IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

VIVIAN BERT, et al.,

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Plaintiffs,

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v.

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AK STEEL CORPORATION,

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Defendant.

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__________________________________________)

Case No. C-1-02-467 Judge Beckwith
SECOND AMENDED COMPLAINT CLASS ACTION JURY DEMAND

Come the Plaintiffs, Vivian Bert, Thaddeus Freeman, Darrell Carter, Edward James Lewis,

Timothy Oliphant, Mary Harris, Roderique Russell, Kay Jackson, Marnie Carter, Darlene Denise

Carter, Dwight Lewis, Michael Miller, Ronald Sloan, Donald Edwards, Shawn Pryor, Tiffany

Jackson, and Allen Roberts, individually and on behalf of all other similarly situated persons, and for

their cause of action state as follows:

I. NATURE OF THIS ACTION

1. This action is brought on behalf of sixteen African-American applicants for

employment with AK Steel and one African-American AK Steel employee (hereafter “Plaintiffs”)

against AK Steel Corporation (hereafter “Defendant” or “AK Steel”). Plaintiffs join individual

claims to redress the Defendant’s continuing systemic racial discrimination in hiring and, in

addition, seek to represent a class of African-American persons similarly situated to redress the

Defendant’s continuing systemic racial discrimination in hiring.

2. Defendant has discriminated, and continues to discriminate, against African-

American Plaintiffs Vivian Bert, Thaddeus Freeman, Darrell Carter, Edward James Lewis, Timothy

Oliphant, Mary Harris, Roderique Russell, Kay Jackson, Marnie Carter, Darlene Denise Carter,

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Dwight Lewis, Michael Miller, Ronald Sloan, Donald Edwards, Shawn Pryor, and Tiffany Jackson, and against similarly-situated African-American persons on a class-wide basis, in hiring practices. By employing discriminatory hiring selection policies, practices and procedures, and perpetuating the existence of a racially hostile employment application process, Defendant intentionally discriminates against African-American applicants and arbitrarily denies them employment in positions for which they are qualified.
3. This action seeks equitable and declaratory relief for all individual Plaintiffs and for the proposed hiring class, as well as nominal and punitive damages at law and other incidental monetary and non-monetary remedies necessary to make them whole for the sixteen individual applicant Plaintiffs.
4. In Counts Three and Four, employee plaintiff Allen Roberts files a third party charge against Defendant for its discrimination in hiring. Defendant discriminates against all of its employees by preventing its employees from working in a racially integrated environment free from racial discrimination.
5. Employee plaintiff Roberts seeks nominal, compensatory, and punitive damages at law and other incidental monetary and non-monetary remedies necessary to make him whole. II. JURISDICTION AND VENUE
6. This Court has jurisdiction pursuant to the Civil Rights Act of 1866, 42 U.S.C. § 1981 and Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000(e)-5(f), et seq., as amended, to redress and enjoin employment practices of defendant AK Steel in violation of these statutes.
7. Venue is proper in this Court in the Southern District of Ohio because Defendant AK
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Steel Corporation does business in the State of Ohio, the business records of the Defendant are maintained in the State of Ohio, many of the unlawful practices described herein occurred in the State of Ohio, and because many of the Plaintiffs reside in Ohio and worked for the Defendant in the State of Ohio or would have worked for the Defendant in the State of Ohio absent the discrimination complained of herein. III. CONDITIONS PRECEDENT TO SUIT
8. The Plaintiffs’ claims arising under 42 U.S.C. § 1981 do not require administrative exhaustion. Plaintiff Allen Roberts, an AK Steel employee, has filed a third-party charge of classwide racial discrimination in hiring with the United States Equal Employment Opportunity Commission (“EEOC”) in Ohio and filed suit within ninety (90)days of the receipt of his notice or right to sue. Plaintiffs Vivian Bert, Thaddeus Freeman, Darrell Carter, Edward James Lewis, Timothy Oliphant, Mary Harris, Roderique Russell, Kay Jackson, Marnie Carter, Darlene Denise Carter, Dwight Lewis, Michael Miller, Ronald Sloan, Donald Edwards, Shawn Pryor, and Tiffany Jackson, proposed representatives of the hiring class, have filed charges of class-wide racial discrimination in hiring with the EEOC in Ohio and Kentucky. Plaintiffs Vivian Bert, Thaddeus Freeman, Mary Harris Ronald Sloan, Shawn Pryor, Michael Miller, Roderique Russell, Donald Edwards, and Edward Lewis received EEOC right to sue notices that were dated January 9, 2003. IV. PARTIES
A. PLAINTIFFS 9. Plaintiff Vivian Bert is an African-American resident of Middletown, Ohio. Bert applied for employment at AK Steel in Middletown, Ohio in April 2002, was qualified, and was rejected. She is a representative of the proposed hiring class.
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10. Thaddeus Freeman is an African-American resident of Middletown, Ohio. Freeman applied for employment at AK Steel in Middletown, Ohio in April 2002, was qualified, and was rejected. He is a representative of the proposed hiring class.
11. Plaintiff Darrell Carter (“D. Carter”)is an African-American resident of Ironton, Ohio. D. Carter applied for employment at AK Steel in Ashland, Kentucky in April 2002, was qualified, and was rejected. He is a representative of the proposed hiring class.
12. Plaintiff Edward James Lewis (“E. J. Lewis”) is an African-American resident of Middletown, Ohio. E. J. Lewis applied for employment at AK Steel in Middletown, Ohio in November 2001, was qualified, and was rejected. He is a representative of the proposed hiring class.
13. Plaintiff Timothy Oliphant is an African-American resident of Portsmouth, Ohio. Oliphant applied for employment at AK Steel in Ashland, Kentucky in April 2002, was qualified, and was rejected. He is a representative of the proposed hiring class.
14. Plaintiff Mary Harris is an African-American resident of Cincinnati, Ohio. Harris applied for employment at AK Steel in Middletown, Ohio in April 2002, was qualified, and was rejected. She is a representative of the proposed hiring class.
15. Plaintiff Roderique Russell is an African-American resident of Middletown, Ohio. Russell applied for employment at AK Steel in Middletown, Ohio in September 2001, was qualified, and was rejected. He is a representative of the proposed hiring class.
16. Plaintiff Kay Jackson is an African-American resident of Greenup, Kentucky. Jackson applied for employment at AK Steel in Ashland, Kentucky in May 2002, was qualified, and was rejected. She is a representative of the proposed hiring class.
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17. Plaintiff Marnie Carter (“M. Carter”) is an African-American resident of Ironton, Ohio. M. Carter applied for employment at AK Steel in Ashland, Kentucky in January 2002, was qualified, and was rejected. She is a representative of the proposed hiring class.
18. Plaintiff Darlene Denise Carter (“D. D. Carter”) is an African-American resident of Ironton, Ohio. D. D. Carter applied for employment at AK Steel in Ashland, Kentucky in January 2002, was qualified, and was rejected. She is a representative of the proposed hiring class.
19. Plaintiff Dwight Lewis (“D. Lewis”) is an African-American resident of Portsmouth, Ohio. D. Lewis applied for employment at AK Steel in Ashland, Kentucky in May 2002, was qualified, and was rejected. He is a representative of the proposed hiring class.
20. Plaintiff Michael Miller is an African-American resident of Dayton, Ohio. Miller applied for employment at AK Steel in Middletown, Ohio in January 2002, was qualified, and was rejected. He is a representative of the proposed hiring class.
21. Plaintiff Ronald Sloan is an African-American resident of Middletown, Ohio. Sloan applied for employment at AK Steel in Middletown, Ohio in September 2001, was qualified, and was rejected. He is a representative of the proposed hiring class.
22. Plaintiff Donald Edwards is an African-American resident of Middletown, Ohio. Edwards applied for employment at AK Steel in Middletown, Ohio in January 2002, was qualified, and was rejected. He is a representative of the proposed hiring class.
23. Plaintiff Shawn Pryor is an African-American resident of Middletown, Ohio. Edwards applied for employment at AK Steel in Middletown, Ohio in October 2001, was qualified, and was rejected. He is a representative of the proposed hiring class.
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24. Plaintiff Tiffany Jackson is an African-American resident of Greenup, Kentucky. Jackson applied for employment at AK Steel in Ashland, Kentucky in May 2002, was qualified, and was rejected. She is a representative of the proposed hiring class.
25. Plaintiff Allen Roberts is an African-American resident of Middletown, Ohio. Roberts has been employed by AK Steel in Middletown, Ohio since approximately April 25, 1988 in the capacity of a maintenance repairman. He filed a third party charge on behalf of AfricanAmericans.
B. DEFENDANT 26. Defendant AK Steel Corporation is a corporation whose corporate office is located in Middletown, Ohio. It maintains major plant and office locations in Middletown, Coshocton, Mansfield, Walbridge and Zanesville, Ohio; Ashland, Kentucky; Rockport, Indiana; and Butler, Pennsylvania, employing approximately 10,700 people. AK Steel Corporation is also an individual subject to suit under Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000(e)-5(f), et seq., as amended, and 42 U.S.C. §§ 1981 and 1981(A), as amended. Defendant AK Steel produces flatrolled carbon, stainless and electrical steel products for use in automotive, appliance, construction and manufacturing markets. Its stainless steels are also used in, among other things, food processing equipment, chemical and petrochemical equipment and industrial equipment. AK Steel is the only full-line domestic producer of energy efficient electrical steels for power generation, power and distribution transformers, lighting systems and electric motors. The acts set forth in this Complaint were authorized, ordered, and/or done by Defendant AK Steel Corporation, and its officers, agents, employees, and/or representatives while actively engaged in the management of Defendant AK Steel Corporation’s business.
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B. COMMON QUESTIONS OF LAW AND FACT 27. The prosecution of the claims of the individual Plaintiffs requires adjudication of numerous questions of law and fact common to their individual claims. The common questions of law would include, inter alia: (1) whether Defendant has engaged in intentional race discrimination in its hiring policies, practices and procedures and in the creation of a racially hostile application process in a manner made unlawful under the statutes under which this action is brought; (2) whether Defendant’s hiring policies, procedures, and/or practices have a disparate impact upon African-American applicants in violation of Title VII. The common questions of fact would include, inter alia: whether Defendant has, through its policies, practices and procedures, (a) prevented the African-American applicant Plaintiffs from being selected for job opportunities; (b) subjected the applicant Plaintiffs to a racially hostile application process; (c) denied its employees the right to work in a racially integrated environment free from racial discrimination; and (d) caused AfricanAmerican applicants to be adversely impacted in the hiring process. Further common questions of fact include whether AK Steel engaged in intentional racial discrimination and retaliation by failing and refusing to address adequately complaints of racial discrimination and harassment in hiring brought by African-American and white employees. 28. Inquiry into the Defendant’s hiring practices, procedures, and data will be required to resolve these and other common questions and to fashion appropriate relief for the individual Plaintiffs.
VI. CLASS ACTION ALLEGATIONS
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A. Definition of the Hiring Class 29. The proposed hiring class consists of all African-American persons who applied and were rejected for employment, or were deterred or discouraged from applying for employment, with AK Steel at any time since June 26, 1998, four years prior to the filing of this Complaint, pursuant to 28 U.S.C. §1658. B. Efficiency of Class Prosecution of Common Claims 30. The individual claims of the Plaintiffs require resolution of the common questions of whether AK Steel has engaged in a systemic pattern and/or practice of racial discrimination against African-American applicants in hiring policies, practices, and procedures that have resulted in disparate treatment of, as well as a disparate impact upon, African-American applicants. 31. The applicant Plaintiffs and employee Plaintiff seek remedies to eliminate the adverse effects of such discrimination in their own lives and careers, and in the lives and careers of the proposed class members, and to prevent such continued racial discrimination in the future. 32. Plaintiffs have standing to seek such relief because of the deleterious way in which such discrimination has affected them individually, and African-Americans generally, including those who applied and were rejected, those who were deterred from applying, and those employees who were prevented from working in a racially integrated environment free from racial discrimination. 33. As a basis for the relief Plaintiffs seek both for themselves and for the putative class members, Plaintiffs will establish the existence of systemic racial discrimination at AK Steel. Without class certification, the same evidence and issues would be subject to re-litigation in a multitude of individual lawsuits with the attendant risk of inconsistent adjudications and conflicting
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obligations. 34. Certification of a class of African-American applicants similarly situated to the
applicant Plaintiffs is the most efficient, economical, and judicious means of presenting the evidence and arguments necessary to resolve, for the named Plaintiffs, the proposed class, and AK Steel, the questions of law and fact which are common to the claim of the named Plaintiffs and the proposed class.
35. The named Plaintiffs’ individual and class claims are premised upon the traditional bifurcated method of proof and trial for disparate impact and systemic disparate treatment claims of the type at issue in this case. Such a bifurcated method of proof and trial is the most efficient method of resolving such common issues.
C. Numerosity and Impracticability of Joinder 36. The size of the proposed class which the named Plaintiffs seek to represent is at present unknown but is expected to number in the hundreds and is too numerous to make joinder practicable. The proposed class consist of all past, present, and future African-American applicants for employment at AK Steel Plants, including those in Middletown, Ohio and Ashland, Kentucky, during the liability period. D. Common Questions of Law and Fact 37. The prosecution of the claims of the applicant Plaintiffs will require the adjudication of numerous questions of law and fact common to both their individual claims and those of the putative class they seek to represent. The common questions of law would include, inter alia, whether AK Steel has engaged in unlawful, intentional race discrimination in its hiring policies, practices, and procedures; whether AK Steel has utilized policies, procedures, and/or practices
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which have had a disparate impact upon African-American applicants; whether AK Steel is liable for a continuing systemic violation of Title VII and §1981; and what the proper standards are for proving a pattern or practice of discrimination by AK Steel against its African-American applicants. The common questions of fact would include, inter alia: whether AK Steel has, through its policies, practices and procedures, (a) precluded or delayed the hiring of African-Americans; (b) deterred or discouraged African-Americans from applying for employment; and (c) denied AfricanAmerican employees the right to work in a racially integrated environment free from racial discrimination.
E. Typicality of Claims and Relief Sought 38. The claims of the applicant Plaintiffs are typical of the claims of the proposed class. The relief sought by the named Plaintiffs is also typical of the relief which is sought on behalf of the proposed class. 39. The relief necessary to remedy the claims of the named Plaintiffs is exactly the same as that necessary to remedy the claims of the proposed class members in this case. The named Plaintiffs seek relief for their individual claims and those of the members of the proposed class including, but not limited to: (a) a declaratory judgment that AK Steel has engaged in systemic racial discrimination against African-American applicants; (b) a permanent injunction against such continuing discriminatory conduct; (c) injunctive relief which effects a restructuring of AK Steel’s hiring policies, practices and procedures so that African-Americans will be able to compete fairly for hiring opportunities in the future; (d) back pay, front pay, nominal and punitive damages, and other equitable remedies necessary to make whole the African-American applicants from AK Steel’s past discrimination; and (e) attorneys’ fees, costs, and expenses.
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F. Adequacy of Representation

40. The applicant Plaintiffs/Class Representatives’ interests are co-extensive with those

of the members of the proposed class in this case. Each seeks to remedy AK Steel’s discriminatory

hiring policies, practices and procedures so that African-Americans will no longer be prevented from

obtaining jobs with AK Steel. Plaintiffs are willing and able to represent the proposed class as they

pursue their individual claims in this action. They have retained counsel who are qualified,

experienced, and competent both to conduct this litigation and to meet the time and fiscal demands

required to litigate an employment discrimination class action of this size and complexity. The

combined interests, experience and resources of the Plaintiffs and their counsel to litigate the

individual and class claims at issue in this case clearly satisfy the adequacy of representation

requirement of Fed.R.Civ.P. 23(a)(4).

G. Requirements of Rule 23(b)(2)

41. By adopting and following hiring policies, practices, and procedures which are both

racially discriminatory and systemic, AK Steel has acted on grounds generally applicable to the

Plaintiffs and proposed class. Racial discrimination is AK Steel’s standard operating procedure rather than a sporadic occurrence. AK Steel has, inter alia, failed to adopt and apply hiring policies,

practices, and procedures which do not systemically discriminate against African-Americans. AK

Steel’s systemic discrimination and refusal to act on grounds that are not racially discriminatory has

made appropriate final injunctive and declaratory relief with respect to the class as a whole.

42.

Injunctive and declaratory relief are the predominant relief sought in this case

because they are the culmination of the proof of AK Steel's individual and class-wide liability at the

end of Stage I of a bifurcated trial and the essential predicate for the named Plaintiffs’ and class

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members' entitlement to monetary and non-monetary remedies at Stage II of such trial. Declaratory and injunctive relief issue directly and automatically from proof of the common questions of law and fact regarding the existence of systemic racial discrimination against African-American applicants at AK Steel. Such relief is the factual and legal predicate for the named Plaintiffs’ and the class members’ entitlement to monetary and non-monetary remedies for individual losses caused by, and for exemplary purposes necessitated by, such systematic discrimination.
H. Requirements of Rule 23(b)(3) 43. The common issues of fact and law affecting the claims of the applicant Plaintiffs and proposed class members, including, but not limited to, the common issues identified in ¶¶ 27-40 above, predominate over any issues affecting only individual claims. 44. A class action is superior to other available means for the fair and efficient adjudication of the claims of the applicant Plaintiffs and members of the proposed class. 45. The cost of proving e cost of proving AK Steel’s pattern or practice of discrimination makes it impractical for the applicant Plaintiffs and members of the proposed class to control the prosecution of their claims individually. VII. CLASS CLAIMS 46. The Plaintiffs and the putative class they seek to represent have been subjected to a systemic pattern and practice of racial discrimination involving AK Steel’s hiring policies, practices and procedures. 47. AK Steel’s hiring policies, practices and procedures incorporate the following racially discriminatory practices: (a) disparate treatment based on race; (b) reliance upon subjective judgments, procedures and criteria which permit and encourage the incorporation of racial
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stereotypes and bias by Defendants’ predominately white managerial staff in making hiring decisions; (c) utilizing policies, practices, and/or procedures that have a disparate impact upon African-American applicants; and (d) failure to establish and/or follow policies, practices, procedures or criteria that reduce or eliminate disparate impact and/or intentional racial bias or stereotypes.
48. In its hiring policies, practices and procedures, AK Steel treats African-American applicants differently from whites, and AK Steel deters and discourages African-Americans from applying. AK Steel has a reputation in the communities surrounding its facilities of not hiring qualified African-American applicants. AK Steel’s hiring policies, practices, and procedures have had a disparate impact on African-Americans and such policies, practices, and procedures are not valid, job related, or justified by business necessity. There are alternative objective, structured and more valid selection procedures available to AK Steel, which are more closely related to the actual responsibilities of the positions, which would have less of a disparate impact on African-Americans.
49. Because of AK Steel’s systemic pattern and/or practice of racial discrimination, the Plaintiffs and the class they seek to represent have been adversely affected and have experienced harm, including the loss of compensation, wages, back pay, front pay, other employment benefits, embarrassment, emotional distress, humiliation, indignity, and resulting injury and loss. This pattern and/or practice of racial discrimination includes not being considered for employment and being prevented from working in a racially integrated environment free from racial discrimination.
50. The Plaintiffs have no plain, adequate or complete remedy at law to redress the wrongs alleged herein, and this suit is their only means of securing adequate relief. The Plaintiffs are now suffering and will continue to suffer irreparable injury from AK Steel’s unlawful policies,
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practices and procedures as set forth herein unless those policies, practices and procedures are enjoined by this Court.
VIII. INDIVIDUAL FACTUAL ALLEGATIONS 51. Plaintiff Vivian Bert applied for employment with AK Steel in Middletown, Ohio
in April 2002. 52. Defendant discriminated against Bert by denying her employment at AK Steel. In
about April 2002, Bert saw a job posting in the newspaper and on TV that AK Steel was hiring and filled out an application at a Middletown job center in a local shopping mall.
53. Bert applied for a clerical position. Bert possessed all the requisite skills, including ability to type sixty words per minute, use a clerical machine, operate word processing programs on a computer, and perform routine clerical tasks such as filing. In addition, Bert had worked at AK Steel in a clerical position from February 1982 until September 1984 when she was laid off due to downsizing and lack of seniority.
54. Bert was not offered the position despite her qualifications and experience. AK Steel never contacted Bert to acknowledge their receipt of her application, schedule an interview or test, or to notify her of rejection.
55. Upon information and belief, AK Steel hired one or more white individuals instead of Bert and did not hire Bert for discriminatory reasons.
56. As a result of Defendant’s discriminatory actions, Bert has suffered extreme harm. 57. Plaintiff Thaddeus Freeman applied for employment with AK Steel in Middletown, Ohio repeatedly for seven years. Freeman’s most recent application was in April 2002.
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58. Defendant discriminated against Freeman by denying him employment at AK Steel. In about April 2002, Freeman heard by word of mouth that AK Steel was hiring and filled out an application at AK Steel’s employment office.
59. Freeman applied for a general laborer position. Freeman had more than thirty years of continuous work experience in the grocery business cutting meat and in factories working on assembly lines. In addition, Freeman had a good work record of consistently dependable service.
60. In a 1999 job application to AK Steel, Freeman left blank the application question which asked him to specify his racial identity. After filing this application with AK Steel, Freeman was contacted to come in and take a test. When Freeman returned to the employment office to inquire into his performance on this test, Freeman was dismissed and told that somebody would call him regarding the test. Freeman never heard from AK Steel again.
61. In all subsequent applications, Freeman selected “African-American” as his racial identity. Each time, Freeman was not offered the position despite his qualifications and experience. AK Steel never contacted Freeman to acknowledge their receipt of his application, schedule an interview or test, or to notify Freeman of rejection.
62. Upon information and belief, AK Steel hired one or more white individuals instead of Freeman and did not hire Freeman for discriminatory reasons.
63. As a result of Defendant’s discriminatory actions, Freeman has suffered extreme harm.
64. Plaintiff Darrell Carter (“D. Carter”) applied for employment with AK Steel in Ashland, Kentucky in April 2002.
65. Defendant discriminated against D. Carter by denying him employment at AK Steel.
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In about April 2002, D. Carter heard by word of mouth that AK Steel was hiring and filled out an application with Susan Lester, a white AK Steel recruiter. Lester also scheduled a time for D. Carter to take the AK Steel entrance examination.
66. D. Carter applied for a general laborer position. D. Carter had eight years of continuous work experience as an iron pourer in the melting department of Ironton Iron Intermit, and was at the time of his application a student in Human Services Technology at Ohio University. Along with approximately a dozen other AK Steel applicants, D. Carter took a test that asked mechanical, logical, and common sense questions. D. Carter found the examination to be relatively easy and, after having completed it, anticipated that he had performed well. When D. Carter contacted Lester via phone two to three weeks later, however, Lester informed D. Carter that he had not passed the test. She offered no further information regarding D. Carter’s performance and refused to answer D. Carter’s questions.
67. Upon information and belief, AK Steel hired one or more white individuals instead of D. Carter and did not hire D. Carter for discriminatory reasons.
68. As a result of Defendant’s discriminatory actions, D. Carter has suffered extreme harm.
69. Plaintiff Edward James Lewis (“E. J. Lewis”) applied for employment with AK Steel in Middletown, Ohio in approximately November 2001.
70. Defendant discriminated against E. J. Lewis by denying him employment at AK Steel. In about November 2001, E. J. Lewis saw AK Steel’s help wanted advertizement in a local newspaper and submitted his application by giving it to a current AK Steel employee, Allen Roberts.
71. E. J. Lewis applied for a general laborer position. He had more than twelve years of
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continuous work experience as a construction worker, in which capacity he did sub-contract work through S and K Construction and Graycor Construction at the AK Steel plant in Middletown, Ohio. E. J. Lewis had ability in concrete and blacktop work, among other skills, as well as familiarity with AK Steel plant operations based on his experience working there.
72. E. J. Lewis was not offered the position despite his qualifications and experience. AK Steel never contacted E. J. Lewis to acknowledge their receipt of his application, schedule an interview or test, or to notify him of rejection.
73. Upon information and belief, AK Steel hired one or more white individuals instead of E. J. Lewis and did not hire E. J. Lewis for discriminatory reasons.
74. As a result of Defendant’s discriminatory actions, E. J. Lewis has suffered extreme harm.
75. Plaintiff Timothy Oliphant applied for employment with AK Steel in Ashland, KY in April 2002.
76. Defendant discriminated against Oliphant by denying him employment at AK Steel. Having found out at church that AK Steel was accepting applications, Oliphant visited the AK Steel booth at a job fair at a local shopping mall. There, AK Steel recruiter Rodney Cosby instructed Oliphant to fax Cosby his resume. AK Steel recruiter Susan Lester contacted Oliphant subsequently via email to schedule a time for Oliphant to take AK Steel’s qualifying exam.
77. Oliphant applied for a general labor position. Oliphant had twelve years of experience working as a machine operator for New Boston Coke Corporation and five years of experience laying rail and tie for the Norfolk & Southern Rail Company.
78. Approximately two to three days after taking the test, Oliphant contacted Lester via
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phone to inquire into his performance. Lester told Oliphant that he had not passed. Lester did not tell Oliphant his score or offer any other information regarding the examination.
79. Upon information and belief, AK Steel hired one or more white individuals instead of Oliphant and did not hire Oliphant for discriminatory reasons.
80. As a result of Defendant’s discriminatory actions, Oliphant has suffered extreme harm.
81. Plaintiff Mary Harris applied for employment with AK Steel in Middletown, Ohio in February 2002.
82. Defendant discriminated against Harris by denying her employment at AK Steel. Having learned that AK Steel was hiring through the Ohio Unemployment Office around February 2002, Harris submitted her application at that location.
83. Harris applied for a general laborer position. Harris had experience as a welder, doing bench assembly, and eight years of continuous employment experience at a General Electric factory doing labor, sub-labor, and assembly.
84. After Harris applied, she heard nothing back from AK Steel. Defendant did not acknowledge receipt of Harris’ application materials, schedule an interview or test, or notify her of rejection.
85. Upon information and belief, AK Steel hired one or more white individuals instead of Harris and did not hire Harris for discriminatory reasons.
86. As a result of Defendant’s discriminatory actions, Harris has suffered extreme harm. 87. Plaintiff Roderique Russell applied for employment with AK Steel in Middletown, Ohio in September 2001.
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88. Defendant discriminated against Russell by denying him employment at AK Steel. Russell applied for both a general labor and a management position. Russell held a bachelor of arts degree, the prerequisite to work in management. Russell’s work experience included approximately five years as a fourth hand paper maker at a paper mill, approximately two years as a K-8 substitute teacher in Middletown, and approximately three years as a Service Coordinator for Malachi, a faithbased government funded agency which serves as a resource center helping to find, among other things, tutors, jobs, and transportation to work for youths ages fourteen to twenty-one who live more than seventy percent below the poverty line.
89. In around September 2001, Russell was called in to take a test. Although he never received an assessment of his performance on this test, Russell was subsequently called in for an interview. At his interview, an AK Steel representative asked Russell if Russell would prefer to work in management or general labor. Russell responded that he would prefer to work in management but that he was interested in both positions. The AK Steel representative told Russell that Russell would be contacted for a second interview, but that was the last that Russell heard from AK Steel. In March 2002, Russell put in another application for a general laborer position, but Russell was not offered the position despite his qualifications. AK Steel did not acknowledge their receipt of Russell’s application materials, schedule an interview or test, or notify Russell of rejection.
90. Upon information and belief, AK Steel hired one or more white individuals instead of Russell and did not hire Russell for discriminatory reasons.
91. As a result of Defendant’s discriminatory actions, Russell has suffered extreme harm. 92. Plaintiff Kay Jackson applied for employment with AK Steel in Ashland, Kentucky
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in 1999, 2001, and on approximately May 9, 2002. 93. Defendant discriminated against Jackson by denying her employment at AK Steel.
In 1999, 2001, and on approximately May 9, 2002, Jackson applied for a general laborer or clerical position. Jackson had more than eighteen years of continuous work experience in a clerical capacity at Teneco Packaging. During each application process, Jackson was called in to take a test on basic mechanics, mathematics, and reading comprehension. After taking the test in 1999, an AK Steel representative told Jackson that Jackson had failed the test. Despite this, Jackson was subsequently contacted for a phone interview, during which time a hiring agent posed personal questions like “Why do you want to work at AK Steel?” A week later Jackson received a letter informing her that Jackson’s services were “not needed at this time.” In 2001, Jackson took the exam for a second time. Jackson was neither informed of her performance nor contacted for an interview or for any other reason. Since taking the exam on approximately May 9, 2002, Jackson has not been contacted by AK Steel. After Jackson took the exam in 1999, an AK Steel representative called Jackson within one week.
94. Upon information and belief, AK Steel hired one or more white individuals instead of Jackson and did not hire Jackson for discriminatory reasons.
95. As a result of Defendant’s discriminatory actions, Jackson has suffered extreme harm. 96. Plaintiff Marnie Carter (“M. Carter”) applied for employment with AK Steel in Ashland, Kentucky in January 2002. 97. Defendant discriminated against M. Carter by denying her employment at AK Steel. In about January 2002, M. Carter attended a career fair in Portsmouth, Ohio at which AK Steel had a booth. An AK Steel representative there gave M. Carter an application, which she submitted at the
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AK Steel plant. A week later, an AK Steel representative contacted M. Carter via phone to schedule M. Carter for a test given in the basement of the AK Steel plant.
98. M. Carter applied for a general laborer position. M. Carter had work experience as forklift operator at Ironton Iron Intermit. Along with approximately a dozen other AK Steel applicants, M. Carter took a test that asked logic, math, and general questions. Approximately a week and a half later, M. Carter spoke via telephone with AK Steel recruiter Susan Lester, who informed M. Carter that she had failed the test. Lester refused to answer M. Carter’s questions regarding her performance.
99. Upon information and belief, AK Steel hired one or more white individuals instead of M. Carter and did not hire M. Carter for discriminatory reasons.
100. As a result of Defendant’s discriminatory actions, M. Carter has suffered extreme harm.
101. Plaintiff Darlene Denise Carter (“D. D. Carter”) applied for employment with AK Steel in Ashland, Kentucky in January 2002.
102. Defendant discriminated against D. D. Carter by denying her employment at AK Steel. In about January 2002, D. D. Carter attended a career fair in Portsmouth, Ohio at which AK Steel had a booth. An AK Steel representative there gave D. D. Carter an application, which D. D. Carter submitted at AK Steel. A week later, an AK Steel representative contacted D. D. Carter via phone to schedule D. D. Carter for a test given in the basement of the AK Steel plant.
103. D. D. Carter applied for a general laborer position. Along with approximately a dozen other AK Steel applicants, D. D. Carter took a test that asked logic, math, and general questions. Approximately a week and a half later, D. D. Carter spoke via telephone with AK Steel
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recruiter Susan Lester, who informed D. D. Carter that she had failed the test. Lester refused to

answer D. D. Carter’s questions regarding her performance.

104. Upon information and belief, AK Steel hired one or more white individuals instead of

D. D. Carter and did not hire D. D. Carter for discriminatory reasons.

105. As a result of Defendant’s discriminatory actions, D. D. Carter has suffered extreme

harm.

106. Plaintiff Dwight Lewis (“D. Lewis”) applied for employment with AK Steel in

Ashland, Kentucky in May 2002.

107.

Defendant discriminated against D. Lewis by denying him employment at AK

Steel. In about May 2002, D. Lewis attended a career fair in Portsmouth, Ohio at which AK Steel

had a booth. An AK Steel representative there gave D. Lewis an application and scheduled him to

take a test two weeks later.

108. D. Lewis applied for a general laborer position. D. Lewis had two years of

experience working as a general laborer at a steel foundry, Dayton Walter, assembling brake irons

and monitoring the molds into which liquid iron is poured on an assembly line, among other things,

as well as five years of experience doing janitorial work in hospitals and three years of experience as

a prison security guard. AK Steel gave D. Lewis two tests. The first, a test of general aptitude,

asked basic science, math, reading comprehension and pattern recognition questions The second, a

personality test, posed questions regarding one’s work preferences and the way in which one would

deal with potential problems. Approximately one week later, D. Lewis spoke via telephone with AK

Steel recruiter Susan Lester, who informed D. Lewis that he had failed the test. When D. Lewis

inquired whether he had failed the general exam or the personality test, Lester refused to answer D.

22

Lewis’s questions. 109. Upon information and belief, AK Steel hired one or more white individuals instead of
D. Lewis and did not hire D. Lewis for discriminatory reasons. 110. As a result of Defendant’s discriminatory actions, D. Lewis has suffered extreme
harm. 111. Plaintiff Michael Miller applied for employment with AK Steel in Middletown,
Ohio in June 2001 and January 2002. 112. Defendant discriminated against Miller by denying him employment at AK Steel.
In about the summer of 2001, Miller saw AK Steel’s advertizement in the help wanted section of a local newspaper. Miller filled out an application at the Hamilton Bureau of Employment and took a two-part qualifying exam around July 2001.
113. Miller applied for a skilled position in technical repair. Miller had four years of experience in the U.S. Army working as an electronics mechanic, one year of itinerant work experience repairing electromechanical equipment for car factories such as Ford and General Motors in various locations throughout the country, and three years of experience as a master mechanical technician for Motoman Robotics. In addition, Miller held an associates’ degree in robotics. The first test that AK Steel had Miller take, a test of general aptitude, posed logic, common sense, reading comprehension, and basic math and science questions. About three weeks later, Miller was called in to take a test tailored to the skilled position in technical repair for which Miller had applied. This exam, however, dealt with material more directly related to an electrician’s responsibilities than a technical repair person’s. The exam tested one’s knowledge of specific issues that only an electrician would encounter. Of approximately sixty questions, only about ten related directly to the
23

technical issues with which a technical repair person would need to be familiar. 114. After the test, Miller was interviewed by Jessica Hicks, a white Human Resources
representative, and a white supervisor from the technical repair department. During the interview, Hicks and the technical repair supervisor told Miller about AK Steel’s safety policies, the job benefits of the technical repair position, and the shifts for which Miller could be scheduled. At the end of the interview, Hicks informed Miller that she would contact him in the coming weeks. When he heard nothing after five weeks, Miller contacted Hicks via phone. Hicks informed Miller that he had scored poorly on the second exam and asked Miller if he would be interested in a production job, an unskilled position. Miller agreed to be considered for a production job. About three weeks later, in approximately October 2001, Miller was contacted by Advantage Hire, a hiring service, to confirm his employment background. AK Steel did not subsequently contact Miller. Around the end of November 2001, Miller contacted Hicks. Hicks informed Miller that she was waiting to hear from a Human Resources manager regarding the status of Miller’s application for the production position. When Miller called again around the end of December 2001, Hicks relayed the same message. Miller called again in January 2002, and Hicks informed him that she didn’t know what had happened to Miller’s application and suggested that he reapply. Miller submitted a second application for a production position at AK Steel in Middletown, Ohio in approximately January, 2002. AK Steel did not respond to that application at all.
115. Miller was not offered the position despite his qualifications and experience. AK Steel never contacted Miller to acknowledge their receipt of his application, schedule an interview or test, or notify Miller of rejection.
116. Upon information and belief, AK Steel hired one or more white individuals instead of
24

Miller and did not hire Miller for discriminatory reasons.

117. As a result of Defendant’s discriminatory actions, Miller has suffered extreme harm

118. Plaintiff Ronald Sloan applied for employment with AK Steel in Middletown, Ohio

in September 2001.

119. Defendant discriminated against Sloan by denying him employment at AK Steel.

Having found out that AK Steel was hiring from some friends who were AK Steel employees, Sloan

submitted an application by way of the state of Ohio’s Unemployment Services. Sloan was called in

to take a qualifying exam in November 2001. At this time, an AK Steel representative told Sloan

that, in order to be considered for a management position, the requirement was a test score above a

certain level.

120.

Sloan applied for a position in either management or production. Sloan’s

employment background included six years of service in the U.S. Navy as an electronics technician

doing repair and maintenance of communications and encrypting equipment and five years at

Proctor & Gamble as a Research Associate doing, among other things, operations and maintenance

on a diaper converting unit at a research and development facility, and operations management at a

prototype facility.

121. AK Steel’s exam asked questions in subjects such as mechanical reasoning, basic

math and English. At a subsequent interview with Human Resources representative Jessica Hicks, a

white woman, Hicks contradicted the information that Sloan had received from an AK Steel

representative regarding his eligibility for a position in management. Hicks told Sloan that

applicants received only a pass/fail grade on AK Steel’s general aptitude test. Sloan was told that he

had received a “pass.” Hicks added that AK Steel had instituted a freeze on management hiring save

25

for those applicants who possessed a bachelor’s degree in engineering. Because Sloan attended college classes under an engineering program but did not finish, Sloan was told that he was ineligible to be considered for a management position at this time. Having maintenance experience, Hicks informed him, qualified Sloan to be considered for a maintenance position in addition to being considered for the production position whose eligibility requirements Sloan did meet.
122. In December 2001, Sloan was called in for a second interview with Hicks and the maintenance department’s assistant manager, a white man. The assistant manager told Sloan that he would have to take a basic electronics exam, and suggested that Sloan should take it that very afternoon. Sloan explained that he was unprepared for an electronics exam that afternoon and requested time to prepare. Additionally, Sloan had indicated that he preferred to begin working in a production position so as to prepare for a position in maintenance and ensure his success in that capacity. Hicks informed Sloan that all openings might have been filled by the time Sloan was ready to take their test. Sloan requested to be considered for a job in production instead. Hicks agreed and informed Sloan that the only remaining steps were a background check and drug test.
123. In January 2002, Sloan received a call from a woman doing a background check for his AK Steel application. She asked Sloan to confirm the spelling of his first name, Ronald, and restate his social security number. Even though Sloan never committed a felony or had professional or personal problems that might blackball him in a background check, Sloan never heard from AK Steel again.
124. Upon information and belief, AK Steel hired one or more white individuals instead of Sloan and did not hire Sloan for discriminatory reasons.
125. As a result of Defendant’s discriminatory actions, Sloan has suffered extreme harm.
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126. Plaintiff Donald Edwards applied repeatedly for employment with AK Steel in Middletown, Ohio. Edwards’ most recent application was in January 2002.
127. Defendant discriminated against Edwards by denying him employment at AK Steel. In about January 2002, Edwards saw AK Steel’s advertizement in the help wanted section of a local paper and on televison. Edwards filled out an application at Palmer Temp, an organization that handles hiring for AK Steel, and never heard back from either them or AK Steel.
128. Edwards applied for a general laborer position. Edwards’ work experience consisted of doing manual labor, such as mowing the fields along the sides of Ohio highways, for the Ohio Department of Transportation (ODOT) and working as a medical supply clerk delivering supplies, among other things, to the different facilities of the Fairfield Center for Mental Retardation. In previous applications, such as one in August 2001, Edwards took an aptitude test on easy questions of simple math and common sense and had an interview with a white male Palmer Temp representative. At that time, Edwards was told that Palmer Temp would submit his application to AK Steel and that Edwards would receive word whether his application was approved or rejected. Edwards never heard anything after his August 2001 application, however. When Edwards reapplied in January 2002, he likewise heard nothing back from AK Steel.
129. Edwards was not offered the position despite his qualifications and experience. AK Steel never contacted Edwards to acknowledge their receipt of his application, schedule an interview or test, or to notify Edwards of rejection.
130. Upon information and belief, AK Steel hired one or more white individuals instead of Edwards and did not hire Edwards for discriminatory reasons.
131. As a result of Defendant’s discriminatory actions, Edwards has suffered extreme
27

harm 132. Plaintiff Shawn Pryor applied for employment with AK Steel in Middletown, Ohio
in October 2001. 133. Defendant discriminated against Pryor by denying him employment at AK Steel. In
about October 2001, Pryor heard by word of mouth that AK Steel was hiring. Pryor obtained an application, filled it out and turned it in at one of Defendant’s employment offices.
134. Pryor applied for a computer technical position. His work experience consisted of three years of selling computers and fixing PC’s for CompUSA and one year of servicing a computer network and upkeeping thirty-five computers, among other things, as a computer information systems manager for Trader Publishing in Miamisburg, Ohio. In addition, Pryor possessed a Bachelor of Arts degree in English from Miami University in Oxford, Ohio.
135. Pryor was not offered the position despite his qualifications and experience. AK Steel never contacted Pryor to acknowledge their receipt of his application, schedule an interview or test, or to notify Pryor of rejection.
136. Upon information and belief, AK Steel hired one or more white individuals instead of Pryor and did not hire Pryor for discriminatory reasons.
137. As a result of Defendant’s discriminatory actions, Pryor has suffered extreme harm. 138. Plaintiff Tiffany Jackson applied for employment with AK Steel in Ashland, Kentucky in December 2001. 139. Defendant discriminated against Jackson by denying her employment at AK Steel. In about October 2001, Jackson attended a career fair in Portsmouth, Ohio at which AK Steel had a booth. There, Jackson picked up an application and spoke with a white AK Steel representative
28

about current job openings. Although Jackson had been hoping to obtain an office position, the representative, Susan Lester, told Jackson that no office positions were available. Along with her resume, Jackson mailed the application to AK Steel in approximately December 2001. In May 2002, Lester contacted Jackson via telephone to schedule a time for Jackson to come in and take AK Steel’s qualifying exam.
140. Jackson applied for any available position. Jackson had five months of work experience inputting client data into computer spreadsheet files as a data processor for Lester Telemarketing and approximately six months of work experience calling businesses to secure magazine subscription renewals as a telemarketer for Lester Telemarketing. Her current position, an inventory coordinator for Liebert Corporation, an air conditioner manufacturer, required Jackson to keep track, via a computer program and on-site checks, of parts shortages to insure that workers always had on hand the mechanical parts they needed to construct Liebert Corporation’s air conditioners. In addition, Jackson possessed a high school diploma.
141. AK Steel gave Jackson two tests. The first, a test of general aptitude, asked basic science, math, reading comprehension and pattern recognition questions. The second, a personality test, posed questions regarding one’s work preferences and the way in which one would deal with potential problems. Jackson had taken the tests as part of an earlier application, in approximately June 2001, that she filed with AK Steel. In preparation for taking AK Steel’s test for a second time, Jackson had consulted study guides for standardized tests such as the SAT and ACT. In addition, she studied an introduction to math textbook. Approximately one week later, Jackson spoke via telephone with AK Steel recruiter Susan Lester, who informed Jackson that Jackson had failed the test. Lester offered no further information and quickly hung up the phone.
29

142. Upon information and belief, AK Steel hired one or more white individuals instead of Jackson and did not hire Jackson for discriminatory reasons.
143. As a result of Defendant’s discriminatory actions, Jackson has suffered extreme harm. IX. CAUSES OF ACTION
COUNT I (Class-Wide Discrimination in Employment Due to Hiring Discrimination in Violation of
the Civil Rights Act of 1866, 42 U.S.C. § 1981, as amended) 144. Plaintiffs Bert, Freeman, D. Carter, E. J. Lewis, Oliphant, Harris, Russell, Jackson, M. Carter, D. D. Carter, D. Lewis, Miller, Sloan, Edwards, Pryor, and Jackson restate and reallege paragraphs 1 through 143 as though set forth here in full. 145. AK Steel has discriminated against the Plaintiffs and all members of the proposed class by denying them employment and the same rights as are enjoyed by white applicants for employment with AK Steel and to the enjoyment of all benefits, privileges, terms and conditions of that relationship, in violation of the Civil Rights Act of 1866, 42 U.S.C. § 1981, as amended. 146. AK Steel has conducted itself intentionally, deliberately, willfully, and in callous disregard of the rights of the Plaintiffs and members of the proposed class. 147. By reason of the continuous nature of AK Steel's discriminatory conduct, unstayed throughout the entire liability period, the Plaintiffs and class members are entitled to application of the continuing violation doctrine to all of the violations alleged herein. 148. By reason of AK Steel's discrimination, the Plaintiffs and the members of the proposed class are entitled to all legal and equitable remedies available under §1981, including, but not limited to, nominal and punitive damages.
30

COUNT II (Class-Wide Discrimination in Employment Due to Hiring Discrimination in Violation of
the Civil Rights Act of 1964, 42 U.S.C. § 2000(e), et seq.,as amended) 149. Plaintiffs Bert, Freeman, D. Carter, E. J. Lewis, Oliphant, Harris, Russell, Jackson, M. Carter, D. D. Carter, D. Lewis, Miller, Sloan, Edwards, Pryor, and Jackson restate and reallege paragraphs 1 through 148 as though set forth here in full. 150. AK Steel has discriminated against the Plaintiffs and all members of the proposed class by denying them employment and the same rights as are enjoyed by white applicants for employment with AK Steel and to the enjoyment of all benefits, privileges, terms and conditions of that relationship, in violation of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e), et seq., as amended. 151. AK Steel has conducted itself intentionally, deliberately, willfully, and in callous disregard of the rights of the Plaintiffs and members of the proposed class. 152. AK Steel has further utilized policies, practices, and/or procedures that have had a disparate impact upon African-American applicants. 153. By reason of the continuous nature of AK Steel's discriminatory conduct, unstayed throughout the entire liability period, the Plaintiffs and class members are entitled to application of the continuing violation doctrine to all of the violations alleged herein. 154. By reason of AK Steel's discrimination, the Plaintiffs and the members of the proposed class are entitled to all legal and equitable remedies available under Title VII, including, but not limited to, nominal and punitive damages.
COUNT III
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(Class-wide Discrimination in Employment Due to Hiring Discrimination in Violation of Civil Rights Act of 1964, 42 U.S.C. § 2000(e), et seq.,as amended)
155. Plaintiff Roberts restates and realleges paragraphs 1 through 154 as though set forth here in full.
156. AK Steel has discriminated against Plaintiff Roberts and against all of Defendant’s employees by denying AK Steel employees the right to work in a racially integrated environment free from racial discrimination and the enjoyment of all benefits, privileges, terms and conditions of working in a racially integrated environment, in violation of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e), et seq., as amended.
157. AK Steel has conducted itself intentionally, deliberately, willfully, and in callous disregard of the rights of Plaintiff Roberts and members of the proposed class.
158. By reason of the continuous nature of AK Steel's discriminatory conduct, unstayed throughout the entire liability period, Plaintiff Roberts and members of the proposed class are entitled to application of the continuing violation doctrine to all of the violations alleged herein.
159. By reason of AK Steel's discrimination, Plaintiff Roberts and members of the proposed class are entitled to all legal and equitable remedies available under Title VII including, but not limited to, nominal, compensatory, and punitive damages.
COUNT IV (Class-wide Discrimination in Employment Due to Hiring Discrimination in Violation of
the Civil Rights Act of 1866, 42 U.S.C. § 1981, as amended) 160. Plaintiff Roberts restates and realleges paragraphs 1 through 159 as though set forth here in full.
32

161. AK Steel has discriminated against Plaintiff Roberts and against all of Defendant’s employees by denying AK Steel employees the right to work in a racially integrated environment free from racial discrimination and the enjoyment of all benefits, privileges, terms and conditions of working in a racially integrated environment, in violation of the Civil Rights Act of 1866, 42 U.S.C. § 1981, as amended.
162. AK Steel has conducted itself intentionally, deliberately, willfully, and in callous disregard of the rights of Plaintiff Roberts and members of the proposed class.
163. By reason of the continuous nature of AK Steel's discriminatory conduct, unstayed throughout the entire liability period, Plaintiff Roberts and members of the proposed class are entitled to application of the continuing violation doctrine to all of the violations alleged herein.
164. By reason of AK Steel's discrimination, Plaintiff Roberts and members of the proposed class are entitled to all legal and equitable remedies available under § 1981 including, but not limited to, nominal, compensatory, and punitive damages. X. PRAYER FOR RELIEF
165. Wherefore, Plaintiffs request the following relief: a. Acceptance of jurisdiction of this case; b. Certification of the case as a class action maintainable under Federal Rules of Civil Procedure Rule 23(a), (b)(2) and/or (b)(3), on behalf of the proposed applicant class, and designation of Plaintiffs Bert, Freeman, D. Carter, E. J. Lewis, Oliphant, Harris, Russell, Jackson, M. Carter, D. D. Carter, D. Lewis, Miller, Sloan, Edwards, Pryor, and Jackson as
33

representatives of this class and their counsel of record as class counsel; c. A declaratory judgment that the Defendant’s hiring practices challenged
herein are illegal and in violation of the Civil Rights Act of 1866, 42 U.S.C. § 1981, as amended and Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000(e), et seq.; d. A permanent injunction against AK Steel and its officers, owners, agents, successors, employees, and representatives and any and all persons acting in concert with them, from engaging in any further unlawful practices, policies, customs, usages, racial discrimination and retaliation by AK Steel as set forth herein. e. An Order requiring AK Steel to initiate and implement programs that (i) will provide equal employment opportunities for African-American employees and applicants; (ii) will remedy the effects of AK Steel’s past and present unlawful employment policies, practices and procedures; and (iii) will eliminate the continuing effects of the discriminatory and retaliatory practices described above; f. An Order requiring AK Steel to initiate and implement systems of hiring African-American applicants in a non-discriminatory manner; g. An Order establishing a task force on equality and fairness to determine the effectiveness of the programs described in (e) through (g) above, which would provide for (i) monitoring, reporting, and retaining of jurisdiction to ensure equal employment opportunity, (ii) the assurance
34

that injunctive relief is properly implemented, and (iii) a quarterly report setting forth information relevant to the determination of the effectiveness of the programs described in (e) through (g) above; h. An Order placing or restoring the named Plaintiffs and the members of the hiring class into those jobs they would now be occupying, but for AK Steel’s discriminatory policies, practices and procedures; i. An Order directing AK Steel to adjust the wage rates and benefits for the named Plaintiffs and the hiring class to the level that they would be enjoying but for AK Steel’s discriminatory policies, practices and procedures; j. An award of back pay, front pay, lost benefits, restoration of seniority, damages, lost benefits, preferential rights to jobs, and other damages for lost pay and job benefits suffered by the named Plaintiffs and the hiring class; k. An award of nominal, compensatory, and punitive damages to Plaintiff Allen Roberts; l. Any other appropriate equitable relief to the named Plaintiffs and class members; m. An award of litigation costs and expenses, including reasonable attorneys’ fees, to the Plaintiffs and class members; n. Pre-judgment interest; o. Such other and further relief as the Court may deem just and proper; and
35

p. Retention of jurisdiction by the Court until such time as the Court is
satisfied that AK Steel has remedied the practices complained of herein
and is determined to be in full compliance with the law.
CIII. JURY TRIAL DEMANDED
155. Plaintiffs request a trial by jury for all issues triable as of right to a jury.
Respectfully submitted this 19th day of January 2005.
s/ Paul H. Tobias_______________ PAUL H. TOBIAS, OH Bar No. 0032415 DAVID D. KAMMER, OH Bar No. 0061808 TOBIAS, KRAUS & TORCHIA 414 WALNUT STREETSUITE 911 CINCINNATI, OH 45202 Telephone: (513) 241-8137 Facsimile: (513) 241-7863 TKT@TKTlaw.com
SUSAN DONAHUE Ala. Bar No. ASB-4525A48D WIGGINS, CHILDS, QUINN & PANTAZIS, P.C. 1400 SOUTHTRUST TOWER BIRMINGHAM, AL 35203 Telephone: (205) 458-4548 Facsimile: (205) 254-1500 sgd@wcqp.com
Mr. David Sanford Attorney at Law Sanford, Wittels, & Heisler, L.L.P. 2121 K St. N.W. Suite 700 Washington, D.C. 20037 Telephone: 202/942-9124 Fax number: 202/628-8189 internet:dsanford@davidsanford.com
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Attorneys for Plaintiffs

CERTIFICATE OF SERVICE I hereby certify that on January 19, 2005, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will automatically serve CM/ECF participants Gregory P. Rogers, Esq. and Patricia Anderson Pryor, Esq. of Taft, Stettinius & Hollister LLP, 425 Walnut Street, Suite 1800, Cincinnati, Ohio 45202-3957, attorneys for Defendant.
s/ Paul H. Tobias Paul H. Tobias – 0032415
38

 
 Bert v. AK Steel Corp., Not Reported in F.Supp.2d (2008)

2008 WL 1696945 Only the Westlaw citation is currently available.
United States District Court, S.D. Ohio,
Western Division.
Vivian BERT, et al., Plaintiffs, v.
AK STEEL CORPORATION, Defendant.
No. 1:02-CV-467. | April 9, 2008.
Attorneys and Law Firms
Allison W. Lowell, Barry V. Frederick, Herman Nathaniel Johnson, Jr, Robert F Childs, Susan Gale Donahue, Wiggin Childs Quinn & Pantazis, Birmingham, AL, Paul Henry Tobias, Tobias & Kraus, Cincinnati, OH, David W. Sanford, Sanford Wittels & Heisler LLP, Washington, DC, for Plaintiffs.
Gregory Parker Rogers, Lawrence James Barty, Patricia Anderson Pryor, Taft, Stettinius & Hollister, Cincinnati, OH, for Defendant.
Opinion
ORDER
SANDRA S. BECKWITH, Chief Judge.
*1 Before the Court is Defendant’s motion for summary judgment on the disparate treatment discrimination claims of four individual Plaintiffs: Vivian Bert, Edward James Lewis, Michael Miller and Shawn Pryor. (Doc. 156) Plaintiffs oppose the motion (Doc. 164), and Defendant has replied. (Doc. 170)
All four Plaintiffs allege they were not hired for entry level laborer positions at AK Steel’s Middletown plant because of their race. None of the four are members of the previously certified class. They each allege claims under Title VII and 42 U.S.C. § 1981. The general background to this lawsuit is discussed in the Court’s previous orders (see Docs. 79 and 44). Additional facts pertaining to these Plaintiffs’ claims are discussed in this order.

Vivian Bert: Bert was employed at Armco Steel (AK Steel’s predecessor) from 1982 to 1984. She alleges she applied to work at AK Steel on four different occasions, using the same application each time. AK Steel’s last record of an application from Bert is May 2001. (Short Decl. ¶ 2) Bert alleges she also applied in April and May 2002, but AK Steel denies receiving those applications. She answered truthfully that she had worked for Armco. According to AK Steel, prior employment at either AK Steel or Armco disqualified applicants for laborer positions.
Edward James Lewis: Lewis applied for employment in April 2001. He admits he falsely claimed on his application that he had a high school diploma or a GED. AK Steel requires one or the other for further consideration of an applicant. Based on his false statement, however, Lewis passed the initial screen. AK Steel’s hourly hiring representative called him to discuss his application, but his telephone was not in service. Lewis admitted this fact, and stated that he frequently changed numbers. AK Steel removed him from its hiring process when it could not reach him.
Michael Miller: Miller submitted two applications for employment, in August and September 2001. On both, Miller stated he had no criminal convictions. This was not true, as Miller admits he had convictions for theft, felonious assault, and driving with a suspended license. Based on his false statements, he passed AK Steel’s initial screening process, and then passed the pre-employment test. Miller was called for an interview on October 3, when he learned that AK Steel would do a background check as part of its screening process. That check revealed eight points on Miller’s driving record, a suspended license, and a citation for driving with a suspended license. AK Steel did not hire Miller. Miller admitted that the August and September 2001 applications were the only ones he ever submitted, despite the allegations in the Second Amended Complaint that he applied in June 2001 and January 2002.
Shawn Pryor: Pryor applied for a computer technical position at AK Steel on November 19, 2001. Pryor has education and experience in this field, but none as a laborer or doing industrial work. The entry level labor positions require prior laborer experience. Pryor told AK Steel he was interested in both computer and laborer positions. AK Steel outsources its computer technical work to an independent company. Pryor was screened out
1

Bert v. AK Steel Corp., Not Reported in F.Supp.2d (2008)

of the laborer hiring process due to his lack of prior experience as a laborer.
DISCUSSION
1. Standard of Review. *2 The standards for summary judgment are well established. Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). The party opposing a properly supported summary judgment motion “ ‘may not rest upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial .’ “ Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (quoting First Nat’l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)). The Court is not duty bound to search the entire record in an effort to establish a lack of material facts. Guarino v. Brookfield Township Trs., 980 F.2d 399, 404 (6th Cir.1992); InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir.1989), cert. den., Superior Roll Forming Co. v. InterRoyal Corp., 494 U.S. 1091, 110 S.Ct. 1839, 108 L.Ed.2d 967 (1990). Rather, the burden is on the non-moving party to “present affirmative evidence to defeat a properly supported motion for summary judgment ...,” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir.1989), and to designate specific facts in dispute. Anderson, 477 U.S. at 250. The non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Electric Industries Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The court construes the evidence presented in the light most favorable to the non-movant and draws all justifiable inferences in the non-movant’s favor. United States v. Diebold Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962).
The court’s function is not to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. The court must assess “whether there is the need for trial-whether, in other words, there are any genuine factual issues that properly can be resolved only

by a finder of fact because they may reasonably be resolved in favor of either party.” Id. at 250. “If the evidence is merely colorable, ..., or is not significantly probative, ..., the court may grant judgment.” Anderson, 477 U.S. at 249-50 (citations omitted).
Although summary judgment must be used with extreme caution since it operates to deny a litigant his day in court, Smith v. Hudson, 600 F.2d 60, 63 (6th Cir.1979), cert. dismissed, 444 U.S. 986, 100 S.Ct. 495, 62 L.Ed.2d 415 (1979), the United States Supreme Court has stated that the “[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to ‘secure the just, speedy and inexpensive determination of every action.’ “ Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (citations omitted).
2. Title VII and Section 1981 Disparate Treatment Claims. *3 The familiar framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) applies to Plaintiffs’ claims alleging disparate treatment without direct evidence of racial discrimination. That framework requires Plaintiffs to prove that AK Steel treated them less favorably-by failing to hire them or further consider their applications-because of their race. Plaintiffs must first establish their prima facie case. AK Steel must then articulate a legitimate, nondiscriminatory reason for the failure to hire, and Plaintiffs must then show that reason was pretextual. See Dunlap v. Tennessee Valley Authority, 519 F.3d 626, 2008 U.S.App. LEXIS 5898 (6th Cir., March 21, 2008).
Plaintiffs’ prima facie burden is to show they are members of a protected group, they were qualified for the job they applied for, and they were treated differently than comparable applicants outside their protected class. While this burden is not onerous, Plaintiffs must come forward with evidence establishing these elements in order to shift the burden of production to the defendant to show a legitimate, nondiscriminatory reason for its actions.
All four Plaintiffs are African-American and satisfy the first prong. AK Steel argues that none of them were qualified for the positions they applied for as entry-level laborer at the Middletown plant. AK Steel’s hiring procedure during this time required all applications to be filed with the Ohio Department of Job and Family
2

Bert v. AK Steel Corp., Not Reported in F.Supp.2d (2008)

Services, who forwarded applications to the Middletown HR department. The HR department does an initial screening for five basic requirements: a high school degree or GED, two years prior manufacturing or laborer experience, a valid driver’s license, no criminal history (other than non-violent and non-drug-related minor misdemeanors), and no prior employment with AK Steel or with Armco. Applications not meeting these requirements are not given further consideration. (Doc. 156, Short Declaration ¶ 12) According to Short, approximately 30% of all applications are “screened out” because they lack these basic requirements.
Vivian Bert worked for Armco in the 1980’s. Edward Lewis did not have a high school diploma or a GED, although he falsely claimed he did when he applied in April 2001. His application was not considered further after AK Steel could not reach him because his telephone was not in service. Michael Miller falsely represented that he had no criminal convictions on his 2001 applications, but the background check revealed otherwise. Shawn Pryor did not have prior manufacturing or labor experience. While he was qualified for a computer technician position, AK Steel did not have any such open positions.
Plaintiffs offer several reasons why they believe they were qualified and can satisfy their prima facie burden. Vivian Bert had significant experience in industrial settings; AK Steel never told her that her prior Armco employment disqualified her from consideration. Plaintiffs assert that AK Steel has nothing in writing to substantiate her disqualification. They suggest this “hidden” requirement is a cover for race discrimination.
*4 Edward Lewis had qualifying prior experience, and AK Steel was interested enough in his application to try to contact him. Plaintiffs argue that AK Steel made no effort to try to find another telephone number for him, or to check his other applications for possible additional contact information. Nor did AK Steel send him a letter. (AK Steel’s HR witness was not even certain that she had Lewis’ information in her database.) Plaintiffs argue that these “cursory” attempts to reach Lewis are sufficient to raise an inference of unlawful discrimination.
Michael Miller had qualifying prior experience, and was told to bring his school transcripts with him for his interview. (He also had an Associates degree in electro-mechanical engineering.) Yet he was rejected because of his driving record. Plaintiffs note that AK Steel’s HR witness (Morris) could not remember the

maximum number of points Ohio law allows before license suspension is mandatory, or whether license suspension was a “major” or “minor” offense. Miller was never told that he was rejected because of his driving record, and like Bert’s situation, the “bad driving record” requirement was unwritten. Plaintiffs suggest this, too, is enough to satisfy their prima facie burden and to raise a triable issue on AK Steel’s reason for rejecting Miller.
Shawn Pryor also was never told why he was not hired. Plaintiffs claim that Phyllis Short (AK Steel’s 30(b)(6) witness and Middletown HR Director) admitted that two years experience was a “preferred” not a “required” qualification. She also testified that AK Steel had occasionally permitted females and minorities to progress through the interview process without the full two years of experience, in order to benefit affirmative action hiring goals. This benefit was not given to Pryor.
Plaintiffs’ arguments conflate the job qualifications prong of their prima facie case with a defendant’s burden of production on legitimate business justification. Plaintiffs do not seriously dispute that the minimal qualifications articulated by AK Steel do not in fact exist. They complain they are not “in writing” for applicants to see before they apply. But there is no requirement that such minimal qualifications be in writing or advertised. It is AK Steel’s prerogative to reject applicants with prior employment with Armco or AK Steel, absent some evidence that this requirement was imposed solely upon minority candidates. It is also AK Steel’s prerogative to screen out individuals who lacked prior experience, and whose background checks revealed poor driving records or criminal convictions.1 The Sixth Circuit noted in Wrenn v. Gould, 808 F.2d 493 (6th Cir.1987), that the employment discrimination laws do “... not diminish lawful traditional management prerogatives in choosing among qualified candidates[.]” This principle would also apply to management prerogatives in establishing minimal qualifications for these positions. Wrenn also observed that it is “the employer’s motivation, not the applicant’s perceptions, or even an objective assessment [ ] of what qualifications are required for a particular position,” that must be the key to the discrimination inquiry. Id. at 502.

1

A false representation on a job application, which

Lewis and Miller admit making, would also likely

result in disqualification.

3

Bert v. AK Steel Corp., Not Reported in F.Supp.2d (2008)

*5 But even assuming that all four Plaintiffs were “qualified” for the positions they sought, Plaintiffs have absolutely no evidence that they were treated differently than similarly-situated Caucasian applicants. They do not offer any example of an AK Steel applicant who passed through the initial screening process despite having prior Armco employment, or when lacking a high school diploma. They cite no instance of a Caucasian applicant who could not be reached by telephone-at a number given by that applicant-whom AK Steel attempted to contact by other means. They cite no one who was hired despite having a driving record similar to Mr. Miller’s. And the only evidence suggesting any exceptions for two years of prior experience is Short’s testimony that some minority or female candidates may have been further considered for hiring, so long as they had some prior relevant experience. This testimony does not establish that AK Steel hired non-protected applicants without any experience.
It is not enough for Plaintiffs to argue that “most” applicants who were in fact hired by AK Steel were not African-American. The essence of a disparate treatment claim is that these Plaintiffs were treated disparately from similarly-situated non-minority applicants. See Dunlap v. TVA, supra, slip op. at p. 4: “The disparate treatment doctrine requires a plaintiff to demonstrate that an employer has treated some people less favorably than others because of their race ...” (emphasis added). See also, Young v. Oakland County, 176 Fed. Appx. 644 (6th Cir. April 19, 2006) (unpublished), finding plaintiff failed to establish that the candidate hired for the position he applied for was similarly situated respecting his credentials, and therefore failed to establish his prima facie case. And see Singleton v. Kellogg Co., 890 F.2d 417 (table), 1989 U.S.App. LEXIS 17920, 1989 WL 143565 (6th Cir., November 29, 1989), finding plaintiff failed to establish a prima facie case when she failed to establish that she was treated differently than similarly situated white employees.
Moreover, even if the Court could conclude that Plaintiffs have satisfied their prima facie burden (which the Court does not conclude), Plaintiffs have come forward with no evidence that AK Steel’s screening qualifications were a pretext for racial discrimination. Plaintiffs state that they applied several times (Bert applied four or more times, according to her deposition; Lewis three times). But this fact alone does not give rise to any inference that they were rejected because of their race. Under Manzer v.

Diamond Shamrock Chemicals Corp., 29 F.3d 1078, 1084 (6th Cir.1994), pretext can be established by evidence that (1) the proffered reasons had no basis in fact, (2) the reasons did not actually motivate the hiring decision, or (3) the reasons were insufficient to motivate that decision.
The reasons AK Steel gives for rejecting these Plaintiffs are clearly based in fact-all of them admitted the basic facts applicable to each. Plaintiffs have no evidence that the reasons were insufficient, by offering any example of the same requirements being waived or ignored. Plaintiffs’ arguments are therefore directed to the second Manzer prong, that AK Steel’s reasons were not the actual reasons that these four Plaintiffs were rejected. But Plaintiffs must do more than disagree with AK Steel’s reasons, or simply argue they are not truthful. See, e.g., White v. Columbus Metropolitan Housing Authority, 429 F.3d 232 (6th Cir.2005), rejecting a female employee’s argument that she established a triable issue on pretext. The plaintiff cited a number of facts surrounding the consideration of her job application, such as the employer’s failure to follow its internal procedures, and a comment by a manager that he was determined “to hire a man,” all of which the Sixth Circuit held was insufficient: “The most White can show, in viewing the evidence in the light most favorable to her, is that her application was not given as much attention as she would have liked.” Id. at 246. See also, Macy v. Hopkins County Bd. Of Education, 484 F.3d 357 (6th Cir.2007), citing White and finding plaintiff failed to establish pretext by challenging the veracity of the employer’s explanation. As noted above, Plaintiffs offer no evidence raising a colorable inference that unlawful racial discrimination, rather than AK Steel’s stated reasons, was the reason that these Plaintiffs did not progress through AK Steel’s hiring process, and were not hired.
CONCLUSION
*6 For all of the foregoing reasons, the Court grants Defendant’s motion for summary judgment. (Doc. 156) The disparate treatment claims of Vivian Bert, Edward Lewis, Michael Miller, and Shawn Pryor are dismissed with prejudice.
SO ORDERED.

4

Bert v. AK Steel Corp., Not Reported in F.Supp.2d (2008) 5

 
 Bert v. AK Steel Corp., Not Reported in F.Supp.2d (2007)

2007 WL 3005910 Only the Westlaw citation is currently available.
United States District Court, S.D. Ohio,
Western Division.
Vivian BERT, et al., Plaintiffs, v.
AK STEEL CORPORATION, Defendant.
No. 1:02-cv-467. | Oct. 12, 2007.
Attorneys and Law Firms
Allison W. Lowell, Barry V. Frederick, Herman Nathaniel Johnson, Jr., Robert F. Childs, Susan Gale Donahue, Wiggins Childs Quinn & Pantazis PC, Birmingham, AL, Paul Henry Tobias, Tobias & Kraus, Cincinnati, OH, David W. Sanford, Sanford Wittels & Heisler LLP, Washington, DC, for Plaintiffs.
Gregory Parker Rogers, Lawrence James Barty, Patricia Anderson Pryor, Taft, Stettinius & Hollister, Cincinnati, OH, for Defendant.
Opinion
ORDER
SANDRA S. BECKWITH, Chief Judge.
*1 Before the Court is Defendant AK Steel Corporation’s motion for summary judgment against three of the individual Plaintiffs in this case: Ronald Sloan, Mary Harris, and Thaddeus Freeman. (Doc. 107) Each of these Plaintiffs filed a voluntary Chapter 7 bankruptcy petition after they filed this lawsuit. All three Plaintiffs failed to list this lawsuit on their bankruptcy schedule of assets. Defendant contends that all three lack standing and/or are estopped from proceeding in this case because of their failure to disclose their claims.
Plaintiffs oppose the motion, generally arguing that their failure to disclose was an inadvertent mistake. (Doc. 111, and attached deposition excerpts of Sloan, Harris and Freeman.) Defendant has filed a reply (Doc. 116). At the Court’s request, Plaintiffs filed an October 1 status report

concerning actions of each Plaintiff’s bankruptcy trustee with respect to reopening the bankruptcy cases. (Doc. 128)
FACTUAL BACKGROUND
Ronald Sloan, Mary Harris and Thaddeus Freeman each filed an EEOC claim against AK Steel, claiming that AK’s hiring practices discriminated against them on the basis on race. All three individuals are Plaintiffs in the original complaint filed in this case on June 26, 2002. (None of these three Plaintiffs are members of the “testing class” previously certified in this case under Fed.R.Civ.P. 23(b)(2), and are proceeding solely on their individual claims of disparate treatment.)
Sloan and his wife filed a Chapter 7 petition on May 21, 2003; Harris and her husband filed their Chapter 7 petition on January 9, 2003; and Freeman and his wife filed their Chapter 7 petition on June 24, 2003. This lawsuit and the three individuals’ claims against AK Steel are not listed in any of the bankruptcy petitions. In 2007, AK Steel served discovery on Plaintiffs, asking them to identify any involvement in any prior litigation. Sloan listed his bankruptcy proceeding, but Freeman and Harris did not.
AK Steel then deposed each of the three Plaintiffs. Sloan testified that he did not realize he needed to list this lawsuit, as he understood the question in the bankruptcy petition to apply only to suits filed against him. (Doc. 108, Sloan Deposition at p. 77) Harris testified that she did not know her claim against AK Steel should have been listed. (Doc. 118, Harris Deposition at pp. 62-65) Freeman testified that at a bankruptcy court hearing, he told a woman who worked for his attorney about this lawsuit. The woman asked him if he was close to settlement and Freeman said no. The woman then told him not to worry about it. (Doc. 117, Freeman Deposition at pp. 63-65.) All three Plaintiffs were represented by counsel during their bankruptcy proceedings.
Plaintiffs’ counsel in this case contacted each Trustee about this situation, and each Trustee has moved to re-open the bankruptcy proceedings. The Trustees’ motions in the Sloan and Freeman cases are pending, and both Trustees have expressed their intent to administer the claims if the cases are reopened. The Trustee’s motion in
1

Bert v. AK Steel Corp., Not Reported in F.Supp.2d (2007)

the Harris case has been granted, the no-distribution report has been stricken from the record, and the Trustee is in the process of obtaining approval to retain Plaintiff’s counsel in this case to prosecute Harris’ claim on behalf of the estate. (See Doc. 128)
DISCUSSION
*2 The legal principles that apply to resolve this dispute are well established. A debtor has a mandatory, affirmative duty to disclose all assets, including contingent or unliquidated claims, to the bankruptcy court pursuant to 11 U.S.C. § 521(1). Those assets constitute the bankruptcy estate, 11 U.S.C. § 541(a)(1), and remain estate property unless abandoned or administered during the bankruptcy proceedings. 11 U.S.C. § 554. The bankruptcy trustee thus has the exclusive right to pursue any of the debtor’s claims that arise prior to or during the bankruptcy proceeding. 11 U.S.C. § 704(1). The Trustee for each Plaintiff apparently had no knowledge of these claims, and there is no suggestion that any Trustee has abandoned Plaintiffs’ claims. It therefore appears that Plaintiffs lack standing to prosecute their claims at this juncture.
However, the Plaintiffs all assert that their failure to disclose their discrimination claims against AK Steel was inadvertent and not done with any intent to mislead. They each contend they should therefore be allowed to proceed.
The Sixth Circuit has applied the doctrine of judicial estoppel to bar a debtor’s prosecution of a claim that was not disclosed to the bankruptcy court prior to the debtor’s discharge. In Browning v. Levy, 283 F.3d 761, 775 (6th Cir.2002), the Court stated that “[t]he doctrine of judicial estoppel bars a party from (1) asserting a position that is contrary to one that the party has asserted under oath in a prior proceeding, where (2) the prior court adopted the contrary position either as a preliminary matter or as part of a final disposition.” (internal citation omitted) Judicial estoppel does not apply where the inconsistent position was the result of mistake or inadvertence. See Lewis v. Weyerhaeuser Co., 141 Fed. Appx. 420, 425 (6th Cir.2005). A failure to disclose can be inadvertent where the debtor lacks knowledge of the factual basis of a claim, or where a debtor lacks a motive to conceal a claim. Browning, 283 F.3d at 776 (citing In re Coastal Plains, Inc., 179 F.3d 197, 210 (5th Cir.1999)). And a debtor’s lack of bad faith should also be considered in determining

whether estoppel applies. See Eubanks v. CBSK Financial Group, Inc., 385 F.3d 894, 895 (6th Cir.2004).
Here, each Plaintiff did not inform the bankruptcy court or the Trustee of the existence of this lawsuit, and each Plaintiff was granted a discharge by the bankruptcy court. Plaintiffs clearly knew the facts giving rise to their claims, as each one filed an EEOC charge and joined this lawsuit prior to filing his or her bankruptcy petition. Many courts have commented that any debtor has a motive to conceal a claim, in order to protect any potential recovery from creditors. See, e.g., Lewis v. Weyerhaeuser, 141 Fed. Appx. at 426; Maxwell v. MGM Grand Detroit, 2007 WL 2050795 at *7 (E.D.Mich., July 16, 2007); Randelson v. Kennametal, Inc., 2006 WL 3196457 at *2 (N.D.Ohio, Nov. 2, 2006).
*3 Each Plaintiff was represented by counsel during the bankruptcy case. But the Sixth Circuit has held that a lawyer’s error does not prevent the application of judicial estoppel in these circumstances, absent a compelling reason. See Lewis v. Weyerhaeuser, 141 Fed. Appx. at 427-428 (estoppel properly applied even when bankruptcy attorney’s paralegal told debtor not to list a pending claim). In any event, neither Sloan nor Harris testified that they actually informed their lawyer about this lawsuit. Freeman testified that he had one discussion with someone from his lawyer’s office just before his bankruptcy hearing, essentially the same situation presented in Lewis.
As noted in Eubanks v. CBSK, however, this Court must also consider Plaintiffs’ lack of bad faith. In Eubanks, the Sixth Circuit reversed a district court’s dismissal of a debtor’s lender liability claim based on judicial estoppel. Eubanks had filed bankruptcy after a creditor revoked a loan. From the beginning of the bankruptcy proceeding, Eubanks informed his trustee of his potential lender liability claim; he asked his trustee several times to pursue the claim; he brought the matter to the attention of the bankruptcy court; he tried to have the trustee substituted as a plaintiff in his civil action against the lender after the trustee refused to abandon the claim; and he filed an amended schedule to list the claim. On those facts, the Sixth Circuit held that estoppel was improperly applied, as Eubanks’ actions demonstrated a good faith attempt to disclose his claim.
Here, the facts do not suggest such a high degree of care. Freeman said he could not “remember exactly” if he reviewed all of his bankruptcy forms before he signed them, and that the bankruptcy judge “didn’t ask me any
2

Bert v. AK Steel Corp., Not Reported in F.Supp.2d (2007)

questions.” (Freeman Deposition, pp. 62-63 and 65.) He states he had a conversation with someone he could not specifically identify, whom he believed was from his attorney’s office, who gave him some erroneous advice to “not worry” about his claims against AK Steel. More troubling is the fact that Freeman failed to disclose his bankruptcy when specifically questioned about any prior lawsuits in AK Steel’s interrogatories. Similarly, Harris said she didn’t know she was supposed to disclose her claim, although two lawsuits against her were listed on her disclosure forms. She claimed that her attorney listed those claims. Harris was instructed not to answer when she was asked if she told her bankruptcy attorney about this lawsuit. (Harris Deposition, pp. 63 and 65) Harris also failed to disclose her bankruptcy in response to AK Steel’s interrogatory. The record does not establish that either Freeman or Harris took any steps to notify their trustees before AK Steel filed its motion raising the estoppel argument.
Sloan testified that he understood the question on the bankruptcy schedule to apply to lawsuits filed against him, and that he did not understand that his lawsuit against AK Steel was considered an asset. (Sloan Deposition, pp. 78-79) Sloan disclosed his bankruptcy proceeding in his interrogatory responses, which he signed on April 20, 2007. (Doc. 108, Exhibit 9) That same day, Plaintiffs’ counsel contacted Sloan’s bankruptcy trustee, who promptly filed a motion to reopen Sloan’s bankruptcy case. These events preceded Defendant’s estoppel motion. This time line lends some credence to Sloan’s testimony.
*4 Nevertheless, as the Sixth Circuit noted in Lewis, “the disclosure obligations of consumer debtors are at the very core of the bankruptcy process and meeting these obligations is part of the price debtors pay for receiving the bankruptcy discharge.” Lewis, 141 Fed. Appx. at 424 (internal citations omitted). A debtor’s good faith mistake about the scope of that disclosure obligation does not necessarily excuse a failure to disclose. The Sixth Circuit’s decision in Eubanks was clearly premised on the

fact that, although the claim was not listed on the debtor’s schedule, the debtor repeatedly made the bankruptcy court and his trustee aware of the claim, which first arose just prior to the bankruptcy petition. The situation presented by the record here is not analogous. Although the Court does not doubt Mr. Sloan’s veracity, the Court concludes it is an insufficient basis upon which to excuse his failure to disclose this claim.
The Court also notes that judicial estoppel would not necessarily bar the Trustees for these Plaintiffs from prosecuting and administering these claims. There is nothing in the record suggesting that the Trustees had any knowledge of these claims until very recently. The Trustees therefore never abandoned the claims nor took an inconsistent position before any court. See, e.g., Parker v. Wendy’s International, 365 F.3d 1268 (11th Cir.2004), reversing a district court’s dismissal of a debtor’s Title VII action based on judicial estoppel. There, the Trustee had sought to intervene in the debtor’s civil action and to reopen the debtor’s bankruptcy case in order to administer the claim. The Eleventh Circuit held that the Trustee was not estopped based on the debtor’s post-petition failure to disclose the claim. The Plaintiffs’ Trustees have not yet sought to intervene here, but it is clear that each Trustee intends to administer these claims if permitted to do so by the bankruptcy court.
CONCLUSION
For all of the foregoing reasons, Defendant’s motion for summary judgment against Plaintiffs Sloan, Harris and Freeman (Doc. 107) is granted as to those individual Plaintiffs, and without prejudice to any right or interest of the Trustees for each Plaintiffs’ bankruptcy estate.
SO ORDERED.
	  

3

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

Vivian Bert, et al, Plaintiffs,
v. AK Steel Corporation,
Defendant.

:

Case No. 1:02-cv-467

:

:

:

:

:

:

:

:

ORDER

Before the Court is Defendant’s motion to dismiss the claims

of Plaintiffs Dwight Lewis and Tiffany Jackson. (Doc. 127)

Lewis and Jackson are two of the sixteen African-American

plaintiffs in this case. They each are members of the “testing”

subclass this Court previously certified under Rule 23, and

allege that AK Steel’s pre-employment test has a disparate impact

upon African-American applicants. Neither Lewis nor Jackson have

been appointed to represent the Ashland subclass of which they

are members.

Neither Lewis nor Jackson has responded to properly served

written discovery from AK Steel, despite many months since the

discovery was served. Their depositions were noticed by

agreement with Plaintiffs’ counsel, and neither individual

appeared. Plaintiffs state that Lewis has not been heard from

for some time, and counsel’s efforts to contact him have been

unsuccessful. Jackson was reached by telephone in June, and

-1-

agreed to a deposition date in August. Jackson called

Plaintiffs’ counsel the day before that deposition to confirm

that she would appear. Nevertheless, she did not appear and

counsel has not heard from her since then. (See Doc. 130,

Plaintiffs’ Response.)

The Court concludes that these two Plaintiffs have failed to

prosecute their claims. Neither Plaintiff has offered any reason

that might excuse their utter disregard of their responsibilities

as litigants. The dismissal of these Plaintiffs will not affect

the class claims, as neither individual is a representative for

the Ashland subclass, and adequate representation for that

subclass has already been determined.

Therefore, the Court dismisses the claims of Dwight Lewis

and Tiffany Jackson pursuant to Fed. R. Civ. P. 41(b).

SO ORDERED.

DATED: November 20, 2007

s/Sandra S. Beckwith Sandra S. Beckwith, Chief Judge
United States District Court

-2-

 
 Case: 1:02-cv-00467-SSB-TSH Doc #: 188-1 Filed: 07/02/08 Page: 1 of 24 PAGEID #: 4522
SETTLEMENT AGREEMENT BERT, ET AL. v. AK STEEL CORPORATION
I. Introduction This Settlement Agreement (as defined in Section 1.30, below) is made for the purpose of
settling the case known as Vivian Bert, et al. v. AK Steel Corporation (the "Litigation") on a class-wide basis. The parties have actively engaged in this Litigation for six years including extensive discovery and motion practice. Over one hundred thousand pages of information have been exchanged. More than 20 depositions have been taken. Expert witnesses on both sides have been engaged. AK Steel has filed motions for summary judgment on the class claims. These motions have been held in abeyance by the Court pending further discovery.
During the course of this six-year Litigation, the Parties have engaged in substantial settlement discussions. These discussions culminated in several mediation sessions. On May 29, 2008, a final mediation session was held where the Parties reached the settlement (which is conditioned on Court approval) reflected in this Settlement Agreement.
This Settlement Agreement is made in compromise of disputed claims and is intended to fully, finally and forever resolve, discharge and settle the Released Claims upon the terms and conditions set forth below.
Because the Litigation is a class action, this Settlement Agreement must receive preliminary and final approval by the Court. The Parties have agreed to resolve the Litigation by this Settlement Agreement, but to the extent it is not approved, the Parties agree that each of them reserves all rights to challenge all claims, allegations and defenses in the Litigation upon all procedural, legal and factual grounds and to assert all claims, defenses and privileges. All
{W1279164.12}

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Parties agree that the other Parties retain these rights, and they agree not to take a position to the contrary.
II. The Parties to this Settlement Agreement This Settlement Agreement is made by and among the following Parties: (i) the Class
Representatives (on behalf of themselves and on behalf of the entire Class) with the guidance and approval of Class Counsel; (ii) Roderique Russell; and (iii) AK Steel.
III. Claims ofthe Class Representatives and the Benefits of Settlement This case was originally filed on June 26, 2002 in the United States District Court for the
Southern District of Ohio by 17 named individuals on behalf of themselves and a putative class of African American applicants for a labor reserve position at either the Middletown Works or the Ashland Works of AK Steel. On January 19, 2007, the Court certified the class as two sub-classes under Federal Rule of Civil Procedure 23(b)(2): one for unsuccessful African American Middletown test takers who took the test on or after September 12, 200 I and one for unsuccessful African American Ashland test takers who took the test on or after August 12, 2001.
Since the filing of this Litigation, the Court has granted summary judgment to AK Steel and dismissed the claims of Vivian Bert, Donald Edwards, Thaddeus Freeman, Mary Harris, Tiffany Jackson, Dwight Lewis, Edward Lewis, Michael Miller, Shawn Pryor, Allen Roberts, and Ronald Sloan. The claims ofthe remaining Class Representatives Darrell Carter, Darlene Denise Carter, Mamie Carter, Kay Jackson, and Timothy Oliphant have been narrowed to claims only for injunctive, declaratory and equitable relief.

{W1279164.12}

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The Class Representatives claimed that the Company's pre-employment test had a disparate impact on African American applicants and they sought primarily injunctive relief under Title VII of the Civil Rights Act of 1964. AK Steel filed motions for summary judgment on the class claims and a motion to decertify the Middletown subclass, and these motions were pending on May 29, 2008.
Roderique Russell is the sole remaining individual Plaintiff. He is not a member of the class. Russell passed AK Steel's pre-employment test, but claimed that AK Steel denied him employment because of his race in alleged violation of Title VII ofthe Civil Rights Act of 1964 and 42 U.S.C. § 1981. AK Steel filed a motion for summary judgment on Russell's claims. As of May 29, 2008, the Court had not yet decided this motion.
Plaintiffs recognize and acknowledge the expense and length of the type of continued proceedings necessary to prosecute the Litigation against AK Steel through trial and through appeals. Plaintiffs also recognize that AK Steel has asserted defenses to their claims, including a validation study supporting the use of the test. In addition, Plaintiffs have taken into account the uncertain outcome and the risk of any litigation, as well as the difficulties and delays inherent in such litigation. Plaintiffs are also mindful of the inherent problems of proof in establishing, and in overcoming defenses to, the claims they have asserted in the Litigation.
Plaintiffs believe that this Settlement confers substantial benefits upon the Class in light ofthese and other factors. Based upon their evaluation, Plaintiffs have determined that the Settlement is fair, reasonable and in the best interest ofthe Classes.

IV. AK Steel's Denial of Wrongdoing or Liability and the Benefits of Settlement AK Steel denies all of the claims and contentions by the Class Representatives and
Roderique Russell in the Litigation, and AK Steel believes that the evidence supports the

{VV1279164.12}

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Company's position. Nonetheless, AK Steel has concluded that the substantial additional expense and disruption of continuing this six-year-old Litigation weigh heavily in favor of settlement. AK Steel has taken into account the uncertainty and risks inherent in any litigation. The Company is also mindful of the inherent problems of proof in overcoming claims and establishing defenses to the claims asserted in this Litigation. AK Steel has therefore determined that it is desirable and beneficial to it that the Litigation be settled by the terms and conditions in this Settlement Agreement.

V. Terms of Settlement Agreement It is agreed by and between the Class Representatives (for themselves and the Class),
Roderique Russell and AK Steel, with the assistance of their respective counsel, that the Litigation and the Released Claims shall be fully and finally compromised, settled and released; the Litigation shall be dismissed with prejudice; and the Settlement will be implemented upon and subject to the terms and conditions of this Settlement Agreement and upon entry of the Judgment.

1. Definitions 1.1 "AK Steel" or "the Company" means AK Steel Corporation, the Defendant in the
Litigation, as well as each of its subsidiaries, parents (including without limitation AK Steel Holding Corporation), predecessors, successors, purchasers, assigns and affiliates. 1.2 "AK Steel Releasees" means AK Steel (as defined in Section 1.1, above), as well as its divisions, joint ventures and assigns, and each of these entities' past or present directors, officers, employees, partners, members, principals, insurers (including but not limited to National Union Fire Insurance Company of Pittsburgh, PA), benefit plans, fiduciaries, administrators, agents, shareholders, attorneys, and personal or legal representatives.

{W1279164.12}

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1.3 "Class" or "Classes" means the two sub-classes which have been defined by the Court as: (1) All African American applicants for labor reserve positions at AK Steel's Middletown, Ohio plant who took and failed AK Steel's Screening Employment Test on or after September 12, 2001, and who allege that test has an impermissible disparate impact on African-American applicants; and (2) All African-American applicants for labor reserve positions at AK Steel's Ashland, Kentucky coke and steel plants who took and failed AK Steel's Screening Employment Test on or after August 12, 2001, and who allege that test has an impermissible disparate impact on African-American applicants.
1.4 "Class Counsel" means the law firms of Wiggins, Childs, Quinn & Pantazis, P.C. and Tobias, Kraus & Torchia, and attorneys David Sanford and Grant Morris, who as of this writing are the class counsel in this proceeding.
1.5 "Class Member" means a person who is a member ofthe Class or one of its sub-classes. The Class Members are listed in Attachment A.
1.6 "Class Notice" means a notice entitled "Notice To Class Members Regarding The Settlement Of The Class Action and Notice Of Hearing On Proposed Settlement" to be approved by the Court.
1.7 "Class Payment" means the payment made by AK Steel which will be divided and distributed to Class Members as described in Section 2.3. The amount of the Class Payment will be calculated by mUltiplying $3,400 by the number of Class Members who file a timely and proper Proof of Claim Form pursuant to Section 5.4.1. By way of example only, if 152 Class Members file a timely and proper Proof of Claim Form, the total Class Payment shaH be $516,800; if 100 Class Members file a timely and proper

{W1279164.12}

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Proof of Claim Form, the total Class Payment shall be $340,000; if 50 Class Members file a timely and proper Proof of Claim Form, the total Class Payment shall be $170,000. I.S "Class Representatives" means Darlene Denise Carter, Darrell Carter, Marnie Carter, Kay Jackson and Timothy Oliphant, who as of this writing are the Class Representatives in this proceeding. 1.9 "Clerk of Court" means the Clerk of Court for the United States District Court, Southern District of Ohio. 1.10 "Court" means the United States District Court for the Southern District of Ohio. 1.11 "Effective Date" means the date on which the Judgment dismissing the claims in this Litigation as they pertain to those belonging to Roderique Russell, the Class Representatives and the Class Members becomes Final. 1.12 "Fairness Hearing" means a hearing set by the Court to take place after the Notice Response Deadline for the purpose of (i) determining the fairness, adequacy and reasonableness ofthe Settlement pursuant to class action procedures and requirements; (ii) determining the good faith of the Settlement; and (iii) entering Judgment. 1.13 "Final" means that the period for any appeals, petitions, writs, motions for rehearing or certiorari or any other motions required to seek review by any court with appellate or original jurisdiction has expired without the initiation of a review proceeding, or, if a review proceeding has been timely initiated, that there has occurred a full and final disposition of any such review proceeding, including the exhaustion of proceedings in any remand and/or subsequent appeal on remand. 1.14 "Joint Motion for Preliminary Approval of Class Action Settlement Agreement and Proposed Notice" means a joint motion filed with the Court to have the Court

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preliminarily approve this Settlement, and to enter the Preliminary Approval Order, and to approve a Class Notice to be served on Class Members. 1.15 "Judgment" means the judgment rendered by the Court dismissing the claims in this Litigation with prejudice and approving this Settlement in its entirety without change (unless the Company and the Class Representatives have expressly consented to such changes in writing). 1.16 "Last Known Address" means the mailing address for a Class Member as such information is contained in the records maintained by AK Steel. 1.17 "Litigation" or the "Lawsuit" shall mean the lawsuit currently entitled Vivian Bert, et al. v. AK Steel Corporation, United States District Court for the Southern District of Ohio, Case No. C-I-02-467. 1.18 "Notice Administrator" means Settlement Services, Inc. ("SSI") or such other administrator selected at the discretion of AK Steel responsible for the mailing of certain notices pursuant to this Settlement. 1.19 "Notice Mailing Deadline" shall be the date fourteen (14) days after the Preliminary Approval Date (unless otherwise stated in the Preliminary Approval Order). 1.20 "Notice Response Deadline" shall be the date sixty (60) days after the Class Notice is mailed to the Class Members. 1.21 "Party" or "Parties" mean the Class Representatives, Roderique Russell and AK Steel. 1.22 "Plaintiffs" mean the Class Representatives, Roderique Russell and the Class Members. "Plaintiffs" as defined in this section do not include the other individual plaintiffs in this Litigation whose claims were dismissed by the Court upon motion by AK Steel.

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1.23 "Preliminary Approval Date" shall mean the date on which the Court enters the Preliminary Approval Order.
1.24 "Preliminary Approval Order" shall mean that Order described in Section 5.1.1. 1.25 "Proof of Claim Form" shall mean the forms attached to this Agreement as Attachments
B-1 and B-2 or such other form agreed to by the Parties and approved by the Court consistent with Section 5.5.4. 1.26 "Proof of Claim Mailing Deadline" shall be the date ten (10) days after the Effective Date. 1.27 "Proof of Claim Response Deadline" shall be the date sixty (60) days after the Proof of Claim Form is mailed to the Class Members. 1.28 "Released Claims" shall mean all claims by the Plaintiffs (whether known or unknown), and claims of all Class Members, for any type of relief against the AK Steel Releasees which were asserted or could have been asserted in this Litigation, including without limitation, claims related to the Screening Employment Test and any Class Member's related application for employment at AK Steel. Released Claims include claims for declaratory relief, damages, backpay, unpaid costs, penalties, interest (pre- and post-judgment), attorney fees, litigation costs, or any other monetary remedy, as well as injunctive relief. 1.29 "Screening Employment Test" means AK Steel's paper-and-pencil, 365-question pre-employment screening test prepared by Resource Associates, Inc. that was at issue in this Litigation. 1.30 "Settlement Agreement," or "Settlement" or "Agreement" in isolation, refers to the terms and conditions contained in this document.

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Case: 1:02-cv-00467-SSB-TSH Doc #: 188-1 Filed: 07/02/08 Page: 9 of 24 PAGEID #: 4530
1.31 "Settlement Hearing" has the same definition as "Fairness Hearing" in Section 1.12. 2. Consideration to Class Members 2.1 AK Steel states that it will not use the Screening Employment Test after the Effective
Date. 2.2 AK Steel agrees that it will cause to be validated any pre-employment personality,
intelligence or knowledge-based pre-employment testes) used in the three-year period following the Effective Date for its hiring selection process for entry-level bargaining unit positions at its Middletown Works or Ashland Works. Such validation will be approved by Kathleen Lundquist or another qualified individual approved by counsel for the Parties. The Parties recognize that the expected cost of such validation may exceed $300,000. All such cost will be borne by AK Steel. 2.3 Within ten days of the Proof of Claim Response Deadline, AK Steel will transfer the Class Payment to the Notice Administrator which will establish, and place the Class Payment into, a qualified settlement fund. The Class Payment shall be distributed by the qualified settlement fund to eligible Class Members pursuant to a formula established by Class Counsel, based in part on mitigation factors. The distributions to Class Members shall be paid from the qualified settlement fund, net ofwithholdings for applicable taxes required to be withheld from monies attributable to claimed backpay. AK Steel shall have no authority or liability in connection with the management, investment, maintenance or administration ofthe qualified settlement fund or the amounts of distribution to the individual Class Members. 2.4 If after six months following the issuance of a check to a Class Member, a check is not negotiated, those monies shall be paid to Workplace Fairness.

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Case: 1:02-cv-00467-SSB-TSH Doc #: 188-1 Filed: 07/02/08 Page: 10 of 24 PAGEID #: 4531
2.5 Within ten (10) days of the Effective Date, AK Steel will pay $10,000, less applicable taxes required to be withheld from monies attributable to claimed back pay, to Roderique Russell for settlement and full resolution of his individual claims.
2.6 Within ten (10) days of the Effective Date, AK Steel will pay $10,000 each to Darrell Carter, Darlene Denise Carter, Mamie Carter, Timothy Oliphant and Kay Jackson in recognition of their services as Class Representatives on behalf of the other Class Members and the time and expenses that they have spent prosecuting this six-year Litigation. AK Steel will issue an IRS fonn 1099 for these amounts, and no taxes shall be withheld from these payments. These Plaintiffs are Class Members and so they may also submit a Proof of Claim Form to participate in the qualified settlement fund, if they desire to do so.
2.7 The Parties agree that, other than as provided for in this Settlement Agreement, Plaintiffs are not entitled to and will not seek or receive any further compensation or other consideration from AK Steel including interest, costs or fees related to this Litigation.
3. Contingencies 3.1 This Settlement is contingent upon Court approval. The Parties agree to undertake all
steps and efforts reasonably contemplated by this Agreement and any other steps or efforts which may become necessary by order of the Court to carry out this Agreement and to obtain Court approval. 3.2 In the event that this Settlement is not approved by the Court or any subsequent appellate court or is voided by AK Steel in accordance with Sections 3.3 to 3.5, this Settlement Agreement will not prejudice the rights of the Parties and will not constitute an admission or waiver of any substantive or procedural defense. If this Settlement does not become

{W1279164.12}

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Case: 1:02-cv-00467-SSB-TSH Doc #: 188-1 Filed: 07/02/08 Page: 11 of 24 PAGEID #: 4532
Final or is voided by AK Steel in accordance with Sections 3.3 to 3.5 below, this Litigation and the Parties' rights and defenses shal1 be the same as they were on May 28, 2008 prior to the negotiation of this Settlement Agreement. 3.3 The Court certified this Class as two subclasses under Federal Rule of Civil Procedure 23 (b)(2). For purposes of this Settlement Agreement, the Parties agree that maintenance of this Class under Rule 23(b)(2) is appropriate and neither the facts ofthe case nor the terms ofthis Settlement Agreement change the certification status ofthe Class. The Parties recognize that there are no opt-out rights under Federal Rule of Civil Procedure 23(b)(2). In the event that the Court were to conclude that the Class should be changed to a Rule 23(b)(3) class and to allow for opt-outs, the Parties agree that AK Steel shall have the right and option to void this Settlement in the event that more than 15 Class Members opt out of this Settlement Agreement on the basis that they object to the terms of the Agreement and do not wish to be bound by it. This Agreement, other than for purposes of this Settlement, shall not constitute and shall not be construed as an admission on the part of AK Steel that this action or any other action is appropriate for class treatment and does not constitute a waiver of any substantive or procedural defenses. 3.4 The Parties agree the Class Members are listed in Attachment A. It is presumed that any individual not identified on Attachment A is not a Class Member. Any individual not listed on Attachment A who claims to be a Class Member must file a motion with the Court no later than the Proof of Claim Response Deadline establishing that he or she meets the Class Member definition established by the Court. In the event that the number of Class Members exceeds 200, AK Steel shall have the right and option to void this Settlement.

{W1279164.12}

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Case: 1:02-cv-00467-SSB-TSH Doc #: 188-1 Filed: 07/02/08 Page: 12 of 24 PAGEID #: 4533
3.5 In order to void this Settlement, AK Steel must provide written notice to Class Counsel and the Court that it has elected to void the Settlement pursuant to Section 3.3 or 3.4 of the Settlement Agreement. Such notice must be provided within 30 days after AK Steel receives written notice that either of the events described in Section 3.3 or 3.4 have occurred.
4. Release of AK Steel 4.1 All of Plaintiffs' claims in this Litigation will be dismissed with prejudice. 4.2 Roderique Russell, Darlene Denise Carter, Darrell Carter, Mamie Carter, Kay Jackson
and Timothy Oliphant, individually, on behalf of themselves and any heirs, assigns, attorneys, executors and/or administrators hereby covenant not to sue and fully, finally and forever release AK Steel and the AK Steel Releasees from any and all rights, claims and causes of action of every kind and nature under federal, state or other law, including, but not limited to, any and all claims or rights under any law, statute, ordinance, rule or regulation or the common law, whether known or unknown that have arisen or may arise through the Effective Date of this Agreement as defined in Section 1.11, including those raised in this Litigation. 4.2 The Class Representatives and each of the Class Members fully, finally and forever release, dismiss with prejudice, relinquish and discharge all Released Claims. 4.3 With respect to any and all Released Claims, the Class Representatives agree that they and the Class Members are releasing all Released Claims arising from the beginning of time until the Effective Date of the Settlement, whether known or unknown, suspected or unsuspected, contingent or non-contingent. The Class Representatives acknowledge, and the Class Members shall be deemed by operation ofthe Judgment to have acknowledged,

{W1279164.12}

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Case: 1:02-cv-00467-SSB-TSH Doc #: 188-1 Filed: 07/02/08 Page: 13 of 24 PAGEID #: 4534
that the foregoing waiver was separately bargained for as a key element of the Settlement of which this release is a part. 5. Procedure for Court Approval S.! Court Approval o/Notice to the Class and a Settlement Hearing. S.!.! Via the Joint Motion for Preliminary Approval of Class Action Settlement Agreement and Proposed Notice, the Parties will request that the Court enter a Preliminary Approval Order that shall: (I) preliminarily approve the terms and conditions of the Settlement embodied in this Agreement subject to the Fairness Hearing and final approval by the Court in the final settlement order; (2) schedule the Fairness Hearing for the purposes of determining the fairness, reasonableness and adequacy ofthe Settlement, granting final approval ofthe Settlement, and entering Judgment; and (3) find that the Class Notice fairly and adequately (a) describes the terms and effects of this Agreement and the Settlement; (b) gives adequate notice of the time and place of the Fairness Hearing for final approval ofthe Settlement; (c) describes how recipients ofthe Class Notice may object to approval of the Settlement and/or submit a claim; and (d) constitutes due and sufficient notice of the matters set forth in the Class Notice to all individuals entitled to receive such Class Notice. 5.1.2 If the Court enters the Preliminary Approval Order, then at or before the resulting Fairness Hearing, the Class Representatives and AK Steel through their counsel shall endeavor in good faith to address any written objections from Class Members or any issues or concerns expressed by Class Members who testify at the Fairness Hearing. They further shall endeavor in good faith to address any issues or concerns expressed by the Court during such Fairness Hearing.

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Case: 1:02-cv-00467-SSB-TSH Doc #: 188-1 Filed: 07/02/08 Page: 14 of 24 PAGEID #: 4535
5.3 Notice to Class Members 5.3.1 If, by entering the Preliminary Approval Order, the Court provides authorization to send
a Class Notice to Class Members, the Notice Administrator will mail the Class Notice to all Class Members identified on Attachment A. This Class Notice shall be mailed via first class mail through the United States Postal Service, postage pre-paid. 5.3.2 This Class Notice and its envelope or covering shall be marked to denote the return address ofthe Notice Administrator. 5.3.3 The Notice Administrator shall prepare the name and Last Known Address for each Class Member so that it can engage in the processing and mailing of each Class Notice. This information shall also be provided to Class Counsel who will have the opportunity to review it for accuracy and to provide the Company with updated information to the extent Class Counsel is in possession of such information. Review by Class Counsel will not extend any deadline or any time period or notice period set forth in this Settlement. Class Counsel reserves the right to petition the Court to resolve any sufficiency of the Class Member information. 5.3.4 Unless the parties agree otherwise in writing or the Court so orders, each Class Notice shall be mailed to the Last Known Addresses of the Class Members no later than the Notice Mailing Deadline. 5.3.5 AK Steel shall be responsible for all reasonable costs ofthe mailing described in Section 5.3.1, which shall include the fees charged by the Notice Administrator, the cost of the envelope in which the Class Notice will be mailed, the cost of reproducing the Class Notice and the cost of postage to send the Class Notice. The Class Representatives

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Case: 1:02-cv-00467-SSB-TSH Doc #: 188-1 Filed: 07/02/08 Page: 15 of 24 PAGEID #: 4536
acknowledge that AK Steel's agreement to pay the notice administration and mailing costs constitutes additional consideration to the Class. 5.3.6 Unless the Notice Administrator receives the Class Notice returned from the United States Postal Service, that Class Notice shall be deemed received by the Class Member to whom it was sent three days after mailing. If subsequent to the first mailing of the Class Notice and prior to the deadline for a response, that Class Notice is returned to the Notice Administrator by the United States Postal Service with a forwarding address for the recipient, the Notice Administrator shall re-mail the notice to that address, and the forwarding address shall be deemed the updated address for that Class Member. The Class Notice shall be deemed received upon mailing once it is mailed for the second time. In the event that subsequent to the mailing of any Class Notice, and at least fourteen (14) days prior to the Notice Response Deadline, the Class Notice is returned to the Notice Administrator by the United States Postal Service, the Notice Administrator shall undertake a reasonable secondary address verification measure (i. e., a standard skip trace procedure) to attempt to ascertain the current address of the particular Class Member in question and, if such an address is ascertained, the Notice Administrator will re-send the Class Notice as promptly as possible and in any event within fourteen (14) days of receiving such information. In either event, the Class Notice regarding Settlement of the Litigation shall be deemed received once it is mailed for the second time. In the event the Class Notice is returned as undeliverable, the Notice Administrator will notifY Class Counsel within three business days of the name and the last known address of the Class Member. To the extent Class Counsel ascertains another address for the Class Member the Notice Claims Administrator will mail the Class Notice to this address. The Notice

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Case: 1:02-cv-00467-SSB-TSH Doc #: 188-1 Filed: 07/02/08 Page: 16 of 24 PAGEID #: 4537
Administrator will advise the Court and the Parties of all returned Class Notices as well as the action the Notice Administrator took on each such Class Notice. 5.4 Responses to the Class Notice and the Motionfor Final Approval 5.4.1 Class Members have whatever rights are granted to them in accordance with the Federal Rules of Civil Procedure to file written objections to the Settlement at their own expense on or before the Notice Response Deadline (unless otherwise provided in the Preliminary Approval Order) and to appear at the Settlement Hearing. The Class Notice will advise Class Members of this option and that all objections must be filed in writing, any objections not filed in writing as of the Notice Response Deadline are of no effect, and that Class Members exercising this option shall be responsible for any attorneys' fees or costs incurred by them in connection with such objections. 5.4.2 Prior to the Settlement Hearing and consistent with the instructions of the Court, the Class Representatives and AK Steel shall jointly move the Court for entry of the order of final approval (and the associated entry of Judgment). The Class Representatives and Class Counsel shall be responsible for justifying the agreed upon payments set forth in Section 5.6.1 of this Settlement. To the extent possible, the motion seeking entry of the order of final approval shall be noticed for the same day as the Fairness Hearing, to be scheduled by the Court. 5.5 ProofofClaims Forms 5.5.1 The Notice Administrator shall send a Proof of Claim Form to each Class Member by the Proof of Claim Mailing Deadline. 5.5.2 Unless the Parties agree otherwise in writing or the Court so orders, each Proof of Claim Form shall be mailed to the Last Known Address of the Class Member or the updated

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Case: 1:02-cv-00467-SSB-TSH Doc #: 188-1 Filed: 07/02/08 Page: 17 of 24 PAGEID #: 4538
address for that Class Member. The Proof of Claim Form shall be deemed received by the Class Member to whom it was sent three days after mailing. In the event a Proof of Claim Form is returned as undeliverable, the Notice Administrator will notify Class Counsel and the Court of the returned Proof of Claim Form and the name and Last Known Address or updated address of the Class Member. 5.5.3 AK Steel shall be responsible for all reasonable costs of the mailing described in Section 5.5.1, which shall include the fees charged by the Notice Administrator (if any), the cost of the envelope in which the Proof of Claim Form will be mailed, the cost of reproducing the Proof of Claim Form and the cost of postage to send the Proof of Claim Form.
a 5.5.4 In order to be eligible to receive any payment, Class Member must submit a fully
completed and signed Proof of Claim Form to the Notice Administrator by the Proof of Claim Response Deadline, i. e., postmarked within 60 days of the mailing of the Proof of Claim Form. The Proof of Claim Form shall be executed by the Class Member under penalty of perjury. The amount of distribution from the Class Payment that each Class Member will receive will be based in part upon the amount the individual has suffered alleged harm as compared to the Class, which will be determined pursuant to a formula established solely by Class Counsel based in part on the Class Member's interim earnings. The Proof of Claim Form shall require each Class Member who seeks to receive a distribution from the Class Payment to provide proof of income (interim earnings) from the date of the Class Member's application for employment at AK Steel through the Effective Date. Absent extraordinary circumstances, proof of income shall be a copy of the individual's W-2s or tax returns (or, if neither are in their possession, a sworn statement setting forth their earnings during the period for which W-2s or tax

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Case: 1:02-cv-00467-SSB-TSH Doc #: 188-1 Filed: 07/02/08 Page: 18 of 24 PAGEID #: 4539
returns are not available) reflecting the arnount of earnings during the relevant period (from the date of application through the Effective Date). Unless the Class Member requests that the Proof of Claim Form be filed with the Court, it shall be maintained only by the Notice Administrator and counsel for the parties. In the event that a Proof of Claim Form is filed with the Court, the parties shall request the Court to file such forms under seal. 5.6 Payment a/Costs and Attorney Fees to The Class Representatives 5.6.1 Subject to approval of the Settlement Agreement, AK Steel agrees to pay to Class Counsel $750,000 for all attorney fees and costs (including expert witness fees) related to the Litigation, the subject matter of the Litigation, the Settlement of the Litigation, and the administration of the Settlement which all Parties agree is reasonable under the circumstances. Payment of the attorney fees and costs shall not be due unless and until ten calendar days after the Effective Date. Roderique Russell, the Class Representatives and Class Counsel, on behalf of themselves and all Class Members, agree that they shall not seek nor be entitled to any additional attorney fees or costs from AK Steel under any theory related in any way to the Litigation, the subject matter of the Litigation, the Settlement of the Litigation, or the administration of the Settlement. The Class Representatives and Class Counsel agree that they shall be responsible for filing with the Court any submissions necessary from the Plaintiffs to obtain the approval by the Court of the Settlement Agreement. AK Steel shall make this payment pursuant to this paragraph to Class Counsel directly, and Class Counsel shall provide counsel for AK Steel with the pertinent taxpayer identification numbers and a Form W-9. Other than any reporting of this fee payment as required by this Settlement or law, which AK Steel shall

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Case: 1:02-cv-00467-SSB-TSH Doc #: 188-1 Filed: 07/02/08 Page: 19 of 24 PAGEID #: 4540
make, Class Counsel and the Class Representatives shall alone be responsible for the reporting and payment of any federal, state or local income or other form of tax on any payment made pursuant to this paragraph. Payments made pursuant to this paragraph shall constitute full satisfaction of any claim against the Company by any Class Member or Class Counsel for fees and costs related to the Litigation, the subject matter of the Litigation and the Settlement of the Litigation. 5.6.2 Plaintiffs shall be deemed the prevailing party in this Litigation solely for the purpose of and to the extent necessary to support an award of attorney fees to Class Counsel. 5.6.3 Unless otherwise expressly provided, AK Steel shall have no responsibility for, and no liability whatsoever with respect to, the allocation among the Class Representatives, Class Members, Class Counselor any other person who may assert some claim thereto, of any award or payment issued or made in the Litigation or pursuant to this Settlement, including, but not limited to any award or payment pursuant to Section 5.6.1. 5.7 Notice Administrator 5.7.1 The Company shall be responsible for the fees and expenses reasonably incurred by the Notice Administrator as a result of procedures and processes expressly required by this Settlement. The Class Representatives and Class Counsel shall have no responsibility for any fees or expenses incurred by the Notice Administrator. 5.7.2 The actions of the Notice Administrator shall be governed by the terms of this Settlement. AK Steel may provide relevant information needed by the Notice Administrator per this Settlement Agreement, provide instructions to the Notice Administrator with regard to actions required by this Settlement, and engage in related communications with the Notice Administrator without notice or copies to Class Counsel,

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Case: 1:02-cv-00467-SSB-TSH Doc #: 188-1 Filed: 07/02/08 Page: 20 of 24 PAGEID #: 4541
any Class Members or the Court. However, communications with Class Members regarding notices and responses to notices will be shared with Class Counsel, and counsel for AK Steel, Class Counsel, and the Notice Administrator shall cooperate in establishing a procedure for answering inquiries by Class Members. 5.7.3 In the event that Class Representatives or Class Counsel take the position that the Notice Administrator is not acting in accordance with the terms of the Settlement, Class Counsel shall meet and confer with counsel for AK Steel prior to raising any such issue with the Notice Administrator or the Court. 6. Miscellaneous Provisions 6.1 No person shall have any claim against Class Counsel, the Class Representatives, the Notice Administrator, counsel for AK Steel, or any of the AK Steel Releasees based on the payments made or other actions taken in accordance with this Settlement or orders of the Court. 6.2 The Parties: (a) acknowledge that it is their intent to consummate this Settlement; (b) agree to cooperate to the extent reasonably necessary to effect and implement all terms and conditions of the Settlement; and (c) agree to exercise their best efforts to accomplish the foregoing terms and conditions of the Settlement. 6.3 The Settlement compromises claims that are contested in good faith, and it shall not be deemed an admission by any of the Parties as to the merits of any claim or defense. The .Parties agree that the terms of the Settlement were negotiated in good faith by them, and reflect a Settlement that was reached voluntarily after consultation with competent legal counsel.

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6.4 Neither the Settlement, nor any act performed or document executed in furtherance of the Settlement: (a) is or may be deemed to be or may be used as an admission of, or evidence of, the validity of any Released Claim, or of any wrongdoing or liability of any of the Parties; or (b) is or may be deemed to be or may be used as an admission of, or evidence of, any fault or omission of any of the Parties in any civil, criminal, or administrative proceeding in any court, administrative agency, or other tribunal.
6.5 The Settlement may be amended or modified only by a written instrument signed by or on behalf of AK Steel, Roderique Russell, Class Representatives and the Class Counsel, or their respective successors-in-interest.
6.6 The Settlement constitutes the entire agreement among the Parties hereto. No representations, warranties or inducements have been made to any party concerning the Settlement other than the representations, warranties and covenants contained and memorialized in this document. Each Party assumes the risk of mistake as to facts or law. Except as otherwise provided herein, each Party shall bear its own costs.
6.7 Class Counsel, on behalf ofthe Class, are expressly authorized by the Class Representatives to take all appropriate action required or permitted to be taken by the Class Representatives pursuant to the Settlement to effect its terms, and also are expressly authorized to enter into any modifications or amendments to the Settlement on behalf of the Class which they deem appropriate, subject to the requirements of Rule 23 of the Federal Rules of Civil Procedure.
6.8 Each counselor other person executing the Settlement Agreement on behalf of any Party hereto hereby warrants that such counselor other person has the full authority to do so.

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6.9 The Settlement Agreement may be executed in one or more counterparts. All executed counterparts and each of them shall be deemed to be one and the same instrument. A complete set of original executed counterparts shall be filed with the Court.
6.10 The Settlement shall be binding upon and inure to the benefit of the successors and assigns of the Parties; but this Settlement is not designed to and does not create any third party beneficiaries except for the AK Steel Releasees, who are intended to be third party beneficiaries.
6.11 The Court shall retain jurisdiction with respect to implementation and enforcement of the terms of the Settlement, and all Parties submit to the jurisdiction of the Court for purposes of implementing and enforcing the Settlement.
6.12 The rights and obligations of the Parties to the Settlement shall be construed and enforced in accordance with and governed by the substantive laws ofthe United States and the state of Ohio without giving effect to the state of Ohio's choice oflaw principles.
6.13 The language of all parts of this Settlement shall in all cases be construed as a whole, according to its fair meaning, and not strictly for or against either Party. No Party shall be deemed the drafter of this Settlement. The Parties acknowledge that the terms of the Settlement are contractual and are the product of negotiations between the Parties, by or with the assistance of their counsel. Each Party through their counsel cooperated in the drafting and preparation of the Settlement. The Parties hereto have caused the Settlement to be executed.
6.14 No Party shall initiate contact with the media relative to this Settlement or Litigation absent agreement of the parties.

{W1279164.12}

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Case: 1:02-cv-00467-SSB-TSH
07/01/2008 14:55 FAX 205 254 1500

Doc

#:W1IG8G8IN-1S

FCiHleILdD:S07/02/08

Page:

23

of

24

PAGE~ID00#2:/0405244

DATED: July 1, 2008

CLASS COUNSEL AND COUNSEL FOR RODERIQUE RUSSELL,

obert F. Childs, Jr. Hennan Joimson, Jr. Susan Donohue Wiggins, Childs, Quinn & Pantazis, P.C. The Kress Building 301 19th Street North Birmingham, Alabama 35203

and

David Sandford Sanford, Wittels & Heisler, L.L.P. 1666 COlUlecticut Avenue, N.W. Suite 310 Washington, D.C. 20009

and
, ,

Grant Morris

"

7 DuPont Circle, N.W.

Suite 250

Washington, D.C. 20036

and

Paul H. Tobias Esq. Tobias, Kraus & Torchia 911 Mercantile Library Building 414 Walnut Street CincilUlati, OlI 45202

AK STEEL CORPORATrON
By: __________~__---------
David C. Hom, its Senior Vice President, General Counsel and Secretary
COUNSEL FOR AK STEEL CORPORATION
Lawrence J. Barty Gregory Parker Rogers Patricia Anderson Pryor Taft Stettinius & Hollister LLP 425 Walnut Street, Suite 1800 Cincinnati, Ohio 45202

(W1.79164.1.)

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Case: 1:02-cv-00467-SSB-TSH Doc #: 188-1 Filed: 07/02/08 Page: 24 of 24 PAGEID #: 4545

DATED: July 1,2008

CLASS COUNSEL AND COUNSEL FOR RODERIQUE RUSSELL:
Robert F. Childs, Jr. Helman Johnson, .Tr. Susan Donohue Wiggins, Childs, Quinn & Pantazis, P.C. The Kress Building 30 I 191h Street North Birmingham, Alabama 35203
and
David Sandford Sanford, Wittels & Heisler, L.L.P. 1666 Connecticut Avenue, N.W. Suite 310 Washington, D.C. 20009
and
Grant MOlTis 7 DuPont Circle, N.W. Suite 250 Washington, D.C. 20036
and
Paul H. Tobias Esq. Tobias, Kraus & Torchia 911 Mercantile Library Building 414 Walnut Street Cincinnati, OH 45202

By:c..J~(J~ AK/I.EPORATION David C. Horn, its Senior Vice President, General Counsel and Secretary
COUNSEL FOR AK STEEL CORPORATION
Gregory Par er Rogers Patricia Anderson Pryor Taft Stettinius & Hollister LLP 425 Walnut Street, Suite 1800 Cincinnati, Ohio 45202

{W1279164.12}

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 Case: 1:02-cv-00467-SSB-TSH Doc #: 188 Filed: 07/02/08 Page: 1 of 10 PAGEID #: 4512

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

VIVIAN BERT, et al., Plaintiffs,
v. AK STEEL CORPORATION,
Defendant.

: Case No. 1:02cv467 : : Judge Beckwith : : JOINT MOTION FOR PRELIMINARY : APPROVAL OF CLASS ACTION : SETTLEMENT AGREEMENT AND : PROPOSED CLASS NOTICE :

Plaintiffs Darlene Denise Carter, Darrell Carter, Marnie Carter, Kay Jackson and
Timothy Oliphant (the “Class Representatives”) and Defendant AK Steel Corporation have
entered into a Settlement Agreement resolving, subject to Court approval, all the claims of the
Class Representatives and Class in this litigation.
Pursuant to Fed. R. Civ. P. 23, the parties jointly move the Court to enter an Order:
(1) Granting preliminary approval of the proposed Settlement Agreement subject to a final fairness hearing;
(2) Approving the proposed notice to be sent to the Class Members affected by the Settlement; and
(3) Setting a date for a hearing on the fairness, reasonableness, and adequacy of the Settlement Agreement pursuant to Federal Rule of Civil Procedure 23(e).

{W1289770.4}

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A Memorandum in Support of this Motion is attached, along with a copy of the proposed Settlement Agreement (Exhibit A) and a copy of the proposed Notice to Class Members (Exhibit B). A proposed agreed Order has also been submitted to the Court’s chambers by email to beckwith_chambers@ohsd.uscourts.gov.
Respectfully submitted,

/s/ Robert F. Childs by G. P. Rogers with permission

Robert F. Childs, Jr.

Lawrence

Herman Johnson, Jr.

Gregory

Susan Donahue

Patricia

Wiggins, Childs, Quinn & Pantazis, P.C.

Taft

The Kress Building 301 19th Street North

425 Cincinnati,

Birmingham, Alabama 35203

Paul H. Tobias Esq. Tobias, Kraus & Torchia 911 Mercantile Library Building 414 Walnut Street Cincinnati, OH 45202

/s/ Gregory Parker Rogers J. Barty
Parker Rogers Anderson Pryor Stettinius & Hollister LLP Walnut Street, Suite 1800
Ohio 45202
Attorneys for Defendant AK Steel Corporation

David Sanford Sanford, Wittels & Heisler, L.L.P. 1666 Connecticut Avenue, N.W. Suite 310 Washington, D.C. 20009

Grant Morris 7 DuPont Circle, N.W. Suite 250 Washington, D.C. 20036

Attorneys for Plaintiffs

{W1289770.4}

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Case: 1:02-cv-00467-SSB-TSH Doc #: 188 Filed: 07/02/08 Page: 3 of 10 PAGEID #: 4514

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

VIVIAN BERT, et al., Plaintiffs,
v. AK STEEL CORPORATION,
Defendant.

: Case No. 1:02cv-467 : : Judge Beckwith : : MEMORANDUM IN SUPPORT OF : JOINT MOTION FOR PRELIMINARY : APPROVAL OF CLASS ACTION : SETTLEMENT AGREEMENT AND : PROPOSED CLASS NOTICE

I. INTRODUCTION The Class Representatives and AK Steel Corporation (“AK Steel” or “the Company”), following extensive arms’ length negotiations, have entered into a Settlement Agreement that would resolve the class claims raised in this proceeding. The parties jointly submit the Settlement Agreement for preliminary approval by the Court, pursuant to Fed. R. Civ. P. 23(e). By this Motion, the parties respectfully submit that the Court should grant preliminary approval to the Settlement Agreement, approve the notice to Class Members, and schedule the Fairness hearing for final approval.
II. BACKGROUND Plaintiffs filed this lawsuit six years ago alleging that AK Steel discriminated against African American applicants for labor reserve positions at its Middletown Works and at its Ashland Works. Originally, 17 named individuals were seeking to represent a purported class or classes of individuals. In October 2005, Plaintiffs moved for class certification with respect to a more narrow group of class members, those who took and failed AK Steel’s pre-employment screening test at the two locations. Injunctive relief was the predominant relief sought by the class. This Court certified the Class as two subclasses on January 19, 2007 under Fed. R. Civ. P.

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23(b)(2), one subclass for those African American applicants who took and failed the test in Middletown on or after September 12, 2001 and one subclass for those African American applicants who took and failed the test in Ashland on or after August 12, 2001.
The Parties have engaged in extensive discovery over the six years of this litigation. Plaintiffs and the Company served initial disclosures, provided answers to and requests for production of documents, and produced over one hundred thousand pages of information. Depositions have been taken of each of the Class Representatives and of a number of AK Steel employees.
Plaintiffs claim that the pre-employment test that AK Steel used when hiring for labor reserve positions had a disparate impact on African American applicants. According to Plaintiffs, African Americans failed the test at a greater rate than did other applicants.
AK Steel denies that it has discriminated against any applicant. The test at issue was developed by a third party, Resource Associates, Inc. AK Steel submits the test properly was validated in compliance with the Uniform Guidelines on Employee Selection Procedures.
Both Parties acknowledge problems of proof in establishing their claims and defenses, the inherent uncertainty and risks of litigation, and the expense and delays that would be involved in continuing to litigate their dispute.
The Parties have engaged in settlement discussions at various times throughout this Litigation. On May 29, 2008, a formal mediation was held where the Parties reached the Settlement described here, which they subsequently committed to writing.
Under the proposed Settlement, AK Steel agrees not to use the employment screening test at issue in this litigation and it also agrees to validate any employment screening test it does use for the three year period after the agreement is finally approved by an agreed upon third party expert. The expected cost of such validation exceeds $300,000. In addition to this agreed upon

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Case: 1:02-cv-00467-SSB-TSH Doc #: 188 Filed: 07/02/08 Page: 5 of 10 PAGEID #: 4516
class relief, AK Steel will also pay to the Class a sum total equal to $3,400 per Class Member who submits a proof of claim and $10,000 to each of the Class Representatives for their time and expenses in prosecuting this litigation as Class Representatives for the last six years. The Company also agrees to pay $10,000 to Roderique Russell, the remaining individual plaintiff for his individual claim. In exchange, Russell, the Class Representatives and the Class members agree that the claims in this case should be dismissed with prejudice. Russell and the Class Representatives release AK Steel from any and all claims. The Class Members release AK Steel from claims that were asserted or could have been asserted in this litigation, including claims related to the pre-employment test and their related application for employment. AK Steel has also agreed to pay attorneys’ fees and expenses to the Plaintiffs in the amount of $750,000.
III. ARGUMENT A. Under Fed. R. Civ. P. 23(e), This Settlement Agreement Should Be Approved
By The Court. Review and approval of a class action settlement involves three steps: (1) the Court preliminarily approves the proposed settlement; (2) members of the class are notified of the proposed settlement and (3) the Court holds a hearing to determine whether the proposed settlement is fair, reasonable, and adequate. Alvorado v. Memphis–Shelby County Airport, 2000 WL 1182446, *5 (6th Cir. 2000); Reed v. Rhodes, 869 F. Supp. 1274, 1278 (N.D. Ohio 1994); Bronson v. Bd. of Educ. of Cincinnati, 604 F. Supp. 68, 72 (S.D. Ohio 1984). If a proposed settlement appears to be the result of serious, informed, non-collusive negotiations, if it has no obvious deficiencies, if it does not improperly grant preferential treatment to class representatives or segments of the class, and if it falls within the range of reasonableness, the court should grant preliminary approval, direct the sending of notice to the classes, and schedule a fairness hearing. In re Telectronics Pacing Systems, Inc., 137 F. Supp. 2d 985, 1015-16 (S.D.

{W1289770.4}

3

Case: 1:02-cv-00467-SSB-TSH Doc #: 188 Filed: 07/02/08 Page: 6 of 10 PAGEID #: 4517
Ohio 2001). In this Joint Motion, the Parties submit that the requirements for preliminary approval are satisfied and they ask that the Court direct the mailing of the Class Notice and schedule a Fairness Hearing.
B. The Court Should Grant The Parties’ Joint Motion For Preliminary Approval Of The Settlement Agreement.
The Court should preliminarily approve the Settlement Agreement in this case because it is within the range of reasonableness and does not evidence unduly preferential treatment or other obvious deficiencies. “The law favors voluntary settlement of class action litigation.” UAW v. Ford Motor Corp., 2006 WL 1984363, *21 (E.D. Mich. 2006); UAW v. General Motors Corp., 2006 WL 891151, *12 (E.D. Mich. 2006). (Both settlements were affirmed in UAW v. General Motors Corp., 497 F.3d 615 (6th Cir. 2007).) At this preliminary approval stage, the Court’s role is limited to issues such as determining whether the proposed Settlement Agreement is “within the range of reasonableness.” Ford, 2006 WL 1984363 at *21. The Court should examine whether the Settlement is “illegal or tainted with collusion” or “the product of armslength negotiations.” Bronson, 604 F. Supp. at 71. “The [C]ourt’s determination should be based on its familiarity with the issues, the results of discovery, and the character of the negotiations.” Id.
The Settlement Agreement provides for the injunctive relief sought by Plaintiffs, i.e., AK Steel will not use the challenged test and will have any test used during the next three years validated by an agreed upon expert. The monetary value of this is likely worth more than $300,000.00. The Agreement also contemplates a class payment of up to $516,800 (based on the number of presumed class members). Considering the asserted claims and defenses of the Parties, the problems of proof, and the risks and delays of litigation, this relief clearly represents an amount “within the range of reasonableness.”

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Case: 1:02-cv-00467-SSB-TSH Doc #: 188 Filed: 07/02/08 Page: 7 of 10 PAGEID #: 4518
The proposed payments made to the Class Representatives of $10,000 apiece are reasonable based on the time and effort that they have spent during this six-year litigation in order to obtain relief on behalf of the class. In addition to representing the Class in this litigation for six years, they have each spent time responding to interrogatories and document requests, preparing for depositions and having each of their depositions taken. Federal courts routinely approve incentive awards to compensate named plaintiffs for the services they provide and the risks they incur during the course of class litigation. See Enterprise Energy Corp. v. Columbus Gas Transmission Corp., 137 F.R.D. 240, 250-51 (S.D. Ohio 1991) (approving $50,000 to class representatives); In re Dun &. Bradstreet Credit Serv. Customer Litig., 130 F.R.D. 366, 373-74 (S.D. Ohio 1990) (approving incentive awards in the amount of $35,000 to $55,000 to class representatives); In re Linerboard, 2004 WL 1221350, at * 19 (E.D. Pa. 2004) (approving incentive awards of $25,000 to each of five named plaintiffs); In re Residential Doors Antitrust Litig., 1998 WL 151804, at *11 (E.D. Pa. 1998) (approving $10,000 incentive awards).
The Settlement Agreement was negotiated at arms’ length by adversarial and informed Parties with the assistance of experienced counsel. The most recent settlement negotiations followed nearly six years of vigorously contested litigation and extensive discovery, during which over one hundred thousand documents were exchanged and over 20 depositions were taken. Ultimately, after multiple proposals were exchanged, the Parties reached agreement with the assistance of an experienced mediator.
The Settlement Agreement, which was negotiated by the Parties to a highly adversarial lawsuit, is not the result of illegality or collusion. The requirements for preliminary approval are met and the Court should grant the Joint Motion.

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Case: 1:02-cv-00467-SSB-TSH Doc #: 188 Filed: 07/02/08 Page: 8 of 10 PAGEID #: 4519
C. The Court Should Approve The Parties’ Proposed Form And Method Of Notice Of The Class Settlement.
Once the Court makes a determination that a proposed settlement is within the range of reasonableness, notice of a formal Rule 23(e) hearing is given to class members. Manual on Complex Litigation (4th) § 21.633. The notice of the fairness hearing should advise objectors to file written statements of their objections by a specified date in advance of the hearing and to give notice if they intend to appear at the fairness hearing. Id.
The Parties have agreed on the content and method of the proposed notice. The Class Notice explains the nature of the controversy, the details of the Settlement Agreement, the eligibility of Class Members to participate in the Settlement, and their right to object to it. (Attached as Exhibit B) The Class Notice will be mailed to all Class Members via first class mail to their last known addresses.
The Court should approve the form and method of notice to the Class. D. The Parties Request The Court To Schedule A Final Fairness Hearing. Under the proposed Settlement Agreement, the Parties have agreed to send the class notice within 14 days of the Court’s preliminary approval. Class members will have 60 days to submit written objections in advance of the fairness hearing. The parties request that this Court schedule a fairness hearing on the Settlement Agreement for a time after November 1, 2008.

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Case: 1:02-cv-00467-SSB-TSH Doc #: 188 Filed: 07/02/08 Page: 9 of 10 PAGEID #: 4520

IV. CONCLUSION

For the foregoing reasons, the Parties respectfully request that the Court (i) preliminarily

approve the Settlement Agreement; (ii) approve the proposed Class Notice and the mailing

thereof; and (iii) set a date for a Fairness Hearing under Rule 23(e).

Respectf

ully submitted,

/s/ Robert F. Childs by G. P. Rogers with permission

Robert F. Childs, Jr.

Lawrence

Herman Johnson, Jr.

Gregory

Susan Donahue

Patricia

Wiggins, Childs, Quinn & Pantazis, P.C.

Taft

The Kress Building 301 19th Street North

425 Cincinnati,

Birmingham, Alabama 35203

/s/ Gregory Parker Rogers J. Barty
Parker Rogers Anderson Pryor Stettinius & Hollister LLP Walnut Street, Suite 1800
Ohio 45202
Attorneys for Defendant AK Steel Corporation

Paul H. Tobias Esq. Tobias, Kraus & Torchia 911 Mercantile Library Building 414 Walnut Street Cincinnati, OH 45202

David Sanford Sanford, Wittels & Heisler, L.L.P. 1666 Connecticut Avenue, N.W. Suite 310 Washington, D.C. 20009
Grant Morris 7 DuPont Circle, N.W. Suite 250 Washington, D.C. 20036
Attorneys for Plaintiffs

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Case: 1:02-cv-00467-SSB-TSH Doc #: 188 Filed: 07/02/08 Page: 10 of 10 PAGEID #: 4521
CERTIFICATE OF SERVICE I certify that on July 2, 2008, I electronically filed the foregoing Joint Motion For Preliminary Approval Of Class Action Settlement And Proposed Class Notice with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following: Susan Donahue, Robert Childs, Herman N. Johnson, Jr., Wiggins, Childs, Quinn & Pantazis, P.C., The Kress Building, 301 19th Street North, Birmingham, Alabama 35203; Paul H. Tobias, Tobias, Kraus & Torchia, 911 Mercantile Library Building, 414 Walnut Street, Cincinnati, Ohio 45202; and David Sanford, Sanford, Wittels & Heisler, L.L.P., 2121 K Street, N.W., Suite 700, Washington, D.C. 20037.
/s/ Gregory Parker Rogers

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8

 
 Bert v. AK Steel Corp., Not Reported in F.Supp.2d (2008)

2008 WL 4693747 Only the Westlaw citation is currently available.
United States District Court, S.D. Ohio,
Western Division.
Vivian BERT, et al, Plaintiffs, v.
AK STEEL CORPORATION, Defendant.
No. 1:02-CV-467. | Oct. 23, 2008.
Attorneys and Law Firms
Allison W. Lowell, Barry V. Frederick, Herman Nathaniel Johnson, Jr., Robert F. Childs, Susan Gale Donahue, Wiggins Childs Quin & Pantazis, Birmingham, AL, Paul Henry Tobias, Tobias & Kraus, Cincinnati, OH, David W. Sanford, Sanford Wittels & Heisler LLP, Washington, DC, for Plaintiffs.
Gregory Parker Rogers, Lawrence James Barty, Patricia Anderson Pryor, Taft, Stettinius & Hollister LLP, Cincinnati, OH, for Defendant.
Opinion
ORDER APPROVING CLASS ACTION SETTLEMENT
SANDRA S. BECKWITH, Chief District Judge.
*1 This matter is before the Court on the parties’ joint motion to approve the proposed class action settlement. (Doc. 192) For the reasons that follow, the Court finds that the motion to approve the settlement agreement is meritorious, and it is therefore granted.
PROCEDURAL HISTORY
Vivian Bert and fifteen other named Plaintiffs filed this lawsuit in June 2002, on behalf of themselves and a potential class of similarly-situated persons, against AK Steel Corporation. Plaintiffs alleged that AK Steel

discriminated against African American applicants in its hiring practices for entry-level positions at its steel manufacturing plants in Middletown, Ohio and Ashland, Kentucky. Plaintiffs sought to represent all African-American applicants who had not been hired by AK Steel. Plaintiffs also brought individual discrimination claims under Title VII and 42 U.S.C. § 1981.
Plaintiffs moved for Rule 23 class certification in 2005, on behalf of a more narrowly-defined class, African-American applicants who took and failed a pre-employment test used by AK Steel. After extensive briefing, this Court certified two subclasses under Fed.R.Civ.P. 23(b)(2). (Doc. 96, Order of January 19, 2007) One subclass consisted of African American applicants at the Middletown plant, who failed the test on or after September 12, 2001. The second consisted of African American applicants who failed the test in Ashland on or after August 12, 2001. The current class representatives-Darlene Denise Carter, Darrell Carter, Timothy Oliphant, Kay Jackson, and Marnie Carter-dismissed their individual discrimination claims. In several subsequent orders, this Court dismissed the claims of plaintiffs Vivian Bert, Donald Edwards, Thaddeus Freeman, Mary Harris, Tiffany Jackson, Dwight Lewis, Edward James Lewis, Michael Miller, Shawn Pryor, Allen Roberts, and Ronald Sloan. Thus, in addition to the class representatives, only the individual claims of Plaintiff Roderique Russell were pending when the parties held their settlement conference in May 2008.
Both before and after the class certification order, the parties engaged in extensive discovery. An initial attempt at settlement in January 2006 was not successful. However, the parties tried again, with the assistance of mediator Hunter Hughes of Atlanta, Georgia, and were able to reach a global settlement in May 2008. They filed a motion for preliminary approval of the proposed settlement on July 2, 2008 (Doc. 188), a motion this Court granted on July 8, 2008. (Doc. 190)
The terms of the settlement agreement provide that AK Steel will cease its use of its challenged pre-employment test, and will validate (at the company’s sole expense) any pre-employment test it uses over the next three years. That validation study will be approved by a qualified individual approved by counsel for the parties. (Settl.Agr. § 2.2) AK Steel agrees to pay Rodrique Russell $10,000 to settle his individual claims, and also to pay incentive
1

Bert v. AK Steel Corp., Not Reported in F.Supp.2d (2008)

awards of $10,000 to each of the five class representatives. (Id., § 2.6) AK Steel will establish a class payment fund, the total amount of which will equal $3,400 times the number of class members who file a timely proof of claim form. According to the affidavit of the claims administrator, 153 identified class members were mailed the settlement information and a claim form. Fifteen of those packets were returned to the administrator as undeliverable, and no updated address information could be provided for those fifteen people. Counsel informed the Court that the administrator has good addresses for the balance of the class, 138 individuals. The administrator did not receive any objections from any class member to the proposed settlement. (Doc. 192, Declaration of Claims Administrator Mark Patton.) Under the terms of the proposed settlement, claim forms will be mailed upon final approval and entry of judgment. If all 138 class members return their claim forms, AK Steel’s contribution to the class payment fund will be $469,200. The actual distribution of the fund to the class will be conducted by class counsel.
*2 AK Steel has also agreed to pay Plaintiffs’ attorneys’ fees and expenses, in an agreed amount of $750,000. AK Steel absorbed all costs associated with the mailing of claim forms to the class members, including the claims administrator’s fees for the mailings.
DISCUSSION
Rule 23(e) of the Federal Rules of Civil Procedure controls class action settlements, and requires the trial court to approve all such settlement agreements. The Court must direct reasonable notice of the settlement to the class members, hold a hearing, and expressly find that the settlement is fair, reasonable, and adequate. Fed.R.Civ.P. 23(e)(1). The trial court may only accept or reject the settlement as agreed to by the parties; the court has no authority to modify the terms of the agreement. Brown v. County of Genesee, 872 F.2d 169, 173 (6th Cir.1989).
Reasonable notice of the settlement in this case has been directed to the individually-identified class members, and the Court held a fairness hearing on October 21. Therefore, the Court’s remaining task is to determine whether the settlement is fair, reasonable, and adequate. In making that assessment, the trial court should consider the following factors: 1) the risk of fraud or collusion; 2)

the complexity, expense and likely duration of the litigation; 3) the amount of discovery engaged in by the parties; 4) the likelihood of success on the merits; 5) the opinions of class counsel and class representatives; 6) the reaction of absent class members; and 7) the public interest. See UAW v. GMC, 497 F.3d 615, 631 (6th Cir.2007); Granada Invs., Inc. v. DWG Corp., 962 F.2d 1203, 1205 (6th Cir.1992).
A. The Risk of Fraud or Collusion The parties negotiated the settlement agreement with assistance from a private mediator, Hunter Hughes, who is experienced in mediating and resolving class action discrimination claims. The participation of an independent mediator in settlement negotiations virtually insures that the negotiations were conducted at arm’s length and without collusion between the parties. Hemphill v. San Diego Ass’n of Realtors, Inc., 225 F.R.D. 616, 621 (S.D.Cal.2005); In re Toys R Us Antitrust Lit., 191 F.R.D. 347, 352 (E.D.N.Y.2000). The docket in this case reflects several prior attempts by the parties to reach a resolution, and counsel confirmed to the Court during the fairness hearing that the negotiations were hard fought.
Accordingly, this factor weighs in favor of approving the settlement.
B. Complexity, Expense and Duration of the Litigation This case presented many complex issues, not the least of which was the potential for successfully establishing the disparate impact of AK Steel’s test upon African American applicants. The parties devoted a significant amount of time to preparation of their respective experts, and the additional expense of taking this case to trial would be significant. The case was already over four years in litigation when this Court granted class certification; significant disputes at the summary judgment stage were pending. If the case went to trial, a bifurcated procedure would likely have been necessary, due to the limited monetary relief available to the class under Rule 23(b)(2). The Court has no doubt that the required trials or hearings would have been time consuming, and that a complete resolution of the case would not be reached for several more years. This factor clearly weighs in favor of the proposed settlement.
2

Bert v. AK Steel Corp., Not Reported in F.Supp.2d (2008)

C. The Amount of Discovery Completed *3 A significant amount of discovery had been completed by the time the proposed settlement was reached. All parties were afforded the opportunity and adequate time in which to assess the strengths and weaknesses of their respective positions. This factor also weighs in favor of approving the proposed settlement. See Bell Atlantic Corp. v. Bolger, 2 F.3d 1304, 1314 (3rd Cir.1993)(“[P]ost-discovery settlements are more likely to reflect the true value of the claim and be fair.”).
D. The Likelihood Success on the Merits Plaintiffs presented a qualified expert’s opinion that AK Steel’s test had a disparate impact on the class. Plaintiffs were able to achieve class certification on that question, and the parties were engaged in discovery and summary judgment briefing when they negotiated the settlement agreement. AK Steel had presented several significant arguments against its liability, supported by its own qualified expert. The issue of whether the challenged test was properly validated had not yet been reached, and additional discovery (and perhaps additional expert opinions) would have been required. Great uncertainty exists concerning the ultimate outcome of this case. The Court cannot discount the distinct possibility that further litigation would have resulted in an adverse outcome for the Plaintiffs. The mechanism of the class fund ensures that all class members will receive some compensation. Given all of these considerations, the Court finds this factor weighs in favor of the proposed settlement.
E. Opinions of Class Counsel and Class Representatives Class counsel are all experienced class action litigators. Mr. Childs has over thirty years of experience, and his law firm specializes in class action discrimination litigation. He has been involved in dozens, if not hundreds, of such cases. (See Doc. 81, Affidavit of Robert Childs) His opinion that the proposed settlement is fair to the class is entitled to considerable weight. See Turner v. Murphy Oil USA, Inc., 472 F.Supp.2d 830, 852 (E.D.La.2007). The same observations pertain to Mr. Tobias. This factor unquestionably supports the approval of the proposed settlement.
F. Reaction of Absent Class Members The claims administrator received no objections from any

of the class members, and no objectors appeared at the fairness hearing. This silence supports the conclusion that the class members do not oppose the proposed settlement, including its incentive payments to the class representatives.
The Sixth Circuit has observed that incentive awards may be appropriate in some cases, but has not specified the appropriate circumstances. Hadix v. Johnson, 322 F.3d 895, 897-98 (6th Cir.2003). In this district, trial judges have approved incentive awards for class representatives after consideration of several factors, including their actions to protect the rights of the class members and whether those actions resulted in a substantial benefit to the class members, whether the class representative assumed any direct or indirect financial risk, and the amount of time and effort spent pursuing the litigation. Enterprise Energy Corp. v. Columbia Gas Transmission Corp., 137 F.R.D. 240, 250 (S.D.Ohio 1991). Given the length of this litigation, the time necessary to respond to discovery requests and giving deposition testimony, and the absence of any objection from anyone to the rather modest proposed incentive awards in this case, the Court believes the awards are fair and reasonable.
*4 Class counsel is also entitled to be fairly compensated for the work done and the results achieved in this case. The proposed settlement agreement reflects the parties’ agreement that, solely for recovery of attorney’s fees, Plaintiffs may be considered prevailing parties under Title VII, and entitled to recover reasonable attorney fees under that statute. Rule 23(h) permits the Court to award reasonable attorney’s fees and costs by agreement of the parties. No class member has objected to the proposed payment. The Court is well aware of the extensive efforts of class counsel during this litigation. The agreed amount also includes the expert fees incurred by the Plaintiffs; the length and complexity of the expert’s affidavits previously submitted reflect a significant amount of work performed. The Court specifically finds that the proposed settlement amount for attorney’s fees is eminently reasonable.
G. The Public Interest Finally, the Court must consider the public interest in approving the settlement. Public policy favors settlement of class action lawsuits. Whitford v. First Nationwide Bank, 147 F.R.D. 135, 143 (W.D.Ky.1992). Here, the proposed settlement will end this litigation after more than six years. It will also provide a benefit to the class
3

Bert v. AK Steel Corp., Not Reported in F.Supp.2d (2008)

members who may have been adversely affected by the challenged employment test, without protracted proceedings involving entitlement to back pay. And the injunctive relief obtained, discontinuance of the use of the test, will inure to the benefit of all job applicants, including those not within the class. The public interest weighs in favor of approving the proposed settlement.
The Court therefore finds that each of the pertinent factors weighs in favor of approval of the proposed settlement, with one caveat. During the fairness hearing, the Court questioned class counsel concerning the specific mechanics of allocating the class payment fund to the individual class members. It is clear that the specifics of a distribution plan have not yet been finalized; class counsel stated that it is likely that a “floor” payment will be set which every class member will be entitled to receive. Final allocation of the additional funds will be based on submission of information from the class members concerning other employment. The Court has great respect for class counsel and has no doubt concerning their highest professional ethics. However, Rule 23 vests responsibility with the Court to protect all class members, and the Court has broad discretion to enter appropriate orders to achieve that goal. For that reason, the Court will retain jurisdiction over the settlement distribution procedures, and will require class counsel to submit a report to the Court prior to the final distributions,

explaining the method of allocation of the funds and the reasons for the method chosen. Class counsel did not object to this Court’s limited retention of jurisdiction for that purpose.
*5 In all other respects, the Court approves the proposed settlement as presented.
CONCLUSION
For all of the foregoing reasons, the Court GRANTS the joint motion of the parties to approve the proposed settlement. (Doc. 192) The Court finds that, under Fed.R.Civ.P. 23(e), the settlement agreement is fair, reasonable, and adequate. Class counsel shall file a report with the Court prior to any distribution of funds to class members, explaining the basis for the distributions to each member. That report, or a progress report and a request for additional time, shall be filed no later than February 20, 2009.
SO ORDERED.
	  

4

 
 Bert v. AK Steel Corp., Not Reported in F.Supp.2d (2006)

2006 WL 1071872 Only the Westlaw citation is currently available.
United States District Court, S.D. Ohio,
Western Division.
Vivian BERT, et al, Plaintiffs, v.
AK STEEL CORPORATION, Defendant.
No. 1:02-CV-00467. | April 24, 2006.
Attorneys and Law Firms
Allison W. Lowell, Barry V. Frederick, Herman Nathaniel Johnson, Jr., Robert F. Childs, Susan Gale Donahue, Wiggins Childs Quinn & Pantazis PC, Birmingham, AL, David Donald Kammer, Paul Henry Tobias, Tobias, Kraus & Torchia, Cincinnati, OH, David W. Sanford, Sanford Wittels & Heisler LLP, Washington, DC, for Plaintiffs.
Gregory Parker Rogers, Lawrence James Barty, Patricia Anderson Pryor, Taft, Stettinius & Hollister LLP, Cincinnati, OH, for Defendant.
Opinion
ORDER
SANDRA S. BECKWITH, Chief District Judge.
*1 Before the Court is Plaintiffs’ motion for class certification (Docs.70, 71). Defendant opposes the motion (Doc. 73), and Plaintiffs have replied (Doc. 75). Defendant also seeks leave to file a surreply (Doc. 77) which Plaintiffs oppose (Doc. 78).
Factual Background
Plaintiffs are sixteen African-American unsuccessful applicants for employment with AK Steel, and one African-American employee (Allen Roberts). Their original complaint, filed on June 26, 1998, alleged that AK Steel engages in systemic racial discrimination in its hiring and promotion practices at its plants located in Middletown, Ohio and Ashland, Kentucky. The Second

Amended Complaint (Doc. 45) contains claims under 42 U.S.C. § 1981 and 42 U.S.C. § 2000(e) by both the Applicant Plaintiffs and by the employee Plaintiff Roberts, alleging discriminatory disparate treatment and disparate impact. The Second Amended Complaint defines a proposed “hiring class” of all African-Americans who applied and were rejected for employment, or were deterred or discouraged from applying for employment with AK Steel from June 26, 1998 forward. (Doc. 45, ¶ 29)
Nine of the sixteen original Applicant Plaintiffs now seek certification of a more narrowly defined class, of African-Americans who failed a written pre-employment test, and who allege that the test has an impermissible disparate impact on African-American applicants. (The other seven of the Applicant Plaintiffs apparently did not take this test, and are not included in the proposed class definition.)
A. Overview of AK Steel’s Hiring Process. The Applicant Class Plaintiffs allege they each applied for entry-level positions at one of AK Steel’s plants. These jobs are called Laborer (or Employment Reserve and Production Employee) in Middletown, and Heat Relief Laborer (or Laborer) in Ashland. For ease of reference, the Court will refer to all of these entry-level positions as Laborer. (AK Steel notes that these entry jobs are not “unskilled labor” in a traditional sense. These jobs are the only method for entering into any of the highly skilled trade and craft positions at AK Steel’s plants.)
The Applicant Class Plaintiffs assert that AK Steel uses a substantially identical process for Laborer hiring at both Middletown and Ashland. According to Plaintiffs, candidates must submit applications through state agencies, either the Ohio or Kentucky Bureau of Employment Services. Those agencies perform an initial screen for minimum qualifications: applicants must be at least 18 years old, be a high school graduate or hold a GED, and for Middletown, have two years of prior manufacturing experience. (The latter qualification may in some cases be waived, according to the deposition testimony of AK Steel’s HR personnel.) State agencies are told to forward only those applications that meet these minimum requirements. AK Steel generally does not accept applications directly from applicants at its plant facilities, although some minority candidate resumes were taken at Ashland from job fairs and from the Ashland plant’s Civil Rights Committee chair.
1

Bert v. AK Steel Corp., Not Reported in F.Supp.2d (2006)

*2 AK Steel’s HR personnel then review applications received from the state agencies for minimum qualifications, as well as for criminal records and any prior work history problems. Applicants who pass this internal review are contacted by telephone to come to the plant to take a screening test. Exams are graded by an outside consultant (Resource Associates of Knoxville, Tennessee) on a pass/fail basis.
Applicants who pass the test are then invited to an interview with each plant’s hiring coordinator and a plant operations representative. The specifics of the interview vary between Middletown and Ashland, but essentially the interviewers assess and rate factors including safety, productivity, conscientiousness, teamwork, adaptability, and initiative. AK Steel hiring personnel admit that this interview involves subjective considerations. Applicants who successfully complete the interview must then pass a background check, after which an offer of employment is made subject to an acceptable physical examination.
B. The Applicant Class Plaintiffs’ Disparate Impact Argument. Title VII, 42 U.S.C. § 2000e-2(k)(1)(A)(I), defines unlawful discrimination as including an employer’s use of “a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin,” unless the employer can demonstrate that the challenged practice is job related and consistent with the employer’s business necessity. A prima facie case of disparate impact discrimination is established when plaintiff has (1) identified a specific employment practice, and (2) demonstrates an adverse impact on the protected group through relevant statistical analysis. Isabel v. City of Memphis, 404 F .3d 404, 411 (6th Cir.2005). Merely showing a racial imbalance in the workplace is insufficient. Plaintiffs must show a causal link between the challenged practice and the racial imbalance that suggests discrimination.
Dr. Edwin Bradley, Plaintiffs’ statistical expert, opines that AK Steel’s qualifying test has a statistically significant adverse impact on black applicants. “Statistical significance” establishes that the outcome of a particular process is not due to chance, but rather is causally linked to the variable at issue-here, the race of the applicant taking the test. Broadly speaking, an accepted measure of statistically significant disparity is approximately two standard deviations from the expected result. See generally, Hazelwood School Dist. v. United States, 433 U.S. 299, 311 n. 17 (1977); Smith v. Xerox Corp., 196 F.3d 358, 365 (2nd Cir.1999); and Eng. Contractors Assn. v. Metropolitan Dade County, 122 F.3d 895, 914 (11th

Cir.1997).

An alternative to the standard deviation analysis is an employment practice’s selection ratio, a method the EEOC adopted in its employment practices guidelines. The EEOC regards a procedure that selects candidates from the least successful group at 80% or less than the most successful group’s selection rate is evidence of an adverse impact. Smaller differences may also constitute adverse impact if they are statistically and practically significant, or if an employer’s actions have disproportionately discouraged applicants in protected categories. See 29 C.F.R. § 1607.4(D).

*3 Dr. Bradley analyzed data files on the Middletown applicant pool for the period January 1, 2000 to December 31, 2003. Bradley states that AK Steel keeps no records concerning any applicant excluded by AK’s initial minimum qualifications screen. Therefore, Bradley assumes that the applicant pool data includes only applicants that are qualified to take the written test. (See Doc. 71, Exh. 3, Bradley Rebuttal Report at p. 5, n. 16.) Bradley opines that AK Steel hired 844 individuals at Middletown during the defined time frame, 47 of whom were African-American.1 Based upon the racial composition of the entire applicant pool during that time frame, Bradley calculated a benchmark of 9.01% of that entire pool who were African American. Thus, under Bradley’s analysis of the selection process at Middletown, the expected number of African-Americans hired would be 76. The actual number, 47, was 3.71 standard deviations from Bradley’s expected number, with an adverse selection rate of 59.5%.

1

Earlier versions of Dr. Bradley’s report contain slightly

different hiring numbers. Bradley’s Rebuttal Report

states that he uses the same numbers used by

defendant’s expert Dr. Baker. See Doc. 71 at p. 8 and

Bradley Rebuttal Report at p. 7.

Bradley also analyzed the impact of the written test component standing alone for Middletown. Bradley states that 1,896 applicants passed the test from January 1, 2000 to December 31, 2003, of whom 114 were African-American. Using the same benchmark he calculated for the total selection process (9%), Bradley argues that 170 African-Americans should have passed. The shortfall is 6.10 standard deviations of difference, and the adverse selection rate is 64.8%. (Bradley Rebuttal Report at pp. 7-8.)
A different scenario exists for the Ashland plant because AK Steel does not have the same quantity and quality of data for Ashland as it apparently does for Middletown.
2

Bert v. AK Steel Corp., Not Reported in F.Supp.2d (2006)

AK Steel’s expert, Dr. Mary Baker, describes the available Middletown data in her report as including: data on the initial screening; the individuals who did and did not take the test; the test results; the individuals who were interviewed and the results of those interviews; and the individuals who were referred for background checks and physical exams. The Middletown documents also identify applicants who voluntarily withdrew from the hiring process. Dr. Baker states that comparable documentation and data regarding each step of the Ashland hiring process is not available. (See Baker Report, p. 2 n. 4.)
Because of the lack of specific data for Ashland, Bradley asserts that plaintiffs may analyze the “entire hiring decision making process” for the Ashland plant. To do this, Bradley originally used a data file he describes as “AK Steel Ashland Data” covering the period 10/24/2000 to 09/17/2002. Dr. Baker used a different Ashland data file covering the period August 12, 2001 to December 31, 2003, a data set that Bradley describes as the “Baker Ashland Data.” Given Dr. Baker’s criticisms of Bradley’s earlier report, Bradley’s Rebuttal Report uses the “Baker Ashland Data” file to determine the hires at Ashland from January 1, 2000 to December 31, 2003. According to the “Baker Ashland Data” file, Bradley calculates that Ashland had a total of 289 hires during the period, 12 of whom were African American. Bradley then uses a 8.56% benchmark, which he calculated based on the “AK Steel Ashland Data” file, and not the Baker data file. Bradley predicts that approximately 25 of the Ashland hires would be African American, 2.81 standard deviations of difference and a selection ratio of 46.3%. Bradley admits that he cannot separately analyze test data from Ashland as he did for Middletown, because the data is not available. But he argues that the same test and procedure for determining who takes the test is used in both plants. Therefore, Bradley asserts that his analysis of the Middletown test component standing alone can also apply to Ashland.
*4 Finally, Bradley aggregates his results for Middletown and Ashland for the period January 1, 2000 to December 31, 2003, and concludes that 41.5% fewer African-Americans were hired than expected during the period, 4.62 standard deviations of difference. (See Bradley Rebuttal Report at pp. 11-12 and Table 4.)
AK Steel and Dr. Baker vigorously challenge Bradley’s data set, his analytical method, and his results on a variety of grounds. These criticisms include Bradley’s improper analytical time frame; his failure to count some Ashland applicants who were in fact hired; his failure to properly account for Middletown applicants who voluntarily withdrew from the hiring process, or became ineligible

for hire due to unsuccessful background checks or physical exams; and Bradley’s alleged use of a “hypergeometric method” to compute standard deviations, rather than Baker’s “binomial” method. (See Baker Report at pp. 2-4.) AK Steel and Baker also argue that AK Steel in fact hired more African-Americans than would be expected based on the qualified labor population of the area from which AK Steel recruits. Baker cites the latest federal census data showing that Middletown, Ohio’s MSA has 4.09% available applicants who are African-American, and that the Ashland MSA has 2.0%. AK Steel argues that there is no disparate impact caused by its hiring process when compared to the available labor pool, as opposed to the flawed data Bradley used concerning the applicant pool. (See Doc. 73, pp. 3-4 and Baker Report, p. 9.)
DISCUSSION
A. Fed. Rule Civ. Proc. 23(a). The proposed class representative must establish that each of the four requirements of Rule 23(a) is satisfied. In re American Medical Systems, Inc., 75 F.3d 1069, 1079 (6th Cir.1996); Senter v. General Motors Corp., 532 F.2d 511 (6th Cir.), cert. denied, 429 U.S. 870 (1976). Those four requirements are:
(1) the members of the class must be so numerous that joinder of all members is impracticable (the “numerosity requirement”);
questions of law or fact must be common to the entire class (the “commonality requirement”);
the claims or defenses of the named representative must be typical of the claims or defenses of the class (the “typicality requirement”); and
the named representative must fairly and adequately represent the interests of the class as a whole (the “adequacy of representation” requirement).
Fed.R.Civ.P. 23(a).
In determining whether to certify a class, the Court must not weigh or make a preliminary determination of the merits of the action. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974). For purposes of a class certification motion, the Court must accept as true the allegations of the complaint. Shelter Realty Corp. v. Allied Maintenance Corp., 574 F.2d 656, 661 n. 15 (2d Cir .1978); Blackie v. Barrack, 524 F.2d 891, 901 n. 17 (9th Cir.1975), cert.
3

Bert v. AK Steel Corp., Not Reported in F.Supp.2d (2006)

denied, 429 U.S. 816 (1976). The Court “may consider reasonable inferences drawn from facts before [it] at that stage of the proceedings.” Senter, 532 F.2d at 523. The Court must rigorously analyze the Plaintiff’s allegations and evidence under Rule 23 because actual, and not assumed, compliance with Rule 23’s requirements is indispensable. General Telephone Co. v. Falcon, 457 U.S. 147, 160 (1982). Within the framework of Rule 23, the Court has substantial discretion to grant class certification pursuant to its inherent power to control pending litigation. Reeb v. Ohio Dept. Of Rehab. & Correction, 435 F.3d 639, 643 (6th Cir.2006).
1. Numerosity. *5 Under Rule 23(a)(1), Plaintiffs must establish that “the class is so numerous that joinder of all members is impracticable.” As noted above, Bradley’s Rebuttal Report calculates that approximately 56 African-Americans failed the test in Middletown during the 2000-2003 time frame. For Ashland, Bradley opines that 13 fewer African-Americans were hired than expected. Plaintiffs also allege that future applicants should be included in the class seeking injunctive relief against continuing use of the test.
AK Steel responds that it has not hired any Laborers at either plant since October 2003, and that given its current economic status, it has no plans to resume hiring. AK Steel suggests that there is no reason to include future applicants in determining certification. AK Steel also attacks Bradley’s use of data for the entire period from January 2000 to December, 2003, because it includes putative class members whose claims are time-barred. Under the shorter (and what AK Steel believes proper) time period of August or September 2001 to October 2003, the number of potential class members is even smaller. Indeed, Bradley’s declaration filed with Plaintiffs’ Reply Brief states that within those times frames, the entire class may be less than 30 (excluding future applicants).
Initially, the Court rejects AK Steel’s argument that prospective relief is inappropriate solely because of AK Steel’s unilateral workforce reductions. AK Steel’s decision to suspend hiring, and to reduce the size of its workforce, does not equate to a decision to discontinue use of the challenged test in the event that hiring resumes again at some point.
There is no hard and fast rule about the number of potential class members required for certification. Classes as small as 17 identified individuals have been certified; see Afro-American Patrolmens League v. Duck, 503 F.2d

294, 298 (6th Cir.1974). The key to determining whether certification is appropriate under Rule 23(a)(1) rests on the impracticability of joinder. Joinder of all affected individuals need not be impossible. In addition to the numbers, the Court may consider geographical location of class members; the ease (or lack thereof) of identifying class members; the financial resources available to the class; and considerations of judicial economy. See, e.g., Pecere v. Empire Blue Cross and Blue Shield, 194 F.R.D. 66, 70-71 (E.D.N.Y.2000). Given the nature of Plaintiffs’ allegations, the Court concludes that all African-American applicants who failed the test would not likely pursue a separate claim, or would necessarily be located. While the number of affected individuals is not large, the other factors counsel that the numerosity requirement is at least initially satisfied.
2. Commonality. Rule 23(a)(2)’s commonality requirement is satisfied if the resolution of at least one common issue will affect the class as a whole. See Fallick v. Nationwide Mut. Ins. Co., 162 F.3d 410, 424 (6th Cir.1998). A “perfect fit” of all issues is not required. Rather, the commonality required by Rule 23(a)(2) is “qualitative rather than quantitative, that is, there need be only a single issue common to all members of the class.” In re American Med. Systems, 75 F.3d 1069, 1080 (6th Cir.1996). The common issue identified should advance the litigation if resolved. Sprague v. General Motors Corp., 133 F.3d 388, 397 (6th Cir.1998).
*6 Class Plaintiffs identify a common question, whether AK Steel’s qualifying exam has a statistically significant impact upon African-American applicants, and if so whether use of the test violates Title VII. That question is clearly common to the proposed Applicant Class. The fact that issues peculiar to individual class members may remain after the determination of the common question does not necessarily defeat certification. See Sterling v. Velsicol Chem. Corp., 855 F.2d 1188, 1197 (6th Cir.1988).
AK Steel points out that Plaintiffs cannot identify any African-American applicant who failed the test at Ashland other than the seven named plaintiffs. Because of this, as noted above, Bradley’s statistical analysis concerns African-Americans who were not hired at Ashland, rather than those who failed the test. AK Steel argues there are many reasons why any individual may not have been hired, including a voluntary withdrawal of an applicant, necessitating an individualized review of each applicant’s history and defeating commonality.
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Bert v. AK Steel Corp., Not Reported in F.Supp.2d (2006)

Class Plaintiffs rely on the 1991 Title VII amendment providing 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 must be analyzed as one employment practice.” See 42 U.S.C. § 2000e(k)(1)(B)(i). (This amendment specifically condones a challenge to the decision-making process as a whole. See, Atonio v. Wards Cove Packing Co., 10 F.3d 1485, 1491 (9th Cir.1993), discussing background to the statutory amendment.) Since AK Steel’s record-keeping does not permit the separation of the test from the rest of the hiring decision-making process for the Ashland plant, Class Plaintiffs argue they are entitled to challenge the entire process. Alternatively, Class Plaintiffs request certification of a separate subclass for each plant.
AK Steel then argues that commonality is clearly lacking if the Middletown plaintiffs are challenging only the impact of the test, and the Ashland plaintiffs are challenging the entire decision-making process. And with regard to Middletown, AK Steel argues that Bradley’s opinion concerning the impact of the test alone is so fatally flawed that no common questions exist in this case at all. AK Steel also points to differences between Bradley’s several reports, arguing that Bradley claims he was able to do something in the latest Rebuttal Report (analyze Middletown testing component data separately from all the other data) that Bradley said he couldn’t do in his earlier report.
The Court’s task in ruling on class certification is not to determine which expert’s opinion has merit, but rather to determine if Plaintiffs’ proffered method to establish a statistically significant disparate impact is not simply speculation or unsupported conjecture. See, e.g., Bacon v. Honda of America Mfg., 205 F.R.D. 466 (S.D.Ohio 2001), noting that weighing statistical evidence is not appropriate at the class certification stage. “However, this does not mean that the conclusions plaintiffs urge on the basis of this evidence must be accepted uncritically. For common questions to exist, plaintiffs’ statistical evidence must logically support the inference of discrimination against the class asserted.... The appropriate inquiry is whether the statistics are sufficient to show ... the existence of common questions.” Id. at 470 (internal citations and quotations omitted).
*7 In Phillips v. Cohen, 400 F.3d 388 (6th Cir.2005), the Sixth Circuit reversed a summary judgment granted to the defendant, the Secretary of Defense, in a Title VII disparate impact case based on an allegedly discriminatory promotions policy. The employer (an independent agency in the Department of Defense)

systematically destroyed its promotions data every two years, so the parties could not identify the employees who were actually selected as finalists for any promotions within the relevant time frame at issue in the case. The experts therefore had to devise alternate statistical methods of analyzing the data that was available. The district court found that plaintiff’s alternate method was “unhelpful” because the expert’s statistical analysis failed to “screen out multiple promotions for the same person,” and because she failed to consider whether the employees were actually qualified for each promotion. The district court found that the employer’s approach, creating “constructed pools” of applicants, was the proper analysis and that it established a lack of disparate impact.
The Sixth Circuit held that the district court impermissibly weighed the credibility of the competing experts’ methodologies. The Court noted that both expert’s analyses were unavoidably flawed given the absence of the promotion data, but that plaintiff’s approach, combined with other evidence in the record, was sufficient to overcome the employer’s summary judgment motion. The Court noted that the “Supreme Court has rejected rigid mathematical formulas in analyzing statistics purporting to show disparate impact,” citing Bazemore v. Friday, 478 U.S. 385, 404 (1986). See also, Isabel v. City of Memphis, 404 F.3d 404, 412 (6th Cir.2005), where the Court noted that statistics “come in infinite variety” and rejected an employer’s argument that plaintiff’s alternate statistical analysis was insufficient to establish a prima facie case.
In ruling on Plaintiffs’ class certification motion, the Court need not determine whether or not Dr. Bradley’s opinion can survive a Daubert challenge, whether the underlying data is sufficiently accurate and reliable to adequately support his opinion, or whether Plaintiffs’ disparate impact evidence on the whole will be sufficient to withstand a Rule 56 motion. The Court is initially satisfied that Bradley has presented a statistical analysis framework that is not fatally flawed, one that if properly supported with reliable data could give rise to a reasonable inference of a disparate impact of the written test upon African American applicants at the Middletown plant.
Concerning the Ashland plant, the Court finds that it would be manifestly unfair to deny Plaintiffs class certification at this juncture because AK Steel’s Ashland records are not as complete as those for Middletown. Given the availability of the Middletown data, the fact that the same test is used in Ashland, and the factual disputes about the available data and the hiring process details, the Court finds that creation of two subclasses,
5

Bert v. AK Steel Corp., Not Reported in F.Supp.2d (2006)

one for each plant, would be appropriate at this stage. The Court has the authority to do so under Rule 23(c)(4)(B). The Court also has the continuing obligation to alter or decertify either or both of these subclasses, if further discovery and developments should warrant.
3. Typicality. *8 Rule 23(a)(3) requires that the named class representatives’ claims be “typical” of the absent class members claims. AK Steel argues that many of the named Plaintiffs lack standing to sue because they failed to timely file claims, and therefore are not “typical” class members. A Title VII plaintiff must file an EEOC charge within 300 days of the challenged act, and must file suit no later than 90 days after receipt of the EEOC’s notice of right to sue. See 42 U.S.C.2000e-5(e).
Mr. Edwards alleges he took the AK Steel test sometime after August 2001 in Middletown. Mr. Freeman alleges he took the test sometime in 1999 in Middletown. The remaining seven Applicant Plaintiffs (Lewis, Oliphant, Darrel Carter, Darlene Carter, Marnie Carter, Tiffany Jackson and Kay Jackson) allege they each took the test in Ashland sometime between October 2001 (Tiffany Jackson) and May 2002 (Lewis and Kay Jackson).
Darrell Carter filed his EEOC charge on June 8, 2002. Carter’s EEOC charge was timely filed within 300 days of taking the test, it identified the written test, and it included adequate allegations of classwide discrimination. (See Doc. 71, Exhibit 9) Carter has standing to bring his testing claim.
Donald Edwards filed his EEOC charge on July 9, 2002, alleging he submitted an application to work at Middletown in both August 2001 and January 2002. Edwards states that he submitted his applications at Palmer Temps, which Edwards alleges handles hiring for AK Steel. Edwards’ EEOC charge states “I took an aptitude test and was interviewed by a white male Palmer Temp representative.” Edwards also describes some of the questions on the “AK Steel exam” but does not specify a date on which he took this exam. AK Steel submits an affidavit stating it has no record of Edwards ever taking their test, that Palmer Temps does not administer AK Steel’s test, and notes that Edwards does not allege that he actually failed the test he took.
If the facts establish that Mr. Edwards took the AK Steel test within the 300 days prior to July 9, 2002, his claim is timely and he would have standing to sue. If, on the other hand, he took the exam earlier, or if he did not take the AK Steel exam at all, he obviously cannot serve as a

typical or adequate class representative.
Mr. Freeman’s individual testing claim is time barred, a conclusion Plaintiffs do not seriously contest. Instead they argue that the “continuing violations” doctrine, and/or the “single filing” rule or the ability to “piggyback” on another’s timely filed claim, permit Freeman to be a class representative. They also argue that the “continuing violations” doctrine permits the temporal scope of the class to extend back to January 2000 (or even earlier, to 1999 when AK Steel apparently first started using the challenged test).
The “single filing” (or “piggybacking”) doctrine is a judicially created exception to the rule that a timely administrative charge is a prerequisite to filing suit. If a plaintiff’s claim arises from the same discriminatory conduct committed in the same time frame as the claim already in suit, the court can disregard the failure to file an administrative charge. See, e.g., Horton v. Jackson County Board of Commissioners, 343 F.3d 897, 899 (7th Cir.2003). The doctrine’s genesis was in Title VII class actions. See, Albermarle Paper Co. v. Moody, 422 U.S. 405, 414 n. 8 (1975). Thus, the putative class members need not have filed their own EEOC charge concerning the AK Steel written test so long as the class representative has timely done so.
*9 But the “same time frame” element of the doctrine requires that a putative class member could have timely filed a charge if he or she had chosen to do so. See, e.g., Lange v. CIGNA, 766 F.Supp. 1001, 1002-03 (D. Kan 1991), and Lumpkin v. Coca-Cola Bottling Co., 216 F.R.D. 380, 384-85 (S.D.Miss.2003). See also, Wright Miller & Kane, Fed. Prac. and Proc.: Civil 3d § 1776 [class representative who filed timely administrative claim is a proper representative, but the class is limited “to those persons who could have filed an administrative charge about similar discriminatory treatment at the time the representative did.”]
The membership of the Middletown subclass will be those African-American applicants who took and failed the written AK Steel test within the 300-day period preceding July 9, 2002. If Plaintiffs intend to substitute a proposed class representative for Mr. Edwards (as they suggested in their briefs), they must do so within forty-five days of the date of this order.
The membership of the Ashland subclass will be those African-American applicants who took and failed the written test within the 300-day period preceding June 8, 2002, the date of Mr. Carter’s EEOC charge.
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Bert v. AK Steel Corp., Not Reported in F.Supp.2d (2006)

Plaintiffs’ arguments concerning the “continuing violation” doctrine do not change this result. The continuing violation theory permits recovery of damages based on conduct that is otherwise time-barred if it is part of a continuing pattern of discrimination, such as in a hostile work environment claim. In Amtrak v. Morgan, 536 U.S. 101 (2002), the Supreme Court limited the use of the “continuing violation” theory in cases which involve a series of discrete acts. It is sometimes difficult to neatly separate “discrete discriminatory acts” from acts which are part of a “longstanding pattern and practice of discrimination.” However, this Court concludes that each time the AK Steel written test is given to a different applicant is a separate “discrete act.” While all such testing is arguably related to the AK Steel policy of using a written qualifying test, every “discrete act” by an employer can likely be tied to a larger policy or practice. The Supreme Court clearly stated that a discrete act is a single occurrence, even when it has a connection to other acts. See Morgan, 536 U.S. at 111-112. To accept Plaintiffs’ argument would, in the Court’s judgment, be tantamount to rejecting Morgan.
The Court’s ruling on the class membership time period is not a determination that evidence pre-dating the class period is irrelevant or inadmissible, an evidentiary question that is plainly premature at this point.
4. Adequacy of Representation. Rule 23(a)(4) requires that the “representative parties will fairly and adequately protect the interests of the class.” To satisfy this subsection of the Rule, Plaintiffs must show that the class representatives’ interests do not conflict with the absent class members’ interests, and that the representatives and their attorneys are able to and will vigorously prosecute the action on behalf of the class.
*10 As to the class representatives, AK Steel repeats its arguments that Edwards’ claim is untimely and that Carter (as an Ashland applicant) cannot represent anyone who failed the test in Middletown. These arguments have been addressed above. If it is established that Edwards did not take the AK Steel test, he would obviously be an inadequate representative of the proposed class.
As to class counsel, Rule 23(g) requires the Court to carefully consider the work counsel has done in identifying or investigating potential claims; counsel’s experience in handling class actions, other complex litigation, and employment discrimination claims; counsel’s knowledge of the applicable law; and the resources counsel will commit to representation of the class. The Court may also consider any other issue

concerning counsel’s ability to fairly and adequately represent the class, and may direct counsel to propose terms for attorneys fees and nontaxable costs.
Plaintiffs’ class certification motion notes these requirements, and states that Plaintiffs’ counsel satisfies all of them, but provides no facts or information concerning any of them. No resume or other information is provided about the depth and breadth of experience of lead counsel, their work in investigating potential claims, or the issue of attorney fees and nontaxable costs. AK Steel does not address this question at any length, simply noting that the adequacy issue “raises additional concerns of whether the representatives will vigorously prosecute the interests of the class through qualified counsel. This case has been pending for three years. The theory has significantly changed during that time. Seven of the named Plaintiffs are now not even included in the proposed class.” (See Doc. 73, p. 27.)
The Court therefore orders that Plaintiffs’ counsel submit additional information addressing each aspect of Rule 23(g), and the question of potential attorneys fees and nontaxable costs, so that the Court is able to make an informed judgment about the appointment of counsel. Plaintiffs’ supplemental memorandum should also directly address whether their representation of the proposed disparate impact “testing” class raises any potential conflicts between the Applicant Class Plaintiffs and the remaining named Plaintiffs, whose damage claims are not limited to equitable relief.
B. Fed.R.Civ.P. 23(b). If Class Plaintiffs can satisfy all four requirements of Rule 23(a), they must also satisfy one subsection of Rule 23(b). The Class Plaintiffs argue that certification is proper under b(2) and/or b(3).
Certification under Rule 23(b)(2) is appropriate when the party opposing the class has acted or refused to act on grounds generally applicable to the class, making final injunctive or declaratory relief appropriate. A disparate impact challenge to a standardized employment test, seeking injunctive relief against further use of that test, would seem well-suited to Rule 23(b)(2) certification. AK Steel argues it is not proper here, because AK Steel’s hiring ceased in October 2003 with no plans to resume, making injunctive relief inappropriate. As noted above, the Court believes that AK Steel’s unilateral workforce hiring decisions do not preclude injunctive or declaratory relief (although it raises some question as to whether injunctive relief is truly the predominant relief sought).
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Bert v. AK Steel Corp., Not Reported in F.Supp.2d (2006)

*11 The Applicant Class Plaintiffs also expressly affirm that they do not seek compensatory or punitive damages for the “testing” claim. Thus 23(b)(2) certification is not improper under the Sixth Circuit’s recent decision in Reeb v. Ohio Dept. Of Rehab. & Corr., 435 F.3d 639 (6th Cir.2006), which held that “because of the individualized nature of damages calculations for Title VII plaintiffs and the ability of those plaintiffs to bring individual actions, the claims for individual compensatory damages of members of a Title VII class necessarily predominate over requested declaratory or injunctive relief, and individual compensatory damages are not recoverable by a Rule 23(b)(2) class.” Id. at 651.2 The Sixth Circuit also specifically reaffirmed its pronouncement in Coleman v. GMAC, 296 F.3d 443 (6th Cir.2002) that back pay is an equitable remedy available under 23(b)(2) certification. Reeb concluded that Title VII plaintiffs have the choice of proceeding under Rule 23(b)(3), or under 23(b)(2) “for declaratory or injunctive relief alone or in conjunction with compensatory and punitive damages that inure to the group benefit.” Reeb, 435 F.3d at 651 (emphasis added).

2

Reeb involved a broad disparate treatment claim by

female corrections officers at an Ohio prison. The

Court specifically noted in reaching its decision that the

plaintiffs sought both money damages and injunctive

relief, but did not specify the conduct they sought to

have enjoined. Reeb, 435 F.3d at 640.

prosecution of an action; (B) the extent of other pending litigation; (C) the desirability of litigating the claims in this forum; and (D) the difficulties likely to be encountered in the management of a class action. Manageability is a consideration that is “peculiarly within the court’s discretion.” In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 141 (2nd Cir.2001) (citation omitted).
Class Plaintiffs do not address the issue of how the plaintiffs who are not members of the proposed class intend to litigate their broad disparate treatment claims alleged in the Second Amended Complaint along with the narrower attack on the alleged disparate impact of the standardized test. Nor do they explain how or whether they intend to try their own individual disparate treatment claims with the “testing class” claim. Plaintiffs’ Reply Brief states that the fact that 8 of 17 named plaintiffs are not members of the class is “wholly irrelevant.” (See Doc. 75, p. 22.) The Court disagrees, as the presence of differently situated plaintiffs raises questions (and possible constitutional concerns) about the superiority and manageability of trying a disparate impact class claim in the same action with individual claims for compensatory and punitive damages, when all of the claims may have common or overlapping factual and legal issues.

Class Plaintiffs’ motion was filed before Reeb was published. Class Plaintiffs’ motion does not address in any detail how a back pay award procedure would be structured, other than stating that the creation of a classwide formula would not be “onerous nor prejudicial” in this case. (See Doc. 75, p. 23.) Back pay is, of course, an equitable remedy. Given Reeb, and the fact that the challenged test is but one step in the overall hiring process, as well as AK Steel’s affidavit that it hires only 42% of all applicants who pass the challenged examination, the Court requires a more detailed description of how Class Plaintiffs would structure the trial of their claim and the proof of any entitlement to back pay.
Class Plaintiffs also argue that Rule 23(b)(3) certification is proper, because a class action is the superior method of determining their disparate impact testing claim, and because that claim predominates over any individualized issues. Factors pertinent to the superiority requirement are (A) the interest of class members in individual control of

CONCLUSION
*12 The Court orders Plaintiffs to file a supplemental brief addressing the requirements of Rule 23(g) and the appointment of Class Counsel, including the subject of attorneys fees and nontaxable costs. The brief should also address the questions raised above concerning Rule 23(b) certification, including proposed formulas for back pay awards, and the procedural and/or constitutional implications of proceeding on both the proposed class claims and the individual plaintiffs’ claims. The brief shall be filed within forty-five days of the date of this Order. Responses and replies shall be filed in accordance with the Court’s Local Rule 7.2(a)(2).
The Court also orders that if Plaintiffs intend to name a new representative of the Middletown subclass and withdraw Mr. Edwards, they shall do so within forty-five days of the date of this Order.

8

 
 Bert v. AK Steel Corp., Not Reported in F.Supp.2d (2006)

2006 WL 1308215 Only the Westlaw citation is currently available.
United States District Court, S.D. Ohio,
Western Division.
Vivian BERT, et al, Plaintiffs, v.
AK STEEL CORPORATION, Defendant.
No. 1:02-CV-00467. | May 11, 2006.
Attorneys and Law Firms
Allison W. Lowell, Barry V. Frederick, Herman Nathaniel Johnson, Jr., Robert F. Childs, Susan Gale Donahue, Wiggin Childs Quinn & Pantazis PC, Birmingham, AL, David Donald Kammer, Paul Henry Tobias, Tobias, Kraus & Torchia, Cincinnati, OH, David W. Sanford, Sanford Wittels & Heisler LLP, Washington, DC, for Plaintiffs.
Gregory Parker Rogers, Lawrence James Barty, Patricia Anderson Pryor, Taft, Stettinius & Hollister LLP, Cincinnati, OH, for Defendants.
Opinion
ORDER
SANDRA S. BECKWITH, Chief Judge.
*1 Before the Court is Defendant’s motion for summary judgment on Counts III and IV of the Second Amended Complaint (Doc. 47). Plaintiffs oppose the motion (Doc. 62) and Defendant has replied (Doc. 64).
Factual Background
Plaintiffs in this action are sixteen African-American individuals who unsuccessfully applied for entry level jobs at AK Steel, and one African-American employee of the company, Allen Roberts. Roberts brings individual claims under Title VII and 42 U.S.C. § 1981, alleging that AK Steel has denied Roberts “the right to work in a racially integrated environment free from racial discrimination and the enjoyment of all benefits,

privileges, terms and conditions of working in a racially integrated environment ...”. See Doc. 45, Second Amended Complaint at ¶¶ 156 and 161. Roberts filed an EEOC charge on April 7, 1999 complaining about AK Steel’s hiring practices, a charge the parties refer to as the “third party” charge. The motion before the Court seeks judgment on Roberts’ individual claims, based on the preclusive effect of a 2004 judgment of this Court in a different case between Roberts and AK Steel.
Roberts worked at AK Steel from 1988 through September 2002, and was an employee at the time the original complaint in this case was filed, on June 26, 2002. Approximately three months later, Roberts filed a different complaint with only himself as a plaintiff. That case, Roberts v. AK Steel, No. 1:02-cv-656 (S.D.Ohio 2002), filed on September 13, 2002, alleges retaliation and race discrimination under federal (Title VII) and state law. Roberts alleged in Count I that AK Steel retaliated against him in a series of disciplinary actions, and eventually terminated him, because of his several EEOC complaints, including the “third party” hiring discrimination complaint he filed on April 7, 1999. Count II alleged that AK Steel’s decisions to suspend and to discharge him, its opposition to Roberts’ application for unemployment benefits, its failure to offer him overtime, its failure to comply with an arbitrator’s award favorable to Roberts, and other adverse employment-related conduct were all motivated by racial discrimination. He alleged that similarly situated Caucasian employees were not subject to such discipline. Roberts’ complaint did not refer to AK Steel’s hiring practices which were the subject of the complaint in this case. (Roberts filed an amended complaint in 2003, adding allegations concerning his termination, which he unsuccessfully challenged under his union grievance procedure, and an Ohio public policy violation claim.)
Roberts’ Rule 26(A) disclosures, filed January 6, 2003, identified 40 possible witnesses, only one of whom is listed concerning the April 7, 1999 third party hiring charge. AK Steel’s witness list, filed August 11, 2003, identified witnesses concerning Roberts’ “conduct, employment and discipline” and AK Steel’s policies concerning those subjects. AK Steel’s discovery responses objected to Roberts’ request for documents relating to the April 1999 third-party EEOC charge as not relevant to Roberts’ claims in Case No. 02-656, stating that “Roberts has stipulated that this charge does not claim discrimination against him.” (Doc. 40-4, AK Steel’s Response to Document Request No. 17 at p. 6.)
*2 This Court granted AK Steel’s motion for summary
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Bert v. AK Steel Corp., Not Reported in F.Supp.2d (2006)

judgment in Case No. 02-656 in an order dated February 24, 2004 (Doc. 53). Roberts did not discuss his employment-related racial discrimination claims when he opposed AK Steel’s motion, and the Court considered them to be abandoned. The Court granted judgment on the merits of Roberts’ retaliation claims. The only mention of the June 26, 2002 filing of the complaint in this case is in the context of discussing Roberts’ retaliation allegations, as Roberts argued that AK Steel “must have known” about his participation in this class action lawsuit because of local newspaper coverage. Roberts’ opposition to the summary judgment motion noted that this class action lawsuit was filed “as a direct result” of Roberts’ April 7, 1999 third party EEOC charge. There was no mention of the status of this case nor of its merits in the Court’s order granting judgment.
Analysis
The “res judicata” doctrine generally promotes the finality of judgments and prevents repetitive litigation. In Migra v. Warren City School Dist. Bd. Of Ed., 465 U.S. 75, 77 n. 1 (1984), the Supreme Court noted that “res judicata” is more precisely described as two different but related concepts: issue preclusion and claim preclusion. Issue preclusion, or direct estoppel, applies to an issue that was actually litigated in a prior action and is essential to the judgment entered in the prior action. Claim preclusion, on the other hand, “refers to the effect of a judgment in foreclosing litigation of a matter that never has been litigated, because of a determination that it should have been advanced in an earlier suit. Claim preclusion therefore encompasses the law of merger and bar.” Id. The Sixth Circuit has stated its preference for use of the more precise preclusion language. See, Barnes v. McDowell, 848 F.2d 725, 728 n. 5 (6th Cir.1988): “We also express our hope that future litigants, in the interests of precision and clarity, will formulate arguments which refer solely to issue or claim preclusion and which refrain from using the predecessors of those terms, whose meanings have become so convoluted.” While AK Steel’s motion uses the term “res judicata,” its arguments and analysis invoke claim preclusion, a term the Court will use in this order.
The elements of claim preclusion are well established: (1) a final merits decision by a competent court; (2) a subsequent action between the same parties; (3) an issue in the subsequent action which was litigated or should have been litigated in the prior action; and (4) an identity of the causes of action. Sanders Confectionery Prods., Inc. v. Heller Financial, Inc., 973 F.2d 474, 484 (6th

Cir.1992).
AK Steel argues that all four elements are established here. (1) The Court’s judgment in Case No. 02-656 is clearly a final merits decision. (2) This case was filed before Roberts’ individual complaint in Case No. 02-656, and is not technically a “subsequent action.” But given the fact that a judgment was entered first in the later-filed action, the Court will assume for the moment that this element can be satisfied here.
*3 (3) The critical question is whether or not a claim in this case was or should have been litigated in Case No. 02-656, such that claim preclusion applies. The history of No. 02-656 recited above makes it fairly clear that Roberts’ “associational” third party claim, based on AK Steel’s allegedly discriminatory hiring practices, was not actually litigated in that case. Roberts’ racial discrimination claims in 02-656 are laced with references to other employees, and alleged that Roberts was treated differently from similarly-situated Caucasian employees. (See, e.g., Doc. 28, Second Amended Complaint at ¶¶ 43, 47, 59 and 63.) The Court’s judgment in that case states that Roberts did not argue his racial discrimination claims in opposition to AK Steel’s summary judgment motion, and granted judgment on the basis they were abandoned. There is no indication that AK Steel sought judgment on Roberts’ “third party” hiring process claims in No. 02-656-most probably because all parties knew that those claims were pending in this case when AK Steel filed its summary judgment motion in No. 02-656 on December 10, 2003. Clearly, Roberts’ “third party” hiring process claims were not actually litigated in Case No. 02-656.
AK Steel then argues that Roberts’ hiring claims “should have been” litigated in Case No. 02-656, suggesting that both lawsuits “rely in substantial part on the same 1999 EEOC charge.” (Doc. 47, p. 6 n. 3.) The Court disagrees. As shown in the facts concerning Case No. 02-656, Roberts’ “third party” EEOC charge was mentioned as one of a series of events that Roberts contended prompted AK Steel’s retaliatory discipline, suspension and eventual discharge. The substance of that “third party” 1999 charge was markedly different from the rest of his EEOC charges, which all dealt with specific actions taken against him individually and which Roberts believed were retaliatory and/or discriminatory.
The Court does not view Roberts’ complaint in No. 02-656 as an attempt to “split” his claims against AK Steel. When the initial complaint in this case was filed, Roberts was still employed. He was not suspended until September 2002, which likely prompted the filing of his individual complaint alleging the various events that took
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Bert v. AK Steel Corp., Not Reported in F.Supp.2d (2006)

place during the course of his employment. Fed.R.Civ.P. 18(a) would have permitted Roberts to join his individual employee claims that he raised in his second lawsuit with his “third party” hiring process claims alleged in this case. Such joinder is of course permissive, but neither party requested the Court to join the claims or to consolidate the two actions for any purpose.
(4) Even if Roberts’ “third party” hiring claims “should have been” litigated in his individual employment and retaliation lawsuit (or vice versa), the Court concludes that there is no “identity” of the causes of action. “Identity of causes of action means an identity of the facts creating the cause of action and evidence necessary to sustain each action.” Sanders Confectionery Prods., 973 F.2d at 484. The facts upon which Roberts alleged retaliation and employment discrimination all concerned Roberts’ own protected activities (e.g., reporting differential treatment, filing EEOC charges, and being named as a plaintiff in this case), and AK Steel’s responses to those activities. The facts upon which Roberts alleges his associational right to work in a racially integrated environment all concern AK Steel’s allegedly discriminatory hiring procedures. While all of Roberts’ claims broadly stem from the fact of his employment, that alone does not create an “identity” of his claims for purposes of claim preclusion.
*4 The Restatement of the Law, Second, Judgments, § 24 addresses this question, and states: (1) When a valid and final judgment rendered in an action extinguishes the plaintiff’s claim pursuant to the rules of merger or bar (see §§ 18, 19), the claim extinguished includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose.
(2) What factual grouping constitutes a “transaction”, and what groupings constitute a “series”, are to be determined

pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations or business understanding or usage.
Comment b to this section makes clear that no single factor is determinative, and that “the relevance of trial convenience makes it appropriate to ask how far the witnesses or proofs in the second action would tend to overlap the witnesses or proofs relevant to the first. If there is a substantial overlap, the second action should ordinarily be held precluded.”
Based on the record of both cases, the separate treatment of Roberts’ “hiring process” associational claims in this case and his individual employment-related claims in Case No. 02-656, apparently conformed to all parties’ expectations about these cases. It is also quite likely that the facts underlying the two types of claims may not have made a “convenient trial unit,” thus explaining why joinder or consolidation was not sought by any party. And based upon the witnesses and evidence disclosed in Case No. 02-656, and the witnesses and evidence in the record to date in this case, the Court also concludes there is no substantial overlap between the two cases.
Conclusion
For all of the foregoing reasons, defendant’s motion for summary judgment on Counts III and IV of the Second Amended Complaint is denied.
IT IS SO ORDERED.

3

 
 Bert v. AK Steel Corp., Not Reported in F.Supp.2d (2007)

2007 WL 184746 United States District Court,
S.D. Ohio, Western Division.
Vivian BERT, et al, Plaintiffs, v.
AK STEEL CORPORATION, Defendant.
No. 1:02-cv-467. | Jan. 19, 2007.
Attorneys and Law Firms
Allison W. Lowell, Barry V. Frederick, Herman Nathaniel Johnson, Jr., Robert F. Childs, Susan Gale Donahue, Wiggin Childs Quinn & Pantazis PC, Birmingham, AL, David Donald Kammer, Paul Henry Tobias, Tobias, Kraus & Torchia, Cincinnati, OH, David W. Sanford, Sanford Wittels & Heisler LLP, Washington, DC, for Plaintiffs.
Gregory Parker Rogers, Lawrence James Barty, Patricia Anderson Pryor, Taft, Stettinius & Hollister LLP, Cincinnati, OH, for Defendant.
Opinion
ORDER
SANDRA S. BECKWITH, United States Chief Judge.
*1 Before the Court is Plaintiffs’ Supplemental Memorandum in support of class certification. (Doc. 81) Defendant has responded (Doc. 94), and Plaintiffs have replied. (Doc. 95)
BACKGROUND
Plaintiffs are sixteen African-American unsuccessful applicants for employment with AK Steel, and one African-American employee. They allege that AK Steel engages in systemic racial discrimination in its hiring and promotion practices at its plants located in Middletown, Ohio and Ashland, Kentucky.
After filing a Second Amended Complaint (Doc. 45), nine of the sixteen original Applicant Plaintiffs sought

certification of a narrower class, of African-American applicants who failed AK Steel’s written pre-employment screening test. (Docs.70, 71) This Court’s April 24, 2006 Order (Doc. 79) concluded that Rule 23(a)’s requirements of numerosity and commonality were initially satisfied. As to typicality and adequacy issues, the Court held that if the named plaintiff Edwards took and failed the challenged employment test in the 300-day period preceding his July 9, 2002 EEOC charge, his claim is timely. Given AK Steel’s lack of any record that Edwards actually took the AK Steel test in that time frame, the Court granted Plaintiffs 45 days in which to name a new representative for the Middletown applicants, if they chose to do so. The Court also ordered Plaintiffs’ counsel to submit information required under Rule 23(g) addressing counsel’s ability to represent the proposed class.
The Court also noted a concern about potential conflicts between the Applicant Class Plaintiffs (those nine named plaintiffs who allege they took and failed the AK Steel test) and other plaintiffs who did not take the test, but who more broadly allege discrimination in AK Steel’s hiring practices. In addition, after the class certification motion was filed, the Sixth Circuit decided Reeb v. Ohio Dept. Of Rehab. & Corr., 435 F.3d 639 (6th Cir.2006), which essentially gives Title VII plaintiffs a choice of proceeding under Rule 23(b)(2) OR 23(b)(3).
Therefore, the Court ordered Plaintiffs to file a supplemental brief addressing the issues of adequacy of representation, equitable back pay calculation, and the manageability of proceeding in this case with variously situated plaintiffs and different class and non-class discrimination claims.
ANALYSIS
1. Counsel’s Adequacy Under Rule 23(g). Plaintiffs have filed an affidavit of their counsel Robert Childs, and statements from attorneys David Sanford and Grant Morris, outlining their significant experience with employment class action litigation. Counsel assert they have expended over $98,000 in hard costs on this case to date, on a contingent fee basis to the named plaintiffs. They plan to move for attorneys fees and costs, if appropriate, after the liability phase of the case.
Defendant does not challenge the professional ability and experience of Plaintiffs’ counsel. The Court concludes
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Bert v. AK Steel Corp., Not Reported in F.Supp.2d (2007)

that the lawyers are experienced in employment litigation and can fairly and ably represent the proposed class.
2. Adequacy of Middletown Representatives. *2 Plaintiffs have not withdrawn Donald Edwards as a proposed representative of the Middletown Applicants, despite the significant questions raised by AK Steel concerning his standing to prosecute a testing claim. Plaintiffs have proposed adding a second representative, James Greenwood, whose declaration (Doc. 81, Exhibit 6) states he took the AK Steel test on November 8, 2001.
AK Steel argues that Greenwood cannot serve as a class representative because he has not filed an EEOC charge. It is clear that at least one named plaintiff must have Article III standing and satisfy the requirements of Rule 23(a) in order to serve as an adequate class representative. Plaintiffs cannot “bootstrap” Edwards (who filed an EEOC charge but may not have taken the test) with Greenwood (who took the test but did not file a charge) to satisfy Rule 23(a). Greenwood is certainly a member of the putative class, and the Court has already ruled that every member of the proposed testing class need not have filed an individual EEOC charge. But the class representative must have timely done so.
Plaintiffs cite Griffin v. Dugger, 823 F.2d 1476 (11th Cir.1987) to argue that an intervenor-plaintiff like Greenwood may rely on the single filing rule. There, the Eleventh Circuit held that an intervening plaintiff need not have filed a separate EEOC charge, because “As long as at least one named plaintiff timely filed an EEOC charge, the precondition to a Title VII action is met for all other named plaintiffs and class members.” Id. at 1492 (internal citation omitted). The principle is sound, but it applies here only if Edwards actually took the test. If he did not, he is not a member of the Applicant Class. The single filing rule does not stretch so far as to permit Greenwood to be the sole Middletown class representative.
AK Steel also attacks Greenwood’s adequacy because he lacks a substantive “personal stake” in the class claims, and does not share common interests with other members of the class. Greenwood testified that he has worked at another company since 1987. He applied at AK Steel in September 2001 due to a possible layoff from his employer. He did not pass the challenged test, after which an AK Steel representative suggested he meet with a different hiring group for “professionals.” Greenwood apparently did not follow up because he learned that his job with his long-term employer was safe. He also testified that, if he was now offered a laborer’s job at AK

Steel, he would “leave his options open. I wouldn’t say no.... I would have to think about it, talk to my wife and look at my pros and cons. If it was to my advantage, I would probably do it. I need to get better, not regress.” (Doc. 92, Greenwood Deposition p. 20.)
In addition to Mr. Greenwood’s honest assessment of his economic and career interests, he also testified that he got involved in this lawsuit because he is a lifelong Middletown resident and he “knows what goes around. And the minority at AK Steel-AK is very minimum, very minimum. And if there’s some way for me to open the doors to make it easier for my brother or my three best friends that tried to get hired at AK that couldn’t, I’ll help in any way I can to do what I have to do.” He testified that he was seeking “Satisfaction. Change the test basis.” (Doc. 92, Deposition at pp. 21:22-22:7.) Net economic loss is not necessarily the primary qualification for an “adequate” class representative in an employment discrimination case. Mr. Greenwood took and failed the challenged test, and may have suffered from its alleged disparate impact. He is sufficiently motivated and informed of the class claim of discrimination. Assuming that Edwards proves to be a class member, Mr. Greenwood is an adequate co-representative.
3. Possible Conflicts Among Plaintiffs. *3 Plaintiffs assert there is no conflict between the proposed Applicant Class and the other named plaintiffs who never took the test, and who bring individual disparate treatment claims. (Those individuals are Vivian Bert, Edward James Lewis, Mary Harris, Roderique Russell, Michael Miller, Ronald Sloan, and Shawn Pryor. Plaintiff Allen Roberts is a former employee with his own employment-related claims.)
Newberg & Conte describe a conflict fatal to class certification as one that is “central to the litigation”. Newberg on Class Actions, § 24:33 (4th Ed.2002). In employment litigation such a conflict may exist when different plaintiffs are directly competing for the same jobs. See, e.g., Bacon v. Honda of Amer. Mfg., Inc., 205 F.R.D. 466, 482-83 (S.D.Ohio 2001), finding conflict when the same lawyers represented African-American and female employee groups suing Honda in different actions. In other contexts, economic interest conflicts among class members will prevent certification. See, e.g., Valley Drug v. Geneva Pharmaceuticals, 350 F.3d 1181 (11th Cir.2003), where class certification was denied in an antitrust action, because the injury alleged by the named plaintiffs actually benefitted other members of the proposed class. And see, Paper Systems, Inc. v. Mitsubishi Corp., 193 F.R.D. 601 (E.D.Wis.2000), where
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Bert v. AK Steel Corp., Not Reported in F.Supp.2d (2007)

the proposed class representative dismissed a primary defendant at the behest of Paper Systems’ president, who said he had a good relationship with the dismissed party, thus creating an irreconcilable conflict with the rest of the class.
AK Steel argues that Plaintiffs’ maneuvers to obtain certification have created a conflict. The named Applicant Class Plaintiffs have stated that, in order to avoid any Seventh Amendment problems and to ease the management of this action, they are relinquishing their individual disparate treatment claims they may have. (Doc. 81, p. 10) AK Steel characterizes this as a concession that a conflict exists, one that strongly supports denial of class certification.
The named plaintiffs, however, stress that this waiver of their broader claims is personal and will not bind all the absent class members. Plaintiffs cite cases holding that the court must not pre-judge any potential res judicata or collateral estoppel issues in determining class certification. In Coleman v. GMAC, 220 F.R .D. 64, 81 (M.D.Tenn.2004), the district court observed that, to its knowledge, the Sixth Circuit has never squarely addressed the question of whether class suits for declaratory and injunctive relief preclude subsequent individual actions for monetary damages. Other authorities suggest that such a determination is very fact specific. See, e.g., Cooper v. Federal Res. Bank of Richmond, 467 U.S. 867, 873 (1984). Plaintiffs describe the disparate impact claim, with its equitable award of back pay, as distinct from a disparate treatment claim, and state that the outcome of the former will not bar absent class members from proceeding on any of the latter individual claims they may have. The Sixth Circuit’s holding in Reeb v. Ohio Dept. Of Rehab., 435 F.3d at 651, may support Plaintiffs’ arguments, as the Court noted that class plaintiffs must choose between Rule 23(b)(2) and (b)(3), but “as always” remain free to bring individual Title VII actions.
*4 The Court therefore concludes that there is no conflict among the plaintiffs that would preclude certification at this stage of the proceedings.
4. Management of Further Proceedings. Applicant Class Plaintiffs propose a phased trial. Phase I would determine whether AK Steel’s test had an impermissible disparate impact on African-American applicants, any defenses to that claim, and whether injunctive or other equitable relief is warranted. Phase II would determine the scope of equitable relief, which Plaintiffs characterize as including an equitable, classwide award of back pay. Plaintiffs admit that it would be

almost impossible to determine who among the Applicant Class members would have actually been hired if a class member had passed the test, due to AK Steel’s multi-step hiring process. Therefore Plaintiffs assert that a class-wide award is appropriate.
Plaintiffs cite Bailey v. Great Lakes Canning, Inc., 908 F.2d 38 (6th Cir.1990) as authority for such a pro rata award. There, the Sixth Circuit approved a pro rata distribution to approximately 150 identified class members, after a trial finding that the Defendant engaged in a pattern and practice of racial discrimination in an almost entirely subjective hiring process. Based upon plaintiffs’ calculated statistical shortfall in Africa-American hiring established during trial, twenty additional African-Americans should have been hired during the relevant period. The back pay award was nevertheless allocated pro rata to all class members, because it was virtually impossible to determine which class members might have actually been hired. This allocation was approved despite evidence of the 45 African-American applicants who actually possessed superior credentials to the white applicants who were hired; yet these 45 individuals received no added benefit from the aggregate award.
The Court notes that Bailey involved a settlement after trial, and addressed objections from dissenting plaintiffs. Here, AK Steel vigorously contests the propriety and legitimacy of Plaintiffs’ proposed formula to calculate back pay. That formula, according to Plaintiffs, requires determination of the size of the class through class notice and opt-out rights. Once the class is defined, total wages and benefits that would have been earned but for the test would be calculated. That amount would be offset by an “appropriate mitigation” amount for actual earnings, and further adjusted by African-American employment rates in the pertinent labor market. The net result would be distributed pro rata among class members.
The Court need not resolve the dispute between the parties about this proposed formula at this time, as it is intertwined with the merits of entitlement to back pay. While Defendant’s concerns may well be valid, it appears plausible that an appropriate method to determine back pay awards could be developed, one that is not based merely on speculation or conjecture. As with Plaintiffs’ basic evidence on disparate impact, that showing is sufficient for initial certification.
*5 After trial of the disparate impact class claim, Plaintiffs intend to proceed with a jury trial on the remaining individual disparate treatment claims. As discussed above, to achieve this bifurcation of class and
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Bert v. AK Steel Corp., Not Reported in F.Supp.2d (2007)

non-class claims, the Applicant Class Plaintiffs are relinquishing their individual disparate treatment claims. Plaintiffs also intend to seek formal severance of the class and non-class claims under either Rule 21 or Rule 42.
AK Steel argues that Plaintiffs are “desperate” to achieve class certification to divert attention from the substantive weakness of their claims, and to “extort” a settlement. While certification can be a powerful plaintiff’s tool, class certification serves the laudable goal of efficiently determining a truly common issue in one proceeding.
Another appropriate consideration here is whether or not the claim would be prosecuted by an individual plaintiff if class certification were denied. The 1991 Title VII amendments made the prosecution of individual discrimination suits far more economically feasible. However, disparate impact claims by necessity involve experts and complex statistical analysis and evidence, the costs of which may not be readily borne by individual plaintiffs. The advantages of determining that threshold question in one proceeding seem obvious.
The Court concludes that Rule 23(b)(2) certification is appropriate for the question of whether the challenged test had a statistically significant disparate impact on the African-American test-takers. The Court has discretion under Rule 23(c)(4)(A) to certify that issue alone. The Sixth Circuit has often observed that variations and differences among the class do not defeat certification, so long as “one common issue” is identified and class resolution of that issue is appropriate under Rule 23. See, e.g., Sterling v. Velsicol Chem. Corp., 855 F.2d 1188, 1197 (6th Cir.1988). The Court is also mindful of the need to avoid a class certification tail wagging the larger lawsuit dog, a concern that is central to the requirements of Rule 23(b).
Given the Named Class Plaintiffs’ intent to waive their claims for money damages, the homogeneity of interests necessary to Rule 23(b)(2) certification is sufficient here. The Court has discretion to order notice to this class at any stage of the proceeding, under Rule 23(d), in order to protect the interests of the absent class members. Plaintiffs state that notice would be appropriate to determine a back pay award, but do not state at what stage of this proceeding they believe notice would be appropriate. That issue will be addressed as discussed

below.
CONCLUSION
Given the need to progress to the merits of this case, the Court will conditionally certify two subclasses under Rule 23(b)(2). Those subclasses are defined as:
1. All African-American applicants for labor positions at AK Steel’s Middletown, Ohio plant who took and failed AK Steel’s screening employment test within the 300-day period preceding July 9, 2002, and who allege that test has an impermissible disparate impact on African-American applicants.
*6 2. All African-American applicants for labor positions at AK Steel’s Ashland, Kentucky plant who took and failed AK Steel’s screening employment test within the 300-day period preceding June 8, 2002, and who allege that test has an impermissible disparate impact on African-American applicants.
Rule 23(d) gives the Court broad discretion to issue orders appropriate to these proceedings. The Court may alter or amend this certification order at any time before judgment, under Rule 23(c)(1)(C). Further discovery on any of the issues discussed above, or in the Court’s April 24, 2006 Order (Doc. 79), may require alteration, amendment, or decertification of either or both subclasses.
Plaintiffs shall file a statement with the Court on the timing and general text of a proposed notice to the subclasses by February 2nd, 2007. Defendant may respond to Plaintiffs’ proposal by February 12th, 2007.
This matter is referred to the Magistrate Judge for a scheduling conference at the earliest possible date that is convenient for the Magistrate Judge and the parties.
SO ORDERED.

4

 
 Bert v. AK Steel Corp., Not Reported in F.Supp.2d (2008)

2008 WL 2002848 Only the Westlaw citation is currently available.
United States District Court, S.D. Ohio,
Western Division.
Vivian BERT, et al., Plaintiffs, v.
AK STEEL CORPORATION, Defendant.
No. 1:02-CV-467. | May 7, 2008.
Attorneys and Law Firms
Paul Henry Tobias, Tobias & Kraus, Cincinnati, OH, David W. Sanford, Sanford Wittels & Heisler LLP, Washington, DC, Herman Nathaniel Johnson, Jr, Barry V. Frederick, Robert F. Childs, Susan Gale Donahue, Wiggins Childs Quin & Pantazis, Birmingham, AL, for Plaintiffs.
Gregory Parker Rogers, Lawrence James Barty, Patricia Anderson Pryor, Taft, Stettinius & Hollister LLP, Cincinnati, OH, for Defendants.
Opinion
ORDER
SANDRA S. BECKWITH, Chief Judge.
*1 Before the Court is Defendant’s motion for summary judgment on the individual claims of plaintiff Allen Roberts. (Doc. 155) Roberts opposes the motion (Doc. 163), and Defendant has replied. (Doc. 171) Roberts, a former AK Steel employee, alleges that Defendant’s discriminatory hiring practices violated his associational right to an integrated workplace, and caused him injury.
Defendant seeks summary judgment, contending that Roberts admitted he did not sustain any actual injury as a result of the alleged discriminatory hiring practices. Defendant also argues that the undisputed evidence establishes that Roberts worked in an integrated workplace during his years of employment with AK Steel.
FACTUAL BACKGROUND

This Court addressed Roberts’ claims in an order denying Defendant’s previous summary judgment motion based on claim preclusion. (Doc. 80) As discussed in that Order, Roberts worked at AK Steel from 1988 through September 2002, and was an employee at the time this case was filed (June 26, 2002). Roberts filed an EEOC charge on April 7, 1999 alleging that AK Steel’s hiring practices are discriminatory; his claim in this case is based upon that EEOC charge. In September 2002, Roberts filed an individual complaint against AK Steel alleging employment discrimination and retaliation under Title VII and state law. (Roberts v. AK Steel, No. 1:02-cv-656 (S.D.Ohio 2002)). He alleged there that AK Steel retaliated against him in a series of disciplinary actions, and eventually terminated him, because of several EEOC complaints, including the “third party” hiring discrimination claim at issue here. He also alleged that AK Steel’s decisions to suspend him, to discharge him, and its other adverse employment-related acts, were all motivated by racial discrimination. This Court granted summary judgment to AK Steel in that case.
AK Steel previously sought judgment in this case against Roberts based on the preclusive effect of the Court’s judgment in Roberts’ prior case. This Court denied that motion, finding that Roberts’ “third party” associational claim was not raised or actually litigated in the prior case. (Doc. 80)
In the Second Amended Complaint, Roberts contends that AK Steel utilizes intentionally discriminatory hiring practices, which deprived him and all other AK Steel employees of the benefits of a racially integrated environment. He alleges claims under Title VII and 42 U.S.C. § 1981. (Doc. 45, ¶¶ 155-164) Plaintiffs later sought class certification for a proposed class of applicants who failed AK Steel’s pre-employment test, and did not seek certification of Roberts’ associational claim on behalf of other employees. Roberts is thus proceeding solely on his individual claims.
DISCUSSION
1. Standard of Review. The standards for summary judgment are well established. Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
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Bert v. AK Steel Corp., Not Reported in F.Supp.2d (2008)

Fed.R.Civ.P. 56(c). The party opposing a properly supported summary judgment motion “ ‘may not rest upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial .’ “ Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (quoting First Nat’l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)). The Court is not duty bound to search the entire record in an effort to establish a lack of material facts. Guarino v. Brookfield Township Trs., 980 F.2d 399, 404 (6th Cir.1992); InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir.1989), cert. den., Superior Roll Forming Co. v. InterRoyal Corp., 494 U.S. 1091, 110 S.Ct. 1839, 108 L.Ed.2d 967 (1990). Rather, the burden is on the non-moving party to “present affirmative evidence to defeat a properly supported motion for summary judgment ...,” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir.1989), and to designate specific facts in dispute. Anderson, 477 U.S. at 250. The non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Electric Industries Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The court construes the evidence presented in the light most favorable to the non-movant and draws all justifiable inferences in the non-movant’s favor. United States v. Diebold Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962).
*2 The court’s function is not to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. The court must assess “whether there is the need for trial-whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Id. at 250. “If the evidence is merely colorable, ..., or is not significantly probative, ..., the court may grant judgment.” Anderson, 477 U.S. at 249-50 (citations omitted).
Although summary judgment must be used with extreme caution since it operates to deny a litigant his day in court, Smith v. Hudson, 600 F.2d 60, 63 (6th Cir.1979), cert. dismissed, 444 U.S. 986, 100 S.Ct. 495, 62 L.Ed.2d 415 (1979), the United States Supreme Court has stated that the “[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to ‘secure the just, speedy and inexpensive determination of every action.’ ” Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (citations omitted).

2. Roberts’ Claims. The law regarding the viability under Title VII and Section 1981 of third-party claims such as Roberts alleges here is not entirely settled. Relying on Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972), which recognized an “associational” claim under the Fair Housing Act, several courts have recognized standing under Title VII to an employee who alleges that his right to work in an environment free of discrimination was violated, even though the employee may not have been directly victimized by that discrimination. See, e.g., Stewart v. Hannon, 675 F.2d 846 (7th Cir.1982) [white employee had standing under Title VII to challenge discriminatory acts against black employee]; and Leibovitz v. New York City Transit Authority, 252 F.3d 179 (2nd Cir.2001), holding that female employee had standing to prosecute hostile environment claims based on treatment of other female employees. But see, Childress v. City of Richmond, 134 F.3d 1205 (4th Cir.1998), where an equally divided en banc Fourth Circuit concluded such employees lacked standing; the concurring opinion distinguished the terms of Title VII from those of the Fair Housing Act upon which Trafficante was based.
In Tetro v. Elliott Popham Pontiac, 173 F.3d 988 (6th Cir.1999), the Sixth Circuit held that a white employee who was discharged because he had a biracial child had standing to sue under Title VII. And in Johnson v. University of Cincinnati, 215 F.3d 561, 574 (6th Cir.2000), the Sixth Circuit held that a Title VII plaintiff “need only allege that he was discriminated against on the basis of his association with a member of a recognized protected class” to have standing to sue. Based on these authorities, the Court will assume that Roberts has standing to prosecute his associational claim, as a “person claiming to be aggrieved” within the meaning of Title VII.
*3 Title VII and Section 1981 claims are generally analyzed under the same standards. Roberts cites Gray v. Greyhound Lines, East, 545 F.2d 169, 175 n. 16 (D.C.Cir.1976), to describe the elements of his associational claim. According to Gray, Roberts must establish (1) intentional discrimination by Defendant against African American applicants; (2) an actual injury Roberts sustained; and (3) a causal link between his injury and the discriminatory practices.
In opposing AK Steel’s current summary judgment motion, Roberts relies on the Class Plaintiffs’ expert opinion that the pre-employment test had a disparate
2

Bert v. AK Steel Corp., Not Reported in F.Supp.2d (2008)

impact on African-American applicants. He does not offer any other substantive evidence of intentional discrimination, other than his own subjective impressions and hearsay. Roberts suggests that the expert’s opinion establishes intentional discrimination. (See Doc. 163, pp. 5-6) In granting class certification, the Court made no determination about whether the test has an unlawful disparate impact. The Court concluded that the Class Plaintiffs’ expert presented a statistical framework that passed muster under Rule 23. The ultimate question of whether the test discriminates against African-American applicants is a disputed question in this case. But assuming that Dr. Bradley’s opinion suffices for purposes of overcoming Defendant’s summary judgment motion, Roberts must also establish that he suffered an actual injury.
Roberts testified that he knew almost all of the African-American employees at AK Steel, and that the workforce at the plant was approximately 7% African-American. Roberts worked as a crew chief for several years in the caster maintenance group, which had 40 to 55 employees. He was one of four crew chiefs, all of whom were African Americans. He could recall at least seven other African American employees in his department. He was moved to a different, smaller department in mid-2001, where there were at least two other African American employees. Roberts does not deny this evidence, but asserts that there “should have been more” African Americans hired because the workplace lacked “balance.” He does not define what balance he believes would have been sufficient. He repeatedly states that AK Steel’s discriminatory policies deprived him of an integrated workplace. This establishes his standing, as discussed above, but does not establish an actual, compensable injury.
Roberts also testified in his deposition that he did not receive adequate training to be a crew chief, and that management treated him badly after he returned from a lengthy suspension in 2001. He states that after he filed his EEOC charges, he was treated with hostility up until the time he was terminated. (Roberts Deposition, pp. 127-138) Roberts was then specifically asked what injuries he suffered as a result of the discriminatory hiring practices directed at other African-American applicants. Other than losing his job (which he believes was in response to his EEOC charges), he did not identify any specific harm because “you know, I was working at the time.” (Roberts Deposition, pp. 142-143) He later amplified this answer by stating:
*4 ... with the lack of minorities that were hourly, lack of supervisor that were salary [sic], I feel like that’s-you know, didn’t allow me to work in a place

that was integrated of racial-free of discrimination because we didn’t have a balance. We didn’t have-there was no balance of minorities on either side, upper management or-upper management, front line supervisors, you name it.
So with all that in mind, if there was a balance in my mind, I feel if there was a balance of supervisors, a balance of minorities in the plant, we probably wouldn’t be having this conversation today. And I probably would-would probably still be working at AK Steel.
(Roberts Deposition pp. 211-213)
Roberts does not identify or describe any discrete injury he sustained as a result of the challenged hiring practices. His descriptions of adverse actions taken against him, of lack of training or his termination, are all injuries he alleged in his prior lawsuit were caused by racial animus and retaliation directed at him personally. His attempt to create a causal link between the purported imbalance of minorities in the workforce and his termination is based on sheer speculation.
Roberts also suggests that, absent the discriminatory pre-employment test, there would have been more minority representation in upper management. There is absolutely no evidence in the record concerning upper management recruitment policies and procedures, and Roberts’ testimony is pure conjecture. He also believes that a more “balanced” workforce might have avoided his disciplinary problems, and “probably” would have saved him from termination. Roberts cannot rely on this unsupported, speculative connection between a racially “unbalanced” workforce and his termination in 2002, to establish actual injury.
Roberts also argues that the alleged racial imbalance was emotionally harmful to him. Despite his argument that the lack of a racially integrated workplace “caused him to be disciplined and ultimately terminated,” he clearly states that he is only seeking recovery for emotional injuries, and not back pay or other damages stemming from his employment or his discharge. (See Doc. 163 p. 4) Emotional distress damages are recoverable under Title VII and Section 1981. But Roberts has not come forward with anything to substantiate any emotional injuries he may have suffered that were caused by Defendant’s hiring practices, rather than by his employment-related disputes. He did not testify about any emotional distress he suffered, and does not allude to any adverse effects he endured due to such distress.
Emotional distress damages, as with any other type of
3

Bert v. AK Steel Corp., Not Reported in F.Supp.2d (2008)

personal compensatory damages, must be supported by evidence. In Bach v. First Union National Bank, 149 Fed. Appx. 354, 2005 U.S.App. LEXIS 18197, 2005 WL 2009272 (6th Cir., August 22, 2005), the Sixth Circuit affirmed a substantial emotional distress damages verdict in a Fair Credit Reporting Act case. The Circuit noted that “An injured person’s testimony alone may suffice to establish damages for emotional distress provided that she reasonably and sufficiently explains the circumstances surrounding the injury and does not rely on mere conclusory statements.” Id. at 361. Applying that standard to Roberts’ testimony, he does not explain any circumstances relating to AK Steel’s hiring practices that he believes caused him any emotional distress. Without some evidence of an actual injury that is causally linked to the challenged hiring practices, Roberts’ claims cannot

withstand summary judgment.
CONCLUSION *5 For all of the foregoing reasons, the Court grants Defendant’s motion for summary judgment against Allen Roberts. His individual claims are dismissed with prejudice. SO ORDERED.

4

 
 CLOSED,JURY
U.S. District Court Southern District of Ohio (Cincinnati) CIVIL DOCKET FOR CASE #: 1:02-cv-00467-SSB-TSH

Bert, et al v. AK Steel Corporation Assigned to: Judge Sandra S Beckwith Referred to: Magistrate Judge Timothy S Hogan Demand: $0 Cause: 42:2000e Job Discrimination (Employment)

Date Filed: 06/26/2002 Date Terminated: 10/23/2008 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

Plaintiff Vivian Bert

represented by Allison W Lowell Wiggin Childs Quinn & Pantazis 301 19th Street N Birmingham, AL 35203 205-314-0575 Fax: 205/254-1500 Email: awl@wcqp.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Donald Kammer Tobias, Kraus & Torchia 911 Mercantile Library Building 414 Walnut Street Cincinnati, OH 45202 513-241-8137 Fax: 513-241-7863 Email: davek@tktlaw.com TERMINATED: 07/24/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul Henry Tobias Tobias & Kraus -1 414 Walnut Street Suite 911 Cincinnati, OH 45202 513-241-8137 Email: tkt@tktlaw.com LEAD ATTORNEY

ATTORNEY TO BE NOTICED
Barry V Frederick Wiggins Childs Quinn & Pantazis PC 301 19th Street N Birmingham, AL 35203 205-314-0575 Fax: 205-254-1500 Email: bvf@wcqp.com ATTORNEY TO BE NOTICED
David W Sanford Sanford Wittels & Heisler LLP 1666 Connecticut Ave, NW Suite 310 Washington, DC 20009 202-742-7780 Fax: 202-742-7776 Email: dsanford@nydclaw.com ATTORNEY TO BE NOTICED
Herman Nathaniel Johnson , Jr Wiggins Childs Quin & Pantazis The Kress Building 301 19th Street North Birmingham, AL 35203 205-314-0500 Email: Rnj@wcqp.com ATTORNEY TO BE NOTICED
Robert F Childs Wiggins Childs Quin & Pantazis The Kress Building 301 19th Street North Birmingham, AL 35203 205.314.0500 Email: RFC@wcqp.com ATTORNEY TO BE NOTICED
Susan Gale Donahue Wiggins Childs Quin & Pantazis The Kress Building 301 19th Street North Birmingham, AL 35203 205.324.0500 Email: sgd@wcqp.com

Plaintiff Thaddeus Freeman TERMINATED: 10/12/2007
Plaintiff Darrell Carter

ATTORNEY TO BE NOTICED
represented by Allison W Lowell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Donald Kammer (See above for address) TERMINATED: 07/24/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul Henry Tobias (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Barry V Frederick (See above for address) ATTORNEY TO BE NOTICED
David W Sanford (See above for address) ATTORNEY TO BE NOTICED
Herman Nathaniel Johnson , Jr (See above for address) ATTORNEY TO BE NOTICED
Robert F Childs (See above for address) ATTORNEY TO BE NOTICED
Susan Gale Donahue (See above for address) ATTORNEY TO BE NOTICED
represented by Allison W Lowell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Donald Kammer

Plaintiff Edward James Lewis

(See above for address) TERMINATED: 07/24/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul Henry Tobias (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Barry V Frederick (See above for address) ATTORNEY TO BE NOTICED
David W Sanford (See above for address) ATTORNEY TO BE NOTICED
Herman Nathaniel Johnson , Jr (See above for address) ATTORNEY TO BE NOTICED
Robert F Childs (See above for address) ATTORNEY TO BE NOTICED
Susan Gale Donahue (See above for address) ATTORNEY TO BE NOTICED
represented by Allison W Lowell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Donald Kammer (See above for address) TERMINATED: 07/24/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul Henry Tobias (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Timothy Oliphant

Barry V Frederick (See above for address) ATTORNEY TO BE NOTICED
David W Sanford (See above for address) ATTORNEY TO BE NOTICED
Herman Nathaniel Johnson , Jr (See above for address) ATTORNEY TO BE NOTICED
Robert F Childs (See above for address) ATTORNEY TO BE NOTICED
Susan Gale Donahue (See above for address) ATTORNEY TO BE NOTICED
represented by Allison W Lowell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Donald Kammer (See above for address) TERMINATED: 07/24/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul Henry Tobias (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Barry V Frederick (See above for address) ATTORNEY TO BE NOTICED
David W Sanford (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Mary - Harris TERMINATED: 10/12/2007

Herman Nathaniel Johnson , Jr (See above for address) ATTORNEY TO BE NOTICED
Robert F Childs (See above for address) ATTORNEY TO BE NOTICED
Susan Gale Donahue (See above for address) ATTORNEY TO BE NOTICED
represented by Allison W Lowell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Donald Kammer (See above for address) TERMINATED: 07/24/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul Henry Tobias (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Barry V Frederick (See above for address) ATTORNEY TO BE NOTICED
David W Sanford (See above for address) ATTORNEY TO BE NOTICED
Herman Nathaniel Johnson , Jr (See above for address) ATTORNEY TO BE NOTICED
Robert F Childs (See above for address) ATTORNEY TO BE NOTICED
Susan Gale Donahue

Plaintiff Roderique Russel
Plaintiff Kay Jackson

(See above for address) ATTORNEY TO BE NOTICED
represented by Allison W Lowell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Donald Kammer (See above for address) TERMINATED: 07/24/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul Henry Tobias (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Barry V Frederick (See above for address) ATTORNEY TO BE NOTICED
David W Sanford (See above for address) ATTORNEY TO BE NOTICED
Herman Nathaniel Johnson , Jr (See above for address) ATTORNEY TO BE NOTICED
Robert F Childs (See above for address) ATTORNEY TO BE NOTICED
Susan Gale Donahue (See above for address) ATTORNEY TO BE NOTICED
represented by Allison W Lowell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Marnie Carter

David Donald Kammer (See above for address) TERMINATED: 07/24/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul Henry Tobias (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Barry V Frederick (See above for address) ATTORNEY TO BE NOTICED
David W Sanford (See above for address) ATTORNEY TO BE NOTICED
Herman Nathaniel Johnson , Jr (See above for address) ATTORNEY TO BE NOTICED
Robert F Childs (See above for address) ATTORNEY TO BE NOTICED
Susan Gale Donahue (See above for address) ATTORNEY TO BE NOTICED
represented by Allison W Lowell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Donald Kammer (See above for address) TERMINATED: 07/24/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul Henry Tobias (See above for address) LEAD ATTORNEY

Plaintiff Darlene Denise Carter

ATTORNEY TO BE NOTICED
Barry V Frederick (See above for address) ATTORNEY TO BE NOTICED
David W Sanford (See above for address) ATTORNEY TO BE NOTICED
Herman Nathaniel Johnson , Jr (See above for address) ATTORNEY TO BE NOTICED
Robert F Childs (See above for address) ATTORNEY TO BE NOTICED
Susan Gale Donahue (See above for address) ATTORNEY TO BE NOTICED
represented by Allison W Lowell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Donald Kammer (See above for address) TERMINATED: 07/24/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul Henry Tobias (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Barry V Frederick (See above for address) ATTORNEY TO BE NOTICED
David W Sanford (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Dwight - Lewis TERMINATED: 11/20/2007

Herman Nathaniel Johnson , Jr (See above for address) ATTORNEY TO BE NOTICED
Robert F Childs (See above for address) ATTORNEY TO BE NOTICED
Susan Gale Donahue (See above for address) ATTORNEY TO BE NOTICED
represented by Allison W Lowell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Donald Kammer (See above for address) TERMINATED: 07/24/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul Henry Tobias (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Barry V Frederick (See above for address) ATTORNEY TO BE NOTICED
David W Sanford (See above for address) ATTORNEY TO BE NOTICED
Herman Nathaniel Johnson , Jr (See above for address) ATTORNEY TO BE NOTICED
Robert F Childs (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Michael Miller
Plaintiff Ronald Sloan TERMINATED: 10/12/2007

Susan Gale Donahue (See above for address) ATTORNEY TO BE NOTICED
represented by Allison W Lowell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Donald Kammer (See above for address) TERMINATED: 07/24/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul Henry Tobias (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Barry V Frederick (See above for address) ATTORNEY TO BE NOTICED
David W Sanford (See above for address) ATTORNEY TO BE NOTICED
Herman Nathaniel Johnson , Jr (See above for address) ATTORNEY TO BE NOTICED
Robert F Childs (See above for address) ATTORNEY TO BE NOTICED
Susan Gale Donahue (See above for address) ATTORNEY TO BE NOTICED
represented by Allison W Lowell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Donald NMI Edwards TERMINATED: 04/25/2008

David Donald Kammer (See above for address) TERMINATED: 07/24/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul Henry Tobias (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Barry V Frederick (See above for address) ATTORNEY TO BE NOTICED
David W Sanford (See above for address) ATTORNEY TO BE NOTICED
Herman Nathaniel Johnson , Jr (See above for address) ATTORNEY TO BE NOTICED
Robert F Childs (See above for address) ATTORNEY TO BE NOTICED
Susan Gale Donahue (See above for address) ATTORNEY TO BE NOTICED
represented by Allison W Lowell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Donald Kammer (See above for address) TERMINATED: 07/24/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul Henry Tobias (See above for address)

Plaintiff Shawn Pryor

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Barry V Frederick (See above for address) ATTORNEY TO BE NOTICED
David W Sanford (See above for address) ATTORNEY TO BE NOTICED
Herman Nathaniel Johnson , Jr (See above for address) ATTORNEY TO BE NOTICED
Robert F Childs (See above for address) ATTORNEY TO BE NOTICED
Susan Gale Donahue (See above for address) ATTORNEY TO BE NOTICED
represented by Allison W Lowell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Donald Kammer (See above for address) TERMINATED: 07/24/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul Henry Tobias (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Barry V Frederick (See above for address) ATTORNEY TO BE NOTICED
David W Sanford (See above for address)

Plaintiff
Tiffany Jackson TERMINATED: 11/20/2007

ATTORNEY TO BE NOTICED
Herman Nathaniel Johnson , Jr (See above for address) ATTORNEY TO BE NOTICED
Robert F Childs (See above for address) ATTORNEY TO BE NOTICED
Susan Gale Donahue (See above for address) ATTORNEY TO BE NOTICED
represented by Allison W Lowell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Donald Kammer (See above for address) TERMINATED: 07/24/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul Henry Tobias (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Barry V Frederick (See above for address) ATTORNEY TO BE NOTICED
David W Sanford (See above for address) ATTORNEY TO BE NOTICED
Herman Nathaniel Johnson , Jr (See above for address) ATTORNEY TO BE NOTICED
Robert F Childs (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Allen Roberts TERMINATED: 05/07/2008
Plaintiff Dwight - Lewis TERMINATED: 11/20/2007

Susan Gale Donahue (See above for address) ATTORNEY TO BE NOTICED
represented by Allison W Lowell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Donald Kammer (See above for address) TERMINATED: 07/24/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul Henry Tobias (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Barry V Frederick (See above for address) ATTORNEY TO BE NOTICED
David W Sanford (See above for address) ATTORNEY TO BE NOTICED
Herman Nathaniel Johnson , Jr (See above for address) ATTORNEY TO BE NOTICED
Robert F Childs (See above for address) ATTORNEY TO BE NOTICED
Susan Gale Donahue (See above for address) ATTORNEY TO BE NOTICED
represented by Susan Gale Donahue (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Tiffany Jackson TERMINATED: 11/20/2007
V. Defendant AK Steel Corporation

represented by Susan Gale Donahue (See above for address) ATTORNEY TO BE NOTICED
represented by Gregory Parker Rogers Taft, Stettinius & Hollister 1800 First Star Tower 425 Walnut Street Cincinnati, OH 45202 513-357-9349 Email: Rogers@Taftlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lawrence James Barty Taft Stettinius & Hollister 1800 Firstar Tower 425 Walnut St Cincinnati, OH 45202-3597 513-381-2838 Email: barty@taftlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patricia Anderson Pryor Taft, Stettinius & Hollister LLP Suite 1800 425 Walnut Street Cincinnati, OH 45202 513-357-9409 Fax: 513-381-0205 Email: pryor@taftlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 06/26/2002

# Docket Text
1 COMPLAINT & JURY DEMAND (Summonses issued) ( no. pgs: 35) (ph) (Entered: 06/28/2002)

06/26/2002 07/08/2002 07/08/2002 10/11/2002 10/18/2002 10/31/2002 11/04/2002 11/04/2002 11/12/2002 11/15/2002
11/19/2002 12/09/2002

Filing Fee Paid: on 6/26/02 in the amount of $ 150.00, receipt # 100 415410. (ph) (Entered: 06/28/2002)
2 ORDER by Judge Herman J. Weber Case reassigned to Clerk's Office for reassignment (cc: all counsel) ( no pgs: 1) (ph) (Entered: 07/08/2002)
3 ORDER/NOTICE by Clerk's Office Case reassigned to Judge Susan J. Dlott (cc: all counsel) ( no pgs: 1) (ph) (Entered: 07/08/2002)
4 RETURN OF SERVICE executed upon defendant AK Steel Corporation on 10/10/02; served by personal server ( no pgs: 1) (vp) (Entered: 10/15/2002)
5 STIPULATION by parties that deft has until 11/12/02 to respond to complaint [1-1] ( no pgs: 1) (vp) (Entered: 10/21/2002)
6 ORDER by Judge Susan J. Dlott Case reassigned to clerks office for reassignment (cc: all counsel) ( no pgs: 1) (vp) (Entered: 10/31/2002)
7 NOTICE by Operations Supervisor reassigning case to Judge Sandra S Beckwith ( no pgs: 1) (tt) (Entered: 11/04/2002)
8 ORDER by Judge Sandra S. Beckwith Case referred to Mag. Judge Timothy S. Hogan (cc: all counsel) ( no pgs: 2) (tt) (Entered: 11/04/2002)
9 ANSWER by defendant ; No jury demand ( no pgs: 15) (tt) (Entered: 11/13/2002)
10 MOTION by defendant to dismiss Title VII Claims of the Middletown plaintiffs for failure to state a claim upon which relief may be granted , and for summary judgment on Roderique Russell's Title VII Claims based on his EEOC charge no. 221A00326 against it ( no pgs: 6+Exhs) (tt) (Entered: 11/15/2002)
11 NOTICE by Clerk setting this action for Preliminary PTC at 11:00 on 1/6/03 before MJ Timothy S Hogan in Room 706 (no pgs: 1+) (cc: all counsel) (tt) (Entered: 11/19/2002)
12 MEMORANDUM by plaintiffs in opposition to defendants motion to dismiss Title VII Claims of the Middletown plaintiffs for failure to state a claim upon which relief may be granted [10-1], and for summary judgment on Roderique Russell's Title VII Claims based upon his EEOC charge no. 221A00326 against it [10-2] ( no pgs: 11+Exhs) (tt) (Entered:

12/19/2002 12/31/2002 01/13/2003
05/01/2003 05/13/2003 11/12/2003
11/13/2003

12/10/2002)
13 REPLY by defendant to response to motion by defendant to dismiss Title VII Claims of the Middletown plaintiffs for failure to state a claim upon which relief may be granted [101], motion for summary judgment on Roderique Russell's Title VII Claims based on his EEOC charge no. 221A00326 against it [10-2] ( no pgs: 5) (mb) Modified on 08/12/2003 (Entered: 12/20/2002)
14 Rule 26(f) Report of parties to Magistrate Judge filed by plaintiffs and defendant ( no pgs: 4) (tt) (Entered: 01/06/2003)
15 CALENDAR ORDER by Mag. Judge Timothy S. Hogan ; Motion for leave to amend Complaint due by 5/1/03 , and ; Class discovery ddl set for 12/1/03 ; Parties have a half day for Rule 30(b)(1) depositions of named pltfs witnesses ; Interrogs consist of 15 for each pltf and 25 for deft ; Pltf to identify primary experts by 1/5/04 ; Deft to identify primary rebuttal experts by 3/5/04 ; Pltf to produce rebuttal primary reports by 5/5/04 ; Pltf to move for class certification by 9/6/04 (cc: all counsel) ( no pgs: 1) (tt) (Entered: 01/13/2003)
16 MOTION by plaintiffs for leave to file Amended Complaint ; Proposed Amended Complaint attached ( no pgs: 10+) (tt) (Entered: 05/02/2003)
17 RESPONSE by defendant to motion by plaintiffs for leave to file Amended Complaint [16-1] ; Defendant does not oppose the motion ; Defendant renews its motion to dismiss and for summary judgment [Doc. 12] with respect to the Amended Complaint and requests dismissal of the Title VII claims of the Middletown plaintiffs and summary judgment on Roderique Russell's Title VII claims for reasons stated previously (no pgs: 3) (tt) Modified on 08/12/2003 (Entered: 05/14/2003)
18 Joint MOTION for Extension of Time to Complete Discovery and Extension of Pre-trial Dates Set Forth in the Court's Calendar Order by Plaintiffs Vivian Bert, Thaddeus Freeman, Darrell Carter, Edward James Lewis, Timothy Oliphant, Mary Harris, Roderique Russel, Kay Jackson, Marnie Carter, Darlene Denise Carter, Dwight - Lewis, Michael Miller, Ronald Sloan, Donald NMI Edwards, Shawn Pryor, Tiffany Jackson, Allen Roberts, Defendant AK Steel Corporation. (Pryor, Patricia) Modified on 11/12/2003 to reflect previous motion was removed and refiled on the docket (tt, ) (Entered: 11/12/2003)
19 MOTION for attorney David W Sanford to Appear pro hac

11/18/2003 11/18/2003 11/28/2003
11/28/2003 12/09/2003 12/09/2003
12/11/2003 01/22/2004 01/22/2004 01/26/2004

vice on behalf of Plaintiffs (Attachments: # 1 Certificate Of Good Standing # 2 Receipt #420879 in the amount of $50.00 for payment of application fee)(tt, ) Additional attachment # 2 Updated Certificate Of Good Standing added on 12/10/2003 (tt, ) (Entered: 11/14/2003)
20 ORDER granting 18 Motion for Extension of Time to Complete Discovery; Discovery deadline 3/1/2004; Plaintiff to move for class certification by 12/5/2004. Signed by Judge Timothy S Hogan on 11/18/2003. (ba, ) (Entered: 11/18/2003)
Set/Reset Deadlines: Discovery due by 3/1/2004. (ba, ) (Entered: 11/18/2003)
21 ORDER granting plaintiff's 16 Motion for Leave to File an Amended Complaint Signed by Judge Timothy S Hogan on 11/25/2003. Plaintiff's amended complaint attached to document# 16 shall be deemed filed as of the date of this Order. (art, ) (Entered: 11/28/2003)
22 AMENDED COMPLAINT filed by plaintiffs pursuant to document# 21.(art, ) (Entered: 11/28/2003)
23 ANSWER to Amended Complaint by Defendant AK Steel Corporation.(Rogers, Gregory) (Entered: 12/09/2003)
24 MOTION to Dismiss the Title VII Claims of the Middletown Plaintiffs and Motion for Summary Judgment on Roderique Russell's Title VII Claims by Defendant AK Steel Corporation. Responses due by 1/2/2004 (Rogers, Gregory) (Entered: 12/09/2003)
25 ORDER granting 19 Motion for David W. Sanford for Leave to Appear Pro Hac Vice as co-counsel for pltfs. Signed by Judge Sandra S Beckwith on 12/11/03. (mb) (Entered: 12/11/2003)
26 ORDER denying 10 Motion to Dismiss, denying 10 Motion for Summary Judgment. Signed by Judge Sandra S Beckwith on 1/21/04. (mb) (Entered: 01/22/2004)
27 MOTION for Attorney Susan Donahue to Appear pro hac vice on behalf of plaintiffs (Attachments: # 1 Certificate Of Good Standing # 2 Receipt #421676 for $50.00)(tt, ) (Entered: 01/23/2004)
28 ORDER granting 27 Motion for Leave for atty. Susan G. Donahue to Appear Pro Hac Vice as co-counsel for pltfs. Signed by Judge Sandra S Beckwith on 1/26/04. (mb) (Entered: 01/26/2004)

02/04/2004 02/04/2004
02/24/2004
02/27/2004 04/08/2004 04/12/2004 05/17/2004 05/17/2004 06/01/2004

29 MOTION for Reconsideration of January 21, 2004 Order (Doc. 26) by Plaintiffs (Attachments: # 1 Memorandum in Support of Motion# 2 Exhibit EEOC Right-to-Sue Notices)(Tobias, Paul) Modified on 2/9/2004 (tt, ). Modified on 11/15/2004 (tt, ). (Entered: 02/04/2004)
30 MOTION to Amend/Correct 22 Amended Complaint by Plaintiffs Vivian Bert, Thaddeus Freeman, Darrell Carter, Edward James Lewis, Timothy Oliphant, Mary - Harris, Roderique Russel, Kay Jackson, Marnie Carter, Darlene Denise Carter, Dwight - Lewis, Michael Miller, Ronald Sloan, Donald NMI Edwards, Shawn Pryor, Tiffany Jackson, Allen Roberts. (Attachments: # 1 Memorandum in Support of Motion# 2 Second Amended Complaint)(Tobias, Paul) (Entered: 02/04/2004)
31 Joint MOTION for Extension of Time to Complete Discovery and Extend Expert Deadlines by Plaintiffs Vivian Bert, Thaddeus Freeman, Darrell Carter, Edward James Lewis, Timothy Oliphant, Mary - Harris, Roderique Russel, Kay Jackson, Marnie Carter, Darlene Denise Carter, Dwight Lewis, Michael Miller, Ronald Sloan, Donald NMI Edwards, Shawn Pryor, Tiffany Jackson, Allen Roberts, Defendant AK Steel Corporation. (Rogers, Gregory) (Entered: 02/24/2004)
32 ORDER granting 31 Motion for Extension of Time to Complete Discovery . Signed by Judge Timothy S Hogan on 2/27/2004. (ba, ) (Entered: 02/27/2004)
33 ORDER finding as moot 29 Motion to Alter Judgment, granting 30 Motion to Amend/Correct. Signed by Judge Sandra S Beckwith on 4/8/04. (mb) (Entered: 04/08/2004)
34 ORDER withdrawing previous order regarding docs. 29 & 30 due to the Mag. Judge's granting an extension to 5/15/04 to respond to these motions. Signed by Judge Sandra S Beckwith on 4/8/04. (mb) (Entered: 04/12/2004)
35 RESPONSE in Opposition re 29 MOTION to Alter Judgment Order of January 21, 2004 (Doc. 26) filed by Defendant AK Steel Corporation. (Rogers, Gregory) (Entered: 05/17/2004)
36 RESPONSE in Opposition re 30 MOTION to Amend/Correct 22 Amended Complaint filed by Defendant AK Steel Corporation. (Attachments: # 1 EEOC Letter# 2 Unreported Opinion)(Rogers, Gregory) (Entered: 05/17/2004)
37 REPLY to Response to 29 MOTION to Alter Judgment Order

06/01/2004 07/01/2004 07/07/2004 11/29/2004
12/08/2004 12/19/2004 01/04/2005

of January 21, 2004 (Doc. 26) filed by Plaintiffs (Tobias, Paul) Modified on 6/3/2004 (tt, ). (Entered: 06/01/2004)
38 REPLY to Response to 30 MOTION to Amend/Correct Complaint filed by Plaintiffs (Tobias, Paul) Modified on 6/3/2004 (tt, ). (Entered: 06/01/2004)
39 Joint MOTION for Extension of Time for Experts and Expert Reports ; New date requested 9/1/2004. by Plaintiffs and Defendant (Kammer, David) Modified on 7/6/2004 (tt, ). (Entered: 07/01/2004)
40 ORDER granting 39 Motion for Extension of Time for expert reports and discovery through and including 12/1/2004. Signed by Judge Timothy S Hogan on 7/7/2004. (ba, ) (Entered: 07/07/2004)
41 MOTION to Extend all Class Action Deadlines for completion of Discovery and Request for Ruling Regarding Motion for Reconsideration of January 21, 2004 Order and Motion to Amend/Correct Amended Complaint ; New date requested approximately 4/4/2005. This projeccted date is based upon the granting of Plaintiffs motions (Donahue, Susan) Modified on 11/30/2004 (tt, ). (Entered: 11/29/2004)
42 RESPONSE in Opposition re 41 MOTION for Extension of Time to Complete Discovery, for ruling regarding Motion for Reconsideration, and Motion to Amend/Correct Amended Complaint filed by Defendant (Attachments: # 1 Declaration of Gregory Parker Rogers)(Rogers, Gregory) Modified on 12/13/2004 (tt, ). (Entered: 12/08/2004)
43 REPLY to Response to 41 MOTION for Extension of Time to Complete Discovery, Request for Ruling Regarding Plaintiffs' Motion for Reconsideration of January 21, 2004 Order and Plaintiff's Motion to Amend/Correct Amended Complaint filed by Plaintiffs (Donahue, Susan) Modified on 12/20/2004 (tt, ). (Entered: 12/19/2004)
44 ORDER finding as moot 29 Motion to Alter Judgment, granting 30 Motion to Amend/Correct, granting 41 Motion for Extension of Time to Complete Discovery. Pltfs' expert reports due: 2/22/05; Defts' expert reports due 3/22/05; Pltfs' expert replies due 4/22/05; Class Discovery deadline: 5/23/05; Motion for class certification due 6/7/05. NO FURTHER EXTENSIONS WILL BE PERMITTED. Any motion to dismiss claims in the second amended complaint for failure to satisfy any of Title VII's conditions precedent shall be filed by

01/19/2005 01/19/2005 01/21/2005 01/21/2005 01/21/2005 01/26/2005 01/26/2005 01/26/2005 01/26/2005 01/26/2005 01/28/2005

2/14/05. Signed by Judge Sandra S Beckwith on 1/4/05. (mb) (Entered: 01/04/2005)
45 SECOND AMENDED COMPLAINT With Jury Demand against all defendants filed by Plaintiffs (Tobias, Paul) Modified on 1/19/2005 (tt, ). (Entered: 01/19/2005)
46 ANSWER to Second Amended Complaint by Defendant ; No jury demand (Rogers, Gregory) Modified on 1/20/2005 (tt, ). (Entered: 01/19/2005)
47 MOTION for Summary Judgment on Counts III and IV of Second Amended Complaint by Defendant ; Responses due by 2/14/2005 (Rogers, Gregory) Modified on 1/24/2005 (tt, ). (Entered: 01/21/2005)
48 MOTION for attorney Herman N Johnson, Jr. to Appear pro hac vice on behalf of Plaintiffs (Attachments: # 1 Affidavit Of Herman N Johnson, Jr., Certificate Of Good Standing and Receipt)(tt, ) (Entered: 01/25/2005)
Filing fee: $ 50, receipt number 425462 received for payment of pro hac vice application fee (tt, ) (Entered: 01/25/2005)
49 ORDER granting 48 Motion for Leave for attorney Herman N. Johnson, Jr. to Appear Pro Hac Vice as co-counsel for pltfs. Signed by Judge Sandra S Beckwith on 1/26/05. (mb) (Entered: 01/26/2005)
50 MOTION for Allison W Lowell to Appear pro hac vice as cocounsel on behalf of the plaintiffs . (srj, ) Modified on 1/28/2005 (tt, ). Additional attachment # 1 Receipt added on 1/28/2005 (tt, ) (Entered: 01/27/2005)
Filing fee: $ 50.00, receipt number 425490 received for pro hac vice application fee for attorney Barry V Frederick (srj, ) Modified on 1/28/2005 (tt, ). (Entered: 01/27/2005)
51 MOTION for Barry V Frederick Leave to Appear pro hac vice as co-counsel on behalf of the plaintiffs . (srj, ) Modified on 1/28/2005 (tt, ). Additional attachment # 1 Receipt added on 1/28/2005 (tt, ) (Entered: 01/27/2005)
Filing fee: $ 50.00, receipt number 425489 received for pro hac vice application fee for attorney Allison W Lowell (srj, ) Modified on 1/28/2005 (tt, ). (Entered: 01/27/2005)
52 ORDER granting [50 & 51] Pltfs' Motions for Leave for attorneys Allison Lowell & Barry Frederick to Appear Pro Hac Vice 51 as co-counsel. Signed by Judge Sandra S Beckwith on

01/31/2005 01/31/2005 02/02/2005 02/04/2005
02/08/2005 02/11/2005 02/15/2005
02/16/2005 02/16/2005

1/28/05. (mb) (Entered: 01/28/2005)
53 MOTION for attorney Robert F childs, Jr., to Appear pro hac vice as co-counsel on behalf of Plaintiffs (Attachments: # 1 Certificate Of Good Standing and Receipt)(tt, ) (Entered: 02/01/2005)
Filing fee: $ 50, receipt number 425539 received for payment of pro hac vice application fee (tt, ) (Entered: 02/01/2005)
54 ORDER granting 53 Pltfs' Motion for Leave for atty. Robert Childs to Appear Pro Hac Vice as co-counsel. Signed by Judge Sandra S Beckwith on 2/2/05. (mb) (Entered: 02/02/2005)
55 Unopposed MOTION for Extension of Time to respond to Defendant's Motion for Summary Judgment on Counts III and IV of the Second Amended Complaint ; New date requested 2/28/2005. by Plaintiffs (Donahue, Susan) Modified on 2/8/2005 (tt, ). (Entered: 02/04/2005)
NOTATION ORDER granting 55 Pltfs' Motion for Extension of Time to respond to deft's SJ motion until 2/28/05. Signed by Judge Sandra S Beckwith on 2/8/05. (mb) (Entered: 02/08/2005)
56 Joint MOTION for Extension of Time To Exchange Expert Reports ; New date requested 3/1/2005. by the parties (Donahue, Susan) Modified on 2/14/2005 (tt, ). (Entered: 02/11/2005)
57 ORDER granting 56 Joint Motion for Extension of Time to exchange expert reports . Signed by Magistrate Judge Timothy S Hogan on 2/14/2005. Plaintiffs' expert reports deadline is March 1, 2005; Defendants' expert reports deadline is March 29, 2005; Plaintiffs' expert replies deadline is April 29, 2005. (art, ) (Entered: 02/15/2005)
58 NOTICE of Informal Discovery Conference before Magistrate Judge Timothy S Hogan via telephone set for 2/16/2005 02:00 PM. (art, ) (Entered: 02/16/2005)
59 Minute Entry: Case called this date for informal discovery conference via telephone before Magistrate Judge Timothy S Hogan. Parties directed to submit a one page brief re discovery dispute by 2/23/2005. Informal conference continued to 2/23/2005 at 2:00 pm via telephone before Magistrate Judge Timothy S Hogan. Discovery Conference held on 2/16/2005. (Court Reporter none present.) (art, ) (Entered: 02/16/2005)

02/16/2005 02/23/2005
02/28/2005 03/01/2005 03/14/2005 03/25/2005 03/31/2005
08/11/2005 08/11/2005

60 NOTICE of continued Informal Discovery Conference on Wednesday, 2/23/2005 02:00 PM via telephone before Magistrate Judge Timothy S Hogan. (art, ) (Entered: 02/16/2005)
61 Minute Entry: Case called this date for an informal discovery conference (via telephone) before Magistrate Judge Timothy S Hogan. Discovery issue presented to the Court. Order of the Court to follow. Informal Discovery Conference held on 2/23/2005. (Court Reporter none present.) (art, ) (Entered: 02/24/2005)
62 RESPONSE in Opposition re 47 MOTION for Summary Judgment on Counts III and IV of Second Amended Complaint filed by Plaintiffs (Donahue, Susan) Modified on 3/1/2005 (tt, ). (Entered: 02/28/2005)
63 ORDER regarding the discovery requests made during the informal discovery conference 61 held on 2/23/2005 before Magistrate Judge Timothy S Hogan . Signed by Magistrate Judge Timothy S Hogan on 3/1/2005. (art, ) (Entered: 03/01/2005)
64 REPLY to Response to 47 MOTION for Summary Judgment on Counts III and IV of Second Amended Complaint filed by Defendant (Attachments: # 1 Declaration of Gregory Parker Rogers)(Rogers, Gregory) Modified on 3/15/2005 (tt, ). (Entered: 03/14/2005)
65 Joint MOTION for Extension of Deadlines ; New date requested 5/23/2005. by the parties (Rogers, Gregory) Modified on 3/28/2005 (tt, ). (Entered: 03/25/2005)
66 ORDER granting 65 Joint Motion for Extension of Time to Complete Discovery . Plaintiffs' amended expert report due 4/18/2005; Defendants' expert report due 5/18/2005; Plaintiffs' expert reply due 6/17/2005; Discovery deadline 8/1/2005; Motion for class certification due by 8/15/2005. Signed by Magistrate Judge Timothy S Hogan on 3/31/2005. (art, ) (Entered: 03/31/2005)
67 Joint MOTION to Stay Proceedings by Plaintiffs and Defendant (Rogers, Gregory) Modified on 8/13/2005 - To clarify docket text (tt, ). (Entered: 08/11/2005)
NOTATION ORDER granting 67 Joint Motion to Stay Case for sixty days. The parties are ORDERED to file a Joint Status Report by 9/12/05. Signed by Judge Sandra S Beckwith on

09/12/2005 10/12/2005 10/17/2005 10/31/2005 10/31/2005
11/30/2005 11/30/2005 12/21/2005

8/11/05. (mb) (Entered: 08/11/2005)
68 JOINT STATUS REPORT by the parties ; Initial offers have been exchanged and discussions to continue over next few weeks (Rogers, Gregory) Modified on 9/13/2005 - To clarify docket text (tt, ). (Entered: 09/12/2005)
69 Joint MOTION by the Parties for Extension of Time ; New date requested 10/31/2005 and Joint MOTION for Leave to File 35 Page Principal Briefs on Issue of Whether to Class Certify (Rogers, Gregory) Modified on 10/14/2005 - To clarify docket text (tt, ). (Entered: 10/12/2005)
NOTATION ORDER granting 69 Motion for Extension of Time, granting 69 Motion for Leave to File 35-page principal briefs on the issue of class cert. Pltf's motion for class cert. due by 10/31/05; Response due: 11/30/05; Reply due: 12/21/05. Signed by Judge Sandra S Beckwith on 10/17/05. (mb) (Entered: 10/17/2005)
70 MOTION to Certify Class by Plaintiffs ; Responses due by 11/25/2005 (Johnson, Herman) Modified on 11/2/2005 - To clarify docket text (tt, ). (Entered: 10/31/2005)
71 BRIEF/Memorandum In Support of Motion to Certify Class 70 by Plaintiffs (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 # 10 Exhibit 10 # 11 Exhibit 11 # 12 Exhibit 12 # 13 Exhibit 13)(Johnson, Herman) Modified on 11/2/2005 - To clarify docket text and link to motion (tt, ). (Entered: 10/31/2005)
72 NOTICE OF FILING DEPOSITION of Susan R. Lester taken on 2/16/05 by Defendant AK Steel Corporation.(Pryor, Patricia) Modified to clarify docket text on 11/30/2005 (srj, ). (Entered: 11/30/2005)
73 RESPONSE in Opposition re 70 MOTION to Certify Class filed by Defendant AK Steel Corporation. (Attachments: # 1 Report of Dr. Mary Baker# 2 Appendices to Dr. Baker's Report# 3 Dr. Baker's Response to Dr. Bradley's Report# 4 Declaration of Phyllis A. Short# 5 Declaration of Gregory Parker Rogers)(Rogers, Gregory) (Entered: 11/30/2005)
74 Unopposed MOTION for Leave to File Excess Pages in Plaintiffs' Reply in Support of Motion for Class Certification by Plaintiffs Darlene Denise Carter, Dwight - Lewis, Michael Miller, Ronald Sloan, Donald NMI Edwards, Shawn Pryor,

12/21/2005
12/22/2005 01/23/2006 02/13/2006 04/24/2006 05/11/2006 06/08/2006

Tiffany Jackson, Allen Roberts, Vivian Bert, Thaddeus Freeman, Darrell Carter, Edward James Lewis, Timothy Oliphant, Mary - Harris, Roderique Russel, Kay Jackson, Marnie Carter. (Attachments: # 1 Text of Proposed Order)(Johnson, Herman) (Entered: 12/21/2005)
75 REPLY to Response to Motion re 70 MOTION to Certify Class filed by Plaintiffs Darlene Denise Carter, Dwight Lewis, Michael Miller, Ronald Sloan, Donald NMI Edwards, Shawn Pryor, Tiffany Jackson, Allen Roberts, Vivian Bert, Thaddeus Freeman, Darrell Carter, Edward James Lewis, Timothy Oliphant, Mary - Harris, Roderique Russel, Kay Jackson, Marnie Carter. (Attachments: # 1 Exhibit 14: Declaration of Dr. Edwin L. Bradley# 2 Exhibit 15: Affidavit of Dennis D. Wright# 3 Exhibit 16: McClain v. Lufkin Industries# 4 Exhibit 17: Susan Lester Deposition Excerpts# 5 Exhibit 18: Phyllis Short Deposition Excerpts)(Johnson, Herman) (Entered: 12/21/2005)
76 ORDER granting 74 Pltfs' Motion for Leave to File Excess Pages not to exceed 30 pages. Signed by Judge Sandra S Beckwith on 12/22/05. (mb) (Entered: 12/22/2005)
77 MOTION for Leave to File Surreply in Response to Plaintiffs' Reply Memorandum and in Opposition to Plaintiffs' Motion for Class Certification by Defendant AK Steel Corporation. (Attachments: # 1 Surreply in Response to Plaintiffs' Reply Memorandum)(Rogers, Gregory) (Entered: 01/23/2006)
78 RESPONSE in Opposition re 77 MOTION for Leave to File Surreply in Response to Plaintiffs' Reply Memorandum and in Opposition to Plaintiffs' Motion for Class Certification filed by Plaintiffs (Attachments: # 1 Exhibit 19 # 2 Exhibit 20)(Johnson, Herman) Modified on 2/14/2006 - To clarify docket text (tt, ). (Entered: 02/13/2006)
79 ORDER: Pltfs. are ordered to file a supplemental brief to their motion for class cert. by 6/8/06. Responses and replies as usual rule. If pltfs. intend to name a new rep. of the Middletown subclass, they are ordered to do so by 6/8/06. Signed by Judge Sandra S Beckwith on 4/24/06. (mb) (Entered: 04/24/2006)
80 ORDER denying 47 Deft's Motion for Summary Judgment on Counts III & IV of the Second Amended Complaint. Signed by Judge Sandra S Beckwith on 5/11/06. (mb) (Entered: 05/11/2006)
81 Supplemental Memorandum Supporting Motion for Class

06/16/2006 06/19/2006 06/20/2006 06/22/2006 06/23/2006 06/23/2006
06/23/2006 06/29/2006

Certification 70 filed by Plaintiffs (Attachments: # 1 Exhibit 21 # 2 Exhibit 22 # 3 Exhibit 23 # 4 Exhibit 24 # 5 Exhibit 25)(Johnson, Herman) Modified on 6/9/2006 - To edit docket text (tt, ). (Entered: 06/08/2006)
82 NOTICE of Informal Discovery Conference set for Monday, 6/19/2006 02:30 PM via telephone before Magistrate Judge Timothy S Hogan. (art, ) (Entered: 06/16/2006)
83 Minute Entry: Case called this date for an informal discovery conference via telephone before Magistrate Judge Timothy S Hogan. Counsel for plaintiff and defendant present. Order of the Court to follow. Discovery Hearing held on 6/19/2006. (Court Reporter none present.) (art, ) (Entered: 06/20/2006)
84 ORDER following informal discovery conference. Signed by Magistrate Judge Timothy S Hogan on 6/20/2006. (art, ) (Entered: 06/20/2006)
Objection re 84 Order and Motion to Extend Time (PREVIOUSLY IDENTIFIED AS DOCUMENT NUMBER 85) by Defendant (Rogers, Gregory) Modified on 6/23/2006 Clerk removed pdf and directed counsel to refile forthwith using the correct event (tt1, ). (Entered: 06/22/2006)
Notice of Correction re: Objection (non motion) previously identified as Document Number 85 ; Clerk has removed pdf and directed counsel to refile forthwith as "Objections to the Magistrate Judge's Order and "Motion for Extension of Time to File Response/Reply" (tt1, ) (Entered: 06/23/2006)
85 MOTION for Extension of Time to Respond to Plaintiff's Supplemental Memorandum Regarding Motion for Class Certification ; New date requested 8/23/2006 AND Objection to Magistrate Judge Order Denying the Deposition of Donald Edwards by Defendant (Rogers, Gregory) Modified on 6/23/2006 - To correct extension ddl from 7/3/2006 to 8/23/2006 per request of counsel (tt, ). (Entered: 06/23/2006)
86 MOTION for Extension of Time to Respond to Plaintiffs' Supplemental Memorandum Regarding Motion for Class Certification ; New date requested 8/23/2006 AND Objection to Magistrate Judge Order Denying the Deposition of Donald Edwards by Defendant (Rogers, Gregory) Modified on 6/23/2006 - To edit docket text (tt, ). (Entered: 06/23/2006)
87 ORDER: Deft's motion for extension of time portion (doc. 86) is granted. A new date will be set for the filing of deft's

07/12/2006 07/21/2006 07/24/2006 07/28/2006
08/18/2006 08/18/2006 08/18/2006 09/01/2006
01/19/2007

response to pltf's supplemental memo concerning class certification, pending ruling on deft's objections to the MJ's discovery order. Signed by Judge Sandra S Beckwith on 6/29/06. (mb) (Entered: 06/29/2006)
88 Response to Defendant's Objection 86 to the Order Denying the Deposition of Donald Edwards by Plaintiffs (Johnson, Herman) Modified on 7/13/2006 - To edit docket text (tt1, ). (Entered: 07/12/2006)
89 Reply Memorandum in Support of Its Objection to the Order Denying the Deposition of Donald Edwards 86 by Defendant (Pryor, Patricia) Modified on 7/25/2006 - To edit docket text (tt1, ). (Entered: 07/21/2006)
90 NOTICE of Change of Address by David W Sanford (Sanford, David) (Entered: 07/24/2006)
91 ORDER granting 86 Motion for Extension of Time until 8/18/06 to file response to pltfs' supplemental brief on class certification; denying 86 Objection to Magistrate Judge's Order denying the depo. of Donald Edwards. Signed by Judge Sandra S Beckwith on 7/28/06. (mb) (Entered: 07/28/2006)
92 DEPOSITION of James Greenwood taken on July 25, 2006 filed by Defendant (Pryor, Patricia) Modified on 8/23/2006 To edit docket text (tt1, ). (Entered: 08/18/2006)
93 NOTICE OF FILING DEPOSITION of James Greenwood by Defendant (Pryor, Patricia) Modified on 8/23/2006 - To edit docket text (tt1, ). (Entered: 08/18/2006)
94 Supplemental Memorandum Opposing 70 MOTION to Certify Class filed by Defendant (Rogers, Gregory) Modified on 8/23/2006 - To edit docket text (tt1, ). (Entered: 08/18/2006)
95 Reply In Support of Supplemental Memorandum 81 Regarding Motion for Class Certification 70 by Plaintiffs (Attachments: # 1 Exhibit 26# 2 Exhibit 27# 3 Exhibit 28)(Johnson, Herman) Modified on 9/4/2006 - To edit docket text (tt1, ). (Entered: 09/01/2006)
96 ORDER: The court certifies two subclasses. Pltfs. are to file a statement on the timing and general text of a proposed notice by 2/2/07. Deft. may respond by 2/12/07. This matter is REFERRED to the Mag. Judge for a new schedule. Signed by Judge Sandra S Beckwith on 1/19/07. (mb, ) (Entered: 01/19/2007)

01/22/2007 02/02/2007 02/09/2007 02/12/2007 02/12/2007 02/28/2007
02/28/2007
03/02/2007 03/09/2007

97 NOTICE of Scheduling Conference set for Tuesday, 2/13/2007 01:30 PM via telephone before Magistrate Judge Timothy S Hogan.(art, ) (Entered: 01/22/2007)
98 NOTICE/STATEMENT by Plaintiffs OF PROPOSED CLASS NOTICE (Attachments: # 1 Exhibit A - Proposed Class Notice)(Johnson, Herman) Modified on 2/5/2007 - To modify docket text (tt1, ). (Entered: 02/02/2007)
99 NOTICE OF DESIGNATION FOR SETTLEMENT WEEK OF 4/9/07. Parties to reply by February 28, 2007. Signed by Judge Michael R. Barrett on 2/9/07. (sfe1, ) (Entered: 02/09/2007)
100 Response to 98 Plaintiffs Notice of Proposed Class Action by Defendant. (Attachments: # 1 Proposed Notice)(Rogers, Gregory) Modified on 2/14/2007 - To modify docket text (tt, ). (Entered: 02/12/2007)
101 NOTICE of resetting Scheduling Conference now set for Wednesday, 2/28/2007 10:00 AM via telephone before Magistrate Judge Timothy S Hogan. (art, ) (Entered: 02/12/2007)
102 Minute Entry: Case called this date for a scheduling conference via telephone before Magistrate Judge Timothy S Hogan. Counsel for plaintiff and defendant present. Case calendar established. Order of the Court to follow. Scheduling Conference held on 2/28/2007. (Court Reporter none present.) (art, ) (Entered: 02/28/2007)
103 CALENDAR ORDER: Deadline for first round of depositions in Cincinnati deadline set for 4/30/2007; Parties to exchange witness list and summary deadline set for 10/31/2007; Discovery (including experts) deadline set for 11/28/2007; Dispositive motions deadline set for 1/14/2008; Final Pretrial Conference tentatively set for 5/2008 before Judge Sandra S Beckwith; Jury Trial tentatively set for 6/2008 before Judge Sandra S Beckwith. Signed by Magistrate Judge Timothy S Hogan on 2/28/2007. (art, ) (Entered: 02/28/2007)
104 SCHEDULING ORDER: DDL: 11/28/07; Motions due: 1/14/08; Final Pretrial Conference set for 5/16/2008 at 10:00 AM; Trial set for 6/2/2008 at 01:00 PM. Signed by Judge Sandra S Beckwith on 3/2/07. (mb, ) (Entered: 03/02/2007)
105 NOTICE that case is set for MEDIATION SESSION on APRIL 13, 2007 @ 9:00 a.m. Parties and counsel shall attend

03/27/2007 04/11/2007 05/14/2007
05/29/2007 05/29/2007 06/01/2007 06/04/2007 06/14/2007

and shall first report to the Clerk's Office, Room 100 (jl, ) Modified on 3/12/2007 (jl, ). Modified on 3/12/2007 (jl, ). (Entered: 03/09/2007)
Remark: This case is RELEASED from participation in the Court's Settlement Week. (jl, ) (Entered: 03/27/2007)
106 ORDER: Plaintiff's request for immediate notice to the certified subclasses is DENIED. Signed by Judge Sandra S Beckwith on 4/11/07. (mb) Modified on 4/12/2007 (sfe1, ). (Entered: 04/11/2007)
107 MOTION for Summary Judgment on the Claims of Ronald Sloan, Mary Harris and Thaddeus Freeman Based on Judicial Estoppel by Defendant. Responses due by 6/7/2007 (Attachments: # 1 Declaration of Patricia Anderson Pryor # 2 Exhibit 1 # 3 Exhibit 2 # 4 Exhibit 3 # 5 Exhibit 4 # 6 Exhibit 5 # 7 Exhibit 6 # 8 Exhibit 7 # 9 Exhibit 8 # 10 Exhibit 9 # 11 Exhibit 10 # 12 Exhibit 11 # 13 Exhibit 12) (Rogers, Gregory) Modified on 5/14/2007 - To modify docket text (tt, ). (Entered: 05/14/2007)
108 DEPOSITION of Ronald E. Sloan, Jr. taken on 04/24/2007 by Defendant. (Attachments: # 1 Exhibits 1-6# 2 Exhibits 7-8# 3 Exhibits 9-11# 4 Exhibit 12) (Pryor, Patricia) Modified on 5/30/2007 - To modify docket text (tt1, ). (Entered: 05/29/2007)
109 NOTICE OF FILING DEPOSITION of Ronald E. Sloan, Jr. by Defendant. (Pryor, Patricia) Modified on 5/30/2007 - To modify docket text (tt1, ). (Entered: 05/29/2007)
110 Unopposed MOTION for Extension of Time to file response to deft's motion for summary judgment. New date requested 6/14/2007 by Plaintiffs. (Donahue, Susan) Modified on 6/4/2007 - To modify docket text (tt1, ). (Entered: 06/01/2007)
NOTATION ORDER granting 110 Pltfs' Motion for Extension of Time until 6/14/07 to file response to deft's motion for summary judgment. Signed by Judge Sandra S Beckwith on 6/4/07. (mb, ) (Entered: 06/04/2007)
111 RESPONSE in Opposition re 107 MOTION for Summary Judgment on the Claims of Ronald Sloan, Mary Harris and Thaddeus Freeman Based on Judicial Estoppel filed by Plaintiffs (Attachments: # 1 Exhibit 1 # 2 Exhibit 2 # 3 Exhibit 3 # 4 Exhibit 4 # 5 Exhibit 5 # 6 Exhibit 6) (Donahue, Susan) Modified on 6/15/2007 (tt1, ). (Entered: 06/14/2007)

06/15/2007 06/15/2007 06/15/2007 06/21/2007 06/26/2007 07/05/2007
07/12/2007 07/12/2007 07/12/2007

112 MOTION for Order to Decertify Middletown Subclass by Defendant. (Attachments: # 1 Declaration of Jessica Morris# 2 Declaration of Mary Jane Palmer Nunlist) (Rogers, Gregory) Modified on 6/18/2007 (tt1, ). (Entered: 06/15/2007)
113 DEPOSITION of Donald K. Edwards, Sr. taken on April 24, 2007 by Defendant. (Attachments: # 1 Edwards' Signature Page# 2 Exhibits to Edwards' Deposition) (Rogers, Gregory) Modified on 6/18/2007 (tt1, ). (Entered: 06/15/2007)
114 NOTICE OF FILING DEPOSITION of Donald K. Edwards, Sr. by Defendant. (Rogers, Gregory) Modified on 6/18/2007 To modify docket text (tt1, ). (Entered: 06/15/2007)
115 MOTION for Extension of Time to File Response/Reply as to 112 MOTION for Order to Decertify Middletown Subclass. New date requested 8/23/2007 by Plaintiffs. (Donahue, Susan) Modified on 6/22/2007 - To modify docket text (tt1, ). (Entered: 06/21/2007)
116 REPLY to Response to 107 MOTION for Summary Judgment on the Claims of Ronald Sloan, Mary Harris and Thaddeus Freeman Based on Judicial Estoppel filed by Defendant. (Rogers, Gregory) Modified on 6/27/2007 - To modify docket text (tt1, ). (Entered: 06/26/2007)
NOTATION ORDER granting 115 Motion for Extension of Time to File Response/Reply re 115 MOTION for Extension of Time to File Response/Reply as to 112 MOTION for Order to Decertify Middletown Subclass New date requested 8/23/2007. Signed by Judge Sandra S Beckwith on 1:02cv467. (mb, ) (Entered: 07/05/2007)
117 DEPOSITION of Thaddeus R. Freeman taken on June 5, 2007 by Defendant AK Steel Corporation. (Attachments: # 1 Reporter's Certification# 2 Deposition Exhibits 1-14# 3 Deposition Exhibits 15-17) (Rogers, Gregory) (Entered: 07/12/2007)
118 DEPOSITION of Mary L. Harris taken on June 5, 2007 by Defendant AK Steel Corporation. (Attachments: # 1 Reporter's Certification# 2 Deposition Exhibits 1-8# 3 Deposition Exhibits 9-10# 4 Deposition Exhibit 11, Part 1# 5 Deposition Exhibit 11, Part 2) (Rogers, Gregory) (Entered: 07/12/2007)
119 NOTICE OF FILING DEPOSITION of Thaddeus R. Freeman and Mary L. Harris by Defendant AK Steel Corporation by Defendant AK Steel Corporation. (Rogers, Gregory) (Entered:

07/23/2007 08/23/2007
08/23/2007
08/23/2007
09/06/2007 09/18/2007 09/20/2007

07/12/2007)
120 NOTICE of Withdrawal and Substitution of Counsel by Plaintiff Vivian Bert (Tobias, Paul) Modified docket text on 7/24/2007 (eh1, ). (Entered: 07/23/2007)
121 RESPONSE in Opposition re 112 MOTION for Order to Decertify Middletown Subclass filed by Plaintiffs Darlene Denise Carter, Dwight - Lewis, Michael Miller, Ronald Sloan, Donald NMI Edwards, Shawn Pryor, Tiffany Jackson, Allen Roberts, Vivian Bert, Thaddeus Freeman, Darrell Carter, Edward James Lewis, Timothy Oliphant, Mary - Harris, Roderique Russel, Kay Jackson, Marnie Carter. (Attachments: # 1 Exhibit 29 (8-1-07 Email from SDonahue to GRogers)# 2 Exhibit Ex 30 (8-1-07 Email from GRogers to SDonahue)# 3 Exhibit Ex 31 (Donald Edwards 10-2006 EEOC Charge)) (Johnson, Herman) (Entered: 08/23/2007)
122 DEPOSITION of Richard Nunlist taken on August 17, 2007 by Plaintiffs Darlene Denise Carter, Dwight - Lewis, Michael Miller, Ronald Sloan, Donald NMI Edwards, Shawn Pryor, Tiffany Jackson, Allen Roberts, Vivian Bert, Thaddeus Freeman, Darrell Carter, Edward James Lewis, Timothy Oliphant, Mary - Harris, Roderique Russel, Kay Jackson, Marnie Carter. (Attachments: # 1 Appendix Certification of Richard Nunlist Deposition) (Johnson, Herman) (Entered: 08/23/2007)
123 DEPOSITION of Mary Jane Palmer Nunlist taken on August 17, 2007 by Plaintiffs Darlene Denise Carter, Dwight - Lewis, Michael Miller, Ronald Sloan, Donald NMI Edwards, Shawn Pryor, Tiffany Jackson, Allen Roberts, Vivian Bert, Thaddeus Freeman, Darrell Carter, Edward James Lewis, Timothy Oliphant, Mary - Harris, Roderique Russel, Kay Jackson, Marnie Carter. (Attachments: # 1 Appendix Certification of Mary Nunlist Deposition) (Johnson, Herman) (Entered: 08/23/2007)
124 REPLY to Response to Motion re 112 MOTION for Order to Decertify Middletown Subclass filed by Defendant AK Steel Corporation. (Attachments: # 1 Third Declaration of Phyllis Short) (Rogers, Gregory) (Entered: 09/06/2007)
125 STIPULATED PROTECTIVE ORDER. Signed by Judge Sandra S Beckwith on 9/18/07. (mb, ) (Entered: 09/18/2007)
126 ORDER: Pltfs. are ORDERED to file a report of the status of the bankruptcy proceedings for each of the three pltfs., as well

09/20/2007 10/01/2007
10/12/2007 10/15/2007
11/06/2007 11/08/2007 11/20/2007

as an update concerning the intent of each Trustee to pursue the pltfs' claims in this case on behalf of each pltf's creditors, no later than 10/1/07. Signed by Judge Sandra S Beckwith on 9/20/07. (mb, ) Modified on 10/2/2007 (mb, ). (Entered: 09/20/2007)
127 MOTION to Dismiss the Claims of Plaintiffs Dwight Lewis and Tiffany Jackson by Defendant AK Steel Corporation.Responses due by 10/15/2007 (Attachments: # 1 Declaration of Patricia Anderson Pryor) (Rogers, Gregory) (Entered: 09/20/2007)
128 REPORT re 126 Order Regarding Bankruptcy Petitions for Ronald Sloan, Mary Harris, and Thaddeus Freeman by Plaintiffs Darlene Denise Carter, Dwight - Lewis, Michael Miller, Ronald Sloan, Donald NMI Edwards, Shawn Pryor, Tiffany Jackson, Allen Roberts, Vivian Bert, Thaddeus Freeman, Darrell Carter, Edward James Lewis, Timothy Oliphant, Mary - Harris, Roderique Russel, Kay Jackson, Marnie Carter (Donahue, Susan) Modified docket text on 10/2/2007 (eh1, ). (Entered: 10/01/2007)
129 ORDER granting 107 Defendant's Motion for Summary Judgment against pltfs. Sloan, Harris & Freeman. Signed by Judge Sandra S Beckwith on 10/12/07. (mb) (Entered: 10/12/2007)
130 RESPONSE in Opposition re 127 MOTION to Dismiss the Claims of Plaintiffs Dwight Lewis and Tiffany Jackson filed by Plaintiffs Darlene Denise Carter, Dwight - Lewis, Michael Miller, Ronald Sloan, Donald NMI Edwards, Shawn Pryor, Tiffany Jackson, Allen Roberts, Vivian Bert, Thaddeus Freeman, Darrell Carter, Edward James Lewis, Timothy Oliphant, Mary - Harris, Roderique Russel, Kay Jackson, Marnie Carter. (Donahue, Susan) (Entered: 10/15/2007)
131 NOTICE of Informal Discovery Conference set for Tuesday, 11/13/2007 at 03:00 PM via telephone before Magistrate Judge Timothy S Hogan. (art, ) (Entered: 11/06/2007)
132 NOTICE of resetting Informal Discovery Conference now set for Tuesday, 11/20/2007 at 02:00 PM via telephone before Magistrate Judge Timothy S Hogan. (art, ) (Entered: 11/08/2007)
133 Minute Entry: Case called this date before Magistrate Judge Timothy S Hogan for informal telephone discovery conference. Counsel for plaintiff and defendant present. Order of the Court

11/20/2007 11/28/2007 12/12/2007 12/12/2007 12/12/2007 12/12/2007 12/12/2007 12/12/2007 12/12/2007

to follow. Discovery Conference held on 11/20/2007. (Court Reporter none present.) (art, ) (Entered: 11/20/2007)
134 ORDER granting 127 Motion to Dismiss plaintiffs Dwight Lewis & Tiffany Jackson. Signed by Judge Sandra S Beckwith on 11/20/07. (mb, ) (Entered: 11/20/2007)
135 ORDER following informal discovery conference 133 . Signed by Magistrate Judge Timothy S Hogan on 11/27/2007. (art, ) (Entered: 11/28/2007)
136 DEPOSITION of Vivian D. Bert taken on April 24, 2007 by Defendant AK Steel Corporation. (Attachments: # 1 Appendix Signature Page# 2 Appendix Reporter's Certificate# 3 Exhibit Deposition Exhibits 1 - 11# 4 Exhibit Deposition Exhibit 12) (Pryor, Patricia) (Entered: 12/12/2007)
137 DEPOSITION of Darlene Denise Carter taken on August 15, 2007 by Defendant AK Steel Corporation. (Attachments: # 1 Appendix Deposition Signature and Errata# 2 Appendix Reporter's Certificate# 3 Exhibit Deposition Exhibits) (Pryor, Patricia) (Entered: 12/12/2007)
138 DEPOSITION of Darrell D. Carter taken on August 15, 2007 by Defendant AK Steel Corporation. (Attachments: # 1 Appendix Deposition Signature/Errata# 2 Appendix Reporter's Certificate# 3 Exhibit Deposition Exhibits) (Pryor, Patricia) (Entered: 12/12/2007)
139 DEPOSITION of Kay Jackson taken on August 14, 2007 by Defendant AK Steel Corporation. (Attachments: # 1 Appendix Deposition Signature# 2 Appendix Reporter's Certificate# 3 Exhibit Deposition Exhibits) (Pryor, Patricia) (Entered: 12/12/2007)
140 DEPOSITION of Edward James Lewis, Jr. taken on June 5, 2007 by Defendant AK Steel Corporation. (Attachments: # 1 Appendix Deposition Signature# 2 Appendix Reporter's Certificate# 3 Exhibit Deposition Exhibits) (Pryor, Patricia) (Entered: 12/12/2007)
141 DEPOSITION of Shawn R. Pryor taken on June 6, 2007 by Defendant AK Steel Corporation. (Attachments: # 1 Appendix Deposition Signature# 2 Appendix Reporter's Certificate# 3 Exhibit Deposition Exhibits 1 - 7# 4 Exhibit Deposition Exhibit 8) (Pryor, Patricia) (Entered: 12/12/2007)
142 DEPOSITION of Roderique Russell taken on June 6, 2007 by Defendant AK Steel Corporation. (Attachments: # 1 Appendix

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01/08/2008 01/08/2008

Deposition Signature# 2 Appendix Reporter's Certificate# 3 Exhibit Deposition Exhibits) (Pryor, Patricia) (Entered: 12/12/2007)
143 NOTICE OF FILING DEPOSITION of Vivian Bert, Darlene Denise Carter, Darrell Carter, Kay Jackson, Edward James Lewis, Shawn Pryor, and Roderique Russell by Defendant AK Steel Corporation by Defendant AK Steel Corporation. (Pryor, Patricia) (Entered: 12/12/2007)
144 Objection re 135 Order by Defendant AK Steel Corporation. (Attachments: # 1 Declaration of Gregory Parker Rogers) (Rogers, Gregory) (Entered: 12/12/2007)
145 MOTION for Extension of Time to File Response/Reply as to 144 Objection (non motion) New date requested 1/7/2008. by Plaintiffs Darlene Denise Carter, Dwight - Lewis, Michael Miller, Ronald Sloan, Donald NMI Edwards, Shawn Pryor, Tiffany Jackson, Allen Roberts, Vivian Bert, Dwight - Lewis, Tiffany Jackson, Thaddeus Freeman, Darrell Carter, Edward James Lewis, Timothy Oliphant, Mary - Harris, Roderique Russel, Kay Jackson, Marnie Carter. (Donahue, Susan) (Entered: 12/18/2007)
NOTATION ORDER granting 145 Plaintiffs' Motion for Extension of Time until 1/7/08 to File Response to 144 Defendant's objections to the Mag. Judge's order of 11/28/07. Signed by Judge Sandra S Beckwith on 12/19/07. (mb) (Entered: 12/19/2007)
146 [FORMER DOC. 146] Response re 144 Objection (non motion), 135 Order by Plaintiffs Darlene Denise Carter, Michael Miller, Donald NMI Edwards, Shawn Pryor, Allen Roberts, Vivian Bert, Darrell Carter, Edward James Lewis, Timothy Oliphant, Roderique Russel, Kay Jackson, Marnie Carter. (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) (Donahue, Susan) Modified to remove the pdf on 1/8/2008 (eh1, ). (Entered: 01/07/2008)
Notice of Correction re:[FORMER DOC. 146] Response removed from docket at request of counsel due to a filing error. Counsel to immediately refile. (eh1, ) (Entered: 01/08/2008)
147 Response re 144 Objection (non motion), 135 Order by Plaintiffs Darlene Denise Carter, Michael Miller, Donald NMI Edwards, Shawn Pryor, Allen Roberts, Vivian Bert, Darrell Carter, Edward James Lewis, Timothy Oliphant, Roderique

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Russel, Kay Jackson, Marnie Carter. (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) (Donahue, Susan) (Entered: 01/08/2008)
148 DEPOSITION of Jessica Morris taken on September 27, 2007 by Defendant AK Steel Corporation. (Attachments: # 1 Witness Signature Page# 2 Deposition Exhibits) (Pryor, Patricia) (Entered: 01/14/2008)
149 DEPOSITION of Michael E. Miller taken on June 6, 2007 by Defendant AK Steel Corporation. (Attachments: # 1 Witness Signature# 2 Reporter's Certificate# 3 Deposition Exhibits) (Pryor, Patricia) (Entered: 01/14/2008)
150 DEPOSITION of Allen Roberts taken on August 16, 2007 by Defendant AK Steel Corporation. (Attachments: # 1 Witness Signature# 2 Reporter's Certificate# 3 Deposition Exhibits) (Pryor, Patricia) (Entered: 01/14/2008)
151 DEPOSITION of Marnie B. Carter taken on August 15, 2007 by Defendant AK Steel Corporation. (Attachments: # 1 Deposition Signature# 2 Reporter's Certificate# 3 Deposition Exhibits) (Pryor, Patricia) (Entered: 01/14/2008)
152 DEPOSITION of Timothy Oliphant taken on August 9, 2007 by Defendant AK Steel Corporation. (Attachments: # 1 Reporter's Certificate# 2 Deposition Exhibits) (Pryor, Patricia) (Entered: 01/14/2008)
153 NOTICE OF FILING DEPOSITION of Marnie B. Carter, Michael E. Miller, Jessica Morris, Timothy Oliphant, and Allen Roberts by Defendant AK Steel Corporation by Defendant AK Steel Corporation. (Pryor, Patricia) (Entered: 01/14/2008)
154 MOTION for Summary Judgment on the Claims of Roderique Russell by Defendant AK Steel Corporation.Responses due by 2/7/2008 (Rogers, Gregory) (Entered: 01/14/2008)
155 MOTION for Summary Judgment on the Claims of Allen Roberts by Defendant AK Steel Corporation.Responses due by 2/7/2008 (Rogers, Gregory) (Entered: 01/14/2008)
156 MOTION for Summary Judgment on the Claims of Vivian Bert, Edward James Lewis, Michael Miller and Shawn Pryor by Defendant AK Steel Corporation.Responses due by 2/7/2008 (Attachments: # 1 Declaration of Phyllis A. Short# 2 Fourth Declaration of Phyllis Short# 3 Second Declaration of Jessica Morris) (Rogers, Gregory) (Entered: 01/14/2008)

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157 MOTION for Summary Judgment on the Claims of Donald Edwards, James Greenwood and the Middletown Class by Defendant AK Steel Corporation.Responses due by 2/7/2008 (Attachments: # 1 Declaration of Lucy Gibson, Ph.D.) (Rogers, Gregory) (Entered: 01/14/2008)
158 MOTION for Summary Judgment on the Claims of the Ashland Plaintiffs and Ashland Class by Defendant AK Steel Corporation.Responses due by 2/7/2008 (Attachments: # 1 Declaration of Susan Lester# 2 Declaration of Lucy Gibson, Ph.D.# 3 Report of Mary Dunn Baker, Ph.D.# 4 Response to Dr. Bradley's Analysis of the Racial Composition of Ashland Laborer Hires Presented in his Rebuttal Report, by Mary Dunn Baker, Ph.D.) (Rogers, Gregory) (Entered: 01/14/2008)
159 Reply to 147 Response re 144 Objection to the Magistrate Judge's November 28, 2007 Order (Doc. 135) by Defendant AK Steel Corporation. (Rogers, Gregory) Modified docket text on 1/23/2008 (eh1, ). (Entered: 01/22/2008)
160 MOTION for Extension of Time to File Response/Reply as to 158 MOTION for Summary Judgment on the Claims of the Ashland Plaintiffs and Ashland Class, 156 MOTION for Summary Judgment on the Claims of Vivian Bert, Edward James Lewis, Michael Miller and Shawn Pryor, 157 MOTION for Summary Judgment on the Claims of Donald Edwards, James Greenwood and the Middletown Class, 154 MOTION for Summary Judgment on the Claims of Roderique Russell, 155 MOTION for Summary Judgment on the Claims of Allen Roberts by Plaintiffs Darlene Denise Carter, Dwight - Lewis, Michael Miller, Ronald Sloan, Donald NMI Edwards, Shawn Pryor, Tiffany Jackson, Allen Roberts, Vivian Bert, Dwight Lewis, Tiffany Jackson, Thaddeus Freeman, Darrell Carter, Edward James Lewis, Timothy Oliphant, Mary - Harris, Roderique Russel, Kay Jackson, Marnie Carter. New date requested 3/7/2008. (Donahue, Susan) Modified docket text on 1/24/2008 (eh1, ). (Entered: 01/23/2008)
NOTATION ORDER granting 160 Plaintiffs' Motion for Extension of Time until 3/7/08 to File Response to defendant's five motions for S.J. Signed by Chief Judge Sandra S Beckwith on 1/24/08. (mb, ) (Entered: 01/24/2008)
161 DEPOSITION of Rodney Cosby taken on November 26, 2007 by Defendant AK Steel Corporation. (Attachments: # 1 Signature Certificate, # 2 Reporter's Certificate, # 3 Deposition Exhibits) (Pryor, Patricia) (Entered: 01/28/2008)

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03/07/2008

162 NOTICE OF FILING DEPOSITION of Rodney Cosby by Defendant AK Steel Corporation by Defendant AK Steel Corporation. (Pryor, Patricia) (Entered: 01/28/2008)
163 RESPONSE in Opposition re 155 MOTION for Summary Judgment on the Claims of Allen Roberts filed by Plaintiffs Darlene Denise Carter, Michael Miller, Donald NMI Edwards, Shawn Pryor, Allen Roberts, Vivian Bert, Darrell Carter, Edward James Lewis, Timothy Oliphant, Roderique Russel, Kay Jackson, Marnie Carter. (Donahue, Susan) (Entered: 03/07/2008)
164 RESPONSE in Opposition re 154 MOTION for Summary Judgment on the Claims of Roderique Russell filed by Plaintiffs Darlene Denise Carter, Michael Miller, Donald NMI Edwards, Shawn Pryor, Allen Roberts, Vivian Bert, Darrell Carter, Edward James Lewis, Timothy Oliphant, Roderique Russel, Kay Jackson, Marnie Carter. (Donahue, Susan) (Entered: 03/07/2008)
165 RESPONSE in Opposition re 156 MOTION for Summary Judgment on the Claims of Vivian Bert, Edward James Lewis, Michael Miller and Shawn Pryor filed by Plaintiffs Darlene Denise Carter, Michael Miller, Donald NMI Edwards, Shawn Pryor, Allen Roberts, Vivian Bert, Darrell Carter, Edward James Lewis, Timothy Oliphant, Roderique Russel, Kay Jackson, Marnie Carter. (Donahue, Susan) (Entered: 03/07/2008)
166 RESPONSE in Opposition re 158 MOTION for Summary Judgment on the Claims of the Ashland Plaintiffs and Ashland Class filed by Plaintiffs Darlene Denise Carter, Darrell Carter, Timothy Oliphant, Kay Jackson, Marnie Carter. (Attachments: # 1 Exhibit 1 - Edwin L. Bradley Supplemental Expert Report, # 2 Exhibit 2 - Edwin L. Bradley Rebuttal Expert Report, # 3 Exhibit 3 - Phyllis Short Deposition Excerpts, # 4 Exhibit 14 Declaration of Dr. Edwin L. Bradley, Jr. (December 20, 2005), # 5 Exhibit 30 - 8/1/01 G. Rogers Email to S. Donahue, # 6 Exhibit 32 - Plaintiffs First Request for Production of Documents, # 7 Exhibit 33 - Declaration of Edwin L. Bradley, Jr. (March 5, 2008), # 8 Exhibit 34 - EEOC Notices of Rightto-Sue, # 9 Exhibit 35 - Susan Lester Deposition Excerpts) (Johnson, Herman) (Entered: 03/07/2008)
167 RESPONSE in Opposition re 157 MOTION for Summary Judgment on the Claims of Donald Edwards, James Greenwood and the Middletown Class filed by Plaintiff Donald

03/19/2008 03/21/2008 03/21/2008 03/21/2008 03/21/2008 03/21/2008 03/27/2008

NMI Edwards. (Attachments: # 1 Exhibit 3 - Phyllis Short Deposition Excerpts, # 2 Exhibit 9 - Darrell Carter Declaration, # 3 Exhibit 30 - 8/1/01 G. Rogers Email to S. Donahue, # 4 Exhibit 35 - Susan Lester Deposition Excerpts) (Johnson, Herman) (Entered: 03/07/2008)
168 NOTICE OF DESIGNATION FOR SETTLEMENT WEEK OF APRIL 28, 2008. Parties to reply by March 31, 2008. Signed by Judge Michael R. Barrett. (mr1, ) (Entered: 03/19/2008)
169 REPLY to Response to Motion re 154 MOTION for Summary Judgment on the Claims of Roderique Russell filed by Defendant AK Steel Corporation. (Rogers, Gregory) (Entered: 03/21/2008)
170 REPLY to Response to Motion re 156 MOTION for Summary Judgment on the Claims of Vivian Bert, Edward James Lewis, Michael Miller and Shawn Pryor filed by Defendant AK Steel Corporation. (Rogers, Gregory) (Entered: 03/21/2008)
171 REPLY to Response to Motion re 155 MOTION for Summary Judgment on the Claims of Allen Roberts filed by Defendant AK Steel Corporation. (Rogers, Gregory) (Entered: 03/21/2008)
172 REPLY to Response to Motion re 157 MOTION for Summary Judgment on the Claims of Donald Edwards, James Greenwood and the Middletown Class filed by Defendant AK Steel Corporation. (Rogers, Gregory) (Entered: 03/21/2008)
173 REPLY to Response to Motion re 158 MOTION for Summary Judgment on the Claims of the Ashland Plaintiffs and Ashland Class filed by Defendant AK Steel Corporation. (Rogers, Gregory) (Entered: 03/21/2008)
174 MOTION for Leave to File a Supplemental Response to Defendants 158 Motion for Summary Judgment on the Claims of the Ashland Plaintiffs and Ashland Class by Plaintiffs Darlene Denise Carter, Darrell Carter, Timothy Oliphant, Kay Jackson, Marnie Carter. (Attachments: # 1 Supplemental Response to Defendants Motion for Summary Judgment on the Claims of the Ashland Plaintiffs and Ashland Class, # 2 Herman N. Johnson Jr. Declaration, # 3 Exhibit 36 - Darrell Carter EEOC Notice of Right-to-Sue) (Johnson, Herman) Modified docket text to insert link to motion on 3/28/2008 (eh1, ). (Entered: 03/27/2008)

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NOTICE: This case is RELEASED from participation in the April 2008 Settlement Week. (jl) (Entered 4/4/08) (jl1, ) (Entered: 04/04/2008)
175 MOTION to Strike Dr. Edwin Bradley's March 5, 2008 Declaration and Preclude Any Related Testimony by Dr. Bradley at Trial by Defendant AK Steel Corporation. (Rogers, Gregory) (Entered: 04/04/2008)
176 ORDER TO SHOW CAUSE: Show Cause hearing re: sanctions is set for 4/23/2008 at 09:00 AM before Chief Judge Sandra S Beckwith. (mb) (Entered: 04/07/2008)
177 ORDER granting 156 Defendant's Motion for Summary Judgment. The disparate treatment claims of Vivian Bert, Edward Lewis, Michael Miller & Shawn Pryor are dismissed with prejudice. Signed by Chief Judge Sandra S Beckwith on 4/9/08. (mb) (Entered: 04/09/2008)
178 RESPONSE in Opposition re 175 MOTION to Strike Dr. Edwin Bradley's March 5, 2008 Declaration and Preclude Any Related Testimony by Dr. Bradley at Trial filed by Plaintiffs Darlene Denise Carter, Darrell Carter, Timothy Oliphant, Kay Jackson, Marnie Carter. (Attachments: # 1 Exhibit 32 Plaintiffs' First Request for Production of Documents) (Johnson, Herman) (Entered: 04/11/2008)
179 RESPONSE in Opposition re 174 MOTION for Leave to File a Supplemental Response to Defendants Motion for Summary Judgment on the Claims of the Ashland Plaintiffs and Ashland Class filed by Defendant AK Steel Corporation. (Attachments: # 1 Declaration of Patricia Anderson Pryor) (Rogers, Gregory) (Entered: 04/17/2008)
180 MOTION to Amend/Correct 176 Order to Show Cause by Defendant AK Steel Corporation. (Rogers, Gregory) (Entered: 04/17/2008)
181 REPLY to Response to Motion re 174 MOTION for Leave to File a Supplemental Response to Defendants Motion for Summary Judgment on the Claims of the Ashland Plaintiffs and Ashland Class filed by Plaintiffs Darlene Denise Carter, Darrell Carter, Timothy Oliphant, Kay Jackson, Marnie Carter. (Attachments: # 1 Exhibit 36: 5-28-04 G Rogers Email, # 2 Exhibit 37: 6-4-04 G Rogers Ltr, # 3 Exhibit 38: Susan Lester Depo Excerpts, # 4 Exhibit 39: 3-22-05 L Barty Ltr) (Johnson, Herman) (Entered: 04/21/2008)

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182 RESPONSE to Motion re 180 MOTION to Amend/Correct 176 Order to Show Cause filed by Plaintiffs Darlene Denise Carter, Darrell Carter, Timothy Oliphant, Kay Jackson, Marnie Carter. (Attachments: # 1 Exhibit 36: 5-28-04 G Rogers Email, # 2 Exhibit 37: 6-4-04 G Rogers Ltr, # 3 Exhibit 38: Susan Lester Depo Excerpts, # 4 Exhibit 39: 3-22-05 L Barty Ltr) (Johnson, Herman) (Entered: 04/21/2008)
183 Minute Entry: Show cause hearing re: sanctions/contempt held before Chief Judge Sandra S Beckwith. Arguments presented. The parties are to submit a joint proposed scheduling order by 5/1/08. A decision on the remaining motions for S.J. to be filed soon.(Court Reporter MA Ranz (Official).) (mb) (Entered: 04/23/2008)
184 ORDER rulings made during the 4/23/08 show cause hearing: Deft's objections to the Mag. Judge's order precluding the from using the pre-employment test validation studies are sustained, and the order is VACATED; denying 157 subject to renewal after the addtl. discovery period; Motion for Summary Judgment; denying 158 Motion for Summary Judgment subject to renewal; denying 174 Motion for Leave to File supplemental opposition to deft. Ashland's motion; denying 175 Motion to Strike the declaration of Dr. Bradley; granting in part 180 Motion to Correct the record. The parties are to submit a joint proposed schedule by 5/1/08. Signed by Chief Judge Sandra S Beckwith on 4/25/08. (mb) (Entered: 04/25/2008)
185 ORDER: Deft's motion for summary judgment on the claims of Donald Edwards (doc. 157) is GRANTED. The balance of the motion concerning James Greenwood and the Middletown subclass is DENIED subject to renewal following the addtl. discovery. Signed by Chief Judge Sandra S Beckwith on 4/25/08. (mb) (Entered: 04/25/2008)
186 Joint MOTION for Extension of Time to File New date requested 6/16/2008. Extension to file Joint Status Report. by Plaintiffs Darlene Denise Carter, Michael Miller, Shawn Pryor, Allen Roberts, Vivian Bert, Darrell Carter, Edward James Lewis, Timothy Oliphant, Roderique Russel, Kay Jackson, Marnie Carter, Defendant AK Steel Corporation. (Rogers, Gregory) (Entered: 04/29/2008)
NOTATION ORDER granting 186 Joint Motion for Extension of Time until 6/16/08 to submit the Joint Proposed Scheduling Order. Signed by Chief Judge Sandra S Beckwith on 4/30/08. (mb) (Entered: 04/30/2008)

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187 ORDER granting 155 Defendant's Motion for Summary Judgment against Allen Roberts. His individual claims are dismissed with prejudice. Signed by Chief Judge Sandra S Beckwith on 5/7/08. (mb) (Entered: 05/07/2008)
NOTICE by clerk: A conference on the proposed settlement is scheduled for 7/8/08 at 10:00 AM before CJ Beckwith in Room 810. (mb) (Entered: 06/05/2008)
188 Joint MOTION for Order to Preliminarily Approve Class Action Settlement Agreement and Proposed Class Notice by Plaintiffs Darlene Denise Carter, Darrell Carter, Timothy Oliphant, Kay Jackson, Marnie Carter, Defendant AK Steel Corporation. (Attachments: # 1 Exhibit A to Motion: Settlement Agreement, # 2 Exhibit A to Settlement Agreement: List of Class Members, # 3 Exhibit B-1 to Settlement Agreement: Middletown Proof of Claim Form, # 4 Exhibit B-2 to Settlement Agreement: Ashland Proof of Claim Form, # 5 Exhibit B to Motion: Notice of Proposed Settlement) (Rogers, Gregory) (Entered: 07/02/2008)
189 NOTICE of Filing Updated and Revised Class Rosterby Defendant AK Steel Corporation (Attachments: # 1 Updated and Revised Class Roster) (Rogers, Gregory) Modified docket text on 7/9/2008 (eh1, ). (Entered: 07/08/2008)
190 ORDER granting 188 Motion for Preliminary Approval of the Settlement. Signed by Chief Judge Sandra S Beckwith on 7/8/08. (Attachment: # 1 Exhibit: Notice to the Class). A fairness hearing is set for 10/21/08 at 9:00 AM. Any objections are due by 9/22/08. Opposition/Support docs. to be filed by 10/14/08. (mb) (Entered: 07/08/2008)
191 Transcript of show cause hearing re: sanctions/contempt held on April 23, 2008, before Judge Beckwith. Court Reporter/Transcriber MA Ranz (Official), Telephone number 513.564.7626. 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.
NOTICE RE: REDACTION OF TRANSCRIPTS: Within 5 business days of this filing, each party shall inform the Court, by filing a Notice of Redaction, of the party's intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy is located on our website at www.ohsd.uscourts.gov (Forms - Electronic Availability of

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Transcripts). Please read this policy carefully.
For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 8/5/2008. Redacted Transcript Deadline set for 8/15/2008. Release of Transcript Restriction set for 10/14/2008. (mb, ) (Entered: 07/15/2008)
Minute Entry: Telephone conference held before Chief Judge Sandra S Beckwith on status of class rep., Greenwood. (Court Reporter MA Ranz (Official).) (mb) (Entered: 07/29/2008)
NOTICE by clerk: The telephone conference of 10/14/08 is RESCHEDULED for 10/10/08 at 10:30 AM. The court will initiate the call to counsel. (mb) (Entered: 08/05/2008)
NOTICE by clerk: The court, having been notified that no objections to the proposed settlement have been filed, the telephone conference of 10/10/08 is CANCELED. (mb) (Entered: 09/30/2008)
192 Joint MOTION for Final Approval of Class Action Settlement by Plaintiffs Darlene Denise Carter, Michael Miller, Shawn Pryor, Vivian Bert, Darrell Carter, Edward James Lewis, Timothy Oliphant, Roderique Russel, Kay Jackson, Marnie Carter, Defendant AK Steel Corporation. (Attachments: # 1 Declaration of Mark Patton on Behalf of the Claims Administrator, # 2 Declaration of Gregory Parker Rogers) (Rogers, Gregory) (Entered: 10/10/2008)
193 Minute Entry: Fairness hearing held before Chief Judge Sandra S Beckwith: Settlement summarized by counsel. The settlement is approved. A written order & judgment will be entered. The court will retain jurisdiction over accountability of funds pending a report by plaintiffs' counsel. (Court Reporter Mary Ann Maffia (Official).) (mb) (Entered: 10/21/2008)
194 ORDER granting 192 Joint motion to approve proposed settlement. Class counsel is to file a report prior to any distribution of funds to class members. That report, or a progress report and request for addtl. time shall be filed by 2/2/09. Signed by Chief Judge Sandra S Beckwith on 10/23/08. (mb) (Entered: 10/23/2008)
195 FINAL JUDGMENT. The court retains jurisdiction for the purpose of pre-reviewing and approving class counsels' plan for final distribution of settlement funds to the class. Signed by Chief Judge Sandra S Beckwith on 10/23/08. (mb) (Entered:

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10/23/2008)
196 STATUS REPORT REGARDING DISTRIBUTION TO CLASS CLAIMANTS by Plaintiffs Darlene Denise Carter, Darrell Carter, Timothy Oliphant, Kay Jackson, Marnie Carter. (Johnson, Herman) (Entered: 02/16/2009)
197 Response re 196 Status Report Regarding Distribution to Class Claimants by Defendant AK Steel Corporation. (Rogers, Gregory) (Entered: 02/18/2009)
NOTICE by clerk: A telephone conference on plaintiffs' report regarding distribution to class claimants (doc. 196) is scheduled for 3/30/09 at 3:00 PM before J. Beckwith. The court will initiate the call to counsel. (mb) (Entered: 03/25/2009)
Minute Entry: Conference on motions held before Judge Sandra S Beckwith. (Court Reporter MA Ranz (Official).) (mb) (Entered: 03/30/2009)
198 New Report Regarding Distribution to Class Claimants by Plaintiffs . (Attachments: # 1 Exhibit Distribution of Settlement Funds) (Childs, Robert) Modified docket text on 4/8/2009 (eh1, ). (Entered: 04/07/2009)
199 Supplement re 198 New Report Regarding Distribution to Class Claimants by Plaintiff Vivian Bert. (Attachments: # 1 Exhibit A) (Childs, Robert) Modified docket text on 4/30/2009 (eh1, ). (Entered: 04/29/2009)
200 ORDER approving class counsel's plan for final distribution of settlement funds to the class. Signed by Judge Sandra S Beckwith on 4/30/09. (mb) (Entered: 04/30/2009)
Minute Entry: Conference held before Judge Sandra S Beckwith regarding settlement and one class member who did not make a claim. (Court Reporter MA Ranz (Official).) (mb) (Entered: 06/24/2009)