2004)
442 DOCUMENT DEFICIENT (no certificate of service). PLEASE IGNORE.** NOTICE by Leroy Garner re 406 Notice (Other) Plaintiffs Opposition to Offer of Proof for David Jinkins (Attachments: # 1 Exhibit 1 − Jinkins Depo Excerpts)(Demchak, Teresa) Modified on 11/30/2004 (kjr, ). (Entered: 11/29/2004)
443 **DOCUMENT DEFICIENT (no certificate of service). PLEASE IGNORE.** NOTICE by Leroy Garner re 409 Notice (Other) Plaintiffs Opposition to Offer of Proof for Richard Gilley (Attachments: # 1 Exhibit 1 − Gilley Depo Excerpts)(Demchak, Teresa) Modified on 11/30/2004 (kjr, ). (Entered: 11/29/2004)
444 **DOCUMENT DEFICIENT (no certificate of service). PLEASE IGNORE.** NOTICE by Leroy Garner re 410 Notice (Other) Plaintiffs Objections to Offer of Proof for Kerry White (Demchak, Teresa) Modified on 11/30/2004 (kjr, ). (Entered: 11/29/2004)
445 **DOCUMENT DEFICIENT (no certificate of service). PLEASE IGNORE.** NOTICE by Leroy Garner re 411 Notice (Other) Plaintiffs Objections to Offer of Proof for Larry Long (Attachments: # 1 Exhibit 1 − Long Depo Excerpts)(Demchak, Teresa) Modified on 11/30/2004 (kjr, ). (Entered: 11/29/2004)
446 **DOCUMENT DEFICIENT (no certificate of service). PLEASE IGNORE.** NOTICE by Leroy Garner re 412 Notice (Other) Plaintiffs Objections to Offer of Proof for Steve Reynolds (Attachments: # 1 Exhibit 1 − Reynolds Depo Excerpts)(Demchak, Teresa) Modified on 11/30/2004 (kjr, ). (Entered: 11/29/2004)
447 NOTICE by Leroy Garner re 406 Notice (Other), 408 Notice (Other), 409 Notice (Other), 410 Notice (Other), 411 Notice (Other), 412 Notice (Other) Proposed Order Denying Defendants Offers of Proof (Demchak, Teresa) Modified on 11/30/2004 (kjr, ). (Entered: 11/29/2004)
448 **DOCUMENT DEFICIENT (no certificate of service). PLEASE IGNORE.** RESPONSE in Opposition re 399 MOTION for Judgment on Partial Findings filed by Leroy Garner. (Demchak, Teresa) Modified on 11/30/2004 (kjr, ). (Entered: 11/29/2004)
449 **DOCUMENT DEFICIENT (missing last page). PLEASE IGNORE.** Proposed Findings of Fact by Leroy Garner. (Attachments: # 1 Supplement Part 2 # 2 Supplement Part 3 # 3 Supplement Part 4 # 4 Supplement Part 5 # 5 Supplement Part 6 # 6 Supplement Part 7 # 7 Supplement Table of Contents)(Demchak, Teresa) Modified on 11/30/2004 (kjr, ). Modified on 11/30/2004 (kjr, ). (Entered: 11/29/2004)
450 Proposed Findings of Fact by Lufkin Industries Inc. (Hamel, Douglas) (Entered: 11/30/2004)
NOTICE of Deficiency (no certificate of service) regarding Documents #438, 439, 440, 442, 443, 444, 445, 446, 448 submitted by Pla Class. Document #449 is missing last page (no certificate of service?). Document #447 is Proposed Order and should be scanned with Notices. Documents to be resubmitted. (kjr, ) (Entered: 11/30/2004)
451 Proposed Findings of Fact by Leroy Garner. (Attachments: # 1 Supplement part2 # 2 Supplement part3 # 3 Supplement part4 # 4 Supplement part5 # 5 Supplement part6 # 6 Supplement part7)(Demchak, Teresa) Modified on 12/2/2004 (kjr, ). Replaces

Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 43 of 69

11/30/2004 11/30/2004 11/30/2004 11/30/2004 11/30/2004
11/30/2004
11/30/2004 11/30/2004
11/30/2004 12/03/2004 01/13/2005

deficient Document #449) (Entered: 11/30/2004)
452 RESPONSE in Opposition re 399 MOTION for Judgment on Partial Findings filed by Leroy Garner. (Demchak, Teresa) Modified on 12/2/2004 (kjr, ). Replaces deficient document #448. (Entered: 11/30/2004)
453 RESPONSE in Opposition re 400 MOTION to Dismiss Class Representatives filed by Leroy Garner. (Attachments: # 1 Affidavit of Timothy Garrigan)(Demchak, Teresa) Modified on 12/2/2004 (kjr, ). Replaces deficient document #438. (Entered: 11/30/2004)
454 NOTICE by Leroy Garner re 408 Notice (Other) Objections to Offer of Proof for Lisa Dungan (Attachments: # 1 Text of Proposed Order)(Demchak, Teresa) Modified on 12/2/2004 (kjr, ). Replaces deficient document #439. (Entered: 11/30/2004)
455 NOTICE by Leroy Garner Objections to Offer of Proof for Larry Long (Attachments: # 1 Exhibit Long Depo Excerpts # 2 Text of Proposed Order)(Demchak, Teresa) Modified on 12/2/2004 (kjr, ). Replaces deficient document #445. (Entered: 11/30/2004)
456 NOTICE by Leroy Garner re 412 Notice (Other) Objections to Offer of Proof for Steve Reynolds (Attachments: # 1 Exhibit Depo Excerpts # 2 Text of Proposed Order)(Demchak, Teresa) Modified on 12/2/2004 (kjr, ). Replaces deficient document #446. (Entered: 11/30/2004)
457 NOTICE by Leroy Garner re 406 Notice (Other) Objections to Offer of Proof for David Jinkins (Attachments: # 1 Exhibit Jinkins Depo Excerpts # 2 Text of Proposed Order)(Demchak, Teresa) Modified on 12/2/2004 (kjr, ). Replaces deficient document #442. (Entered: 11/30/2004)
458 NOTICE by Leroy Garner re 410 Notice (Other) Objections to Offer of Proof for Kerry White (Attachments: # 1 Text of Proposed Order)(Demchak, Teresa) Modified on 12/2/2004 (kjr, ). Replaces deficient document #444. (Entered: 11/30/2004)
459 NOTICE by Leroy Garner re 409 Notice (Other) Objections to Offer of Proof for Gilley (Attachments: # 1 Exhibit Depo Excerpts of Gilley # 2 Text of Proposed Order)(Demchak, Teresa) Modified on 12/2/2004 (kjr, ). Replaces deficient document #443. (Entered: 11/30/2004)
*** Document # 440 Plaintiff's Counter−Offer of Proof Regarding James White is not deficient. PLEASE IGNORE NOTICE OF DEFICIENCY REGARDING THIS DOCUMENT.*** (kjr, ) (Entered: 12/01/2004)
460 Amended Proposed Findings of Fact by Lufkin Industries Inc. (Hamel, Douglas) Modified on 12/3/2004 (djh, ). (Entered: 12/03/2004)
461 MEMORANDUM AND OPINION finding that Lufkin Industries discriminated against African−American employees when awarding initial assignments and promotions. That discrimination resulted in a corresponding shortfall in African−American wages and salaries. To remedy that discrimination, the court orders back pay to the groups and in the amounts listed. The Court also enjoins and orders Lufkin Industries to cease and desist all racially biased assignment and promotion practices. Specifically, the court orders Lufkin Industries to: cease and desist any and all channeling of black applicants to the Foundry and Trailer divisions; make formal training equally available to all ensure that it is not unreasonably withheld; create and implement a program to ensure that back employees receive more on−the−job training through daily work assignments which will develop the skills and abilities needed for promotions; and create and implement a program to ensure that black employees receive an equitable proportion of promotions in keeping with their representation in the Lufkin Industries work force. The court does not at this time order specific measures to achieve those goals, but finds that increased training in human resources and equal employment opportunity law would be a very well−advised first step. The

Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 44 of 69

01/14/2005 01/18/2005 01/19/2005
01/27/2005 01/31/2005 02/03/2005 02/07/2005
02/08/2005
02/11/2005 02/11/2005 02/11/2005 02/11/2005

court may also appoint a monitor to oversee Lufkin's compliance efforts and ensure the smooth implementation of the listed requirements. Lufkin Industries is to take all necessary steps to remedy the effects of its past discrimination and ensure that discrimination does not taint its future decisions.. Signed by Judge Howell Cobb on 1/13/05. (kjr, ) (Entered: 01/13/2005)
462 FINAL JUDGMENT in accordance with the Memorandum Opinion and Order entered on 1/13/05 in favor of plaintiffs and against defendant based on the formula contained in said opinion. Costs of court are taxed against the defendant. Upon motion and hearing, the court will consider request for attorney fees. Signed by Judge Howell Cobb on 1/14/05. (kjr, ) (Entered: 01/14/2005)
463 MOTION Further Proceedings Regarding Injunctive Relief by Sylvester McClain. (Attachments: # 1 Text of Proposed Order)(Demchak, Teresa) (Entered: 01/18/2005)
464 ORDER that the parties are to meet and confer and report to the Court within 60 days from the date of this Order whether they have been able to reach agreement on the specific details of non−monetary remedial measures dft will implement to address the discrimination found and injunction entered by the Court. The Court schedules a status conference for 4/7/05. Signed by Judge Howell Cobb on 1/18/05. (kjr, ) (Entered: 01/19/2005)
465 MOTION for Attorney Fees AND REQUEST THAT THE COURT SET A SCHEDULE FOR SUPPLEMENTAL BRIEFING AND HEARING by Sylvester McClain. (Attachments: # 1 Text of Proposed Order)(Demchak, Teresa) (Entered: 01/27/2005)
466 MOTION to Alter Judgment and to Amend and Make Additional Findings of Fact by Lufkin Industries Inc. (Attachments: # 1 Proposed Order)(Hamel, Douglas) (Entered: 01/31/2005)
467 NOTICE by Lufkin Industries Inc Letter to Judge Cobb in response to Plaintiffs' Letter to Judge Cobb re: briefing schedule (Attachments: # 1 Letter to TWC)(Hamel, Douglas) (Entered: 02/03/2005)
468 MOTION to Vacate Court's Order of January 18, 2005 and Response to Plaintiffs' Motion for Order Requiring Further Proceedings by Lufkin Industries Inc. (Attachments: # 1 Exhibit A, Demchak letter 1/24/05 # 2 Proposed Order)(Hamel, Douglas) Additional attachment(s) added on 2/8/2005 (kjr, ). (Entered: 02/07/2005)
469 MOTION Shorten Time Within Which Defendant Must Respond to Plaintiffs' 5th Request for Production of Documents by Sylvester McClain. (Attachments: # 1 Exhibit 1 # 2 Exhibit 2 # 3 Exhibit 3 # 4 Exhibit 4 # 5 Exhibit 5 # 6 Exhibit 6 # 7 Exhibit 7 # 8 Exhibit 8 # 9 Exhibit 9)(Demchak, Teresa) (Entered: 02/08/2005)
470 NOTICE OF APPEAL as to 462 Final Judgment, by Lufkin Industries Inc. Filing fee $ 255 check #1652675 (djh, ) (Entered: 02/11/2005)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 470 Notice of Appeal (djh, ) (Entered: 02/11/2005)
471 RESPONSE in Opposition re 466 MOTION to Alter Judgment and to Amend and Make Additional Findings of Fact filed by Sylvester McClain. (Attachments: # 1 Exhibit Plaintiffs' Specific Objections)(Demchak, Teresa) (Entered: 02/11/2005)
472 Proposed Pretrial Order Proposed Order by Sylvester McClain. (Demchak, Teresa) (Entered: 02/11/2005)

Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 45 of 69

02/11/2005 02/11/2005
02/14/2005
02/14/2005
02/15/2005 02/15/2005 02/17/2005 02/22/2005 02/22/2005 02/22/2005
02/23/2005 02/23/2005

473 Proposed Pretrial Order Amended Proposed Order by Sylvester McClain. (Demchak, Teresa) (Entered: 02/11/2005)
474 RESPONSE in Opposition re 465 MOTION for Attorney Fees AND REQUEST THAT THE COURT SET A SCHEDULE FOR SUPPLEMENTAL BRIEFING AND HEARING filed by Lufkin Industries Inc. (Attachments: # 1 Proposed Order Denying Plaintiffs' Motion for Attorneys' Fees # 2 Proposed Order Scheduling Briefing on Plaintiffs' Motion for Attorneys' Fees)(Hamel, Douglas) (Entered: 02/11/2005)
475 ORDER granting in part and denying in part 466 Motion to Alter Judgment and Make Additional Findings of Fact. The court finds that Paul Perez, a person of Hispanic descent, has been the corporate employee or officer in charge of Lufkin's Human Resources and Law Departments. The court also amends its judgment to delete the award of pre−judgment interest at the rate of 10% compounded annually. Pre−judgment interest is instead to be awarded at the rate of 5% compounded annually, in accord with the Texas Finance Code section 304.003. The court denies the remainder of Lufkin's amendments and additional findings of fact as unnecessary and/or unsupported by the evidence preented before this court. Signed by Judge Howell Cobb on 2/14/05. (kjr, ) (Entered: 02/14/2005)
476 ORDER setting briefing and response deadlines re 465 MOTION for interim award of atty's fees, costs and other recoverable litigation−related expenses filed by Sylvester McClain . The status conference currently scheduled in this matter on 4/7/05 is canceled and will be rescheduled at the sme time as the hearing on the motion for interim atty's fees. Signed by Judge Howell Cobb on 2/14/05. (kjr, ) (Entered: 02/14/2005)
477 AMENDED NOTICE OF APPEAL as to 461 Memorandum & Opinion, 475 Order on Motion to Alter Judgment, 462 Final Judgment, 464 Order, by Lufkin Industries Inc. (kjr, ) (Entered: 02/15/2005)
Transmission of Amended Notice of Appeal and Docket Sheet to US Court of Appeals re 477 Notice of Appeal (kjr, ) (Entered: 02/15/2005)
478 MOTION for Extension of Time to File Plaintiffs' Motion for Award of Attorneys' Fees and Costs by Sylvester McClain. (Attachments: # 1 Text of Proposed Order re Motion for Extension of Time to File Motion for Award of Attorneys' Fees and Costs)(Demchak, Teresa) (Entered: 02/17/2005)
479 ORDERED that plaintiff's shall file their motion for award of reasonable attorneys' fees and costs by 3/10/05. Dft shall respond by 4/21/05, and plaintiffs shall file their reply by 5/5/05. Motions terminated: 478 MOTION for Extension of Time to File Plaintiffs' Motion for Award of Attorneys' Fees and Costs. Signed by Judge Howell Cobb on 2/22/05. (kjr, ) (Entered: 02/22/2005)
480 RESPONSE in Opposition re 468 MOTION to Vacate Court's Order of January 18, 2005 and Response to Plaintiffs' Motion for Order Requiring Further Proceedings filed by Sylvester McClain. (Demchak, Teresa) (Entered: 02/22/2005)
481 AFFIDAVIT in Opposition re 468 MOTION to Vacate Court's Order of January 18, 2005 and Response to Plaintiffs' Motion for Order Requiring Further Proceedings (Declaration of Teresa Demchak) filed by Sylvester McClain. (Attachments: # 1 Exhibit Exh. 1 # 2 Exhibit Exh. 2 # 3 Exhibit Exh. 3 # 4 Exhibit Exh. 4 # 5 Exhibit Exh. 5 # 6 Exhibit Exh. 6)(Demchak, Teresa) (Entered: 02/22/2005)
482 Proposed Pretrial Order Denying Lufkin's Motion to Vacate Court's Order of Januay 18, 2005 by Sylvester McClain. (Demchak, Teresa) (Entered: 02/23/2005)
483 RESPONSE in Opposition re 469 MOTION Shorten Time Within Which Defendant Must Respond to Plaintiffs' 5th Request for Production of Documents filed by Lufkin Industries Inc. (Bacon, Christopher) (Entered: 02/23/2005)

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02/23/2005 02/24/2005 02/24/2005 02/24/2005 02/24/2005 02/28/2005 02/28/2005
02/28/2005 02/28/2005 03/01/2005
03/02/2005
03/03/2005
03/03/2005 03/03/2005
03/03/2005 03/07/2005 03/07/2005 03/09/2005

484 MOTION for Protective Order by Lufkin Industries Inc. (Attachments: # 1 Proposed Order)(Hamel, Douglas) (Entered: 02/23/2005)
485 TRANSCRIPT of Motion Hearing held on July 11, 2003 before Judge Howell Cobb. Court Reporter: Wendell R. Parks (42 pages). (kjr, ) (Entered: 02/25/2005)
486 TRANSCRIPT of Day 6 of Trial held on October 12, 2004 before Judge Howell Cobb. Court Reporter: Wendell R. Parks (263 pages). (kjr, ) (Entered: 02/25/2005)
487 TRANSCRIPT of Day 7 of Trial held on October 13, 2004 before Judge Howell Cobb. Court Reporter: Wendell R. Parks ( 248 pages). (kjr, ) (Entered: 02/25/2005)
488 TRANSCRIPT of Day 8 of Bench Trial held on October 14, 2004 before Judge Howell Cobb. Court Reporter: Wendell R. Parks (131 pages). (kjr, ) (Entered: 02/25/2005)
489 TRANSCRIPT REQUEST by Lufkin Industries Inc for proceedings held on 7/11/03, 10/13−15/04 before Judge Cobb.. (djh, ) (Entered: 02/28/2005)
490 ORDER finding as moot 469 Motion to shorten time within which to respond to plaintiffs' fifth request for production of documents, denying plaintiffs' fifth request for production of documents and granting 484 Motion for Protective Order . Signed by Judge Howell Cobb on 2/28/05. (kjr, ) (Entered: 02/28/2005)
491 NOTICE OF CROSS APPEAL as to 461 Memorandum & Opinion, 462 Final Judgment, by Pla Class. Filing fee $ 255, receipt number 9−1−18. (djh, ) (Entered: 02/28/2005)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 491 Notice of Cross Appeal (djh, ) (Entered: 02/28/2005)
492 REPLY to Response to Motion re 468 MOTION to Vacate Court's Order of January 18, 2005 and Response to Plaintiffs' Motion for Order Requiring Further Proceedings filed by Lufkin Industries Inc. (Attachments: # 1 Exhibit A # 2 Proposed Order)(Hamel, Douglas) (Entered: 03/01/2005)
493 REPLY to Response to Motion re 468 MOTION to Vacate Court's Order of January 18, 2005 and Response to Plaintiffs' Motion for Order Requiring Further Proceedings (Sur−Reply in Opposition) filed by Sylvester McClain. (Attachments: # 1 Exhibit Exhibit A)(Demchak, Teresa) (Entered: 03/02/2005)
494 APPROVED APPLICATION to Appear Pro Hac Vice by Attorney Nina Rabin for John Doe, III; Clifford R Duirden; Earl Potts; Roald Mark; Pla Class; Sylvester McClain; Buford Thomas; Patrick. Ross; Mary Thomas; Eddie K Mask; Leroy Garner; Sherry Calloway Swint; John Doe and Florine Thompson. (djh, ) (Entered: 03/04/2005)
Pro Hac Vice Filing fee paid by Nina Rabin; Fee: $25, receipt number: 9−022 (djh, ) (Entered: 03/04/2005)
495 APPROVED APPLICATION to Appear Pro Hac Vice by Attorney Meetali Jain for John Doe, III; Clifford R Duirden; Earl Potts; Roald Mark; Pla Class; Sylvester McClain; Buford Thomas; Patrick. Ross; Mary Thomas; Eddie K Mask; Leroy Garner; Sherry Calloway Swint; John Doe and Florine Thompson. (djh, ) Additional attachment(s) added on 3/4/2005 (djh, ). (Entered: 03/04/2005)
Pro Hac Vice Filing fee paid by Meetali Jain; Fee: $25, receipt number: 9−021 (djh, ) (Entered: 03/04/2005)
496 NOTICE of Docketing acknwoledgement by 5th Circuit. USCA Case Number 05−40254 (djh, ) Modified on 3/10/2005 (djh, ). (Entered: 03/07/2005)
497 NOTICE of Docketing acknowledgement by USCA Caseand assigned case Number 05−40254 (djh, ) Modified on 3/10/2005 (djh, ). (Entered: 03/07/2005)
498 MOTION Requesting Judicial Notice by Sylvester McClain. (Attachments: # 1 Exhibit Exh 1 # 2 Exhibit Exh 2 # 3 Exhibit Exh 3

Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 47 of 69

03/10/2005 03/10/2005
03/10/2005 03/10/2005

# 4 Exhibit Exh 4 # 5 Exhibit Exh 5 # 6 Exhibit Exh 6 # 7 Exhibit Exh 7 # 8 Exhibit Exh 8 # 9 Exhibit Exh 9 # 10 Text of Proposed Order)(Demchak, Teresa) (Entered: 03/09/2005)
499 **Document deficient (no certificate of conference; exceeds page limit). Please ignore −− Document to be resubmitted.** MOTION for Attorney Fees Interim Award of Fees, Costs & Expenses by Sylvester McClain. (Attachments: # 1 Exhibit Exhibit 1 # 2 Exhibit Exhibit 2 # 3 Text of Proposed Order)(Demchak, Teresa) Modified on 3/14/2005 (kjr, ). (Entered: 03/10/2005)
500 AFFIDAVIT in Support re 499 MOTION for Attorney Fees Interim Award of Fees, Costs & Expenses of Teresa Demchak filed by Sylvester McClain. (Attachments: # 1 Exhibit Exhibit 1 # 2 Exhibit Exhibit 2 # 3 Exhibit Exhibit 3 # 4 Exhibit Exhibit 4 # 5 Exhibit Exhibit 5 # 6 Exhibit Exhibit 6 # 7 Exhibit Exhibit 7 # 8 Exhibit Exhibit 8 # 9 Exhibit Exhibit 9 # 10 Exhibit Exhibit 10 # 11 Exhibit Exhibit 11 # 12 Exhibit Exhibit 12 # 13 Exhibit Exhibit 13 # 14 Exhibit Exhibit 14 # 15 Exhibit Exhibit 15 # 16 Exhibit Exhibit 16 # 17 Exhibit Exhibit 17 # 18 Exhibit Exhibit 18 # 19 Exhibit Exhibit 19 # 20 Exhibit Exhibit 20 # 21 Exhibit Exhibit 21 # 22 Exhibit Exhibit 22 # 23 Exhibit Exhibit 23 # 24 Exhibit Exhibit 24 # 25 Exhibit Exhibit 25 # 26 Exhibit Exhibit 26 # 27 Exhibit Exhibit 27 # 28 Exhibit Exhibit 28 # 29 Exhibit Exhibit 29)(Demchak, Teresa) (Entered: 03/10/2005)
501 AFFIDAVIT in Support re 499 MOTION for Attorney Fees Interim Award of Fees, Costs & Expenses of Timothy Garrigan filed by Sylvester McClain. (Attachments: # 1 Exhibit Exhibit 1 # 2 Exhibit Exhibit 2)(Demchak, Teresa) (Entered: 03/10/2005)
502 Additional Attachments to Main Document: 499 MOTION for Attorney Fees Interim Award of Fees, Costs & Expenses.. (Attachments: # 1 Affidavit of Ann Davis # 2 Exhibit Exhibit 1 to Davis Declaration # 3 Affidavit of Joseph Sellers # 4 Affidavit of J. Derek Braziel # 5 Affidavit of Otis Carroll # 6 Affidavit of Margaret A. Harris # 7 Affidavit of Stephen D. Susman # 8 Affidavit of Steven B. Thorpe # 9 Affidavit of David Weiser)(Demchak, Teresa) (Entered: 03/10/2005)

Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 48 of 69

03/10/2005 03/10/2005 03/14/2005 03/16/2005 03/21/2005 03/21/2005
03/21/2005 03/21/2005 03/24/2005 03/28/2005 03/30/2005 04/06/2005
04/12/2005
04/18/2005 04/18/2005 04/19/2005 04/19/2005 04/19/2005

503 BILL OF COSTS by Sylvester McClain. (Demchak, Teresa) (Entered: 03/10/2005)
NOTICE of Deficiency regarding the #499 Motion for Attorney Fees submitted by Pla Class. (No certificate of conference; exceeds page limit). Docket to be resubmitted. (kjr, ) (Entered: 03/14/2005)
504 MOTION for Leave to File Excess Pages by Sylvester McClain. (Attachments: # 1 Text of Proposed Order)(Demchak, Teresa) (Entered: 03/14/2005)
505 MOTION to Stay re 504 MOTION for Leave to File Excess Pages by Lufkin Industries Inc. (Attachments: # 1 Text of Proposed Order)(Bacon, Christopher) (Entered: 03/16/2005)
506 STATUS REPORT Joint Report Pursuant to January 19, 2005 Order by Sylvester McClain, Lufkin Industries Inc. (Demchak, Teresa) (Entered: 03/21/2005)
507 STATUS REPORT Pursuant to the January 19, 2005 Order by Sylvester McClain. (Attachments: # 1 Exhibit Exhibts 1 − 7 # 2 Exhibit Exhibits 8 − 13)(Demchak, Teresa) (Entered: 03/21/2005)
508 MOTION for Hearing and Briefing on Injuctive Remedies by Sylvester McClain. (Attachments: # 1 Text of Proposed Order)(Demchak, Teresa) (Entered: 03/21/2005)
509 RESPONSE in Opposition re 505 MOTION to Stay re 504 MOTION for Leave to File Excess Pages filed by Sylvester McClain. (Attachments: # 1 Exhibit Exhibits 1 − 2)(Demchak, Teresa) (Entered: 03/21/2005)
510 RESPONSE in Opposition re 498 MOTION Requesting Judicial Notice filed by Lufkin Industries Inc. (Attachments: # 1 Text of Proposed Order)(Bacon, Christopher) (Entered: 03/24/2005)
511 NOTICE of Docketing Record on Appeal from USCA re 491 Notice of Cross Appeal filed by Pla Class,. USCA Case Number 05−40254 (djh, ) (Entered: 03/28/2005)
512 REPLY to Response to Motion re 498 MOTION Requesting Judicial Notice filed by Sylvester McClain. (Demchak, Teresa) (Entered: 03/30/2005)
513 MOTION to Compel Production of Documents by Lufkin Industries Inc. (Attachments: # 1 Exhibit Exhibit A # 2 Text of Proposed Order)(Hamel, Douglas) (Entered: 04/06/2005)
514 MOTION for Order Specifying Amount of Class Back Pay and Method of Determining Individual Class Member Awards by Sylvester McClain. (Attachments: # 1 Text of Proposed Order # 2 Affidavit of Richard Drogin)(Demchak, Teresa) (Entered: 04/12/2005)
515 Acknowledgement by 5th Circuit of receipt of appeal record (Entered: 04/18/2005)
516 MOTION for Extension of Time to File Response/Reply as to 479 Order,, Terminate Motions, by Lufkin Industries Inc. (Attachments: # 1 Text of Proposed Order)(Hamel, Douglas) (Entered: 04/18/2005)
517 RESPONSE in Opposition re 513 MOTION to Compel Production of Documents filed by Sylvester McClain. (Attachments: # 1 Exhibit Exh 1)(Demchak, Teresa) (Entered: 04/19/2005)
518 RESPONSE in Opposition re 516 MOTION for Extension of Time to File Response/Reply as to 479 Order,, Terminate Motions, filed by Sylvester McClain. (Demchak, Teresa) (Entered: 04/19/2005)
519 ORDER granting the 516 motion for extension of time to file response to plas' motion for an interim award of attys' fees, costs and expenses and the Court ORDERS as follows: dft shall file its response to plas' motion for an interim award of attys' fees, costs and expenses within 5 working days after plas produce the doucments sought in dft's motion to compel production of documents. Plas shall file their reply by 2 weeks after the new response deadline. Signed by Judge Howell Cobb on 4/19/05. (djh, ) (Entered: 04/20/2005)

Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 49 of 69

04/20/2005 04/22/2005
04/27/2005 05/02/2005 05/02/2005 05/04/2005 05/04/2005 05/04/2005 05/04/2005
05/04/2005 05/04/2005 05/05/2005

520 MOTION Clarification of Order, doc. no. 519 Plaintiffs' Motion for Clarification of the April 19, 2005 Order by Leroy Garner. (Attachments: # 1 Text of Proposed Order)(Garrigan, Timothy) (Entered: 04/20/2005)
521 ORDER granting 520 Motion for clarification. Dft motion for extension of time to file its response to plas' motion for an interim award of atty's fees, costs and expenses is granted. In the event that the Court denies Lufkin's motion to compel, Lufkin shall have 3 business days from the date of the denial to file its response. In the event that the Court grants Lufkin's motion to compel in whole or in part, or if the plas satisfy Lufkin's underlying request, Lufkin shall have 5 business days after plas' production in which to file its response. Plas shall file their reply by two weeks after the new response deadline . Signed by Judge Howell Cobb on 4/22/05. (djh, ) (Entered: 04/22/2005)
522 RESPONSE in Opposition re 514 MOTION for Order Specifying Amount of Class Back Pay and Method of Determining Individual Class Member Awards filed by Lufkin Industries Inc. (Hamel, Douglas) (Entered: 04/27/2005)
523 REPLY to Response to Motion re 514 MOTION for Order Specifying Amount of Class Back Pay and Method of Determining Individual Class Member Awards filed by Sylvester McClain. (Demchak, Teresa) (Entered: 05/02/2005)
524 MOTION Appointment of 1) Special Master and 2) Court−Appointed Expert Witness or Technical Advisor by Sylvester McClain. (Attachments: # 1 Text of Proposed Order # 2 Exhibit Exhs 1−3)(Demchak, Teresa) (Entered: 05/02/2005)
525 **PLEASE IGNORE. FILED IN ERROR. SEE DOCUMENT 527 .** MOTION for Leave to File Excess Pages by Lufkin Industries Inc. (Attachments: # 1 Text of Proposed Order)(Bacon, Christopher) Modified on 5/5/2005 (kjr, ). (Entered: 05/04/2005)
526 MOTION to Seal Declarations filed in Support of Opposition to Motion for Interim Award of Attorney's Fees by Lufkin Industries Inc. (Attachments: # 1 Text of Proposed Order)(Bacon, Christopher) (Entered: 05/04/2005)
527 MOTION for Leave to File Excess Pages Opposition to Motion for Interim Award of Attorney's Fees by Lufkin Industries Inc. (Attachments: # 1 Text of Proposed Order)(Bacon, Christopher) (Entered: 05/04/2005)
528 RESPONSE in Opposition re 499 MOTION for Attorney Fees Interim Award of Fees, Costs & Expenses filed by Lufkin Industries Inc. (Attachments: # 1 Appendix Table of Contents # 2 Errata Sealed Documents # 3 Exhibit Declaration of Carolyn Wood # 4 Exhibit Declaration of Christopher Bacon # 5 Exhibit Declaration of Patricia Rios # 6 Exhibit January 27, 2005 letter from Demchak # 7 Exhibit Garrigan Engagement Letters # 8 Exhibit Garrigan deposition # 9 Exhibit Declaration of Anderson Lee # 10 Exhibit Drogin invoices # 11 Exhibit McCune invoices)(Hamel, Douglas) (Entered: 05/04/2005)
529 Additional Attachments to Main Document: 528 Response in Opposition to Motion,,.. (Attachments: # 1 Exhibit Exhibits to Wood Declaration A−H # 2 Exhibit Wood Declaration Exhibit I # 3 Errata Wood Declaration Exhibits J−M)(Bacon, Christopher) (Entered: 05/05/2005)
***FILED IN ERROR. Document # 525 Motion for Leave to File Excess Pages. PLEASE IGNORE; MOTION TERMINATED. REPLACED BY DOCUMENT 527 . *** (kjr, ) (Entered: 05/05/2005)
530 Additional Attachments to Main Document: 528 Response in Opposition to Motion,,.. (Attachments: # 1 Exhibit Declaration of Christopher Bacon)(Hamel, Douglas) (Entered: 05/05/2005)

Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 50 of 69

05/05/2005 05/05/2005 05/05/2005 05/05/2005
05/09/2005 05/17/2005 05/17/2005 05/17/2005 05/18/2005 05/18/2005

PARTIAL return of appeal record: received 2 boxes of transcripts and 1 box of motions exhibits only (Entered: 05/05/2005)
531 USCA JUDGMENT that the motion of appellees−cross−appellants to dismiss the appeals for lack of jurisdiction is granted. The alternative motion of appellees−cross−appellants to stay further proceedings in this court pending further proceedings before USDC is denied as unnecessary. Mandate issued on 5/2/05 (Entered: 05/05/2005)
532 Additional Attachments to Main Document: 528 Response in Opposition to Motion,,.. (Attachments: # 1 Exhibit Declaration of Anderson Lee (Shin−Yueh A. Lee))(Hamel, Douglas) (Entered: 05/05/2005)
533 ORDER Setting Hearing on Motion 465 MOTION for Attorney Fees AND REQUEST THAT THE COURT SET A SCHEDULE FOR SUPPLEMENTAL BRIEFING AND HEARING, 504 MOTION for Leave to File Excess Pages, 505 MOTION to Stay re 504 MOTION for Leave to File Excess Pages, 468 MOTION to Vacate Court's Order of January 18, 2005 and Response to Plaintiffs' Motion for Order Requiring Further Proceedings, 508 MOTION for Hearing and Briefing on Injuctive Remedies, 498 MOTION Requesting Judicial Notice, 524 MOTION Appointment of 1) Special Master and 2) Court−Appointed Expert Witness or Technical Advisor, 513 MOTION to Compel Production of Documents, 514 MOTION for Order Specifying Amount of Class Back Pay and Method of Determining Individual Class Member Awards, 526 MOTION to Seal Declarations filed in Support of Opposition to Motion for Interim Award of Attorney's Fees, 527 MOTION for Leave to File Excess Pages Opposition to Motion for Interim Award of Attorney's Fees: Motion Hearing set for 5/25/2005 10:00 AM in Beaumont before Judge Howell Cobb.. Signed by Judge Howell Cobb on 5/5/05. (djh, ) (Entered: 05/05/2005)
534 Joint MOTION to Allow Unions to Intervene as Non−Aligned Parties by Sylvester McClain. (Attachments: # 1 Text of Proposed Order & Stipulation)(Demchak, Teresa) (Entered: 05/09/2005)
535 Document deficient − no response attached. Please ignore. See correct document at 536 . RESPONSE in Opposition re 524 MOTION Appointment of 1) Special Master and 2) Court−Appointed Expert Witness or Technical Advisor filed by Lufkin Industries Inc. (Attachments: # 1 Text of Proposed Order)(Bacon, Christopher) Modified on 5/18/2005 (kjr, ). (Entered: 05/17/2005)
536 RESPONSE in Opposition re 524 MOTION Appointment of 1) Special Master and 2) Court−Appointed Expert Witness or Technical Advisor filed by Lufkin Industries Inc. (Attachments: # 1 Text of Proposed Order)(Bacon, Christopher) (Replaces deficient document #535.) (Entered: 05/17/2005)
NOTICE of Deficiency regarding Document 535 submitted by Lufkin Industries Inc. The response was not attached − just the proposed order. See corrected document at 536 . (kjr, ) (Entered: 05/18/2005)
537 MOTION for Leave to File Excess Pages by Sylvester McClain. (Attachments: # 1 Text of Proposed Order)(Demchak, Teresa) (Entered: 05/18/2005)
538 REPLY to Response to Motion re 499 MOTION for Attorney Fees Interim Award of Fees, Costs & Expenses filed by Sylvester McClain. (Attachments: # 1 Text of Proposed Order # 2 Exhibit Appendix A # 3 Affidavit Supplemental Declaration of Teresa Demchak # 4 Exhibit Exhibits to Suppl. Demchak Decl. # 5 Affidavit Supplemental Declaration of T. Garrigan # 6 Affidavit Declaration of K. Turner Link # 7 Exhibit Exhibits to K. Turner Link Decl. # 8 Affidavit Declaration of O. Carroll # 9 Affidavit Declaration of L. Ashe # 10 Affidavit Declaration of S. Forst)(Demchak, Teresa) (Entered: 05/18/2005)

Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 51 of 69

05/19/2005 05/20/2005 05/20/2005 05/23/2005 05/24/2005
05/25/2005
05/31/2005
06/01/2005 06/13/2005 06/13/2005 06/29/2005 06/29/2005 07/01/2005 08/29/2005

539 Additional Attachments to Main Document: 538 Reply to Response to Motion,,.. (Demchak, Teresa) (Entered: 05/19/2005)
540 REPLY to Response to Motion re 524 MOTION Appointment of 1) Special Master and 2) Court−Appointed Expert Witness or Technical Advisor Plaintiffs' Reply to Lufkin's Response in Opposition to Plaintiffs' Motion for Appointments filed by Sylvester McClain. (Demchak, Teresa) (Entered: 05/20/2005)
541 RESPONSE in Opposition re 537 MOTION for Leave to File Excess Pages filed by Lufkin Industries Inc. (Bacon, Christopher) (Entered: 05/20/2005)
542 REPLY to Response to Motion re 499 MOTION for Attorney Fees Interim Award of Fees, Costs & Expenses filed by Lufkin Industries Inc. (Bacon, Christopher) (Entered: 05/23/2005)
543 STATUS REPORT regarding remedial measures taken by Lufkin by Lufkin Industries Inc. (Attachments: # 1 Exhibit A # 2 Exhibit B # 3 Exhibit C # 4 Exhibit D # 5 Exhibit E)(Hamel, Douglas) (Entered: 05/24/2005)
546 Minute Entry for proceedings held before Judge Howell Cobb: Motion Hearing held on 5/25/2005. The Ct ruled on following motions: Motion for Judicial Notice−denied; Motions for excess pages−moot; Motion to vacate−denied; motion for stay to be taken up at a later date; motion for review−granted; motion to compel−withdrawn; other pending motions taken under advisement. (Court Reporter Wendell Parks.) (rll) (Entered: 06/02/2005)
544 RESPONSE to Motion re 508 MOTION for Hearing and Briefing on Injuctive Remedies Plaintiff Response to Lufkin's Report to Court on Remedial Measures filed by Sylvester McClain. (Attachments: # 1 Exhibit Exhibit 1 to Plaintiff Response to Lufkin's Report to Court on Remedial Measures)(Demchak, Teresa) (Entered: 05/31/2005)
545 REPLY to Response to Motion re 514 MOTION for Order Specifying Amount of Class Back Pay and Method of Determining Individual Class Member Awards as Requested at May 25, 2005 Hearing filed by Sylvester McClain. (Demchak, Teresa) (Entered: 06/01/2005)
547 REPLY to Response to Motion re 499 MOTION for Attorney Fees Interim Award of Fees, Costs & Expenses and in response to the Court's June 6, 2005 letter filed by Sylvester McClain. (Demchak, Teresa) (Entered: 06/13/2005)
548 TRANSCRIPT of Motion hearing Proceedings held on May 25, 2005 before Judge Cobb. Court Reporter: Wendell Parks. (djh, ) (Entered: 06/14/2005)
549 REPLY to Response to Motion re 499 MOTION for Attorney Fees Interim Award of Fees, Costs & Expenses Reply to Demchak Letter, Docket No. 547 filed by Lufkin Industries Inc. (Hamel, Douglas) (Entered: 06/29/2005)
550 NOTICE by Lufkin Industries Inc re 524 MOTION Appointment of 1) Special Master and 2) Court−Appointed Expert Witness or Technical Advisor Letter to Judge Cobb regarding Appointment of The Hon. Wendall Radford (Hamel, Douglas) (Entered: 06/29/2005)
551 REPLY to Response to Motion re 499 MOTION for Attorney Fees Interim Award of Fees, Costs & Expenses Reply to Hamel Letter Docket No. 549 filed by Sylvester McClain. (Attachments: # 1 Exhibit)(Demchak, Teresa) (Entered: 07/01/2005)
552 AMENDED FINAL JUDGMENT that the plas having prevailed it is ORDERED that the class receive $3,400,139 in back pay, pl post judgment interest on that amt beginning 1/1/05. Post judgment interest is to be assessed at the ordinary federal rate. The aty fees which are approved and ORDERED area s follows: no fee is awarded for time spent inthe unsuccessful mediation, nor is any fee awarded for Mr. Garrigan's attendance at pla Mark's separate suit against Lufkin Industries. Once that time is

Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 52 of 69

09/01/2005 09/01/2005 09/01/2005 09/01/2005 09/12/2005
09/12/2005 09/16/2005
09/19/2005 09/19/2005 09/19/2005 09/19/2005 09/19/2005

removed the remaining billable hrs of all plas' attys are to be reduced by 25%. Ms. Demchak and Mr. Baller are to reeived $350 an hr. Attys Burrell, Konecky and Borgen are to receive $300 an hr. Ms Rabin to receive $250 an hr. Paralegal hrs are to be billed at $60 an hr. Case clerk hrs are to be billed at $50 an hr. Mr. garrigan is to receive $250 an hr. Mr. Garrigan's paralegal, Ms. Davis is to receive $75 an hr. Plas' attys are awarded $127,658.60 in taxable costs. Plas' attys are also awarded $840,129.72 in litigation−related expenses. Because plas have proven their case for employment discrimmination it is hereby ORDERED that plas receive all relief stated in this opinion . Signed by Judge Howell Cobb on 8/29/05. (djh, ) (Entered: 08/29/2005)
553 NOTICE OF APPEAL as to 552 Amended Final Judgment by All Pla's. (djh, ) (Entered: 09/01/2005)
Filing fee: $ 255.00, receipt number 9−1−155 (djh, ) (Entered: 09/01/2005)
Mailed transcript order form to pla's attorney (djh, ) (Entered: 09/01/2005)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 553 Notice of Appeal (djh, ) (Entered: 09/01/2005)
554 *** ( 556 REPLACES THIS DOCUMENT) *****Supplemental MOTION for Attorney Fees , Costs and Expenses by Sylvester McClain. (Attachments: # 1 Text of Proposed Order # 2 Affidavit Declaration of T. Demchak # 3 Exhibit Exh. 1 to Demchak Decl. # 4 Exhibit Exh. 2 to Demchak Decl. # 5 Exhibit Exh. 3 to Demchak Decl. # 6 Exhibit Exh. 4 to Demchak Decl. # 7 Affidavit Declaration of T. Garrigan # 8 Exhibit Exh. 1 to Garrigan Decl. # 9 Exhibit Exh. 2 to Garrigan Decl. # 10 Exhibit Exh. 3 to Garrigan Decl.)(Demchak, Teresa) Modified on 9/16/2005 (djh, ). (Entered: 09/12/2005)
555 BILL OF COSTS (Supplemental) by Sylvester McClain. (Demchak, Teresa) (Entered: 09/12/2005)
556 ***** (REPLACES 554 ) *****Amended MOTION for Attorney Fees Plaintiffs' Corrected Motion for a Supplemental Award of Attorneys' Fees, Costs and Expenses by All Pla's. (Attachments: # 1 Text of Proposed Order # 2 Affidavit Corrected Declaration of Teresa Demchak # 3 Exhibit Exh 1 to Demchak Declaration # 4 Exhibit Exh 2 to Demchak Declaration # 5 Exhibit Exh 3 to Demchak Declaration # 6 Exhibit Exh 4 to Demchak Declaration # 7 Affidavit Corrected Declaration of Timothy Garrigan # 8 Exhibit Exh 1 to Garrigan Declaration # 9 Exhibit Exh 2 to Garrigan Declaration # 10 Exhibit Exh 3 to Garrigan Declaration)(Garrigan, Timothy) Modified on 9/16/2005 (djh, ). (Entered: 09/16/2005)
557 NOTICE OF APPEAL as to 552 Amended Final Judgment by Lufkin Industries Inc. (djh, ) (Entered: 09/19/2005)
USCA Appeal Fees received $ 255 receipt number 9−1−170 re 557 Notice of Appeal filed by Lufkin Industries Inc, (djh, ) (Entered: 09/19/2005)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 557 Notice of Appeal (djh, ) (Entered: 09/19/2005)
Forwarded transcript order form to Lufkin Industries atty Doug Hamel (djh, ) (Entered: 09/19/2005)
558 ORDER denying 556 Motion for Attorney Fees without prejudice. Signed by Judge Ron Clark on 9/19/05. (kjr, ) (Entered: 09/21/2005)

Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 53 of 69

09/19/2005 10/06/2005 10/19/2005 10/20/2005 11/07/2005
11/07/2005
11/09/2005 11/09/2005 11/30/2005
12/15/2005
12/16/2005 01/24/2006 02/09/2006 02/09/2006 03/06/2006 04/07/2006 05/26/2006

559 Case reassigned to Judge Ron Clark pursuant to GO 05−14. Judge Howell Cobb no longer assigned to the case. (kjr, ) (Entered: 09/21/2005)
560 TRANSCRIPT REQUEST by All Pla's re 553 Notice of Appeal that the transcript is already on file in the Clerk's office (kjr, ) (Entered: 10/06/2005)
561 MOTION Unopposed Motion for Leave to Return Defendant's Trial Exhibits to the Court by Lufkin Industries Inc. (Attachments: # 1 Proposed Order)(Hamel, Douglas) (Entered: 10/19/2005)
562 TRANSCRIPT REQUEST stating that the transcripts are already on file by Lufkin Industries Inc. (djh, ) (Entered: 10/20/2005)
563 ORDER granting 561 unopposed motion to return dft's trial exhibits for inclusion in the record subject to a verification of the exhibits by affidavit. The dft and plas should submit a joint, sworn affidavit detailing that the exhibits being submitted are those that the trial court admitted and no alterations have been made. The affidavit should be supplemented with a copy of the trial exhibit list. Upon filing this affidavit, dft may send the exhibits directly to Fifth Circuit along with a copy of the affidavit and notice tha the affidavit has been filed in this court. . Signed by Judge Ron Clark on 11/7/05. (djh, ) (Entered: 11/08/2005)
564 ORDER finding as moot 465 Motion for Attorney Fees, denying 468 Motion to Vacate, denying 498 Motion, finding as moot 504 Motion for Leave to File Excess Pages, finding as moot 505 Motion to Stay, finding as moot 508 Motion for Hearing, withdrawing 513 Motion to Compel, finding as moot 514 Motion, finding as moot 524 Motion, finding as moot 526 Motion to Seal, finding as moot 527 Motion for Leave to File Excess Pages, finding as moot 534 Motion, finding as moot 537 Motion for Leave to File Excess Pages . Signed by Judge Ron Clark on 11/7/05. (djh, ) (Entered: 11/08/2005)
565 NOTICE of Docketing Record on Appeal from USCA re 557 Notice of Appeal filed by Lufkin Industries Inc,. USCA Case Number 05−41417 (djh, ) (Entered: 11/09/2005)
566 NOTICE of Docketing Record on Appeal from USCA re 553 Notice of Appeal filed by All Pla's,. USCA Case Number 05−−41417 (djh, ) (Entered: 11/09/2005)
567 NOTICE by Lufkin Industries Inc that exhibits will be transmitted to Court of Appeals (Attachments: # 1 Exhibit 1 (affidavit) # 2 Exhibit 2 (exhibit list))(Bacon, Christopher) (Entered: 11/30/2005)
568 Joint MOTION to Stay of Proceedings to Enforce a Judgment by Lufkin Industries Inc. (Attachments: # 1 Exhibit 1 # 2 Proposed Order)(Hamel, Douglas) (Entered: 12/15/2005)
569 ORDER granting 568 Motion to Stay to enforce judgment. Signed by Judge Ron Clark on 12/16/05. (djh, ) (Entered: 12/19/2005)
Electronically certified record on appeal (Entered: 01/26/2006)
Electronically certified record on appeal (djh, ) (Entered: 02/09/2006)
570 Pla's request for appeal record and shipped to pla's atty via Federal Express (djh, ) Modified on 2/27/2006 (djh, ). (Entered: 02/13/2006)
Partial Record sent back to 5th Circuit (sent us stating closed appeal with wrong appeal number−−appeal still pending 05−41417). ( expando rtd envelopes and exhibits to motions) (djh, ) (Entered: 03/06/2006)
571 Acknowledgement of receipt by 5th Circuit of appeal record ( 25 vols) (djh, ) (Entered: 04/07/2006)
572 TRANSCRIPT of Motion Hearing Proceedings held on July 27, 2000 before Judge Cobb in Beaumont, Tx. Court Reporter: Wendell Parks. (278 pgs) (djh, ) (Entered: 05/30/2006)

Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 54 of 69

06/06/2006 06/29/2006 07/24/2006 09/11/2006 10/05/2006 10/13/2006 10/12/2007 10/15/2007 10/29/2007 04/21/2008 04/25/2008 06/05/2008 06/05/2008 08/15/2008
08/15/2008
08/15/2008 08/18/2008
10/15/2008 10/15/2008

Supplemental Record on Appeal transmitted to US Court of Appeals ( 1 transcript of motions hrgs held on 7/27/00)(djh, ) (Entered: 06/06/2006)
573 Acknowledgment of receipt by 5th Circuit of receiving the appeal record on 6/9/06 (djh, ) (Entered: 06/30/2006)
574 ACKNOWLEDGEMENT OF FORWARDING Appeal Record to Scott Grimes filed by Lufkin Industries Inc. (djh, ) (Entered: 07/24/2006)
575 Appeal Remark: Notice from Scott G. Grimes, senior paralegal at Goldstein, Demchak, Baller, Borgen & Dardarian, of return of record (CD, 17 transcripts and exhibits to document 528) to Vinson & Elkins on 9/7/06 (kjr, ) (Entered: 09/11/2006)
576 Letter to 5th Circuit from Christopher Bacon returning transcripts (djh, ) (Entered: 10/05/2006)
577 Received 1 box containing 17 transcripts from 5th Circuit (djh, ) (Entered: 10/17/2006)
Supplemental Record on Appeal transmitted to US Court of Appeals (3 transcripts) (djh, ) (Entered: 10/12/2007)
Supplemental Record on Appeal transmitted to US Court of Appeals (3 transcripts 486, 487,488) (djh, ) (Entered: 10/15/2007)
578 Acknowledgment of receipt by 5th Circuit of receiving supplemental record containing transcripts (djh, ) (Entered: 10/29/2007)
579 USCA JUDGMENT that the USDC is affirmed in part, reversed in part, and vacated and remanded in part to the USDC for further proceedings in accordance with the opinion of this Court. Mandate issued 4/14/08(djh, ) (Entered: 04/21/2008)
580 Appeal Record Returned: (ljw, ) (Entered: 04/25/2008)
581 Notice of setting status conference for 12/5/08 at 10:00 am in Beaumont, Tx. (djh, ) (Entered: 06/05/2008)
Set/Reset Hearings: Status Conference set for 12/5/2008 10:00 AM in Ctrm 2 (Beaumont) before Judge Ron Clark. (djh, ) (Entered: 06/05/2008)
582 MOTION to Quash Depositions and for Protection from Unnecessary Discovery by Lufkin Industries Inc. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Text of Proposed Order Order)(Bacon, Christopher) (Additional attachment(s) added on 8/18/2008: # 5 Text of Proposed Order 1) (ljw, ). (Entered: 08/15/2008)
583 RESPONSE in Opposition re 582 MOTION to Quash Depositions and for Protection from Unnecessary Discovery Plaintiffs' Response in Opposition to Defendant's Motion to Quash (Doc. 582) filed by All Pla's. (Attachments: # 1 Exhibit Plaintiffs' Exhibits 1−6)(Garrigan, Timothy) (Additional attachment(s) added on 8/18/2008: # 2 Text of Proposed Order) (ljw, ). (Entered: 08/15/2008)
584 PLEASE IGNORE, ATTACHED TO MAIN DOC#583 Additional Attachments to Main Document: 583 Response in Opposition to Motion,.. (Garrigan, Timothy) Modified on 8/18/2008 (ljw, ). (Entered: 08/15/2008)
585 ORDER granting in part 582 Defendant Lufkin Industries, Inc.s Motion toQuash. Plaintiffs Sylvester McClain et al will be permitted to take the deposition of Paul Perez, which shall be limited to three hours. All other post−remand discovery shall cease immediately. Signed by Judge Ron Clark on 8/18/08. (ljw, ) (Entered: 08/18/2008)
586 STATUS REPORT (Plainitiffs' Remedial Proposals) by All Pla's. (Demchak, Teresa) (Entered: 10/15/2008)
587 STATUS REPORT Proposals for Calculating Damages and Injunctive Relief by Lufkin Industries Inc. (Hamel, Douglas) (Entered: 10/15/2008)

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10/20/2008 12/05/2008 12/05/2008 12/23/2008 12/30/2008 12/30/2008 01/05/2009 01/05/2009 01/06/2009 01/07/2009
01/20/2009 01/20/2009
01/20/2009

588 U S Supreme Court Order denying writ of certiorari (djh, ) (Entered: 10/20/2008)
589 Minute Entry for proceedings held before Judge Ron Clark: Status Conference held on 12/5/2008. (Court Reporter Chris Bickham.) (fal, ) (Entered: 12/05/2008)
596 Minute Entry for proceedings held before Judge Ron Clark: Status Conference held on 12/5/2008. (Court Reporter Chris Bickham.) (mjc ) (Entered: 01/07/2009)
590 Second MOTION to quash deposition and for protection from unnecessary discovery by Lufkin Industries Inc. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Text of Proposed Order)(Bacon, Christopher) (Entered: 12/23/2008)
591 ***TWO PART DOC. SEE ALSO DOC# 597.*** RESPONSE in Opposition re 590 Second MOTION to quash deposition and for protection from unnecessary discovery , filed by Sylvester McClain. (Attachments: # 1 Text of Proposed Order)(Demchak, Teresa) Modified on 1/7/2009 (bjc, ). (Entered: 12/30/2008)
597 ***TWO PART DOC. SEE ALSO DOC# 591.*** MOTION for Leave to conduct and compel discovery limited to the issue of defendant's attoneys' fees by Sylvester McClain. (bjc, ) (Entered: 01/07/2009)
592 REPLY to Response to Motion re 590 Second MOTION to quash deposition and for protection from unnecessary discovery filed by Lufkin Industries Inc. (Bacon, Christopher) (Entered: 01/05/2009)
593 STATUS REPORT Report to the Court Regarding Appointment of Consultant by All Pla's. (Attachments: # 1 Exhibit Plaintiffs' Exhibits 1 and 2)(Garrigan, Timothy) (Entered: 01/05/2009)
594 SUR−REPLY to Reply to Response to Motion re 590 Second MOTION to quash deposition and for protection from unnecessary discovery Plaintiffs' Sur−Reply to Defendant Lufkin Industries, Inc.'s Reply (Doc. 592) filed by All Pla's. (Garrigan, Timothy) (Entered: 01/06/2009)
595 ORDER granting in part and denying in part 590 Motion to Quash. Lufkin Industries' counsel shall, within five business days of this order, provide counsel for Sylvester McClain et al. an affidavit stating current houly rates for attorneys and paralegals who worked on this case, the total number of hours billed, and the total fee billed. No other discovery regarding Defendant's attorneys' fees is permitted without court authorization. Signed by Judge Ron Clark on 1/6/09. (mjc ) (Entered: 01/07/2009)
598 Unopposed MOTION for Leave to File Excess Pages by Sylvester McClain. (Attachments: # 1 Text of Proposed Order)(Demchak, Teresa) (Entered: 01/20/2009)
599 MOTION for Attorney Fees (Plaintiffs' Superceding and Supplemental Motion for Interim Award of Reasonable Attorneys' Fees, Costs and Expenses) by Sylvester McClain. (Attachments: # 1 Exhibit 1 to Motion, # 2 Text of Proposed Order, # 3 Declaration to T. Demchak, # 4 Exhibits 1−19 to Demchak Decl., # 5 Exhibits 20−23 to Demchak Decl., # 6 Exhibit 24 to Demchak Decl., # 7 Exhibit 25 to Demchak Decl., # 8 Exhibits 26−30 to Demchak Decl., # 9 Declaration of T. Garrigan, # 10 Declaration of M. Baller, # 11 Appendix of Additional Declarations)(Demchak, Teresa) (Additional attachment(s) added on 1/22/2009: # 12 cert of conf) (djh, ). (Entered: 01/20/2009)
600 Supplemental MOTION for Bill of Costs by Sylvester McClain. (Attachments: # 1 Exhibit 1)(Demchak, Teresa) (Additional attachment(s) added on 1/22/2009: # 2 cert of conf) (djh, ). (Entered: 01/20/2009)

Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 56 of 69

01/23/2009
01/29/2009 01/29/2009 02/04/2009

601 ORDER granting 598 Motion for Leave to File Excess Pages to theplas' superseding and suppplemental motion for interim award of attorneys' fees, costs and expenses shall be considered properly filed. Dft may also exceed the page limit by 10 pages in its response. Signed by Judge Ron Clark on 1/23/09. (djh, ) (Entered: 01/26/2009)
602 NOTICE by All Pla's Transcript Order 12−5−08 hearing (Garrigan, Timothy) (Entered: 01/29/2009)
603 (APPROVED) APPLICATION to Appear Pro Hac Vice by Attorney James Kan for All Pla' (Receipt 9−1−1031 $25) (djh, ) (Entered: 01/29/2009)
604 TRANSCRIPT of Status Conference held on 12−5−2008 before Judge Ron Clark. Court Reporter: Christina Bickham,Telephone number: 409−654−2891.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) business days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.txed.uscourts.gov

02/05/2009 02/19/2009 02/19/2009 02/19/2009 02/19/2009 02/19/2009
02/20/2009 02/27/2009

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 2/25/2009. Redacted Transcript Deadline set for 3/9/2009. Release of Transcript Restriction set for 5/5/2009. (clb, ) (Entered: 02/04/2009)
605 Joint MOTION for Extension of Time to File Report on Damages and Injunctive Relief by Lufkin Industries Inc. (Attachments: # 1 Text of Proposed Order).(Bacon, Christopher) (Modified on 2/6/2009 (mfr, ). (Entered: 02/05/2009)
606 STATUS REPORT JOINT REPORT ON INJUNCTIVE RELIEF by Lufkin Industries Inc. (Bacon, Christopher) (Entered: 02/19/2009)
607 STATUS REPORT Plaintiffs' Separate Report on Injunctive Relief by Sylvester McClain. (Demchak, Teresa) (Entered: 02/19/2009)
608 STATUS REPORT Joint Report on Damages by Lufkin Industries Inc. (Hamel, Douglas) (Entered: 02/19/2009)
609 STATUS REPORT ON POINTS OF DISAGREEMENT ON INJUNCTIVE RELIEF by Lufkin Industries Inc. (Bacon, Christopher) (Entered: 02/19/2009)
610 RESPONSE to Motion re 599 MOTION for Attorney Fees (Plaintiffs' Superceding and Supplemental Motion for Interim Award of Reasonable Attorneys' Fees, Costs and Expenses) MOTION for Attorney Fees (Plaintiffs' Superceding and Supplemental Motion for Interim Award of Reasonable Attorneys' Fees, Costs and Expenses) MOTION for Attorney Fees (Plaintiffs' Superceding and Supplemental Motion for Interim Award of Reasonable Attorneys' Fees, Costs and Expenses) filed by Lufkin Industries Inc. (Attachments: # 1 Exhibit 1, # 2 Errata 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7)(Hamel, Douglas) (Entered: 02/19/2009)
611 ORDER granting 605 The parties Joint Motion for Additional Time. Signed by Judge Ron Clark on 2/20/09. (ljw, ) (Entered: 02/20/2009)
612 REPLY to Response to Motion re 599 MOTION for Attorney Fees (Plaintiffs' Superceding and Supplemental Motion for Interim Award of Reasonable Attorneys' Fees, Costs and Expenses) MOTION for Attorney Fees (Plaintiffs' Superceding and Supplemental Motion for Interim Award of Reasonable Attorneys' Fees, Costs and Expenses) MOTION for Attorney Fees (Plaintiffs' Superceding and Supplemental Motion for Interim Award of Reasonable Attorneys' Fees, Costs and Expenses) filed by Sylvester McClain. (Attachments:

Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 57 of 69

03/02/2009
03/06/2009 03/06/2009 03/06/2009 03/12/2009 03/13/2009 03/20/2009 03/31/2009 04/02/2009
04/02/2009
04/03/2009

# 1 Baller Suppl. Decl., # 2 Garrigan Suppl. Decl., # 3 Grimes Decl.)(Demchak, Teresa) (Entered: 02/27/2009)
613 REPLY to Response to Motion re 599 MOTION for Attorney Fees (Plaintiffs' Superceding and Supplemental Motion for Interim Award of Reasonable Attorneys' Fees, Costs and Expenses) MOTION for Attorney Fees (Plaintiffs' Superceding and Supplemental Motion for Interim Award of Reasonable Attorneys' Fees, Costs and Expenses) MOTION for Attorney Fees (Plaintiffs' Superceding and Supplemental Motion for Interim Award of Reasonable Attorneys' Fees, Costs and Expenses) AMENDED REPLY filed by Sylvester McClain. (Attachments: # 1 Baller Amended Supplemental Declaration)(Demchak, Teresa) (Entered: 03/02/2009)
614 STATUS REPORT PLAINTIFFS REPORT ON PLAINTIFFS PROPOSED OMBUDSPERSON CANDIDATES by Sylvester McClain. (Attachments: # 1 Exhibits 1−3, # 2 Demchak Decl,.)(Demchak, Teresa) (Entered: 03/06/2009)
615 NOTICE by Lufkin Industries Inc Proposed Ombudsperson Candidates (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Bacon, Christopher) (Entered: 03/06/2009)
616 SUR−REPLY to Reply to Response to Motion re 599 MOTION for Attorney Fees (Plaintiffs' Superceding and Supplemental Motion for Interim Award of Reasonable Attorneys' Fees, Costs and Expenses)filed by Lufkin Industries Inc.. (Bacon, Christopher) Modified on 3/9/2009 (mfr, ). (Entered: 03/06/2009)
617 STATUS REPORT Joint Advisory on Damages Discussions by All Pla's. (Garrigan, Timothy) (Entered: 03/12/2009)
618 STATUS REPORT Supplemental Proposed Ombudsperson by Lufkin Industries Inc. (Attachments: # 1 Exhibit A)(Bacon, Christopher) (Entered: 03/13/2009)
619 STATUS REPORT Supplemental Joint Advisory on Damages Discussions by All Pla's. (Demchak, Teresa) (Entered: 03/20/2009)
620 STATUS REPORT Final Joint Status Report on Back Pay Issues by Lufkin Industries Inc. (Hamel, Douglas) (Entered: 03/31/2009)
621 ORDER that Plaintiffs Motion for an Interim Award ofReasonable Attorneys Fees, Costs, and Expenses [Doc. #599] is GRANTED IN PART, andDefendant Lufkin Industries, Inc. shall pay Plaintiffs $4,740,195.80 for attorneys fees and $932,603.84 in litigation related expenses. (This amount includes the $840,129.72 previously awarded by Judge Cobb.) IT IS FURTHER ORDERED that Plaintiffs Supplemental Bill of Taxable Costs [Doc. #600] is APPROVED, and Defendant Lufkin Industries, Inc. shall pay Plaintiffs $140,562.26 in taxable costs. (This amount includes the $127,658.60 in taxable costs previously awarded by Judge Cobb.). Signed by Judge Ron Clark on 4/2/09. (djh, ) (Entered: 04/02/2009)
622 ORDER that Defendant Lufkin Industries, Inc. shall payPlaintiffs $4,740,195.80 for attorneys fees; $932,603.84 in litigation related expenses; and $140,562.26 in taxable costs.IT IS FURTHER ORDERED that post−judgment interest on the above sums shall becalculated pursuant to 28 U.S.C. § 1961 at the rate of 0.59%.IT IS FURTHER ORDERED execution shall issue if the above sums are not paid within 21 days of the entry of this Order. The court retains jurisdiction of this matter for the purposes set out in the order of remand concerning Plainitffs other claims and for receiving and ruling ona further application for attorneys fees, costs, and expenses incurred by Plaintiffs counsel onand after January 1, 2009, pursuant to a schedule to be determined after further proceedings inthis matter.. Signed by Judge Ron Clark on 4/2/09. (djh, ) (Entered: 04/02/2009)
623 STATUS REPORT Plaintiffs' Comments re Defendant Lufkin's Ombudsperson Candidates by All Pla's. (Attachments: # 1 Garrigan Declaration, # 2 Demchak Declaration)(Demchak, Teresa) (Entered: 04/03/2009)

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04/06/2009 04/07/2009

624 Minute Entry for proceedings held before Judge Ron Clark: Telephone Conference held in Beaumont on 4/6/2009. (Court Reporter Chris Bickham.) (fal, ) (Entered: 04/06/2009)
625 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Telephone Conference held on April 6, 2009 before Judge Ron Clark. Court Reporter: Christina Bickham,Telephone number: 409−654−2891.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) business days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.txed.uscourts.gov

04/07/2009
04/13/2009 04/16/2009 04/17/2009 04/17/2009
04/17/2009 04/20/2009
04/20/2009 04/20/2009

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 4/28/2009. Redacted Transcript Deadline set for 5/8/2009. Release of Transcript Restriction set for 7/6/2009. (clb, ) (Entered: 04/07/2009)
626 ORDER that Dr. Michael Campion is appointed to review Lufkin Industries promotion policies, procedures, and practices for hourly and salaried positions. Dr. Campion shall submit his findings and recommendations in the form of a report to Lufkin Industries, counsel for both parties, and the court within 90 days of this order. The parties shall respond within 20 days to Dr. Campions report. Signed by Judge Ron Clark on 4/7/09. (ljw, ) (Entered: 04/08/2009)
627 STATUS REPORT Plaintiffs' Proposed Language For Inclusion in the Court's Injunctive Relief Order by All Pla's. (Demchak, Teresa) (Entered: 04/13/2009)
628 NOTICE by Lufkin Industries Inc re 627 Status Report and Response to Plaintiffs' Proposed Language for Inclusion in the Court's Injunctive Relief Order (Bacon, Christopher) (Entered: 04/16/2009)
629 STATUS REPORT Plaintiffs Brief on Disputed Class Back Pay Issues by Sylvester McClain. (Attachments: # 1 Drogin Declaration)(Demchak, Teresa) (Entered: 04/17/2009)
630 MOTION for Partial Summary Judgment by Lufkin Industries Inc. Responses due by 4/29/2009 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Text of Proposed Order)(Hamel, Douglas) (Additional attachment(s) added on 4/20/2009: # 5 Text of Proposed Order) (mfr, ). (Entered: 04/17/2009)
631 STATUS REPORT Defendant Lufkin's Position on Disputed Issues For Calculation of Monetary Relief by Lufkin Industries Inc. (Hamel, Douglas) (Entered: 04/17/2009)
632 Amended MOTION for Partial Summary Judgment by Lufkin Industries Inc. Responses due by 5/5/2009 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Text of Proposed Order)(Hamel, Douglas) (Additional attachment(s) added on 4/20/2009: # 5 Text of Proposed Order) (mfr, ). (Entered: 04/20/2009)
633 STATUS REPORT Defendant Lufkin's Amended Position on Disputed Issues For Calculation of Monetary Relief by Lufkin Industries Inc. (Hamel, Douglas) (Entered: 04/20/2009)
634 STATUS REPORT JOINT STATUS REPORT ON SELECTION OF AN OMBUDSPERSON CANDIDATE by Sylvester McClain. (Attachments: # 1 Text of Proposed Order)(Demchak, Teresa) (Additional attachment(s) added on 4/21/2009: # 2 Text of Proposed Order) (mfr, ). (Entered: 04/20/2009)

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04/22/2009
04/24/2009 05/01/2009 05/01/2009 05/04/2009 05/12/2009 05/12/2009 05/13/2009

635 ORDER re 634 Status Report filed by Sylvester McClain. IT IS THEREFORE ORDERED that by May 4, 2009, Plaintiffs Sylvester McClain and Defendant Lufkin Industries, Inc. shall submit the name of an agreed proposed candidate for ombudsperson to the court or, if no agreement is reached, the names of any separately proposed candidates for ombudsperson. Signed by Judge Ron Clark on 4/22/09. (ljw, ) (Entered: 04/23/2009)
636 NOTICE by All Pla's vacation letter (Garrigan, Timothy) (Entered: 04/24/2009)
637 RESPONSE in Opposition re 632 Amended MOTION for Partial Summary Judgment filed by Sylvester McClain. (Attachments: # 1 Exhibit 1 − Drogin Declaration, # 2 Grimes Declaration)(Demchak, Teresa) (Entered: 05/01/2009)
638 NOTICE OF APPEAL as to 622 Order,,, 621 Order on Motion for Attorney Fees,,, Order on Motion for Bill of Costs,, by All Pla's. Filing fee $ 455, receipt number 05400000000001980086. (Demchak, Teresa) (Entered: 05/01/2009)
639 STATUS REPORT JOINT RECOMMENDATION ON OMBUDSPERSON CANDIDATE by Sylvester McClain. (Demchak, Teresa) (Entered: 05/04/2009)
640 PLEASE IGNORE−ATTY REFILED− DOCUMENT 641 REPLACES THIS DOCUMENTREPLY to Response to Motion re 632 Amended MOTION for Partial Summary Judgment filed by Lufkin Industries Inc. (Bacon, Christopher) Modified on 5/13/2009 (djh, ). (Entered: 05/12/2009)
641 REPLY to Response to Motion re 632 Amended MOTION for Partial Summary Judgment (Corrected) filed by Lufkin Industries Inc. (Bacon, Christopher) (Entered: 05/12/2009)
***FILED IN ERROR−−PLEASE INGORE−−DOCUMENT 641 REPLACES THIS DOCUMENT. Document # 640, Lufkin's Reply to response to amended motion for partial summary judgment. PLEASE IGNORE.***

05/15/2009 05/15/2009 05/26/2009
05/26/2009 06/19/2009
06/19/2009

(djh, ) (Entered: 05/13/2009)
642 NOTICE OF CROSS APPEAL by Lufkin Industries Inc. Filing fee $ 455, receipt number 05400000000001995380. (Bacon, Christopher) (Entered: 05/15/2009)
643 TRANSCRIPT is already on file in Clerk's office(djh, ) (Entered: 05/15/2009)
644 NOTICE of Docketing Record on Appeal from USCA re 642 Notice of Cross Appeal filed by Lufkin Industries Inc. USCA Case Number 09−40524 (ljw, ) (Entered: 05/26/2009)
645 NOTICE of Docketing Record on Appeal from USCA re 638 Notice of Appeal filed by All Pla's. USCA Case Number 09−40524 (ljw, ) (Entered: 05/26/2009)
646 ORDER denying 630 Motion for Partial Summary Judgment; denying 632 Amended Motion for Partial Summary Judgment. Signed by Judge Ron Clark on 6/19/09. (djh, ) (Entered: 06/22/2009)
647 ORDER that Plaintiffs Sylvester McClain et al. shall recover of, and from, Defendant Lufkin Industries, Inc. the following amounts: (1) for lost hourly promotions, during the following time periods: 1994−95: $483,340; 1996−2002: $1,901,417; and 2003−2004: $487,756; (2) and for lost salaried promotions, during the following time periods: 1994−95: $109,868; and 1996−2002: $128,055.Prejudgment interest shall be calculated at the rate of 5% per annum. Prejudgment interest shall accrue, as agreed to by the parties, as follows:(1) for damages attributable to discrimination occurring in 1994, interest shall begin to accrue on August 3, 1994; and (2) for damages attributable to discrimination in 1995 and for each subsequent year, prejudgment interest shall begin to accrue on July 1st of that year. IT IS FURTHER ORDERED that Plaintiffs Sylvester McClain et al. shall file, by July 9, 2009, a motion or brief, (limited to twenty pages) outlining its claim that Defendant LufkinIndustries, Inc. is liable to Plaintiffs for hourly promotion discrimination for the period from 2005−2007, with pinpoint citations to documents supporting that claim. (If a document is already electronically filed in the record, or already admitted as a numbered exhibit, it does not need to be electronically filed again, but a copy should be attached to the paper

Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 60 of 69

06/30/2009 07/02/2009 07/06/2009
07/09/2009
07/09/2009

courtesy copy providedto the court.) Defendant may then respond in kind by July 17, 2009. Counsel should notify the court if they believe a hearing will be necessary or helpful in making this determination. Signed by Judge Ron Clark on 6/19/09. (djh, ) (Entered: 06/22/2009)
648 STIPULATION REGARDING DAMAGES by Lufkin Industries Inc. (Bacon, Christopher) (Entered: 06/30/2009)
649 STIPULATION by Plaintiffs Regarding Damages by Sylvester McClain. (Demchak, Teresa) Modified on 7/2/2009 (ljw, ). (Entered: 07/02/2009)
650 ORDER that plaintiffs Sylvester McClain et al. shall recover of, and from, defendant Lufkin Industries, Inc., $159,412.00 for lost hourly promotions during the time period from 2005 and 2007. Signed by Judge Ron Clark on 7/2/09. (djh, ) (Entered: 07/06/2009)
651 PLEASE IGNORE, FILED IN ERROR, ATTORNEY TO REFILE STIPULATION (JOINT) REGARDING CALCULATION OF INTEREST by Lufkin Industries Inc. (Bacon, Christopher) Modified on 7/9/2009 (ljw, ). (Entered: 07/09/2009)
***FILED IN ERROR BY ATTORNEY. Document # 651, Stipulation. PLEASE IGNORE. ATTORNEY TO REFILE***

07/09/2009 07/21/2009 07/27/2009 08/13/2009
08/14/2009
08/14/2009 08/18/2009 08/19/2009 08/21/2009
08/25/2009 08/25/2009

(ljw, ) (Entered: 07/09/2009)
652 STIPULATION (Joint) Regarding Calculation of Interest by Lufkin Industries Inc. (Bacon, Christopher) (Entered: 07/09/2009)
653 NOTICE: Appeal record sent on cd to Scott G Grimes. (ljw, ) (ljw, ). (Entered: 07/22/2009)
654 NOTICE by Sylvester McClain of Filing Report of M. Campion, Ph.D. (Attachments: # 1 Campion Report)(Demchak, Teresa) (Entered: 07/27/2009)
655 NOTICE by GMP and its Local 429 and IAM and its District Lodge 161 of position re Expert Report (Attachments: # 1 Exhibit GMP/IAM and Lufkin Collective Bargaining Agreement)(Satter, Mimi) (Entered: 08/13/2009)
656 STATUS REPORT PLAINTIFFS COMMENTS ON THE REPORT OF THE COURT APPOINTED CONSULTANT MICHAEL CAMPION, Ph.D. by All Pla's. (Attachments: # 1 Exhibits 1−4)(Demchak, Teresa) (Entered: 08/14/2009)
657 NOTICE by Lufkin Industries Inc Response to Report of Michael A. Campion (Hamel, Douglas) (Entered: 08/14/2009)
658 Minute Entry for proceedings held before Judge Ron Clark: Telephone Conference held in Beaumont on 8/18/2009. (Court Reporter Chris Bickham.) (fal, ) (Entered: 08/19/2009)
659 NOTICE by All Pla's re 655 Notice (Other) Letter submitting copy of Collective Bargaining Agreement (Attachments: # 1 Exhibit)(Demchak, Teresa) (Entered: 08/19/2009)
660 STATUS REPORT ON MONETARY RELIEF PROCEEDINGS AND PROPOSED SCHEDULING ORDER FOR RESOLUTION OF DISPUTED MONETARY RELIEF ISSUES by All Pla's. (Attachments: # 1 Exhibit)(Baller, Morris) (Entered: 08/21/2009)
661 NOTICE by Rod Tanner, Mimi C Satter Letter to Hon. Ron Clark (Tanner, Rod) (Entered: 08/25/2009)
662 The court ORDERS Plaintiffs to submit the plan they believe is proper in its entirety on or before September 9, 2009. After Plaintiffs submit their plan, the parties shall meet and confer in good faith regarding the plan. If any good faith objections or points of disagreement remain they should be submitted to the court on or before September 23, 2009. The parties may instead choose to submit a joint plan after they have met

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08/28/2009 08/28/2009 09/04/2009 09/08/2009
09/09/2009

and conferred. Reasons for any objections or disagreements must be fully stated and submitted on or before September 23. Signed by Judge Ron Clark on 8/25/09. (ljw, ) (Entered: 08/25/2009)
663 Request for Record on Appeal on CD by Christopher Bacon. (ljw, ) (Entered: 08/28/2009)
664 Forwarded Record on Appeal to Christopher Bacon, counsel for Lufkin Industries. (1 cd containing whole record) (ljw, ) (Entered: 08/28/2009)
665 ACKNOWLEDGMENT OF RECEIPT by Christopher Bacon as to 664 CD containing Appeal Record. (ljw, ) (Entered: 09/04/2009)
666 Joint MOTION for Extension of Time to File Proposed Language on Injunction Relief by Lufkin Industries Inc. (Bacon, Christopher) (Additional attachment(s) added on 9/9/2009: # 1 Text of Proposed Order) (ljw, ). (Entered: 09/08/2009)
667 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Status Conference held on August 18, 2009 before Judge Ron Clark. Court Reporter: Christina Bickham,Telephone number: 409−654−2891.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) business days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.txed.uscourts.gov

09/09/2009 09/09/2009 09/22/2009 09/23/2009
09/30/2009 09/30/2009 10/02/2009

Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or from the Court Reporter. Redaction Request due 9/30/2009. Redacted Transcript Deadline set for 10/13/2009. Release of Transcript Restriction set for 12/8/2009. (clb, ) (Entered: 09/09/2009)
668 ORDER granting 666 Joint Motion for Extension of Time to File. The deadline for the parties to submit to the court proposed language on injunctive relief is extended twenty−one days from September 11, 2009 to October 2, 2009. Signed by Judge Ron Clark on 9/9/09. (ljw, ) (Entered: 09/09/2009)
669 STATUS REPORT Plaintiffs' [Proposed] Further Order re Monetary Relief by All Pla's. (Baller, Morris) (Entered: 09/09/2009)
670 Joint MOTION for Extension of Time to File Response to Court on Plaintiffs' Proposal for Distribution by Lufkin Industries Inc.(Bacon, Christopher) (Additional attachment(s) added on 9/22/2009: # 1 Text of Proposed Order) (ljw, ). (Entered: 09/22/2009)
671 ORDER granting 670 parties Joint Motion for Additional Time to Respond to the Court on Plaintiffs Proposal for Distribution. The deadline for the parties to advise the court of any points of disagreement on Plaintiffs Proposed Further Order Re: Monetary Relief is extended nine days from September 23, 2009 to October 2, 2009. Signed by Judge Ron Clark on 9/23/09. (ljw, ) (Entered: 09/23/2009)
672 USCA JUDGMENT as to 642 Notice of Cross Appeal filed by Lufkin Industries Inc, 638 Notice of Appeal filed by All Pla's. This appeal is DISMISSED. (ljw, ) (Entered: 10/01/2009)
673 USCA JUDGMENT as to 642 Notice of Cross Appeal filed by Lufkin Industries Inc, 638 Notice of Appeal filed by All Pla's. The appeal is dismissed for lack of jurisdiction. The appellants to pay the costs on appeal and to be taxed by the Clerk of the Court. (ljw, ) (Entered: 10/01/2009)
674 STATUS REPORT Plaintiffs Memorandum in Support of Amended Proposed Further Order for Monetary Relief by All Pla's. (Attachments: # 1 Text of Proposed Order, # 2 Declaration of T. Garrigan)(Baller, Morris) (Entered: 10/02/2009)

Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 62 of 69

10/02/2009 10/02/2009
10/26/2009 10/26/2009

675 STATUS REPORT Position on Plaintiffs' Proposed Further Order Re Monetary Relief by Lufkin Industries Inc. (Hamel, Douglas) (Entered: 10/02/2009)
676 STATUS REPORT Joint Report on Injunctive Relief by Lufkin Industries Inc. (Attachments: # 1 Text of Proposed Order Proposed Injunction, # 2 Appendix 1, # 3 Appendix 2, # 4 Appendix 3, # 5 Appendix 3a, # 6 Appendix 4, # 7 Appendix 5, # 8 Affidavit 6, # 9 Affidavit 7, # 10 Affidavit 8, # 11 Appendix 9)(Hamel, Douglas) (Entered: 10/02/2009)
677 PLEASE IGNORE, FILED IN WRONG CASE ORDER . (ljw, ) Modified on 10/26/2009 (ljw, ). (Entered: 10/26/2009)
***FILED IN ERROR. Document # 677, Order. PLEASE IGNORE. Document filed in wrong case***

10/30/2009 11/10/2009

(ljw, ) (Entered: 10/26/2009)
678 Minute Entry for proceedings held before Judge Ron Clark: Telephone Conference held in Beaumont on 10/30/2009. (Court Reporter Chris Bickham.) (fal, ) (Entered: 10/30/2009)
679 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Telephone Conference held on 10−30−2009 before Judge Ron Clark. Court Reporter: Christina Bickham,Telephone number: 409−654−2891.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) business days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.txed.uscourts.gov

11/13/2009 11/13/2009
11/19/2009

Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter. Redaction Request due 12/1/2009. Redacted Transcript Deadline set for 12/11/2009. Release of Transcript Restriction set for 2/8/2010. (clb, ) (Entered: 11/10/2009)
680 STATUS REPORT AND AMENDED DISTRIBUTION PROPOSAL RE: MONETARY RELIEF by All Pla's. (Attachments: # 1 Text of Proposed Order, # 2 Garrigan Declaration)(Baller, Morris) (Entered: 11/13/2009)
681 STATUS REPORT Amended Joint Report on Injunctive Relief by Lufkin Industries Inc. (Attachments: # 1 Text of Proposed Order Proposed Injunction, # 2 Appendix 1, # 3 Appendix 2, # 4 Appendix 3, # 5 Appendix 4, # 6 Appendix 4a, # 7 Appendix 5, # 8 Appendix 6, # 9 Appendix 7, # 10 Appendix 8, # 11 Appendix 9, # 12 Appendix 10)(Bacon, Christopher) (Entered: 11/13/2009)
682 STATUS REPORT Defendant's Comments on Plaintiffs' Status Report and Amended Distribution Policy Re: Monetary Relief by Lufkin Industries Inc. (Bacon,

Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 63 of 69

12/18/2009
12/22/2009
12/28/2009 12/30/2009 01/06/2010
01/08/2010 01/12/2010 01/13/2010 01/13/2010 01/13/2010 01/14/2010 01/15/2010 01/15/2010 01/15/2010
01/15/2010 01/21/2010 01/21/2010

Christopher) (Entered: 11/19/2009)
683 PERMANENT INJUNCTION to partially remedy the discrimination found by Judge Cobb, and affirmed by the Fifth Circuit, toward black employees when determining promotions for hourly and salaried positions. Signed by Judge Ron Clark on 12/18/09. (djh, ) (Entered: 12/18/2009)
684 ORDER re Monetary Relief. A final judgment will be entered on 1/15/10. Based on this judgment date, the parties are ordered to submit, by 1/12/10, a joint report re: (1) class members and amounts to be rewarded and (2) proposals for specific language and form of judgment. Signed by Judge Ron Clark on 12/22/09. (djh, ) (Entered: 12/22/2009)
685 STATUS REPORT (Letter requesting clarification of Order Re: Monetary Relief) by All Pla's. (Baller, Morris) (Entered: 12/28/2009)
686 NOTICE by Lufkin Industries Inc Notice of Compliance With Certain Requirements of Injunction (Attachments: # 1 Exhibit A)(Hamel, Douglas) (Entered: 12/30/2009)
687 ORDER re Clarification of 684 Monetary Relief Order. The parties shall submit a joint report by 1/12/10 which includes (1) class members list and dates of employment, (2) total amounts to be awarded and (3) proposals for language or form of judgment. Signed by Judge Ron Clark on 1/6/10. (djh, ) (Entered: 01/06/2010)
688 MOTION Motion Requesting Findings of Fact by Lufkin Industries Inc. (Attachments: # 1 Text of Proposed Order Proposed Findings of Fact)(Bacon, Christopher) (Entered: 01/08/2010)
689 STATUS REPORT JOINT REPORT OF THE PARTIES REGARDING ENTRY OF JUDGMENT by All Pla's, Lufkin Industries Inc. (Baller, Morris) (Entered: 01/12/2010)
690 STATUS REPORT Amended Status Report Regarding Entry of Judgment by Lufkin Industries Inc. (Attachments: # 1 Exhibit 1)(Bacon, Christopher) (Entered: 01/13/2010)
691 STATUS REPORT Defendant's Position on Proposed Final Judgment by Lufkin Industries Inc. (Bacon, Christopher) (Entered: 01/13/2010)
692 STATUS REPORT Pls.' Position in Resp. to Def's Position on Proposed Final Judgment by All Pla's. (Baller, Morris) (Entered: 01/13/2010)
693 STATUS REPORT on Final Judgment (supplemental) by Lufkin Industries Inc. (Attachments: # 1 Exhibit Schedule B)(Bacon, Christopher) (Entered: 01/14/2010)
694 NOTICE by Lufkin Industries Inc Defendant's Notice of Compliance with Certain Requirements of Injunction (Attachments: # 1 Exhibit A)(Hamel, Douglas) (Entered: 01/15/2010)
695 ORDER denying 688 Motion requesting Findings of Fact. Signed by Judge Ron Clark on 1/15/10. (djh, ) (Entered: 01/15/2010)
696 FINAL JUDGMENT for pltfs against Lufkin Industries Inc with attached appendices regarding permanent injunction, monetary awards and attorney fees. That all relief not specifically granted herein is denied. All pending motions not previously ruled on are denied. This is a final judgment and is appealable. Signed by Judge Ron Clark on 1/15/10. (djh, ) Modified on 1/19/2010 (djh, ). (Entered: 01/15/2010)
697 NOTICE OF APPEAL as to 696 Judgment by All Pla's. Filing fee $ 455, receipt number 05400000000002318698. Appeal Record due by 1/29/2010. (Demchak, Teresa) (Entered: 01/15/2010)
698 NOTICE OF CROSS APPEAL by Lufkin Industries Inc. Filing fee $ 455, receipt number 05400000000002324545. (Hamel, Douglas) (Entered: 01/21/2010)
699 Unopposed MOTION Unopposed Motion to Approve Supersedeas Bond For Purposes of Obtaining A Stay Pending Appeal by Lufkin Industries Inc. (Attachments:

Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 64 of 69

01/22/2010 01/27/2010
01/28/2010 01/28/2010 01/29/2010 01/29/2010
01/29/2010 01/29/2010

# 1 Exhibit Supersedeas Bond Part 1, # 2 Exhibit Supersedeas Bond Part 2, # 3 Text of Proposed Order)(Hamel, Douglas) (Entered: 01/21/2010)
700 Amended MOTION Amended Motion to Approve Supersedeas Bond For Purposes of Obtaining a Stay Pending Appeal by Lufkin Industries Inc. (Attachments: # 1 Exhibit Supersedeas Bond, # 2 Text of Proposed Order)(Hamel, Douglas) (Entered: 01/22/2010)
701 ORDERED that the 700 Amended Motion to approve Supersedeas Bond for purposes of obtaining a stay pending Appeal is granted and denying as moot 699 Motion to approve Supersedeas Bond for purposes of obtaining a stay pending appeal. Clerk shall receive and file Supersedeas Bond immediately. Signed by Judge Ron Clark on 1/26/10. (djh, ) (Entered: 01/27/2010)
703 TRANSCRIPT is already on file in the Clerk's Office filed by All Plas'. (djh, ) (Entered: 01/29/2010)
704 Minute Entry for proceedings held before Judge Ron Clark: Telephone Conference held on 1/28/2010. (Court Reporter Chris Bickham.) (fal, ) (Entered: 01/29/2010)
702 Supersedeas Bond in the amount of $ $5,583,365.55 posted by Lufkin Industries Inc (djh, ) (Entered: 01/29/2010)
705 MOTION for Attorney Fees (Pls.' Mot. for Supp. Award of Attys.' Fees Costs & Expenses Incurred from Jan. 1, 2009 through Jan. 15, 2010) by Sylvester McClain. (Attachments: # 1 T. Demchak Declaration, # 2 T. Garrigan Decl., # 3 Text of Proposed Order)(Demchak, Teresa) (Entered: 01/29/2010)
706 ***FILED IN ERROR. PLEASE IGNORE.*** PROPOSED BILL OF COSTS filed by Sylvester McClain. (Demchak, Teresa) Modified on 2/1/2010 (bjc, ). (Entered: 01/29/2010)
***FILED IN ERROR. Document # 706, proposed bill of costs. Incorrect form. PLEASE IGNORE.***

02/01/2010 02/02/2010 02/04/2010 02/05/2010 02/22/2010
03/15/2010 04/09/2010 04/20/2010

(bjc, ) (Entered: 02/01/2010)
707 PROPOSED BILL OF COSTS filed by Sylvester McClain. (Demchak, Teresa) (Entered: 02/01/2010)
708 BILL OF COSTS by plaintiffs. Costs Taxed in the amount of $1138.55 against Lufkin Industries, Inc. (pkb, ) (Entered: 02/02/2010)
709 NOTICE of Docketing Record on Appeal from USCA. USCA Case Number 10−40036 (djh, ) (Entered: 02/04/2010)
710 STATUS REPORT on Plaintiffs' Motion for Fees by Lufkin Industries Inc. (Bacon, Christopher) (Entered: 02/05/2010)
711 NOTICE of Docketing Record on Appeal from USCA re 698 Notice of Cross Appeal filed by Lufkin Industries Inc. USCA Case Number 10−40086 (ljw, ) (Entered: 02/22/2010)
Certified record on appeal for 5th Circuit.(ljw, ) (Entered: 03/18/2010)
Forwarded cd of appeal record to Scott Grimes, co−counsel for Tim Garrigan. (ljw, ) (Entered: 04/09/2010)
712 STATUS REPORT 1st Quarterly Report of Ombudsman by Tony P Rosenstein. (Attachments: # 1 Attachment A, # 2 Exhibit I to Attachment A, # 3 Exhibit II to Attachment A, # 4 Exhibit III to Attachment A, # 5 Exhibit IV to Attachment A, # 6 Exhibit V to Attachment A,

Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 65 of 69

05/07/2010 05/07/2010 05/12/2010 08/03/2010
08/24/2010 09/01/2010 09/10/2010 09/20/2010 09/28/2010 10/29/2010 03/10/2011
05/20/2011 07/21/2011 08/22/2011

# 7 Exhibit VI to Attachment A, # 8 Exhibit VII to Attachment A, # 9 Exhibit VIII to Attachment A, # 10 Exhibit IX to Attachment A, # 11 Exhibit X to Attachment A, # 12 Exhibit XI to Attachment A, # 13 Exhibit XII to Attachmetn A, # 14 Exhibit XIII to Attachment A)(Rosenstein, Tony) (Entered: 04/20/2010)
713 Request from Christopher Bacon for appeal record on CD. (ljw, ) (Entered: 05/07/2010)
Appeal record sent to Christopher Bacon via Federal Express. Tracking #868703246953 (ljw, ) (Entered: 05/07/2010)
714 ACKNOWLEDGMENT OF RECEIPT by Christopher Bacon on 5/11/10 as to receiving appeal record on cd. (ljw, ) (Entered: 05/12/2010)
715 STATUS REPORT Second Quarterly Report of Ombudsman by Tony P Rosenstein. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Rosenstein, Tony) (Entered: 08/03/2010)
716 Certified and Transmitted Record on Appeal to US Court of Appeals re 697 Notice of Appeal. Sent 25 volumes of record, 7 volumes of supplemental record, 22 transcripts and 4 expandos of exhibits. (ljw, ) (Entered: 08/24/2010)
Supplemental Record on Appeal transmitted to US Court of Appeals re 697 Notice of Appeal. Sent 12 boxes of defendants exhibits. (ljw, ) (Entered: 09/02/2010)
717 Certified and Transmitted Record on Appeal to US Court of Appeals re 697 Notice of Appeal. Sent 27 volumes of record, 16 transcripts and 1 volume of supplemental record containing doc 712−715 (ljw, ) (Entered: 09/13/2010)
718 ACKNOWLEDGMENT OF RECEIPT by 5th Circuit as to receiving Supplemental ROA on 9/3/10. (ljw, ) (Entered: 09/21/2010)
719 ORDER granting 705 Plaintiffs' Motion for a Supplemental Award of Attorneys' Fees, Costs, and Expenses Incurred from January 1, 2009 Through January 15, 2010. Signed by Judge Ron Clark on 9/28/10. (ljw, ) (Entered: 09/28/2010)
720 STATUS REPORT Third Quarterly Report of Ombudsman by Tony P Rosenstein. (Attachments: # 1 Exhibit A)(Rosenstein, Tony) (Entered: 10/29/2010)
721 STATUS REPORT Fourth Quarterly Report of Ombudsman by Tony P Rosenstein. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Rosenstein, Tony) (Entered: 03/10/2011)
722 STATUS REPORT Fifth Quarterly Report of Ombudsman by Tony P Rosenstein. (Attachments: # 1 Exhibit A)(Rosenstein, Tony) (Entered: 05/20/2011)
723 STIPULATION Regarding Modification of Injunction by All Pla's, Lufkin Industries Inc. (Attachments: # 1 Exhibit A)(Bacon, Christopher) (Entered: 07/21/2011)
724 NOTICE by All Pla's, Allen Butler, Walter Butler, Clifford R Duirden, Leroy Garner, Roald Mark, Eddie K Mask, Sylvester McClain, Clarence Owens, Pla Class, Earl Potts, Tony P Rosenstein, Patrick. Ross, Mimi C Satter, Sherry Calloway Swint, Rod Tanner, Buford Thomas, Mary Thomas, Florine Thompson Plaintiffs' Rule 54(d) Claim for Attorneys' Fees Costs and Expenses adn Request that the Court Set a Briefing Schedule Thereon (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Demchak, Teresa) (Entered: 08/22/2011)

Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 66 of 69

08/24/2011
08/25/2011 08/26/2011 08/26/2011 08/30/2011 08/31/2011 09/09/2011 09/15/2011
09/16/2011 09/19/2011 09/19/2011 09/19/2011
09/22/2011

725 NOTICE by All Pla's, Allen Butler, Walter Butler, Clifford R Duirden, Leroy Garner, Roald Mark, Eddie K Mask, Sylvester McClain, Clarence Owens, Pla Class, Earl Potts, Tony P Rosenstein, Patrick. Ross, Mimi C Satter, Sherry Calloway Swint, Rod Tanner, Buford Thomas, Mary Thomas, Florine Thompson Plaintiffs' Amended Rule 54(d) Claim for Attorneys Fees, Costs and Expenses and Request for Briefing Schedule (Attachments: # 1 Exhibit 1 (Opinion), # 2 Exhibit 2 (Summary of Fees & Costs))(Demchak, Teresa) (Entered: 08/24/2011)
726 STATUS REPORT Sixth Quarterly Report by Tony P Rosenstein. (Attachments: # 1 Exhibit A part 1 of 3, # 2 Exhibit A part 2 of 3, # 3 Exhibit A part 3 of 3, # 4 Exhibit B)(Rosenstein, Tony) (Entered: 08/25/2011)
NOTICE of Hearing: Telephone Conference set for 8/30/2011 10:00 AM in Ctrm 2 (Beaumont) before Judge Ron Clark. (bmo, ) (Entered: 08/26/2011)
727 NOTICE by Lufkin Industries Inc re 725 Notice (Other), Notice (Other), Notice (Other) Opposition to Plaintiff's Rule 54(d) Claim (Bacon, Christopher) (Entered: 08/26/2011)
728 Minute Entry for proceedings held before Judge Ron Clark: Status Conference held on 8/30/2011. A written order will be entered. (Court Reporter Chris Bickham.) (fal, ) (Entered: 08/31/2011)
729 SCHEDULING ORDER. Signed by Judge Ron Clark on 8/31/11. (ljw, ) (Entered: 09/01/2011)
756 USCA Order denying petition for rehearing by Circuit Judge Edith Jones. (Attachments: # 1 Cover Letter)(ljw, ) (Entered: 06/26/2012)
730 MOTION to Vacate Stay of Proceedings re: Monetary Relief by All Pla's, Walter Butler, Clifford R Duirden, Leroy Garner, Roald Mark, Eddie K Mask, Sylvester McClain, Clarence Owens, Pla Class, Earl Potts, Patrick. Ross, Sherry Calloway Swint, Buford Thomas, Mary Thomas, Florine Thompson. (Attachments: # 1 Text of Proposed Order, # 2 Declaration of T. Garrigan, # 3 Declaration of D. Rosenthal)(Baller, Morris) (Entered: 09/15/2011)
731 RESPONSE in Opposition re 730 MOTION to Vacate Stay of Proceedings re: Monetary Relief filed by Lufkin Industries Inc. (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(Bacon, Christopher) (Entered: 09/16/2011)
732 Opposed MOTION to Amend/Correct Scheduling Order by Lufkin Industries Inc. (Attachments: # 1 Text of Proposed Order)(Bacon, Christopher) (Entered: 09/19/2011)
733 REPLY to Response to Motion re 730 MOTION to Vacate Stay of Proceedings re: Monetary Relief filed by All Pla's, Walter Butler, Clifford R Duirden, Leroy Garner, Roald Mark, Eddie K Mask, Sylvester McClain, Clarence Owens, Pla Class, Earl Potts, Patrick. Ross, Sherry Calloway Swint, Buford Thomas, Mary Thomas, Florine Thompson. (Baller, Morris) (Entered: 09/19/2011)
734 RESPONSE to Motion re 732 Opposed MOTION to Amend/Correct Scheduling Order filed by All Pla's, Walter Butler, Clifford R Duirden, Leroy Garner, Roald Mark, Eddie K Mask, Sylvester McClain, Clarence Owens, Pla Class, Earl Potts, Patrick. Ross, Sherry Calloway Swint, Buford Thomas, Mary Thomas, Florine Thompson. (Attachments: # 1 Text of Proposed Order, # 2 Baller Decl.)(Demchak, Teresa) (Entered: 09/19/2011)
735 NOTICE of Designation of Mediator, Gloria Portela, filed by All Pla's, Walter Butler, Clifford R Duirden, Leroy Garner, Roald Mark, Eddie K Mask, Sylvester McClain, Clarence Owens, Pla Class, Earl Potts, Patrick. Ross, Sherry Calloway Swint, Buford Thomas, Mary Thomas, Florine Thompson. re 729 Scheduling Order (Demchak,

Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 67 of 69

09/22/2011 11/07/2011 11/16/2011
11/18/2011 11/21/2011
11/21/2011 11/28/2011 11/30/2011 12/14/2011 12/21/2011 12/23/2011 02/14/2012 02/15/2012
04/05/2012
04/25/2012 04/27/2012

Teresa) (Entered: 09/22/2011)
736 ORDER denying 730 Plaintiff's Motion to Vacate Stay of Proceedings & granting 732 Defendant's Motion to Amend the Scheduling Order. Signed by Judge Ron Clark on 9/22/11. (ljw, ) (Entered: 09/23/2011)
737 STIPULATION (Joint) Regarding Modification of Injunction by All Pla's, Lufkin Industries Inc. (Attachments: # 1 Exhibit A)(Bacon, Christopher) (Entered: 11/07/2011)
738 Unopposed MOTION Further Proceedings by All Pla's, Walter Butler, Clifford R Duirden, Leroy Garner, Roald Mark, Eddie K Mask, Sylvester McClain, Clarence Owens, Pla Class, Earl Potts, Patrick. Ross, Sherry Calloway Swint, Buford Thomas, Mary Thomas, Florine Thompson. (Attachments: # 1 Text of Proposed Order)(Demchak, Teresa) (Entered: 11/16/2011)
739 ORDER TO DISTRIBUTE FUNDS. Plaintiff's 738 Motion Re: Further Proceedings is granted. The stay of proceedings pending appeal is VACATED. Signed by Judge Ron Clark on 11/18/11. (ljw, ) (Entered: 11/18/2011)
740 STATUS REPORT Seventh Quarterly Report of Ombudsman by Tony P Rosenstein. (Attachments: # 1 Exhibit A Part 1 of 3, # 2 Exhibit A Part 2 of 3, # 3 Exhibit A Part 3 of 3)(Rosenstein, Tony) (Entered: 11/21/2011)
741 ORDER of the Supreme Court denying the petition for a writ of certiorari. (ljw, ) (Entered: 11/23/2011)
742 ORDER REFERRING CASE to Mediation. Gloria Portela is added as Mediator. The mediation conference shall be conducted by February 28, 2012. Signed by Judge Ron Clark on 11/28/11. (ljw, ) (Entered: 11/29/2011)
743 AMENDED ORDER REFERRING CASE to Mediation. The mediation conference shall be conducted by December 14, 2011. Signed by Judge Ron Clark on 11/30/11. (ljw, ) (Entered: 12/01/2011)
744 STATUS REPORT (JOINT) by All Pla's, Lufkin Industries Inc. (Bacon, Christopher) (Entered: 12/14/2011)
745 AMENDED INJUNCTION. This Order shall remain in effect for five (5) years from the date December 18, 2009, when the Court first entered this Injunction. Signed by Judge Ron Clark on 12/21/11. (ljw, ) (Entered: 12/21/2011)
746 STATUS REPORT by All Pla's. (Garrigan, Timothy) (Entered: 12/23/2011)
747 Unopposed MOTION for Release of Bond Obligation by Lufkin Industries Inc. (Attachments: # 1 Text of Proposed Order)(Bacon, Christopher) (Entered: 02/14/2012)
748 ORDER granting 747 Defendant Lufkin Industries unopposed motion for an order releasing it and its surety from their obligations on the supersedeas bond. Lufkin Industries and Travelers Casualty and Surety Company of America are hereby released from their obligations with respect to this supersedeas bond. Signed by Judge Ron Clark on 2/15/12. (ljw, ) (Entered: 02/15/2012)
749 STATUS REPORT Eighth Quarterly Report of Ombudsman by Tony P Rosenstein. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Rosenstein, Tony) (Entered: 04/05/2012)
750 STIPULATION Joint by Lufkin Industries Inc. (Bacon, Christopher) (Entered: 04/25/2012)
751 Joint MOTION Distribute Monetary Awards Report on the Final Distribution List and Unopposed Motion by All Pla's. (Attachments: # 1 Text of Proposed Order)(Garrigan, Timothy) (Entered: 04/27/2012)

Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 68 of 69

04/27/2012 05/01/2012
05/14/2012 06/12/2012 08/20/2012 08/30/2012 11/16/2012 11/19/2012 12/19/2012 04/25/2013 05/23/2013 06/24/2013
07/02/2013

752 SEALED ADDITIONAL ATTACHMENTS to Main Document: 751 Joint MOTION Distribute Monetary Awards Report on the Final Distribution List and Unopposed Motion. (Garrigan, Timothy) (Entered: 04/27/2012)
753 ORDER granting 751 the parties' joint report on the final distribution list and motion to distribute monetary awards to the plaintiff class. The court hereby directs the Appointed Third Party Administrator Kurzman Carson Consultants, LLC to distribute the monetary awards to the persons and in the amounts specified in the Final Distribution List 752 as anticipated by Section III.G. of the Order Re: Monetary Relief. ( 684 at 14−16) and the Order to Distribute Funds 739 . Signed by Judge Ron Clark on 5/1/12. (ljw, ) (Entered: 05/02/2012)
754 Second Amended Injunction. This Order shall remain in effect for five (5) years from the date December 18, 2009, when the Court first entered this Injunction.Signed by Judge Ron Clark on 5/14/12. (ljw, ) (Entered: 05/15/2012)
755 STATUS REPORT Ninth Quarterly Report of Ombudsman by Tony P Rosenstein. (Attachments: # 1 Exhibit A)(Rosenstein, Tony) (Entered: 06/12/2012)
757 STATUS REPORT Tenth Quarterly Report of Ombudsman by Tony P Rosenstein. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Rosenstein, Tony) (Entered: 08/20/2012)
758 STIPULATION (Joint) Regarding Modification of Injunction by All Pla's, Lufkin Industries Inc. (Attachments: # 1 Exhibit A)(Bacon, Christopher) (Entered: 08/30/2012)
759 STATUS REPORT Eleventh Quarterly Report of Ombudsman by Tony P Rosenstein. (Attachments: # 1 Exhibit A)(Rosenstein, Tony) (Entered: 11/16/2012)
760 ORDER APPROVING JOINT STIPULATION REGARDING MODIFICATION OF INJUNCTION. The court approves the joint stipulation submitted by the parties. The parties shall submit an Amended Injunction reflecting the changes on or before December 10, 2012. Signed by Judge Ron Clark on 11/19/12. (ljw, ) (Entered: 11/20/2012)
761 THIRD AMENDED INJUNCTION. This Order shall remain in effect for five (5) years from the date December 18, 2009, when the Court first entered this Injunction. Signed by Judge Ron Clark on 12/19/12. (ljw, ) (Entered: 12/19/2012)
762 STATUS REPORT Twelfth Quarterly Report of Ombudsman by Tony P Rosenstein. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Rosenstein, Tony) (Entered: 04/25/2013)
763 STATUS REPORT Thirteenth Quarter Summary Report of Ombudsman by Tony P Rosenstein. (Attachments: # 1 Exhibit A)(Rosenstein, Tony) (Entered: 05/23/2013)
764 Unopposed MOTION for Leave to File Designation of Cy Pres Recipients and Unoppposed Motion for Leave to File Out of Time by All Pla's. (Attachments: # 1 Exhibit Plaintiffs' Exhibit 1, # 2 Exhibit Plaintiffs' Exhibit 2, # 3 Exhibit Plaintiffs' Exhibit 3, # 4 Exhibit Plaintiffs' Exhibit 4, # 5 Exhibit Plaintiffs' Exhibit 5, # 6 Exhibit Plaintiffs' Exhibit 6, # 7 Exhibit Plaintiffs' Exhibit 7, # 8 Exhibit Plaintiffs' Exhibit 8, # 9 Text of Proposed Order)(Garrigan, Timothy) (Entered: 06/24/2013)
765 ORDER granting 764 Plaintiffs' unopposed motion for leave to file out of time designation of cy pres recipients. The following cy pres designations are approved (1) A class Action Scholarship Fund of the Stephen F. Austin State University (SFASU) Alumni Foundation; (2) the Lufkin NAACP Scholarship Fund of the Angelina College

Case: 9:97-cv-63 As of: 11/09/2017 01:49 PM CST 69 of 69

07/03/2013 07/17/2013 09/23/2013
11/11/2013 03/31/2014
05/16/2014 09/24/2014 12/05/2014
01/27/2015 01/27/2015 09/18/2015

endowment Funds; (3) the Lufkin Area Alumni Chapter of Delta Sigma Theta, Inc; (4) the Lufkin Chapter of the Top Ladies of Distinction; (5) the Concerned Black Men of Lufkin, Texas. The first two cy pres recipients will receive $40,000 of the Cy Pres Fund and the remaining recipients will receive an equal amount of the remainder of the Fund after the awards to the first two recipients. Plaintiffs are directed to instruct the third party administrator accordingly. Signed by Judge Ron Clark on 7/2/13. (ljw, ) (Entered: 07/03/2013)
766 STIPULATION (Joint) Regarding Modification of Injunction by All Pla's, Lufkin Industries Inc. (Bacon, Christopher) (Entered: 07/03/2013)
767 FOURTH AMENDED INJUNCTION. Signed by Judge Ron Clark on 7/17/13. (ljw, ) (Entered: 07/17/2013)
768 STATUS REPORT Fourteenth Quarterly Report of Ombudsman by Tony P Rosenstein. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit B)(Rosenstein, Tony) (Entered: 09/23/2013)
769 STATUS REPORT Fifteenth Quarter Summary Report of Ombudsman by Tony P Rosenstein. (Attachments: # 1 Exhibit A)(Rosenstein, Tony) (Entered: 11/11/2013)
770 STATUS REPORT Sixteenth Quarterly Report of Ombudsman by Tony P Rosenstein. (Attachments: # 1 Exhibit A, # 2 Exhibit B (part 1 of 2), # 3 Exhibit B (part 2 of 2))(Rosenstein, Tony) (Entered: 03/31/2014)
771 STATUS REPORT Seventeenth Quarter Summary Report of Ombudsman by Tony P Rosenstein. (Attachments: # 1 Exhibit A)(Rosenstein, Tony) (Entered: 05/16/2014)
772 STATUS REPORT Eighteenth Quarterly Report of Ombudsman by Tony P Rosenstein. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Rosenstein, Tony) (Entered: 09/24/2014)
773 STATUS REPORT Nineteenth Quarterly Report and Final Statistical Report of Ombudsman by Tony P Rosenstein. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit B, # 4 Exhibit B)(Rosenstein, Tony) (Entered: 12/05/2014)
774 STATUS REPORT by Tony P Rosenstein. (Attachments: # 1 Exhibit A)(Rosenstein, Tony) (Entered: 01/27/2015)
775 Unopposed MOTION For Order Confirming Injunction Has Been Dissolved and Case Closed by Lufkin Industries Inc. (Attachments: # 1 Text of Proposed Order)(Bacon, Christopher) (Entered: 01/27/2015)
776 ORDER that Defendant's Motion 775 is GRANTED; the injunction in this matter has expired, and this matter is hereby closed. Signed by Judge Ron Clark on 9/18/15. (ljw, ) (Entered: 09/23/2015)

 
 In the
United States Court of Appeals
for the Fifth Circuit
___________________

United States Court of Appeals Fifth Circuit
FILED
August 31, 2004
Charles R. Fulbruge III Clerk

m 03-41613 _________________

SYLVESTER MCCLAIN,
ON HIS OWN BEHALF AND ON BEHALF OF A CLASS OF SIMILARLY SITUATED PERSONS;
BUFORD THOMAS,
ON HIS OWN BEHALF AND ON BEHALF OF A CLASS OF SIMILARLY SITUATED PERSONS;
PATRICK ROSS,
ON HIS OWN BEHALF AND ON BEHALF OF A CLASS OF SIMILARLY SITUATED PERSONS;
MARY THOMAS,
ON HER OWN BEHALF AND ON BEHALF OF A CLASS OF SIMILARLY SITUATED PERSONS;
EDDIE K. MASK,
ON HIS OWN BEHALF AND ON BEHALF OF A CLASS OF SIMILARLY SITUATED PERSONS;
LEROY GARNER,
ON HIS OWN BEHALF AND ON BEHALF OF A CLASS OF SIMILARLY SITUATED PERSONS;
SHERRY CALLOWAY SWINT,
ON HER OWN BEHALF AND ON BEHALF OF A CLASS OF SIMILARLY SITUATED PERSONS;
JOHN DOE,
ON HIS OWN BEHALF AND ON BEHALF OF A CLASS OF SIMILARLY SITUATED PERSONS;
FLORINE THOMPSON,
ON HER OWN BEHALF AND ON BEHALF OF A CLASS OF SIMILARLY SITUATED PERSONS;
JOHN DOE, III,
ALSO KNOWN AS “C,” ON HIS OWN BEHALF AND ON BEHALF OF A CLASS OF SIMILARLY SITUATED PERSONS;
CLIFFORD R. DUIRDEN,
ON HIS OWN BEHALF AND ON BEHALF OF A CLASS OF SIMILARLY SITUATED PERSONS;
EARL POTTS,
ON HIS OWN BEHALF AND ON BEHALF OF A CLASS OF SIMILARLY SITUATED PERSONS;
RONALD MARK,
ON HIS OWN BEHALF AND ON BEHALF OF A CLASS OF SIMILARLY SITUATED PERSONS;
PLAINTIFF CLASS,
Plaintiffs-Appellees,

VERSUS
LUFKIN INDUSTRIES, INC.,
Defendant-Appellee,
VERSUS
GLASS, MOLDERS, POTTERY, PLASTICS & ALLIED WORKERS INTERNATIONAL UNION, LOCAL NO. 429, AFL-CIO/CLC;
INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, LOCAL LODGE NO. 1999, AFL-CIO/CLC;
INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIP BUILDERS, BLACKSMITHS, FORGERS & HELPERS, LOCAL NO. 587, AFL-CIO/CLC,
Movants-Appellants.
___________________
Appeal from the United States District Court for the Eastern District of Texas m 9:97-CV-63 ___________________

Before KING, Chief Judge, SMITH and EMILIO M. GARZA, Circuit Judges.
PER CURIAM.*
The union appeals the denial of its motion to intervene. We have reviewed the briefs and pertinent portions of the record and have heard the oral argument s of counsel. Finding no

reversible error, we AFFIRM, essentially for the reasons given by the district court.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
2

 
 IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals Fifth Circuit

F I L E D

August 28, 2009

No. 09-40524 Summary Calendar

Charles R. Fulbruge III Clerk

SLYVESTER MCCLAIN, on his own behalf and on behalf of a class of similarly situated persons; BUFORD THOMAS, on his own behalf and on behalf of a class of similarly situated persons; PATRICK ROSS, on his own behalf and on behalf of a class of similarly situated persons; MARY THOMAS, on his own behalf and on behalf of a class of similarly situated persons; EDDIE K MASK, on his own behalf and on behalf of a class of similarly situated persons; LEROY GARNER, on his own behalf and on behalf of a class of similarly situated persons; SHERRY CALLOWAY SWINT, on his own behalf and on behalf of a class of similarly situated persons; WALTER BUTLER, on his own behalf and on behalf of a class of similarly situated persons; FLORINE THOMPSON, on his own behalf and on behalf of a class of similarly situated persons; CLARENCE OWENS, on his own behalf and on behalf of a class of similarly situated persons; CLIFFORD R. DUIRDEN, on his own behalf and on behalf of a class of similarly situated persons; EARL POTTS, on his own behalf and on behalf of a class of similarly situated persons; ROALD MARK, on his own behalf and on behalf of a class of similarly situated persons; PLAINTIFF CLASS, on his own behalf and on behalf of a class of similarly situated persons; ALL PLAINTIFFS, on his own behalf and on behalf of a class of similarly situated persons,
Plaintiffs-Appellants Cross-Appellees v.
LUFKIN INDUSTRIES INC,
Defendant-Appellee Cross-Appellant

No. 09-40524
Appeal from the United States District Court for the Eastern District of Texas No. 9:97-CV-63
Before KING, DENNIS, and OWEN, Circuit Judges. PER CURIAM:*
Appellee-cross-appellant Lufkin Industries, Inc. (“Lufkin”) seeks dismissal of this appeal for lack of subject matter jurisdiction. On February 29, 2008, this court ruled on an appeal from the original final judgment in this Title VII class action case. See McClain v. Lufkin Indus., Inc., 519 F.3d 264 (5th Cir. 2008). We first vacated the judgment as to Lufkin’s liability for initial job assignments and affirmed the judgment as to Lufkin’s liability for discrimination in promotions. Second, we vacated and remanded the award of monetary damages and injunctive relief. Finally, we vacated and remanded the award of attorneys’ fees because the district court offered no reason to justify its 25% across-theboard reduction of all billable hours. We instructed the district court to conduct the proper lodestar-fee and Johnson analyses.
On remand, the district court has yet to determine the final amount of monetary damages or the scope of injunctive relief. However, on April 2, 2009, the district court granted the plaintiffs an interim award of attorneys’ fees, costs, and expenses through January 1, 2009. The court stated that the interim award would be recoverable regardless of the final amount of monetary damages or the scope of injunctive relief. The district court also certified the award as a final judgment as to the plaintiffs’ separate claims for attorneys’ fees pursuant to Rule 54(b) of the Federal Rules of Civil Procedure. The plaintiffs filed an appeal of
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
2

No. 09-40524 the interim award, and Lufkin now challenges this court’s jurisdiction over the appeal.
“An interim fee order is not a final judgment, and thus may be reviewed only if the collateral order doctrine applies.” Walker v. U.S. Dep’t of Hous. and Urban Dev., 99 F.3d 761, 766 (5th Cir. 1996) (citing Ruiz v. Estelle, 609 F.2d 118, 118–19 (5th Cir. 1980)). Under this doctrine, we may review orders that: “(1) conclusively determine the disputed question; (2) resolve an issue that is completely separate from the merits of the action; and (3) would be effectively unreviewable on appeal from a final judgment.” Id. (citing Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545–47 (1949)).
Lufkin argues that the third prong is not satisfied because the interim award would be reviewable after the district court enters its final order. In Walker, the interim fee award was for non-litigation efforts such as monitoring the city’s compliance with a consent decree. Id. Since these actions would never result in an appealable final judgment, we held that the interim fee award satisfied the third prong and passed the collateral order test. Id. at 766-67. Conversely, in Shipes v. Trinity Industries, Inc., 883 F.2d 339 (5th Cir. 1989), we concluded that an interim fee award failed the collateral order test. The interim award in Shipes came after plaintiffs succeeded on the issue of liability and while the issue of remedies was still pending. Id. at 340. We concluded that the award could have effectively been reviewed after the final judgment. Id. at 344–45. Lufkin argues that the interim award in this case is reviewable on appeal from the final judgment like in Shipes and unlike the award in Walker.
Assuming without deciding that the first two prongs of the collateral order test are satisfied, the interim award in this case fails the third. Unlike the interim award in Walker, this award of attorneys’ fees is connected to work that will eventually result in an appealable final judgment and can be reviewed at that time. See Campanioni v. Barr, 962 F.2d 461, 463 (5th Cir. 1992) (“[T]his
3

No. 09-40524 court has consistently held that a district court’s interim award of attorney’s fees is not appealable under the Cohen doctrine, in part because the fee award is effectively reviewable after final judgment on the merits of the case is entered.”). In Ruiz, we recognized an exception to this third prong—an award may be unappealable as a practical matter “if the defendant ha[s] alleged and proved that the mere payment of the fees would make them unrecoverable.” 609 F.2d at 119. This exception is not applicable here because it is the plaintiffs who are appealing their award of attorneys’ fees and Lufkin has deposited the amount of the award in plaintiffs’ trust fund. Thus, the interim award fails the collateral order test because the award will be reviewable on appeal after the district court enters a final judgment. It is therefore:
ORDERED that this appeal is DISMISSED.
4

 
 REVISED MARCH 10, 2008

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals Fifth Circuit

F I L E D

February 29, 2008

No. 05-41417

Charles R. Fulbruge III Clerk

SYLVESTER MCCLAIN, on his own behalf and on behalf of a class of similarly situated persons; BUFORD THOMAS, on his own behalf and on behalf of a class of similarly situated persons; PATRICK ROSS, on his own behalf and on behalf of a class of similarly situated persons; MARY THOMAS, on her own behalf and on behalf of a class of similarly situated persons; EDDIE K. MASK, on his own behalf and on behalf of a class of similarly situated persons; LEROY GARNER, on his own behalf and on behalf of a class of similarly situated persons; SHERRY CALLOWAY SWINT, on her own behalf and on behalf of a class of similarly situated persons; WALTER BUTLER, on his own behalf and on behalf of a class of similarly situated persons; also known as A; FLORINE THOMPSON, on her own behalf and on behalf of a class of similarly situated persons; CLARENCE OWENS, on his own behalf and on behalf of a class of similarly situated persons; also known as C; CLIFFORD R. DUIRDEN, on his own behalf and on behalf of a class of similarly situated persons; EARL POTTS, on his own behalf and on behalf of a class of similarly situated persons; ROALD MARK, on his own behalf and on behalf of a class of similarly situated persons

v. LUFKIN INDUSTRIES, INC.

Plaintiffs - Appellants-Cross Appellees Defendant - Appellee-Cross Appellant

Appeals from the United States District Court for the Eastern District of Texas

No. 05-41417
Before JONES, Chief Judge, and HIGGINBOTHAM and CLEMENT, Circuit Judges. EDITH H. JONES, Chief Judge:
In this complex Title VII class action against Lufkin Industries, Inc. (“Lufkin”), African-American plaintiffs allege that Lufkin’s practice of delegating subjective decision-making authority to its managers with respect to initial assignments and promotions disparately affected them. After a bench trial, the district court issued a judgment in favor of the employees. After sifting through numerous issues, we reach results that are unfortunately inconclusive of the litigation. We affirm in part, reverse in part, and vacate and remand in part.
I. FACTUAL AND PROCEDURAL BACKGROUND Lufkin, a large manufacturing corporation located in Lufkin, Texas, is divided into four production divisions: Foundry, Trailer, Oil Field, and Power Transmission. The company employs approximately 1,500 hourly and salaried workers, and the hourly workers have been unionized for many years. Only two of the representative plaintiffs in this class action filed EEOC complaints. Sylvester McClain (“McClain”), the named plaintiff, began working in Lufkin’s Trailer division in 1972. In January 1995, he complained to the EEOC that his supervisor, Arden Jinkins (“Jinkins”), had discriminated against him based on his race. Among other things, McClain complained that Jinkins tried to have him demoted. Buford Thomas (“Thomas”), a Lufkin employee since 1979, filed his EEOC charge in February 1997, a year after he was allegedly constructively discharged. Thomas complained of being denied promotional and training opportunities because of his race while working in the Power Transmission and Oil Field divisions. The EEOC issued right-to-sue letters on both charges. McClain and Thomas sued Lufkin for employment discrimination in violation of Title VII and 42 U.S.C. § 1981. The plaintiffs asserted that
2

No. 05-41417
systematic racial discrimination pervades Lufkin’s initial job assignments, training, promotions, and compensation. The district court certified the plaintiffs’ disparate-impact claims as a class action involving 700 current and former Lufkin employees. The class was described as:
All Black persons employed for any period of time by defendant Lufkin Industries on or after March 6, 1994, to date, whose compensation, remuneration, benefits, job assignments, promotional opportunities, career advancements and other terms and conditions of employment have been, may have been, or may become, adversely affected by defendant Lufkin Industries’ past or present systems of administering hiring, wages, salaries, job assignments, training, evaluations, promotions, demotions, terminations, layoffs, recalls, and rehires. McClain v. Lufkin Indus., Inc., 187 F.R.D. 267, 277-78 (E.D. Tex. 1999). The court, however, declined to certify a disparate treatment class. Two claims went to trial: (1) discrimination against blacks in Lufkin’s assignment of newly hired employees; and (2) racially discriminatory promotion practices that rested on largely subjective decision-making criteria carried out by a largely white supervisory corps. Protracted pretrial proceedings in this case included two class certification hearings, two interlocutory appeals to this court, and a two-year mediation effort. When the case finally went to bench trial, the court strictly limited each party to twenty hours for the presentation of its case. Ultimately, the district court found that Lufkin’s practice of delegating subjective decision-making authority to its white managers with respect to initial assignments and promotions resulted in a disparate impact on black employees in violation of Title VII. The court awarded the plaintiffs over $3.4 million in back pay, as well as attorneys’ fees and injunctive relief. Both parties appeal.
3

No. 05-41417
II. DISCUSSION Lufkin contends that the named plaintiffs failed to exhaust EEOC administrative remedies and lack standing to represent the class. Lufkin also contends that the district court erred in finding that Lufkin’s promotion practices are subjective and incapable of separation for analysis and that they had a statistically significant disparate impact on black employees. Lufkin challenges the court’s calculation of the back pay award according to a class-wide formula. Finally, Lufkin asserts that the cumulative effect of various errors, including the limited presentation of evidence, requires us to vacate the judgment. For their part, the plaintiffs argue that the district court erred in refusing to certify a disparate treatment class, in failing to award appropriate injunctive relief, and in reducing their attorneys’ fees. We turn first to Lufkin’s contentions.
A. Lufkin’s Arguments 1. Failure to Exhaust EEOC Remedies As a threshold matter, Lufkin argues that the district court should have dismissed the plaintiffs’ initial-assignment and promotion claims for failure to exhaust administrative remedies and for lack of standing to represent a broadly defined class. Failure to exhaust is not a procedural “gotcha” issue. It is a mainstay of proper enforcement of Title VII remedies. Lufkin contends that McClain and Thomas complained to the EEOC about their individual disparate treatment by the company, but not about their hiring nor about any neutral employment practices on which a disparate-impact case depends. The scope of their administrative claims governs the scope of the class claims. Vuyanich v. Republic Nat’l Bank, 723 F.2d 1195, 1201 (5th Cir. 1984); Evans v. U.S. Pipe & Foundry Co., 696 F.2d 925, 929 (11th Cir. 1983). Consequently, Lufkin asserts, the EEOC was never presented with disparate-impact class claims concerning
4

No. 05-41417
Lufkin’s hiring and promotional practices, and the administrative process was circumvented.
The district court ruled that plaintiffs had exhausted their administrative remedies via McClain’s January 1995 letter to the EEOC. See 29 C.F.R. § 1601.12(b); Fellows v. Universal Rests., Inc., 701 F.2d 447, 451 (5th Cir. 1983). The court also held that a contemporary administrative proceeding pertaining to Lufkin by the Office of Federal Contract Compliance Programs (“OFCCP”) sufficiently fulfilled the purposes of exhaustion. This court reviews de novo the district court’s conclusion concerning exhaustion. See Pacheco v. Mineta, 448 F.3d 783, 788 (5th Cir.), cert. denied, 127 S. Ct. 299 (2006).
Title VII requires employees to exhaust their administrative remedies before seeking judicial relief. Id. Private sector employees must satisfy this requirement by filing an administrative charge with the EEOC. Id. at 788 n.6. The charge enables the EEOC to investigate and, if appropriate, negotiate a resolution with an employer. Only after administrative efforts terminate may the employee sue the employer in federal court.
Courts should not condone lawsuits that exceed the scope of EEOC exhaustion, because doing so would thwart the administrative process and peremptorily substitute litigation for conciliation. Nevertheless, competing policies underlie judicial interpretation of the exhaustion requirement. See id. at 788-89. On one hand, the scope of an EEOC charge should be liberally construed for litigation purposes because Title VII “was designed to protect the many who are unlettered and unschooled in the nuances of literary draftsmanship.” Sanchez v. Standard Brands, Inc., 431 F.2d 455, 465 (5th Cir. 1970). On the other hand, the “primary purpose of Title VII is to trigger the investigatory and conciliatory procedures of the EEOC, in [an] attempt to achieve non-judicial resolution of employment discrimination claims.” Pacheco, 448 F.3d at 788-89. To reconcile these policies, this court construes an EEOC
5

No. 05-41417
complaint broadly but in terms of the administrative EEOC investigation that “can reasonably be expected to grow out of the charge of discrimination.” Sanchez, 431 F.2d at 466. We use a “fact-intensive analysis” of the administrative charge that looks beyond the four corners of the document to its substance. Id. In sum, a Title VII lawsuit may include allegations “like or related to allegation[s] contained in the [EEOC] charge and growing out of such allegations during the pendency of the case before the Commission.” Id.
Among this court’s numerous rulings on exhaustion of EEOC claims, we find most relevant the recent Pacheco opinion, which held that an employee failed to exhaust a disparate-impact claim because his EEOC charge alleged only disparate treatment and identified no neutral employment policy. 448 F.3d at 792. Although Pacheco’s administrative charge complained that he had not been promoted because of racial discrimination, his subsequent lawsuit alleged both disparate treatment and disparate impact. Id. at 786-87. This court affirmed the dismissal of the disparate-impact allegations because:
a disparate-impact investigation could not reasonably have been expected to grow out of Pacheco’s administrative charge because of the following matters taken together: (1) it facially alleged disparate treatment; (2) it identified no neutral employment policy; and (3) it complained of past incidents of disparate treatment only. Id. at 792. In this case, both the district court and the plaintiffs rely principally on McClain’s January 1995 letter to establish administrative exhaustion. Like Pacheco, McClain specifically complained to the EEOC of disparate treatment and past incidents of discrimination against himself. His three-page letter to the EEOC describes “discriminatory treatment that I have been receiving for some time,” and “discriminatory acts against me by Mr. Jinkins.” McClain alleged that Jinkins, his supervisor, racially discriminated against him and tried to have him demoted or fired on false charges of unsatisfactory performance.
6

No. 05-41417 McClain’s letter nowhere refers to any neutral employment policy of Lufkin. Yet, according to Pacheco, “the cornerstone of any EEO[C] disparateimpact investigation” is a neutral employment policy. 448 F.3d at 792. Plaintiffs argue that a disparate-impact investigation could have grown out of McClain’s letter because he alluded to a “cultural problem” that extended to all parts of Lufkin’s business. A “cultural problem,” however, is a vague term that cannot be understood as a neutral employment policy. See, e.g., id. at 790. Compare Marshall v. Fed. Express Corp., 130 F.3d 1095, 1098 (D.C. Cir. 1997) (“A vague or circumscribed EEOC charge will not satisfy the exhaustion requirement for claims it does not fairly embrace.”), with Gomes v. Avco Corp., 964 F.2d 1330, 1335 (2d Cir. 1992) (disparate-impact investigation “would reasonably have flowed” from an EEOC complaint that referenced an eight-year track to promotion). McClain’s letter not only failed to identify any neutral employment policy, but also said nothing about discriminatory hiring at Lufkin. This limited interpretation of McClain’s letter is confirmed by the actual scope of the EEOC’s investigation, which is clearly pertinent to an exhaustion inquiry. See Fine v. GAF Chem. Corp., 995 F.2d 576, 578 (5th Cir. 1993); Fellows, 701 F.2d at 451. Responding to the January 1995 letter, the EEOC sent McClain a proposed formal charge of discrimination in August 1996, in which the agency summarized his claim as follows: I have been subjected to different terms and conditions of employment by being denied comparable training, access to supplies and equipment needed to do a satisfactory job; given unsatisfactory evaluations. The charge then repeats McClain’s complaint of demotion. The plaintiffs also cite another of McClain’s written statements to the EEOC, in which he suggests that other evidence could be disclosed to support his discrimination claim. In context, this sentence refers only to Lufkin’s disparate treatment of McClain alone.
7

No. 05-41417 The district court attempted to fortify its conclusion that exhaustion occurred by taking into account an investigation by the OFCCP into “similar claims to those now before the court.” The court seemed to think that an investigation by another federal agency can exhaust claims that must be handled by the EEOC and that Lufkin was effectively notified of its exposure to disparate-impact claims by responding to the OFCCP investigation. The district court cited no authority in support of its exhaustion bootstrapping, and we are aware of none. Further, no such Title VII shortcut to exhaustion or notification exists. Since 1970, the caselaw has explained that “the ‘scope’ of the judicial complaint is limited to the ‘scope’ of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.” Sanchez, 431 F.2d at 466 (emphasis added); see also Pacheco, 448 F.3d at 792 (“[T]he plaintiff’s administrative charge will be read somewhat broadly, in a fact-specific inquiry into what EEOC investigations it can reasonably be expected to trigger.” (emphasis added)); Fellows, 701 F.2d at 450-51. The district court erred by utilizing OFCCP’s investigation as a basis for inferring EEOC administrative exhaustion. Although McClain’s EEOC complaint and the OFCCP investigation failed to exhaust the employees’ class claims, Buford Thomas’s EEOC complaint carries part of the requisite burden. Thomas alleged to the EEOC that he was constructively discharged, denied promotional and training opportunities, and overloaded with work because of his race. He specifically stated that “[r]espondent has similarly discriminated against other black African Americans.” Thomas’s complaint, viewed in light of the recent Pacheco decision, presents a close question of exhaustion directed at a discriminatory, albeit neutral, company policy authorizing subjective promotion decisions. We
8

No. 05-41417 conclude, however, that exhaustion was sufficient. Significantly, Lufkin did not contend otherwise in the trial court.1
Lufkin, instead, forcefully urged that the class failed to exhaust claims concerning Lufkin’s alleged discriminatory assignment of newly hired black employees to the Foundry division. Hourly work in the Foundry division is hot and heavy to a far greater extent than in the company’s other production divisions. But neither Thomas nor McClain, each with twenty or more years at Lufkin, had worked in the Foundry division and neither man could or did complain to the EEOC about Foundry hiring practices. We are persuaded that the EEOC would not reasonably have investigated discriminatory assignment of new Foundry division employees based on either McClain’s or Thomas’s charge. Eastland v. Tenn. Valley Auth., 714 F.2d 1066, 1067-68 (11th Cir. 1983) (class representatives could not assert initial assignment claims because all had been hired years before); Evans v. U.S. Pipe & Foundry Co., 696 F.2d 925, 929 (11th Cir. 1983) (EEOC investigation limited to promotion and harassment). Because of this deficiency, we must vacate the judgment awarding damages and injunctive relief against Lufkin based on discriminatory initial assignments to the Foundry division.2
Lufkin’s liability will next be examined in regard to the class’s promotiondiscrimination claim.
1 Because exhaustion was satisfied, we need not here decide whether exhaustion is a jurisdictional or claim prerequisite. See Pacheco, 448 F.3d at 788 n.7. See generally Arbaugh v. Y&H Corp., 546 U.S. 500 (2006) (employee numerosity requirement in 42 U.S.C. § 2000e(b) is an element of a Title VII claim and not a jurisdictional requirement).
2 Caselaw also raises considerable doubt that McClain and Thomas would have had standing to assert the class hiring claims of Foundry division workers. See E. Tex. Motor Freight Sys. Inc. v. Rodriguez, 431 U.S. 395, 403 (1977); Vuyanich, 723 F.2d at 1200 (plaintiffs who alleged injury from hiring and termination practices could not represent class arising from other bank employment practices).
9

No. 05-41417 2. Failure to Isolate a Specific Employment Practice The district court identified Lufkin’s subjective decision-making process in awarding promotions as the employment practice that caused a disparate impact on black employees. To establish a prima facie case of discrimination under a disparate-impact theory, a plaintiff must show: (1) an identifiable, facially neutral personnel policy or practice; (2) a disparate effect on members of a protected class; and (3) a causal connection between the two. Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994 (1988). Ordinarily, a plaintiff must demonstrate that each particular challenged employment practice causes a disparate impact. Yet, Title VII provides that “if the complaining party can demonstrate to the court that the elements of [the employer’s] decision making process are not capable of separation for analysis, the decision making process may be analyzed as one employment practice.” 42 U.S.C. § 2000e-2(k)(1)(B)(i). Lufkin challenges two factual findings underlying the court’s liability determination: that its decision-making process is subjective; and that its decision-making process could not be separated for analysis into components that were objective and non-racially biased. We address each in turn.
a. Subjective Decision Making Lufkin argues that its promotion system is in fact overwhelmingly objective, and that the district court’s finding of subjective decision making lacks support. We review this finding for clear error. See Kona Tech. Corp. v. S. Pac. Transp. Co., 225 F.3d 595, 601 (5th Cir. 2000).3 In Watson, the Supreme Court defined subjective decision making as employment decisions “based on the exercise of personal judgment or the application of inherently subjective criteria.” 487 U.S. at 988. The Court
3 In reviewing the court’s findings, we consider evidence adduced during the bench trial but not the class certification hearings. The class certification hearings provided Lufkin limited opportunity for examination on matters going to the merits.
10

No. 05-41417 indicated that a system which incorporates a mixture of subjective and objective criteria should generally be treated as subjective. Id. at 989 (“However one might distinguish ‘subjective’ from ‘objective’ criteria, it is apparent that selection systems that combine both types would generally have to be considered subjective in nature.”).
At Lufkin, promotions within the hourly ranks are putatively governed by a Collective Bargaining Agreement (“CBA”) between Lufkin and three unions. Under the CBA, the company must post bid sheets for each new hourly opening. Seniority is the main criterion for promotion. However, plaintiffs offered evidence that promotions are not rigidly awarded according to seniority. Class members Sylvester McClain and Florine Thompson testified that they were personally bypassed for promotion in favor of a less senior white employee. Plaintiffs presented additional evidence that approximately half of all promotions were not awarded to the most senior bidder.
Moreover, the Collective Bargaining Agreement (“CBA”) contains an ability clause that allowed Lufkin to fill positions on the basis of ability, regardless of seniority. The evidence indicates that ability determinations were not governed by objective standards. Paul Perez, Lufkin’s Vice President of Human Resources, agreed that the ability determination was subjective. McClain testified that supervisors did not always truly evaluate ability when awarding promotions under the ability clause, but simply gave the position to the candidate they favored. Billy Webb, the union’s chief spokesman, testified that the union had taken issue with the ability provision in past contract negotiations because it did not think that the ability clause was always administered fairly. The CBA also provides for a ten-day trial period following promotion. According to the testimony of one of its managers, Lufkin has no written guidelines or formal tests for determining which employees pass this trial period.
11

No. 05-41417 Plaintiffs also offered evidence that Lufkin permitted its managers to apportion training opportunities subjectively, a process that disadvantaged black employees who sought promotions. Perez testified that the CBA does not govern employees’ daily work assignments, and he acknowledged that daily job assignments are not made on the basis of seniority. Perez testified that there are no written policies determining who is to receive on-the-job training, and Lufkin does not track how such training is allocated among employees. In addition, McClain testified that white employees were given more training in areas that were relevant to the jobs he sought. McClain explained that when “white managers and supervisors . . . see a man they want to put on a particular job, . . . they’ll tap him” for training after his shift, or for external training. According to McClain, the employee who received the extra training would be the most qualified and would therefore receive the promotion once the job became available. The district court also heard testimony that Lufkin’s allegedly objective measures for determining which employees were eligible to bid, such as attendance and discipline records, are subject to variance and manipulation. Lufkin has a computer program that tracks attendance, but both McClain and Thompson testified that the system was manipulable. If an employee was absent or tardy and the supervisor did not want the employee to lose credit, Thompson stated that the supervisor could non-schedule the employee or use the employee’s vacation days to skew the records. With respect to discipline records, Steve Reynolds, a Lufkin supervisor, testified that there are no written criteria for determining when a rule violation should be “written up.” He stated that this decision is left to individual supervisors. The evidence also supported that Lufkin engaged in subjective decision making when awarding promotions in the salaried ranks. Salaried positions are not governed by the CBA, and company managers admitted that they were
12

No. 05-41417 unaware of any guidelines, criteria, or documentation for the process of making promotions to salaried positions. Rather, most promotions in the salaried ranks are awarded through an interview process.4
In light of this evidence, we are not left with the definite and firm conviction that the district court erred in finding subjective decision making in Lufkin’s promotion system. See United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948). Although Lufkin offered some testimony during the bench trial that would tend to refute the court’s finding, it was within the province of the district court to accord this testimony less credibility than that of the class members and their experts. “The reviewing court oversteps the bounds of its duty under Rule 52(a) if it undertakes to duplicate the role of the lower court." Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985). Accordingly, we cannot say the court’s finding of subjective decision making in promotions amounted to clear error.
b. Not Capable of Separation for Analysis Lufkin also challenges the district court’s finding that its promotion practices are not capable of separation for review. Lufkin argues that if the court had isolated the objective factors in promotions — e.g. Lufkin’s bidding practices and seniority — the court could not have found a discriminatory impact. As explained above, Title VII permits a plaintiff to demonstrate that the elements of the employer’s decision-making process are not capable of separation for analysis and thus that the process should be analyzed as one employment practice. 42 U.S.C. § 2000e-2(k)(1)(B)(i). This court has not addressed the precise conditions under which employment practices are “not capable of
4 The testimony of the plaintiffs’ expert, Dr. Richard Martell, an Industrial Organization Psychologist, also supports the finding of subjective decision making. Dr. Martell testified that the personnel policies, procedures, and practices at Lufkin were “decidedly subjective.” After discussing Lufkin’s promotion practices in some detail, Martell ultimately concluded that Lufkin is “awash in a sea of subjectivity that cuts across all manufacturing divisions.”
13

No. 05-41417 separation for analysis.” But “where a promotion system uses tightly integrated and overlapping criteria, it may be difficult as a practical matter for plaintiffs to isolate the particular step responsible for the observed discrimination.” See Munoz v. Orr, 200 F.3d 291, 304 (5th Cir. 2000). Some guidance is also provided by trial court decisions interpreting the provision. In Stender v. Lucky Stores, Inc., the district court held:
Where the system of promotion is pervaded by a lack of uniform criteria, criteria that are subjective as well as variable, discretionary placements and promotions, the failure to follow set procedures and the absence of written policies or justifications for promotional decisions, the court is not required to “pinpoint particular aspects of [the system]” that are unfavorable to [the protected group].
803 F. Supp. 259, 335 (N.D. Cal. 1992) (citation omitted); see also Butler v. Home Depot, Inc., No. C-94-4335 SI, 1997 WL 605754, at *13 (N.D. Cal. Aug. 29, 1997) (unreported) (where employer delegated decisions to store managers who made subjective judgments about candidate’s qualifications without written criteria, decision-making process not capable of separation for analysis); Schallop v. N.Y. State Dept. of Law, 20 F. Supp. 2d 384, 402 (N.D.N.Y. 1998) (entire process may be characterized as a single employment practice when employment decisions are made based on variable, subjective criteria); Bannister v. Dal-Tile Int’l, Inc., No. 3:02-CV-2498, 2003 WL 21145739, at *2 (N.D. Tex. May 14, 2003) (plaintiff not required to pinpoint specific employment practices where the factors of a defendant’s decision-making process are “so interwoven that they are incapable of separation”).
There is no indication that the district court applied incorrect legal principles in determining that Lufkin’s practices were incapable of separation. This finding of fact must be reviewed for clear error. See Kona, 225 F.3d at 601. Lufkin lists various ways in which its employment practices were analytically
14

No. 05-41417
separable, but the court’s express findings preclude separation according to those factors.
Lufkin argues, for example, that the plaintiffs’ expert could have separated the challenged employment practices from its legitimate seniority system. The expert included in his analysis numerous promotions that contributed to the statistical shortfall in black promotions, even though these jobs were indisputably awarded to the most senior candidate. This argument ignores the district court’s finding that Lufkin affords management considerable discretion in deciding whether to follow seniority in promotions. Plaintiffs could not statistically analyze the actual practice they challenge — subjective and discretionary application of the seniority provisions — by excluding promotion based on seniority. Seniority, the court found, was likely to have been irrelevant to the promotion.
Lufkin also contends that the plaintiffs should have separated out instances in which candidates were properly denied promotions because of unsatisfactory attendance. This argument, too, runs afoul of the court’s finding that managers have substantial discretion in applying attendance rules. In such a system, a denial of promotion for poor attendance is not helpful to Lufkin where promotions may also have been awarded following non-uniform interpretation of employee attendance rules.
Finally, Lufkin contends that its “paper bid sheets provided additional information that plaintiffs could have separated for analysis.”5 To the contrary, the district court rejected the bid data, which Lufkin prepared for purposes of
5 Specifically, Lufkin argues that the plaintiffs could have used the bid sheets to analyze separately whether blacks bid for jobs at some lesser rate than whites; whether blacks were ineligible for promotion more often than whites because promotion required movement to a higher rated job; whether blacks received fewer promotions because they did not pass a test or declined promotion; whether blacks were disqualified by the requisite minimum qualifications for master classifications or salaried positions more often than whites; and whether Lufkin’s practice of promoting only candidates who sign the bid sheets adversely impacts blacks.
15

No. 05-41417 this litigation, as unreliable and incomplete; ample evidence supports this finding.
Lufkin has not suggested any viable way, consistent with the court’s findings, in which the plaintiffs could have separated the promotion criteria for review nor has it shown the district court clearly erred in so finding.
3. Statistically Significant Disparate Impact in Promotions Lufkin maintains that the plaintiffs failed to demonstrate a statistically significant disparate impact against black employees in promotions. At trial, plaintiffs provided statistical evidence of discrimination through the report of their expert, Dr. Richard Drogin. After constructing hypothetical pools of employees who would be eligible for promotion, Dr. Drogin found that during the class period, black employees received 127 fewer hourly promotions and 8.85 fewer salaried promotions than should have been expected given their representation in these pools. Dr. Drogin determined that these differences were statistically significant at 7.61 standard deviations for hourly promotions and at 2.02 standard deviations for salaried promotions. In rebuttal, Lufkin offered the statistical analysis of Dr. Mary Baker. Dr. Baker conducted her calculations using bid data from Lufkin’s paper bid sheets, and concluded that there was no statistically significant disparity in the promotion of blacks to hourly or salaried positions. Faced with this battle of experts, the district judge credited the testimony of Dr. Drogin over that of Dr. Baker. Our role in reviewing this decision is limited. An appellate court owes great deference to the findings of the trial court with respect to duly admitted expert testimony. Cleveland ex rel. Cleveland v. United States, 457 F.3d 397, 407 (5th Cir. 2006). We review for abuse of discretion the district court's decision to credit one expert over another. Id. And we reverse a district court's factual finding that an employment decision was the product of unlawful discrimination
16

No. 05-41417 only if it is clearly erroneous. See Bazemore v. Friday, 478 U.S. 385, 398 (1986); Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985).
With these standards in mind, we turn to Lufkin’s specific contentions. First, Lufkin argues that Dr. Drogin’s analysis is legally insufficient because he did not use “actual” applicant lists and bid sheets to: (1) construct the availability pools; (2) consider potentially non-discriminatory explanations for the promotions; and (3) factor in qualifications of potential applicants. Lufkin is correct, of course, that actual applicant flow data are superior, and should be used if available. See Anderson v. Douglas & Lomason Co., 26 F.3d 1277, 128687 (5th Cir. 1994). But as discussed above, the district court expressly found that the bid data were incomplete and unreliable, noting that more than half of the promotions were missing from the bid database which Lufkin prepared in anticipation of this litigation. Where actual data are unreliable, courts often permit parties to analyze potential applicant flow data. See, e.g., Malave v. Potter, 320 F.3d 321, 326-27 (2d Cir. 2003); Berger v. Iron Workers Reinforced Rodmen Local 201, 843 F.2d 1395, 1414 (D.C. Cir. 1988); Hameed v. Iron Workers Local 396, 637 F.2d 506, 512 n.6 (8th Cir. 1980); Lewis v. Bloomsburg Mills, Inc., 773 F.2d 561, 568 (4th Cir. 1985). The district court did not err in allowing plaintiffs to do so in this case.
Lufkin argues that even if the bid sheets were unavailable, Dr. Drogin’s regression analysis would still be insufficient because his hypothetical applicant pools do not take into account other minimum qualifications of applicants, such as education. However, in selecting an appropriate pool and performing regression analysis in Title VII cases, the Supreme Court has taught that a plaintiff’s regression analysis need not include “all measurable variables.” See Bazemore, 478 U.S. at 400 (“[I]t is clear that a regression analysis that includes less than ‘all measurable variables’ may serve to prove a plaintiff's case.”); see also Mozee v. Am. Commercial Marine Serv. Co., 940 F.2d 1036, 1045 (7th Cir.
17

No. 05-41417 1991). A plaintiff in a Title VII suit need not prove discrimination with scientific certainty; rather his or her burden is to prove discrimination by a preponderance of the evidence. Bazemore, 478 U.S. at 400. We are satisfied that Dr. Drogin’s regression analysis was sufficiently refined for plaintiffs to meet this burden.
Finally, Lufkin argues that a disparity in salaried promotions of only 2.02 standard deviations does not support the district court’s finding of disparate impact. This court has rejected the contention that a disparity of two or three standard deviations is categorically insufficient to support an inference of adverse impact. See Rendon v. AT&T Techs., 883 F.2d 388, 397-98 (5th Cir. 1989).6 And Lufkin has not persuasively explained why a standard deviation of this magnitude should be accorded reduced significance under the particular circumstances of this case. We therefore affirm the district court’s finding of a statistically significant disparate impact in promotions.
4. Class-Wide Back-Pay Formula Lufkin also challenges the class-wide back-pay award. The district court's calculation of a back pay award is reviewed for clear error. Shipes v. Trinity Indus., 987 F.2d 311, 316-17 (5th Cir. 1993).
a. Class-Wide Formula or Individual Hearings Lufkin complains that the district court erred by using a formula to calculate the award rather than computing damages on an individual basis. The complexity of the case is the determining factor in what method the district court should utilize to formulate a back-pay award. Pettway v. Am. Cast Iron Pipe Co., 494 F.2d 211, 261 (5th Cir. 1974). Whenever possible, back pay should be awarded individually and tailored to the actual victims of discrimination. United States v. U.S. Steel Corp., 520 F.2d 1043, 1055–56 (5th Cir. 1975). If the
6 Other courts have reached the same conclusion. See, e.g., Palmer v. Schultz, 815 F.2d 84, 96–97 (D.C. Cir. 1987); Coleman v. Exxon Chem. Corp., 162 F. Supp. 2d 593, 616 (S.D. Tex. 2001).
18

No. 05-41417 class is small, the time period short, or the effect of the discrimination straightforward, individual determinations of each claimant’s position but for the discrimination are possible. Pettway, 494 F.2d at 261. If, however, the class is large, the promotion or hiring practices are ambiguous, or the illegal practices continued over an extended period of time, a class-wide approach to the measure of back pay may be necessary. Id.; see also Shipes, 987 F.2d at 318.
In this case, the district court concluded that the size of the class and the inherent uncertainty of the individual claims contraindicates the use of an individualized approach. We agree. We are not persuaded that the district court could “easily” make individualized inquiries for each of the more than 700 plaintiffs in this case, as Lufkin contends. Further, as in Pettway, there is no practical way to determine through individual hearings which jobs the class members would have bid on and obtained but for the discriminatory procedures Lufkin had in place. See Pettway, 494 F.2d at 260. Class members outnumber promotion vacancies; jobs become available over time; the vacancies involve different pay rates; and a determination of who was entitled to a vacancy would have to be made by an evaluation of seniority and ability at that time. Id. (citing identical factors in approving the formula approach).7 “[W]here employees start at entry level jobs in a department and progress into a myriad of other positions and departments on the basis of seniority and ability over an extended period of time, exact reconstruction of each individual claimant’s work history, as if discrimination had not occurred, is not only imprecise but impractical.” Id. at 262. An individualized process of determining actual damages for each plaintiff in this case would result in the “quagmire of hypothetical judgments” that
7 Lufkin argues that the court could readily make these determinations by reviewing the bid sheet database. This argument ignores the district court’s finding that the bid sheet database was incomplete and unreliable.
19

No. 05-41417 courts should avoid. Id. at 260. Accordingly, the district court neither abused its discretion nor clearly erred in adopting the formula-driven approach.
b. Specific Methodology While Lufkin levies various attacks on the district court’s methodology for determining the back-pay award, these need not all be considered. With the elimination of a finding of class discrimination in initial assignments to the Foundry, the damage award must be vacated and remanded. On remand, the district court will be dealing solely with damages attributable to approximately 127 lost promotions in hourly pay grades and nine lost salaried employment promotions. The accepted way to apportion damages among a class of plaintiffs who outnumber the lost promotion spots is to compute the total additional wages attributable each year to each promotion and divide the value among the class members. See United States v. City of Miami, 195 F.3d 1292, 1299-1302 (11th Cir. 1999); Dougherty v. Barry, 869 F.2d 605, 614-15 (D.C. Cir. 1989) (Ginsburg, J.); Hameed v. Iron Workers Local 396, 637 F.2d 506, 520-21 (8th Cir. 1980). The district court should adapt this method with whatever modifications will both expediently and fairly apportion the lost wages among class members working in the multiple divisions of Lufkin. What the court may not do is return to Dr. Drogin’s lost wages calculations given our disposition of this case. Dr. Drogin estimated annual hourly wage disparities between black and white workers and black and non-white workers and made a similar racial comparison for salaried workers. The conclusions in this section of his report were intended to demonstrate the systemic effects of racially discriminatory Foundry assignments throughout workers’ careers. Whether or not such conclusions would be supportable for both hiring and promotion claims, they do not pertain to the class claim that is now limited to lost promotions. Dr. Drogin’s figures would come close to compensating each class member for the full value of lost promotions, where plainly each member
20

No. 05-41417 had at best a possibility of progressing up the ladder. The district court is free to consider any additional evidence that the parties may offer on this issue.
5. Limitation on the Presentation of Evidence and Trial Location Lufkin argues that given the complexity of the issues involved in this case,
the district court’s imposition of rigid time limits on the presentation of evidence deprived Lufkin of a fair trial. A district court has broad discretion in managing its docket and structuring the conduct of a trial. Sims v. ANR Freight Sys., Inc., 77 F.3d 846, 849 (5th Cir. 1996). It may maintain the pace of the trial by setting time limits on counsel. Id. Moreover, a judge has special latitude in applying time limits in a bench trial, since the court often has become familiar with the case long before trial begins and can readily comprehend the evidence presented. Id. at 850. Nevertheless, discretion has its limits. See id. at 849; see also Kelly v. Boeing Petroleum Servs., Inc., 61 F.3d 350, 358 (5th Cir. 1995). “When the manner of the presentation of information . . . is judicially restricted to the extent that the information becomes incomprehensible then the essence of the trial [is] destroyed.” Sims,77 F.3d at 849.
In this case, we do not doubt that it was difficult for Lufkin to mount a defense against generalized claims of subjective decision making — claims that implicated all of its divisions and spanned almost a decade — in the mere twenty hours the district court allowed each side. But even if the strict time limits amounted to an abuse of discretion, the district court’s error is presumed harmless until shown to be prejudicial. See Ruiz v. Estelle, 679 F.2d 1115, 1129 (5th Cir. 1982); see also Sims, 77 F.3d at 849-50 (declining to reverse where the complaining party did not establish there was a reasonable probability that the outcome of the case would be different upon retrial). Lufkin has not persuaded us that it suffered reversible prejudice. Lufkin’s related claim of “cumulative error” fails because it is essentially rendered moot by the pervasive effect of our appellate ruling.
21

No. 05-41417 B. Plaintiffs’ Arguments 1. Disparate Treatment Class Certification Plaintiffs contend that the district court erred in denying class certification of their 42 U.S.C. § 1981 disparate-treatment claim seeking declaratory, injunctive, and equitable back pay.8 See Allison v. Citgo Petroleum Corp., 151 F.3d 402, 415-16 (5th Cir. 1998) (equitable monetary relief, i.e., back pay, available in (b)(2) class actions). The district court declined to certify the class under Rule 23(b)(2) because individual claims for monetary relief would have predominated, and it concluded that the class representatives would be “inadequate” if they dropped the class members’ demand for compensatory and punitive damages in order to protect the “predominance” of nonmonetary claims. See FED. R. CIV. P. 23(b)(2). This court reviews the district court’s classcertification decision for abuse of discretion. See Allison, 151 F.3d at 408. Whether the court applied the correct legal standard in reaching its decision is reviewed de novo. Id. The district court did not abuse its discretion. See Pegues v. Miss. State Employment Serv., 699 F.2d 760, 763 (5th Cir. 1983) (“Implicit in this deferential standard of review is the recognition of the essential factual nature of the certification inquiry and the district court’s inherent power to manage and control pending litigation.”). Motivated by Zachery v. Texaco Exploration & Production, Inc., 185 F.R.D. 230 (W.D. Tex. 1999), the district court expressed concern about the plaintiffs’ disavowal of monetary damages. In Zachery, the putative class representatives also dropped their demand for compensatory and punitive damages in order to achieve Rule 23(b)(2) certification. Id. at 233. As a result, class members would not have had the right to opt out of the class and
8 Plaintiffs characterize the district court’s decision as a “dismissal” of their disparatetreatment claim; however, the district court clarified that “a disparate treatment claim has not been ‘dismissed’ because a disparate treatment claim was never certified.”
22

No. 05-41417 might be barred from bringing individual damage claims. Id. at 243 (citing Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867 (1984)). Noting this serious conflict of interest, the court refused to impose upon the class members the decision by named plaintiffs to forfeit the compensatory and punitive damages claim. Id. at 244-45. We agree with Zachery and with the district court’s conclusion here that if the price of a Rule 23(b)(2) disparate treatment class both limits individual opt outs and sacrifices class members’ rights to avail themselves of significant legal remedies, it is too high a price to impose. There was no error, much less abuse of discretion, in this certification denial.
2. Vague Remedial Injunction Plaintiffs argue that the district court’s remedial injunction lacks specificity, fails to remedy the discriminatory exercise of subjective decisionmaking practices, and includes no provision to ensure Lufkin’s compliance. Lufkin agrees that the injunction is unenforceable for lack of specificity, but urges us to reject the additional injunctive relief that plaintiffs now request. We review a district court’s fashioning of injunctive relief for abuse of discretion. Peaches Entm’t Corp. v. Entm’t Repertoire Assocs., Inc., 62 F.3d 690, 693 (5th Cir. 1995). The injunction at issue is identical to one the district court included in a preliminary order in January 2005. Lufkin appealed the injunction immediately after the preliminary order. We dismissed the appeal, stating that “[b]efore this matter is ripe for appellate review, the district court must identify the specific steps the defendant must take to implement and comply with the injunction.” Despite this instruction, the district court included the original injunction verbatim in the final amended judgment. The court’s injunction lacks the detail required under Federal Rule of Civil Procedure 65(d). The injunction includes such vague directives as “cease and desist all racially biased assignment and promotion practices,” “create and
23

No. 05-41417 implement a program to ensure that black employees receive an equitable proportion of promotions,” and “take all necessary steps to remedy the effects of past discrimination.” An order framed in these broad generalities fails to afford notice to Lufkin of its proscribed or required conduct and is therefore unenforceable. We vacate and remand for the court to try again.
This task will not be simple. Where, as here, Title VII does not require plaintiffs to pinpoint the specific practices that caused the discriminatory effect, it is especially difficult to craft an adequate remedial order that will eliminate discrimination without hobbling Lufkin’s legitimate promotion policies. We leave to the district court the task of reviewing afresh the propriety of the injunction, and if it is found necessary, of balancing plaintiffs’ requests for stronger measures to ensure Lufkin’s compliance with the imprecision of the liability finding.
3. Attorneys’ Fees Plaintiffs contend that the district court abused its discretion by reducing their fees without conducting lodestar and Johnson analyses or making factual findings to support the reduction. A district court’s determination of attorneys’ fees is reviewed for abuse of discretion, and the findings of fact supporting the award are reviewed for clear error. Von Clark v. Butler, 916 F.2d 255, 258 (5th Cir. 1990). The first step in determining statutorily authorized attorneys’ fees is to calculate a “lodestar” amount by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate. Rutherford v. Harris County, Tex., 197 F.3d 173, 192 (5th Cir. 1999). The court must then consider whether the lodestar should be adjusted upward or downward, depending on the circumstances of the case and the factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). A district court must “explain with a reasonable degree of specificity the findings and reasons upon
24

No. 05-41417 which the award is based, including an indication of how each of the Johnson factors was applied.” Von Clark, 916 F.2d at 258.
In this case, the plaintiffs sought an interim award of attorneys’ fees, costs and expenses approximating $6.5 million, covering 12,387.9 hours of work performed and nearly a million dollars in out-of-pocket costs. The district court slashed their request and summarily stated that Ms. Demchak’s reported hours were “excessive and not necessary” and that the rates she requested were not “usual and customary” for employment discrimination cases in the geographical area. The court offered no reason to deny all compensation for time spent on the lengthy mediation effort; to deny compensation to Mr. Garrigan for his attendance at plaintiff Roald Mark’s separate suit against Lufkin; to apply a blanket reduction of 25% to all of the billable hours reported by plaintiffs’ counsel; and to reduce the hourly rates requested by plaintiffs’ counsel. Because of these deficiencies, we must vacate the fee award and remand for the district court to conduct proper lodestar-fee and Johnson analyses, and award counsel a reasonable reimbursement.
III. CONCLUSION The district court struggled to complete its work in this wide-ranging, complex discrimination case. Nevertheless, the sum of the foregoing discussion leaves much to be reconsidered. First, we vacate the judgment insofar as it holds Lufkin liable for a claim, unexhausted before the EEOC, that the company discriminatorily assigned newly hired African Americans to the Foundry division. Second, we affirm the judgment of Lufkin’s liability to the class for the discriminatory impact of its subjective promotional policies. Because of this split decision, we must vacate and remand the damage award for further proceedings
25

No. 05-41417 consistent with the foregoing discussion, as well as the award of injunctive relief and attorneys’ fees.
AFFIRMED IN PART, REVERSED IN PART, VACATED AND REMANDED IN PART.
26

 
 Case: 10-40036 Document: 00511564343 Page: 1 Date Filed: 08/08/2011

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

U n , t e d _ C o u r t o I A p p. .' . Fifth Circuit
F I LED

No. 10-40036

August 8, 2011

Lyle W. Cayce Clerk

SYLVESTER MCCLAIN, on his own behalf and on behalf of a class of similarly

situated persons; BUFORD THOMAS, on his own behalfand on behalfof a class

of similarly situated persons; PATRICK ROSS, on his own behalf and on behalf

of a class of similarly situated persons; MARY THOMAS, on her own behalf and

on behalf of a class of similarly situated persons; EDDIE K MASK, on his own

behalf and on behalf of a class of similarly situated persons; LEROY GARNER,

on his own behalfand on behalfof a class ofsimilarly situated persons; SHERRY

CALLOWAY SWINT, on her own behalf and on behalf of a class of similarly

situated persons; WALTER BUTLER, on his own behalf and on behalf of a class

of similarly situated persons also known as "A"; FLORINE THOMPSON, on her

own behalf and on behalf of a class of similarly situated persons; CLARENCE

OWENS, on his own behalf and on behalf of a class of similarly situated persons

also known as "C"; CLIFFORD R DUIRDEN, on his own behalf and on behalf of

a class of similarly situated persons; EARL POTTS, on his own behalf and on

behalf of a class of similary situated persons; ROALD MARK, on his own behalf

and on behalf of a class of similary situated persons; PLAINTIFF CLASS; ALL

PLAINTIFFS,

Plaintiffs - Appellants Cross-Appellees

v.

LUFKIN INDUSTRIES INC.,

Defendant - Appellee Cross-Appellant

Appeals from the United States District Court for the Eastern District of Texas

Before JONES, Chief Judge, and DENNIS and CLEMENT, Circuit Judges. EDITH H. JONES, Chief Judge:

Case: 10-40036 Document: 00511564343 Page: 2 Date Filed: 08/08/2011
No. 10-40036
After multiple appeals to this court' and extensive trial and other proceedings, plaintiffs' Title VII class action for employment discrimination against Lufkin Industries, Inc. culminated in a favorable multimillion dollar judgment and injunctive relief. Before this court - in the final possible dispute - are challenges by both parties to the district court's attorneys' fee award and Lufkin's complaint that back pay damages were erroneously authorized in an earlier appeal. We affirm as to the back pay damages but vacate and remand as to the attorney's fees. In particular, given the unrebutted evidence in the record that it was necessary for plaintiffs to retain counsel from outside the Eastern District of Texas, the district court abused its discretion in failing to use the rates counsel charged in their home district as the starting point in the lodestar calculation.
I. BACKGROUND In early 1995, Sylvester McClain, a black employee in Lufkin's trailer division, filed a complaint with the Equal Employment Opportunity Commission (EEOC) over his manager's alleged efforts to demote him. Another Lufkin employee, Buford Thomas, filed an EEOC claim in February 1997, complaining that he was denied promotional and training opportunities on account of his race. The EEOC issued right-to-sue letters on both claims. In 1997, McClain and Thomas filed a class action under Title VII challenging many of Lufkin's employment practices under disparate treatment and disparate impact theories. The district court certified a class and narrowed the claims in ways not relevant
1 See McClain v. Lufkin Industries, Inc., 108 Fed. App'x. 176 (5th Cir. 2004) ("McClain 1'); McClain v. Lufkin Industries, Inc., 519 F.3d 264, (5th Cir. 2008) ("McClain 11'); McClain v. Lufkin Industries, Inc., 342 F. App'x. 974 (5th Cir. 2009) ("McClain IIf').
2

Case: 10-40036 Document: 00511564343 Page: 3 Date Filed: 08/08/2011
No. 10-40036 to the issues before this court. See McClain v. Lufkin Indus., Inc., 187 F.R.D. 267 (E.D. Tex. 1999).
From the start, Plaintiffs were represented by Timothy Garrigan, an attorney based in the Eastern District of Texas with extensive experience in employment law and civil rights. The court complimented his firm in the certification order:
Counsel for the Plaintiffs are known to this court as trial lawyers experienced in employment law, civil rights actions, and complex litigation. Counsel have documented their qualifications through documents submitted to the court recounting the breadth of their experience in these areas of the law. Finally, class counsel have pursued this suit and related issues with an unmistakable zeal.
Id. at 281-82. Garrigan headed a three-lawyer firm in Nacogdoches, Texas. Mter obtaining class certification in 2000, Garrigan found that Lufkin was unwilling to settle, and that his clients might face protracted litigation. Thus, Garrigan felt it was imperative to associate with co-counsel in order to successfully try this case. The case's ultimate trajectory, which spanned a decade and involved thousands of attorney hours, confirmed his initial
I.mpreSSI.On.
Garrigan consulted with many experienced employment lawyers in Texas and found that "none of them was willing or able to commit the time and resources necessary to associate as co-counsel and prosecute this class action ...." The record includes numerous affidavits from experienced Texas litigators and even the founder and past president of the Texas Employment Lawyers Association declaring, under oath, that no Texas attorneys were available to join Garrigan's team on this particular case. It is clearly established
3

Case: 10-40036 Document: 00511564343 Page: 4 Date Filed: 08/08/2011
No. 10-40036
that Garrigan diligently searched for, but could not find, any lawyers in Texas
who were willing and able to join him in litigating this class action.2
Significantly, Lufkin submitted nothing to refute or challenge this
evidence. Lufkin submitted the declarations of five Texas lawyers regarding
their hourly rates, but none ofthose declarants claimed that they, or anyone else
2 For instance, J. Derek Braziel, an experienced Texas litigator in labor and employment law, explained: ''I do not work on employment discrimination class action cases for largely financial reasons, even though I am competent and have the resources to do so.... Employment discrimination class actions usually take much longer to litigate than the average employment discrimination or wage and hour case. Defendant companies often use their substantial financial advantage to outstaff and outwork plaintiffs with limited personal resources.... Employment discrimination class actions usually involve extensive expert testimony and the commitment of financial resources that far exceeds other employment law cases.... [There is] a significant risk that a fee will never be collected. Even in the best of circumstances, payment for class counsel's time and reimbursement of expenses is delayed for several years. For these reasons neither I, nor my firm, represent plaintiffs in employment discrimination class actions."
Claude Welch, an attorney in Lufkin, Texas with experience in complex civil litigation, declared: 'There is a need for lawyers in the Eastern District of Texas who are capable of and willing to represent clients in complex employment discrimination class action and other complex civil rights cases. I do not generally undertake such cases because of their difficulty, their complexity, and because the uncertainty of success has generally outweighed the prospect of obtaining a contingent statutory fee."
Steven B. Thorpe, an experienced litigator in Dallas, declared: ''My practice focuses in large part on employment civil rights cases in which I represent plaintiffs.... [Tlhe greatest portion of my practice prior to approximately 1985 was in the representation of plaintiffs in class action discrimination suits. At that time I and the firm with which I was associated largely abandoned that area of practice because we found it to be financially infeasible. At this time and for more than a decade I have done no class action employment litigation.... I do not know of any other experienced plaintiffs' class action employment lawyers in Texas who were available, able and willing to commit the time and expenses necessary to the prosecution of this case."
Margaret A. Harris, the founder and past president ofthe Texas Employment Lawyers Association, declared: ''While there are certainly lawyers in this State with the requisite knowledge to do the work that the lawyers from Goldstein Demchak provided, they do not to the best of my knowledge have the resources to have provided those services. Similarly, while there are law fIrms in this State who have the financial resources to have stepped in as Class Co·Counsel, they do not to the best of my knowledge have the requisite knowledge of the law to have done the work that the lawyers and other staff members from Goldstein Demchak provided."
4

Case: 10-40036 Document: 00511564343 Page: 5 Date Filed: 08/08/2011
No. 10-40036 they knew, would have been willing and able to get involved in this case in 2000. It is therefore uncontested that Garrigan was not able to obtain support from Texas co-counsel.
Unable to find suitable co-counsel in Texas, Garrigan turned to the firm now known as Goldstein, Demchak, Baller, Borgen & Dardarian ("Goldstein Demchak',), based in Oakland, California. Goldstein Demchak, which has a nationwide reputation as a plaintiffs' employment class action firm, agreed to associate with Garrigan and take part in this case.
Ultimately, the case went to a bench trial, and in January 2005, the district court found that Lufkin had discriminated against black employees in certain initial work assignments and in promotion decisions. The court ordered back pay, attorneys' fees, and injunctive relief. This court affirmed the disparate impact promotion claims after concluding that Thomas had properly exhausted his administrative remedies when he filed his 1997 EEOC complaint, McClain II, 519 F.3d at 264, but we reversed the judgment as to the initial assignment claims because plaintiffs had not exhausted their administrative remedies. This court directed the district court to award back pay damages for the lost promotions dating back to 1994. Id. at 281. We also vacated and remanded the trial court's injunctive order, which was too vague, and its attorneys' fee award, which was insufficiently explained. Id. at 283-84.
On remand, the new district judge, who stepped in to replace the deceased trial judge, scrupulously followed the mandate of McClain II. 3 Pertinent to this appeal, he awarded $3.3 million in back pay to the class for discriminatorily lost promotions dating back to 1994. He issued a twenty-four page ruling addressing plaintiffcounsel's application to receive over $7.7 million in attorneys fees. (The
3 The court's detailed injunction against Lufkin was not appealed.
5

Case: 10-40036 Document: 00511564343 Page: 6 Date Filed: 08/08/2011
No. 10-40036
award exceeding $1 million for counsel's costs and expenses has not been
appealed.) After sifting through voluminous billing records, the court ruled for
plaintiffs' counsel on nearly all issues, and, in particular, declined to reduce their
fees beyond a self-adjustment offered by counsel for having pursued unsuccessful
Title VII claims. The court ordered a generous $400 hourly rate for Garrigan,
the lead attorney. It refused, however, to order payment to partners at
Goldstein Demchak at a $650 hourly rate, the prevailing rate in the San
Francisco Bay Area. The court's discussion is concise:
2. Partners at the Goldstein Demchak Law Firm
Plaintiffs contend that the court should disregard the local rates for the Goldstein Demchak Law Firm ("Demchak Firm'') and apply a rate commensurate with attorneys from the northern California area where the Demchak Firm is located because of its unique experience dealing with employment discrimination class action cases.
When the Demchak Firm entered the case in 2000, Mr. Garrigan had already certified the case and Lufkin's appeal had been rejected. While it was still necessary to mediate the case, complete discovery, and try the case, Mr. Garrigan participated to a greater extent than any other attorney. He certified the class, was lead counsel throughout the entirety of the case, and examined 11 out of 22 witnesses at trial. The Demchak Firm possessed experience settling class action employment cases, but there is no evidence to suggest that they were experienced at trying such cases.
Plaintiffs have firmly established that in calculating the fee for Mr. Garrigan the appropriate community for rate comparison purposes are [sic] those who participate in complex litigation in the Eastern District of Texas. It would be difficult to justify assigning a higher hourly rate to second-chair attorneys, no matter how skilled in employment law. No unusual circumstances exist to suggest that those in the Eastern District who have experience with complex litigation were unavailable and could not have effectively participated. The court is aware of many attorneys in the Eastern
6

Case: 10-40036 Document: 00511564343 Page: 7 Date Filed: 08/08/2011
No. 10-40036
District experienced in employment law and complex litigation. Two who would not be likely to have a conflict with Lufkin Industries are Clyde Siebman and John Werner. Absent sufficient evidence that experienced, qualified local counsel were unwilling to participate, the court will not assume counsel from distant states were necessary. Counsel at the Demchak Firm are located in Oakland, California, but it was their choice to participate on this case. Mr. Garrigan brought the suit, certified the class and carried the yeoman's burden at depositions and trial. Based on the affidavits, Mr. Garrigan was the attorney with extensive experience as first chair in actual trials. The Demchak Firm's attorneys undoubtedly provided valuable support but they cannot expect to receive rates fifty percent higher than Mr. Garrigan's, especially when the court has approved the time they spent in traveling from California.
Hourly rates should be computed according to the prevailing market rates in the relevant legal market. [citation omitted] This court will apply local rates for the Demchak firm. [citation omitted] ... However, the rates should not be less than $250/hr, as Defendant contends....
The court awarded $400 per hour to partners at Goldstein Demchak, with
comparably reduced awards for their associates and paralegals. The fmal total
fee award was approximately $4.7 million.
On appeal, the parties aggressively dispute: (1) the award oflocal district
rates to the Goldstein Demchak firm; (2) the court's refusal to disallow more of
counsel's hours allegedly incurred for unsuccessful claims; and (3) the
calculation of the back pay award. Jurisdiction here is founded on 28 U.S.C.
§ 1291.
II. ATTORNEYS' FEE AWARD
The district court's factual findings as to the hours reasonably expended
and the reasonable rates for attorneys' fees are reviewed by this court for clear
error. La. Power & Light Co. v. Kellstrom, 50 F.3d 319, 324 (5th Cir. 1995).
7

Case: 10-40036 Document: 00511564343 Page: 8 Date Filed: 08/08/2011
No. 10-40036 When the court applies to this "lodestar" the twelve Johnson adjustment factors,' its decision - absent an error of law - is reviewed for abuse of discretion. Id. at 329. A. Community versus out-of-district hourly rates
Asserting that California counsel were entitled to be reimbursed at California rates rather than the rate awarded to counsel in the forum, plaintiffs first contend that the district court erred because no other local counsel were willing to assist Garrigan in this complex class action. They also contend that a recent Supreme Court decision supports an award to plaintiffs' counsel that matches the rates allegedly paid by Lufkin to its Houston attorneys. See Perdue v. Kenny A. ex reI. Winn, 130 S. Ct. 1662 (2010). Lufkin, for its part, seeks an even larger reduction in the fee award for work performed by plaintiffs' counsel on unsuccessful claims in the litigation. We are constrained to vacate the fee award and remand for re-calculation.
The precedents and purposes governing fee-shifting awards in civil rights cases are well established. The awards facilitate plaintiffs' access to the courts to vindicate their rights by providing compensation sufficient to attract competent counsel. Fee awards must, however, be reasonable. Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S. Ct. 1933, 1939 (1983). The linchpin ofthe reasonable fee is the lodestar calculation, a product of the hours reasonably expended by the law firms and the reasonable hourly rate for their services. Id. Charges for excessive, duplicative, or inadequately documented work must be excluded. Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir. 1993).
Seminal to this case is the principle that "reasonable" hourly rates "are to be calculated according to the prevailing market rates in the relevant
4 See Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974).
8

Case: 10-40036 Document: 00511564343 Page: 9 Date Filed: 08/08/2011
No. 10-40036 community." Blum v. Stenson, 465 U.S. 886, 895, 104 S. Ct. 1541, 1547 (1984). Further, Blum noted, "the burden is on the applicant to produce satisfactory evidence ... that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation." Id. at 896 n.1l. In an unbroken and consistent line of precedent, this court has interpreted rates "prevailing in the community" to mean what it says. Thus, as early as 1974, this court required district courts to consider the customary fee for similar work "in the community." Johnson, 488 F.2d at 718; see also Van Ooteghem v. Gray, 774 F.2d 1332, 1338 (5th Cir. 1985) (Title VII guarantees "fair compensation" and not whatever ''lions at the bar" may command); Alberti v. Klevenhagen, 896 F.2d 927, 931 (5th Cir. 1990) vacated in part on reh'g, 903 F.2d 352 (1990); Islamic Ctr ofMiss., Inc. v. City of Starkville, Miss., 876 F.2d 465, 469 (5th Cir. 1989); Watkins, 7 F.3d at 458-59; Green v. Adm'rs of Tulane Educ. Fund, 284 F.3d 642,662 (5th Cir. 2002); Tollett v. City of Kemah, 285 F.3d 357, 368 (5th Cir. 2002); Scham v. District Courts Trying Criminal Cases, 148 F.3d 554,558 (5th Cir. 1998). Most telling, perhaps, is this court's decision in a landmark affIrmative action case reducing the fee of plaintiffs' counsel, a former U.S. Assistant Attorney General and subsequent U.S. Solicitor General, from the rates he charged in Washington, D.C., to the prevailing rate in the forum, Austin, Texas. Hopwood v. State ofTexas, 236 F.3d 256,281 (5th Cir. 2000) (discussing Ted Olson's billing rates).
A number ofour sister circuits, however, have taken the position that outof-district counsel may be entitled to the rates they charge in their home districts under certain limited circumstances. The Sixth Circuit has observed that "[w]hen fees are soughtfor an out-of-town specialist, courts must determine (1) whether hiring the out-of-town specialist was reasonable in the fIrst instance,
9

Case: 10-40036 Document: 00511564343 Page: 10 Date Filed: 08/08/2011
No. 10-40036 and (2) whether the rates sought by the out-of-town specialist are reasonable for an attorney of his or her degree of skill, experience, and reputation." Hadix v. Johnson, 65 F.3d 532, 535 (6th Cir. 1995) (citing Chrapliwy v. Uniroyal, Inc., 670 F.2d 760, 768-69 (7th Cir. 1982». Other circuits have used a similar approach. See Zolfo, Cooper & Co. v. Sunbeam-Oster Co., 50 F.3d 253, 259-60 (3d Cir. 1995); Casey v. City of Cabool, Mo., 12 F.3d 799, 805 (8th Cir. 1993); Nat'l Wildlife Fed'n v. Hanson, 859 F.2d 313, 317 (4th Cir. 1988); Maceira v. Pagan, 698 F.2d 38, 40 (1st Cir. 1983); Donnell v. United States, 682 F.2d 240, 252 (D.C. Cir. 1982).
But the two-prong Hadix test is applied cautiously: even courts that concluded out-of-district counsel were necessary often affirmed reduced fees for those attorneys. See Casey, 12 F.3d at 806 (approving a rate reduction for out-ofdistrict counsel from $195 per hour to $150 per hour); Zolfo, 50 F.3d at 259-61 (noting that under 11 U.S. C. § 330, the starting point for a fee calculation should be the attorneys' home district, but nevertheless affIrming the district court's use of in-district rates as the starting point because it "achieved substantially the same result"). Indeed, these circuits have stressed that appellate courts should be particularly reluctant to fInd an abuse of discretion. See, e.g., Nat'l Wildlife, 859 F.2d at 317 ("The computation of attorneys fees is primarily the task of the district court, and we are not entitled to disturb a district court's exercise of discretion even though we might have exercised that discretion quite differently."); Zolfo, 50 F.3d at 261 ("The bankruptcy court cut Zolfo Cooper's total compensation request approximately twelve percent. When faced with a reduction of ten percent in a similar case, we stated that '[n]o court, viewing a record of this magnitude from the distance inherent in appellate review, could
10

Case: 10-40036 Document: 00511564343 Page: 11 Date Filed: 08/08/2011
No. 10-40036 assess the reasonability of a reduction as slight as ten percent with flawless precision."' (citation omitted».
To fulfill the purpose of Section 1988 fee awards, while accommodating Blum's and this court's focus on local forum rates for attorney fees, we hold that where, as here, abundant and uncontradicted evidence proved the necessity of Garrigan's turning to out-of-districtcounsel, the co-counsel's ''home'' rates should be considered as a starting point for calculating the lodestar amount. Because local rates may well reflect a lower cost of living in the forum, which will also be indicative oflower potential damage awards, the district court retains discretion to adjust the lodestar and achieve an overall reasonable fee award.5
Here, the district court carefully reviewed the hours billed by all counsel and assessed counsel's rates. In doing so, it adjusted the local prevailing rate upward to award the principal trial counsel, Mr. Garrigan, a local attorney, $400 per hour. The court, however, adjusted the claimed hourly rates ofthe Goldstein Demchak attorneys downward from those prevailing in their hometown California market ($650 per hour for partners and proportionately lower for associates and paralegals) to those prevailing in the Eastern District of Texas. The court reasoned that: (1) it had not been shown that attorneys from outside the Eastern District of Texas were necessary to the representation of the plaintiff class; (2) the Fifth Circuit requires compensation at locally prevalent rates rather than the rates charged in one ofthe highest priced legal markets in the United States; (3) the Goldstein Demchak attorneys performed second-chair trial duties, which did not entitle them to be paid at rates fIfty percent higher than those of Garrigan.
6 Our decision in Hopwood, supra, is not inconsistent with this holding. Hopwood affirmed the district court's finding that higher-priced out-of·district counsel were not essential to prosecuting the appeal for which compensation was sought.
11

Case: 10-40036 Document: 00511564343 Page: 12 Date Filed: 08/08/2011
No. 10-40036 Unfortunately, the district court clearly erred in finding that local counsel were readily available to assist Garrigan, and it legally erred in suggesting that local community rates are always required when out-of-district counsel are employed. These errors require us to reverse and remand the award to the Goldstein Demchak lawyers for further consideration. Some further elaboration is useful. First, as was discussed above, the record is replete with affidavits from a variety of expert employment lawyers who swore that no Texas attorneys were willing and able to assist in such a large case that might drag on for years without any guarantee of financial remuneration. Lufkin provided no rebuttal evidence. The district court explained only that it was "aware" of many attorneys in the Eastern District experienced in employment law and complex litigation, and it named two attorneys, neither of whom is otherwise mentioned in the evidence. Yet, "[t]he hourly fee awarded must be supported by the record; the district court may not simply rely on its own experience in the relevant legal market to set a reasonable hourly billing rate." League of United Latin Am. Citizens v. Roscoe I. S.D. , 119 F.3d 1228, 1234 (5th Cir. 1997). The district court clearly erred in finding contrary to the record that local attorneys were available to assist in the representation. Second, we here clarify our adherence to the common view ofcircuit courts that in the unusual cases where out-of-district counsel are proven to be necessary to secure adequate representation for a civil rights plaintiff, the rates charged by that firm are the starting point for the lodestar calculation. See generally Hadix, 65 F.3d at 535; Zolfo, Cooper & Co., 50 F.3d at 259-61; Casey, 12 F.3d at 805-06; Nat'l Wildlife Fed'n, 859 F.2d at 317; Maceira, 698 at 40. This court's focus on local community rates, like that of the Supreme Court in Blum, sets a floor for compensation, to emphasize that civil rights litigation under a
12

Case: 10-40036 Document: 00511564343 Page: 13 Date Filed: 08/08/2011
No. 10-40036 fee-shifting statute is not a pro bono enterprise. On the other hand, the statutes' purposes are not fulfilled ifcounsel reap a windfall at the expense of a defendant by overcharging for their services. See Riverside v. Rivera, 477 U.S. 561, 580 (1986) ("Congress intended that statutory fee awards be adequate to attract competent counsel, but not produce windfalls to attorneys." (internal quotations and citations omitted». Nor, as we have put it, are counsel necessarily entitled to what ''lions at the bar" command. See Van Ooteghem, 744 F.2d at 1338. The trial court legally erred by using the Eastern District of Texas rates for Goldstein Demchak as its starting point in this unusual situation.
As a consequence ofthese problems, the fee award to Goldstein Demchak must be recalculated on remand. The firm's California rates ought not be simply inserted into the court's previous calculations; that they are the new starting point does not require them to be the end point of analysis. See cases cited supra. It is apparent that the court carefully tailored the award, adjusting it, inter alia, for the second chair role played by the firm, approving hourly rates for travel time, removing a small amount of duplicative work and as will be noted, discounting the hours spent on unsuccessful claims in the litigation. To the extent the court deems appropriate, it may have to reconsider all aspects of the fee award to achieve reasonable compensation in light ofthe results obtained for the class members. B. Comparability of plaintiffs' and defense's counsel fees
Although we have concluded already that remand is necessary, it is appropriate to address and firmly reject plaintiffs' other challenge to the fee award, arising from the Supreme Court's recent opinion in Perdue v. Kenny A. ex reI. Winn, 130 S. Ct. 1662 (2010). In Perdue, the Court approved, only ''in extraordinary circumstances," an increase in the attorneys' fee lodestar "due to superior performance and results." Id. at 1669. Two Justices specially
13

Case: 10-40036 Document: 00511564343 Page: 14 Date Filed: 08/08/2011
No. 10-40036 concurred in emphasis of the rarity of such cases. See id. at 1677 (Kennedy, J, concurring); id. at 1677-78 (Thomas, J., concurring). True, Perdue notes in passing that "the lodestar method produces an award that roughly approximates the fee that the prevailing attorney would have received if he or she had been representing a paying client who was billed by the hour in a comparable case." Id. at 1672 (emphasis in original). But Perdue never requires or even hints at the plaintiffs' proposition: that their hourly rates should approximate those charged by the defense counsel.
The plaintiffs persuaded the district court to allow discovery of defense counsel's fees and to write on the question of parity between plaintiff and defense counsel. No prior Fifth Circuit authority requires this comparison, nor does common experience, because the tasks and roles ofcounsel on opposite sides of a case vary fundamentally. If there were logical comparability, this court's decisions would have recognized it in the Johnson factors or in past lodestar decisions. And if, perchance, defense counsel had charged less in the course of this litigation, plaintiffs would have avoided any paean to comparability. See Graves v. Barnes, 760 F.2d 200 (5th Cir. 1983). To top it off, opposing counsel's total charge for the litigation was $4,864,923.37 - only $124,728 more than the court awarded to plaintiffs. That difference is just 2.63% of plaintiffs' total fee award (and 2.15% of plaintiffs' total award including costs). One would suppose a 2.63% disparity falls within a "rough approximation,"S but this leads plaintiffs
• At least one other court has referred to a 10 percent reduction in fee awards as "slight." See Zolfo, 50 F.3d at 261 (''The bankruptcy court cut Zolfo Cooper's total compensation request approximately twelve percent. When faced with a reduction of ten percent in a similar case, we stated that 'no court, viewing a record of this magnitude from the distance inherent in appellate review, could assess the reasonability of a reduction as slight as ten percent with flawless precision.'" (citation omitted».
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Case: 10-40036 Document: 00511564343 Page: 15 Date Filed: 08/08/2011
No. 10-40036 down a new rabbit trail, and they begin to argue about the higher time-value of money for fees paid during the litigation than at its conclusion.
We decline to layer needless complexity in an area in which current law is practical and clear. On remand, the district court need not consider Perdue. C. Fees for unsuccessful claims
On cross-appeal, Lufkin attacks the other half of the district court's lodestar calculation - the number ofhours reasonably expended. Lufkin claims that plaintiffs were awarded fees accrued in pursuing claims that were not successful. While plaintiffs initially waged an across-the-board challenge to Lufkin's employment procedures, the disparate treatment claims were dismissed,7 and they prevailed only on the disparate impact claim relating to Lufkin's promotion practices. Lufkin must show clear error in the district court's factual determinations.
Our decision to remand the case to the district court to recalculate the fee award using Goldstein Demchak's home-district rates as a starting point also disposes of this issue. Calculating fee awards is a holistic endeavor. See generally Hensley, 461 U.S. at 429-37 (explaining that the amount offees "must be determined on the facts of each case" and noting numerous competing considerations that might be balanced in determining the proper "equitable judgment"). Consequently, the district court may deem it necessary to reconsider this element of the fee award.
III. BACK PAY CALCULATIONS Lufkin argues on cross-appeal that the district court erred in its calculation of back pay. Following the instructions of the McClain II panel, the district court awarded plaintiffs $3.3 million in back pay damages and $2.2
7 See McClain II, 519 F.3d at 282-83.
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Case: 10-40036 Document: 00511564343 Page: 16 Date Filed: 08/08/2011
No. 10-40036 million in pre-judgment interest to reflect a total of 136 lost promotions. We omit discussion of the finer details of the back pay award except to note that damages commence on March 6, 1994, or 300 days before McClain filed his EEOC claim. Title VII provides that, except for continuing violations like harassment, damages may only be awarded for violations that occurred 300 days before an EEOC charge is filed. See 42 U.S.C. 2000e-5(e)(1).
Lufkin now contends that the district court should have awarded damages commencing no earlier than April 2, 1996, or 300 days before Thomas filed his EEOC claim. Lufkin reasons that because McClain II held that only Thomas's EEOC claim sufficiently exhausted administrative remedies, only that claim may provide the benchmark for the 300-day calculation. Starting damages two years later, Lufkin argues, produces two results: the $593,208 in damages assessed for 1994-95 should be vacated; and the entire back pay award for the post-1996 period should be vacated because there is no statistically signilicant indication of racial discrimination using post-1996 data.
Lufkin does not appear to dispute that the district court correctly followed the instructions of McClain II. Therefore, Lufkin's attack on the district court's order is really an attack on the holding of McClain II. This court's rule of orderliness prevents one panel from overruling the decision of a prior panel. Teague v. City of Flower Mound, 179 F.3d 377, 383 (5th Cir. 1999). In addition, under the law-of-the-case doctrine, "an issue of law or fact decided on appeal may not be reexamined either by the district court on remand or by the appellate court on a subsequent appeal." Fuhrman v. Dretke, 442 F.3d 893, 896 (5th Cir. 2006) (citations and quotations omitted). Nevertheless, Lufkin argues that we may in effect overrule the previous panel because (1) an intervening 2010 Supreme Court opinion clarifies the 300-day time bar; (2) the law of the case does not apply because the McClain II implicit decision on limitations was not
16

Case: 10-40036 Document: 00511564343 Page: 17 Date Filed: 08/08/2011
No. 10-40036 squarely considered by the prior panel and was clearly wrong; and (3) McClain II may be set aside in order to prevent manifest injustice. On this record, we must reject these contentions.
First, the intervening Supreme Court decision on which Lufkin relies adds nothing. In Lewis v. City of Chicago, 130 S. Ct. 2191 (2010), the Court rejected class certification for a sub-class of plaintiffs who alleged injury prior to the Title VII 300-day bar. Lewis neither forged new law nor elaborated on the 300-day period. Indeed, the 300-day statutory bar was clear well before Lewis. See, e.g., United Air Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977) ("A discriminatory act which is not made the basis for a timely charge is the legal equivalent of a discriminatory act which occurred before the statute was passed .... [It] has no present legal consequences.").
Second, Lufkin claims that McClain II overlooked the question of the proper date on which to commence damages for the lost promotion claim, and therefore, the law-of-the-case doctrine does not apply. McClain II noted, however, that Lufkin did not contest Thomas's 1997 EEOC claim at trial:
Although McClain's EEOC complaint and the OFCCP investigation failed to exhaust the employees' class claims, Buford Thomas's EEOC complaint carries part of the requisite burden. . . . We conclude, however, that exhaustion was sufficient. Significantly, Lufkin did not contend otherwise in the trial court!' (emphasis added). See 519 F.3d at 275. According to Lufkin, the McClain II panel erred by not following the logic of its argument to the conclusion that any damages owed to the class for lost promotions must therefore be limited to the 300-day period preceding Thomas's claim. That McClain II did not go this extra mile is clear. That a proper application of the Title VII statute of limitations would have required this result is also clear.
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Case: 10-40036 Document: 00511564343 Page: 18 Date Filed: 08/08/2011
No. 10-40036 The question before this court, then, is whether the law of the case doctrine should not apply either because McClain II overlooked this point or because manifest injustice ensues from a failure to vacate and remand the damage award. Lufkin, we believe, does not merit our exercise of discretion to "correct" McClain II for two reasons. First, Lufkin waived its right to complain about the correct application of the time bar. Lufkin acknowledges in this appeal that it did not question at trial the sufficiency of Thomas's EEOC claim to exhaust administrative remedies for the class. Lufkin also admits that, as a consequence, it made no argument in the trial court or to this court on appeal concerningthe proper time bar ifThomas's exhausted claim became the linchpin for the class's claims. Yet Lufkin strenuously challenged, and we ultimately upheld its challenge, of the sufficiency of McClain's EEOC charge to exhaust remedies for the class. Why Lufkin chose not to question, as a fallback, the ramifications of Thomas's EEOC claim is unstated. Lufkin added Thomas's EEOC charge to the trial court record. Lufkin now asserts that "no one" at the trial court level sought relief on that charge. But it is part of the record and Lufkin does not deny that it has operative effect. That this court overlooked how the 300-day statute of limitation would apply to claims founded on Thomas's EEOC charge is in large measure a product of Lufkin's oversight. Second, despite the large sum of damages alleged to turn on this issue, we do not fmd "manifest injustice" that necessitates "correction." This case has been in litigation nearly fifteen years and has spawned five appeals. Vacating the damage award and remanding for further proceedings would be a costly and complex undertaking. It is likely that whatever amount Lufkin successfully shaved off the damage award would be offset by the attorneys' fees plaintiffs
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Case: 10-40036 Document: 00511564343 Page: 19 Date Filed: 08/08/2011
No. 10-40036 would accrue on remand. Given this economic reality and the background circumstances, justice is better served by finality.
We therefore affirm the district court's back pay calculation.s CONCLUSION
We maintain-indeed, this panel has no authority to abrogate-our longstanding rule that attorneys for successful civil rights plaintiffs should presumptively receive local forum prevailing rates. The case before us today, however, is atypical because an avalanche of unrebutted evidence established that (1) plaintiffs' counsel required assistance in prosecuting the case and (2) no lawyers within the district or state were available to assist on this particular case. As a result, the trial court erred in failing to calculate the initial lodestar using the rates Goldstein Demchak attorneys typically charge in their own home district. The court, on remand, must reconsider the fee award using those rates as a starting point. We intimate no view on the final fee award to be issued.
There is no reversible error, however, in the district court's calculation of back pay.
For the foregoing reasons, the judgment of the district court IS AFFIRMED IN PART, VACATED AND REMANDED IN PART.
8 Because we conclude that the district court did not err in its use of 1994 as a backstop, we do not address Lufkin's arguments as to plaintiffs' inability to demonstrate a statistically significant shortfall in promotions.
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Case: 10-40036 Document: 00511564343 Page: 20 Date Filed: 08/08/2011
No. 10-40036 EDITH H. JONES, Chief Judge, concurring:
Although it is unusual, I feel obliged to clarify a couple of points because of Judge Dennis's concurrence and to add one overarching comment.
Judge Dennis suggests that the majority opinion does not "categorically prohibit" district courts from comparing the fees of defense counsel and prevailing plaintiffs' counsel when statutory fee shifting occurs. The language may not be "categorical," but it certainly disfavors inquiries on the precise "comparability" of plaintiffs' and defense counsel's fees such as the plaintiffs sought here. Because neither Judge Dennis nor the plaintiffs cite any authority besides dicta in Perdue supporting the inapt comparison, and such comparisons are bound to distract district courts from the basic question of the reasonableness of the plaintiffs' fees, questions of comparability "layer needless complexity" in an area where the law is practical and clear.
Judge Dennis also suggests that the majority does not approve the trial court's characterization of the Goldstein Demchak fIrm's services as those of second-chair counsel. Of course we did. This opinion fInds error in two of the three relevant fIndings by the district court, but we do not criticize its third fInding, that "Goldstein Demchak attorneys performed second-chair trial duties ...." Moreover, we note that because the district court "carefully tailored the award, adjusting it, inter alia, for the second-chair role played by the fIrm," it may have to reconsider all aspects ofthe fee award. No clear error was shown in this fInding by the district court, which reviewed the previous proceedings thoroughly. This fInding by the district court is not reversed, and it may become relevant on remand.
It cannot escape the reader's attention that the Goldstein Demchak fIrm has been authorized to receive several million dollars in fees, and a million dollars in expenses, for prevailing in this protracted case. But to them, that's
20

Case: 10-40036 Document: 00511564343 Page: 21 Date Filed: 08/08/2011 No. 10-40036
not enough, and they seek an hourly increase that will add $3 million more to their award. Ifthat happens, the attorneys will have received nearly double the dollar award of the plaintiffs. What has fee shifting come to? This is not an appeal about incentivizing modestly compensated attorneys for pursuing noble goals: the $400 hourly rate awarded to Mr. Garrigan is hardly a day laborer's fee. This appeal is designed simply to enrich, not to enhance or encourage. The Supreme Court holds that fee-shifting cannot bring a windfall to attorneys. See Rivera, supra. On remand, the district court should exercise its discretion within the parameters we have set out to prevent a windfall recovery. See Hensley, supra.
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Case: 10-40036 Document: 00511564343 Page: 22 Date Filed: 08/08/2011
No. 10-40036 DENNIS, Circuit Judge, concurring in the judgment.
I agree with much of the majority opinion - particularly its adoption of the generally accepted rule that "[w]hen fees are sought for an out-of-town specialist [attorney], courts must determine (1) whether hiring the out-oftown specialist was reasonable in the fIrst instance, and (2) whether the rates sought by the out-of-town specialist are reasonable for an attorney of his or her degree of skill, experience, and reputation." Hadix v. Johnson, 65 F.3d 532, 535 (6th Cir. 2005).' I further agree that the application of this rule to the facts of this case requires us to vacate the district court's award of attorneys' fees to Goldstein Demchak and remand for reconsideration using the fIrm's usual rates as the basis for calculating the lodestar fIgure. I also agree with the majority's decision to affIrm the district court's calculation of back pay.
Insofar as the majority opinion states that the Supreme Court's recent opinion in Perdue v. Kenny A. ex rei. Winn, 130 S. Ct. 1662 (2010), does not require parity between the hourly rates or total fees of the prevailing party's counsel and the other side's counsel, I agree with that conclusion. However, the Perdue Court's comment that "the lodestar method produces an award that roughly approximates the fee that the prevailing attorney would have received if he or she had been representing a paying client who was billed by the hour in a comparable case," id. at 1672, does indicate to me that the
1 This approach has been followed, with minor variations, by at least nine circuits. See, e.g., Simmons v. N.Y. City Transit Auth., 575 F.3d 170, 175-76 (2d Cir. 2009); Mathurv. Bd. of Trustees of S. fll. Univ., 317 F.3d 738, 744 (7th Cir. 2003); Zolfo, Cooper & Co. v. SunbeamOster Co., 50 F.3d 253, 259 (3d Cir. 1995); Casey v. City of Cabool, Mo., 12 F.3d 799, 805 (8th Cir. 1993); Gates v. Deukmejian, 987 F.2d 1392, 1405-06 (9th Cir. 1992); Nat7 Wildlife Fed'n v. Hanson, 859 F.2d 313,317 (4th Cir. 1988); Maceira v. Pagan, 698 F.2d 38,40 (1st Cir. 1983); Donnell v. United States, 682 F.2d 240, 252 (D.C. Cir. 1982).
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Case: 10-40036 Document: 00511564343 Page: 23 Date Filed: 08/08/2011
No. 10-40036 hourly rates or total fees charged by defense counsel are relevant to the question of what is a reasonable hourly rate or total fee for a prevailing plaintiffs counsel. As the Seventh Circuit has put it, ''when the defendant has hired expensive, out of town counsel, the plaintiffs seem justified in saying that the nature of the case required the skills of out of town specialists." Chrapliwy v. Uniroyal, Inc., 670 F.2d 760,768 n.18 (7th Cir. 1982). In at least some cases, the ''hourly rates charged by the defendant's attorneys provide a helpful guide in determining whether similarly high rates and hours requested by the plaintiffs were reasonable." Id. I do not read the majority opinion as categorically prohibiting district courts from ever considering the rates charged by the opposing party's counsel when determining fee awards under fee-shifting statutes. In any event, consideration of defense counsel's fees appears to be unnecessary in the present case, given that "an avalanche of unrebutted evidence" (in the majority's words) already establishes that Goldstein Demchak's usual rates are the proper basis for the lodestar calculation.
The majority opinion does not address the question of whether the district court committed clear error by characterizing the Goldstein Demchak attorneys as playing a mere "second-chair" role.2 It is unclear whether the characterization of an attorney as "second-chair" is at all relevant to the proper calculation of the fee award.3 But even if it is, the undisputed
2 Normally there would be good reason to defer to the trial judge's characterization of an attorney's role in a case. However, in this case, the judge who determined the award of attorneys' fees was not the same judge who presided over the trial.
3 If anything, it may be relevant to "whether hiring the out·of·town specialist was reasonable in the fIrst instance," Hadix, 65 F.3d at 535. But that question is no longer at issue in this case, since the majority opinion rightly concludes that the evidence in the record overwhelmingly shows that hiring Goldstein Demchak was reasonable.
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Case: 10-40036 Document: 00511564343 Page: 24 Date Filed: 08/08/2011 No. 10-40036
evidence in the record clearly establishes that the fIrm did not playa "secondchair" role in litigating this case. Attorneys and staff from Goldstein Demchak worked more than four times as many billable hours on this case as did Garrigan and his one paralegal. At trial, Goldstein Demchak attorneys examined 11 out of 22 witnesses, including both sides' expert witnesses. And Garrigan sought the fIrm's help in the fIrst place because of its superior reputation and expertise in the field of employment discrimination class action litigation. These facts are inconsistent with a mere "second-chair" role. Therefore, on remand, the district court should not rely on the erroneous "second-chair" label as grounds for reducing the fee award to Goldstein Demchak.
With these observations, I concur in the result reached by the majority: affIrming the district court's calculation of back pay, vacating the fee award to Goldstein Demchak, and remanding for reconsideration of the fee award.
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