FILED
2005 Jun-24 AM 11:24 U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

LINDA SMITH and the Class she Seeks to Represent
Plaintiffs,
v.
UNITED STATES STEEL CORPORATION, and UNITED STATES STEEL CORPORATION FAIRFIELD WORKS

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CIVIL ACTION NO:

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Jury Demand

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Defendant.

CLASS ACTION COMPLAINT

I.

INTRODUCTION

1. This Complaint is a class action brought by linda Sm~h on behalf ofherselfand

all the olher similarly-situated individuals who may have been affected by the discrimination

alleged below. This is an action for declaratory judgment, equitable relief, and money

damages, instituted to secure the protection of and to redress the deprivation of rights

secured byTitle VII ofthe Civil RightsAct of 1964, which was amended by the Civil Rights Act

of 1991, and which is codified at 42 U.S.C. § 2000e et seq. (hereinafter "Title VII") and 42

U.S.C. § 1981 a. The plaintiff and the class she seeks to represent seek equitable relief,

monetary relief and a jury trial of all issues triable to a jury.

II. JURISDICTION

2. The jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 1331,

1343(a)(3),1343(a)(4), and 42 U.S.C. § 2000e-5.

3. The plaintiff is a resident of Walker County, Alabama and the defendant is
located in Jefferson County. Venue is properpursuantto 28 U.S.C. § 1391 (b) and 42 U.S.C. § 2000e-5.
III. ADMINISTRATIVE REMEDIES 4. The plaintiff fried a charge of discrimination against the defendant with the
Equal Employment Opportunity Commission within 180 days of occurrence of the last discriminatory act and has instituted this action within 90 days of receiving notice of her Right to Sue. IV. PARTIES
5. The plaintiff, Linda Smilh, is a female citizen ofthe United States, overthe age of nineteen, and a resident of the State of Alabama.
6. The plaintiff brings this action on her own behalf and on behalf of all others similarly-situated pursuantto Rule 23(b)(2) ofthe Federal Rules of Civil Procedure. The class which the plaintiff seeks to represent is composed of all female applicants for Entry Level Production positions and discouraged female applicants who would have applied for Entry Level Production positions absent the discrimination alleged herein. There are common questions of law and fact affecting the rights of the members of the class who were discriminated against because oftheirsex. These persons are so numerous that joinder of all members is impractical. A common relief is sought. The interests of said class are adequately represented by the plaintiff. The defendant has acted orrefused to acton grounds generally applicable to the class.
7. The defendants, United States Steel Corporation and United States Steel 2

Corporation Fairfield Works (hereinafter referred to collectively as "defendant"), are employers within the meaning of that term as used in Title VII. At all times pertinent to the matters alleged herein, the defendant has employed fifteen (15) or more employees. V. FACTUAL ALLEGATIONS
8. The plaintiff realleges and incorporates by reference paragraphs 1-7 above with the same force and effect as if fully set out in specific detail hereinbelow.
9. On or about May 12, 2004, the plaintiff filled out an application foremployment with the defendantfor an Entry Level Production position, and she subsequently interviewed for the position.
10. On or around June 15, 2004, the defendant infomned the plaintiff in writing that she did not get the job, telling her that her background failed to match the job requirements.
11. At all times, the plaintiff was qualified to perform the Entry Level Productionjob. 12. On September 9, 2004, the plaintiff filed an EEOC Charge against the defendant. 13. On October 15, 2004, the defendant responded tothe plaintiffs EEOC Charge stating that the plaintiff was not selected because she did satisfy the following minimum qualification for that position: ''Two years of related heavy industrial experience (steel mill/mining/ construction/industrial)." 14. In particular the defendant stated the following in the position statementto the EEOC as its reasons for not selecting the plaintiff: The position is within a heavy industrial environment, which may be hot, cold, dirty, greasy, wet or noisy, depending on the area. Two years of related heavy industrial experience is a required minimum qualification for the Entry Level
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Production position. Inthe Particulars of her charge, Charging Partyclaimsthat she has nearly twenty (20) years of industrial experience working in a plant. Even iftrue, as stated above, the minimum requirement is two years of related heavy industrial experience, a requirement Charging Party clearly does not meet. ... In summary, Charging Party did not meet the minimum qualifications required forthe Entry Level Production position. She does not have two years of related heavy industrial experience.
15. Upon information and beliefthis minimum qualification disparately impacted a class offemale applicants, including the named plaintiff, and discouraged a class offemale applicants from applying for Entry Level Production positions with the defendant.
16. That minimum qualification serves no legitimate business purpose because male employees in the Entry Level Production position begin that job by sweeping the floor and are eventually trained on the job for the production work.
17. Moreover, upon information and belief, the respondent does not require male applicants to meet this minimum qualification. Indeed, the defendant has hired male employees, including Scott Brewer, Ed Sewell and Jamie Carpenter into the Entry Level Production position without requiring them to have the two years of related heavy industrial experience.
18. The defendant's imposed minimum qualification of two years of related heavy industrial experience stands as such an obvious barrierto women entering its workforce, that
by creating and maintaining such a requirementthe defendant acted maliciously, willfully, and with reckless disregard for the rights of the plaintiff and the class she seeks to represent.
19. By requiring new hires into Entry Level Production positions to have two years of related heavy industrial experience, the defendant engages in a pattern and practice of
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discriminating against female applicants and it discourages other females from applying for Entry Level Production positions. VI. CLASS ACTION ALLEGATIONS
A. Class Definition and Common Questions of Law and Fact 20. The plaintiff is a member of the class she seeks to represent. That class consists offemale applicants and discouraged female applicants who have been subjecled to one or more aspects of the systemic gender discrimination described in the class claims portion of this complaint, which includes the defendant's seleclion procedures. The prosecution olthe claims olthe named individual plaintiff requires adjudication olthe question common to the putative class: Has the defendant engaged in systemic genderdiscrimination in ~s selection practices in a manner made unlawful by the statutes under which this aclion is brought? The claims of the named individual plaintiff is embedded in common questions of law and fact because the defendant has prevented the hiring of female applicants and discouraged qualified female applicants from applying for Entry Level Production positions. 21. The defendant's hiring procedures are determined althe corporate level olthe defendant's operations, and do not vary significantly from one facility or geographical location to another. The employment praclices at issue in this complaint are not unique or limited to one plant, one office orone geographical area, but affect the named plaintiff and members of the class in the same manner throughout the defendant's operations. B. Typicality of Relief Sought 22. The relief necessary to remedy the claims of the plaintiff is the same relief that is necessaryforthe class. The named plaintiff seeks the following relieffor her individual
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claims and those of the class: a declaratory judgment that the defendant has engaged in systemic gender discrimination by limiting the employment opportunities of females; a pennanent injunction against such continuing discrimination; a restructuring of the defendant's selection procedures so that females are able to learn about and fairly compete in the future forjobs; a restructuring of the defendant's workforce so that females are assigned to jobs that they would have held in the absence of the defendant's past sex discrimination; back pay, instatement or front pay, punitive damages and other monetary and non-monetary remedies necessary to make the plaintiff and the class she seeks to represent whole from the defendant's past discrimination; and attorneys' fees and expenses.
C, Numerosity and Impracticability of Joinder 23. The class thatlhe named plaintiff seeks to represent is too numerous to make joinder practicable. The proposed class consists of female applicants and discouraged female applicants who would have become employed by the defendant's facilities in the United States. The defendant's pattern and practice of gender discrimination also makes joinder impracticable by discouraging females from applying for or pursuing employment opportunities, thereby making it impractical and inefficientlo identify many members olthe class prior to a determination of the merits of the defendant's class-wide liability.
D. Adequacy of Representation 24. The class representative's interest is coextensive with those olthe class in that she seeks to remedy the defendant's discriminatory employment practices so that females will no longer be prevented from obtaining positions at the defendant company. The class representative is able and willing to representlhe class fairly and vigorously, as she pursues
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her goal common to the class through this action. The plaintiffs counsel is also qualified, experienced, and able to conduct the litigation and to meet the time and fiscal demands required to litigate an employment discrimination class action ofthis size and complexity. The combined interest, experience and resources of the plaintiff and her counsel to litigate competently the individual and class claims of gender-based employment discrimination at issue satisfy the adequacy of representation requirement under Fed. R. Civ. P. 23(a)(4).
E. Efficiency of Class Prosecution of Common Claims 25. Certification of a class of similarly situated females is the most efficient and economical means of resolving the questions of law and fact that are common to the individual claims of the named plaintiff. The individual claims of the named plaintiff require resolution of the common question of whether the defendant has engaged in a systemic pattern of gender discrimination against females. The named plaintiff seeks remedies to undo the adverse effects of such discrimination in their own lives and careers and to prevent continued gender discrimination in the future. The named plaintiff has standing to seek such relief in part because of the adverse effect that gender discrimination against females has on her own interest in working and living in conditions free from the pernicious effects of gender bias. In order to gain such relief for herself, as well as for the putative class members, the named plaintiff must first establish the existence of systemic gender discrimination as the premise of the relief she seeks. Without class certification, the same evidence and issues would be subjectto repeated re-litigation in a multitude of individual lawsuits with an attendant risk of inconsistent adjudications and conflicting obligations. Certification of the class of females affected by the common questions of law and fact is the most efficient and judicious means
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of presenting the evidence and arguments necessary to resolve such questionsforthe plaintiff, the class and the defendant. 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 complaint. Such a bifurcated method of proof and trial is the most efficient method of resolving such common issues.
F, Requirements of Rule 23(b)(2) 26. The defendant has acted on grounds generally applicable to the class by adopting and following systemic practices and procedures that are discriminatory on the basis of gender. The defendant's gender discrimination is its standard operating procedure rather than a sporadic occurrence. The defendant has refused to act on grounds generally applicable to the class by refusing to adopt or follow selection procedures which do not have disparate impact or otherwise systemically discriminate against females. The defendant's systemic discrimination and refusal to act on grounds that are not sexually discriminatory have made appropriate final injunctive relief and declaratory relief with respect to the class as a whole. 27. The injunctive relief and declaratory relief are the predominate reliefs sought because they are both the cumulation ofthe proofofthe defendant's individual and class-wide liability at the end of Stage I of a bifurcated trial and the essential predicate for the named plaintiff and class members' entitlementto monetary and non-monetary remedies at Stage II of such a trial. Declaratory and injunctive relief flow directly and automatically from proofofthe common questions of law and fact regarding the existence of systemic genderdiscrimination againstfemales. Such relief is the factual and legal predicateforthe named plaintiff and the
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class members' entitlement to monetary and non-monetary remedies for individual losses caused by such systemic discrimination.
G. Alternatively Certification Is Sought Pursuant to Fed. R. Civ. P. 23(b)(3) 28. The common issues offact and law affecting the claims olthe named plaintiff and the proposed class members, including. but not limited to, the common issues identified in paragraphs 1-27 above, predominate, over any issues affected only individual claims. 29. A class action is superior to other available means for the fair and efficient adjudication of the claims of the named plaintiff and members of the proposed class. 30. The cost of proving the defendant's pattern and practice of discrimination makes it impracticable for the named plaintiff and members of the proposed class to control the prosecution of their claims individually. H. Alternatively Certification is Sought Under a Combination of Fed. R. Civ.
P. 23(b)(2) and 23(b)(3) 31. The plaintiff restates and incorporates by reference Paragraphs 1 through 30. above. 32. Plaintiffs claims for classwide equitable relief, including declaratory and injunctive relief. disparate impact and defendant's liabilityforthe alleged pattem and practice
of sex discrimination are properly certified under Fed. R. Civ. P. 23(b)(2), and plaintiffs
classwide damage claims are properly certified under Fed. R. Civ. P. 23(b)(3). VII. CLASS CLAIMS
33. The plaintiff restates and incorporates by reference Paragraphs 1 through 32, above, as part of this count of the complaint.
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34. The plaintiff and the class she seeks to represent are not hired by the defendant for Entry Level Production positions because of their female gender.
35. The defendant has engaged in a pattem and practice of discriminating against females on the basis oltheir sex with respect to hiring into Entry Level Production positions, which then prevents females from moving into supervisory and management positions.
36. The defendant uses a minimum qualification that disparately impacts female applicants and discourages female applicants.
37. The criteria utilized by the defendant in making selection decisions for its Entry Level Production position are discriminatory.
38. The systemiC discrimination further adversely affects the plaintiff and the class she seeks to represent by promoting and reinforcing sexual stereotypes and sexual bias. In the absence of such sexual discrimination, the plaintiffand the class she seeks to represent would have a greater opportunity of employment and the opportunity to move into Entry Level Production positions, which could then lead to movement into supervisory and management positions with the defendant.
39. By requiring this minimum qualification, the defendant utilizes a selection system that disparately impacts a class of female employees represented by the plaintiff.
40. This selection system and this minimum qualification are not valid,job related orjustified by business necessity. There are altemative selection procedures available to the defendant that have less disparate impact on females or greater validity and job relatedness, but the defendant has refused to consider or to use such procedures.
41. The defendant's selection procedures are intended to have a disparate impact
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on the individual female plaintiff and the class she seeks to represent. Such practices form a part olthe defendant's overall pattern and practice of keeping female employees out of its production and maintenance workforce.
42. The defendant's selection system perpetuates the defendant's decades-old policy and practice of keeping females out of its workforce.
43. By requiring female employees seeking employment with the defendant in Entry Level Production positions to have experience only gained in traditionally male positions, the defendant perpetuates its pre-civil rights act employment of a predominately male workforce.
44. The defendant's selection procedures have adversely affected the named plaintiff and the class she seeks to represent by, among other things, failing to hire female employees into traditionally male classifications.
45. Becauseolthe defendant's discriminatory employment practices, the plaintiff has experienced harm, including the loss of compensation, wages, back and front pay, and other employment benefits.
46. The plaintiff and the class she seeks to represent seek to redress the wrongs alleged herein and this suitfor back-pay(plus interest), a declaratoryjudgement, an injunction, punitive and/or nominal damages is their only means of securing adequate relief.
47. The plaintiff and the class she seeks to represent have no plain, adequate or complete remedy at law to redress the wrongs alleged herein, and this suit for backpay, an injunction, and a declaratory judgment is their only means of securing adequate relief.
48. The plaintiff and the class she seeks to represent are now suffering, and will continue to suffer, irreparable injury from the defendant's unlawful policies and practices as
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set forth herein unless enjoined by this Court.

VIII. PRAYER FOR RELIEF

Wherefore, the plaintiff, on behalf of herself and the class members whom she seeks to represent, requestthefollowing relief, pursuantto Title VII olthe act of Congress

known as the "Civil RightsActof 1964," U.S.C. § 2000e et seq. as amended, the "Civil Rights

Act of 1991," and 42 and 42 U.S.C. § 1981a.

a. Acceptance of jurisdiction of this cause;

b. Certification of the case as a class action maintainable under Federal Rules of Civil Procedure Rule 23 (a) and (b)(2)and/or(b)(3), on behalfolthe proposed

plaintiff class, and designation olthe plaintiff as a representative of the class and her counsel of record as class counsel;

c. A declaratory judgment that the defendant's employment practices

alleged herein are illegal and in violation otTilie VII of the Act of Congress known as

the Civil Rights Act of 1964, as amended.

d. A preliminary and permanent injunction against the defendant and its partners, officers, owners, agents, successors, employees, representatives and any

and all persons acting in concert with it, from engaging in gender discrimination in

hiring; e.

An Order requiring the defendant to initiate and implement programs

that (i) provide equal employment opportunities forfemale employees to be hired; (ii) remedy the effects of the defendant's past and present unlawful hiring practices; and

(iii) eliminate the continuing effects of the discriminatory hiring practices described

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above;

f.

An Order requiring the defendant to initiate and implement systems of

recruiting and selecting female employees into Entry Level Production positions in a

non-discriminatory manner;

g. An Order establishing a taskforceon equality and fairness to determine

the effectiveness oflhe defendant's hiring procedures which would provide for (i) the

monitoring, reporting, and retaining of jurisdiction to ensure equal employment

opportunity, (ii)the assurance that injunctive relief is properly implemented, and (iii) a

quarterly report setting forth information relevant to the determination of the

effectiveness of these programs;

h. An Order placing or restoring the plaintiff and the class she seeks to

represent into those jobs they would now be occupying but for the defendant's

discriminatory practices;

i.

An award of back pay, instatement or front pay, lost benefits,

preferential rights to jobs, and any other appropriate equitable reliefto the plaintiffand

class members;

j.

An award of punitive damages and nominal damages pursuantto Title

VII ofthe Act of Congress known as the Civil Rights Act of 1964, as amended and 42

U.S.C. §1981a;

k. An award of litigation costs and expenses, including reasonable

attorneys' fees, to the plaintiff and class members;

I.

Prejudgment and post judgment interest; and

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m. Such other and further relief as the Court may deem just and proper. THE PLAINTIFF DEMANDS A TRIAL BY STRUCK JURY.
Respectfully submitted,
Jo C. Go dfar (ASB-5401-F58J) Maury S. Weiner (ASB-8856-W86M) Kell A. Simon (ASB-0214-077K) Counsel for Plaintiff OF COUNSEL: WIGGINS, CHILDS, PANTAZIS & QUINN P.C. The Kress Building 301 19~ Street North Birmingham, Alabama 35203 Telephone No.: (205) 314-0500 Facsimile No.: (205) 254-1500
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 Case 2:05-cv-01359-VEH Document 48

Filed 06/19/2008

Page 1 of 31

FILED

2008 Jun-19 AM 09:15 U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

LINDA SMITH, HEATHER MCGUFFIE, ARLEEN THOMAS, CHRISTY WARREN, ANGELA FARMER, JAMIE ALLEN, TERESA DAVIS, LUCIE JOHNSON, GINGER BEASLEY, ANNETTE PACK, ODORA BECKWOOD, PHYLLIS ANDREWS, ANN SHAW and all women who sought production jobs, may in the future seek such jobs, or who would in the past have sought such jobs in the absence of the discriminatory practices challenged herein,

Case No: 2:05-CV-1359-VEH Jury Trial Demanded

PLAINTIFFS,

vs.

UNITED STATES STEEL CORPORATION.

DEFENDANT.

AMENDED CLASS ACTION COMPLAINT

I. INTRODUCTION

1. This is an action for a declaratory judgment, and equitable,

injunctive and monetary relief, instituted to secure the protection of and to

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redress the deprivation of rights secured by Title VII of the Civil Rights Act of 1964, which was amended by the Civil Rights Act of 1991, and which is codified at 42 U.S.C. § 2000e et seq. (hereinafter "Title VII") and 42 U.S.C. §1981a.
2. Plaintiffs Linda Smith, Heather McGuffie, Arleen Thomas, Christy Warren, Angela Farmer, Jamie Allen, Teresa Davis, Lucie Johnson, Ginger Beasley, Annette Pack, Odora Beckwood, Phyllis Andrews and Ann Shaw bring this action on behalf of themselves and all women who sought production jobs, may in the future seek such jobs, or who would in the past have sought such jobs in the absence of the discriminatory practices challenged in this case. Such practices include jobs for which defendant has: (a) required or considered “heavy industrial experience” and/or tests or other selection criteria that incorporated, considered or were affected by such experience; and/or (b) otherwise engaged in a pattern or practice of sex discrimination.
3. Plaintiffs bring three separate causes of action: (1) a disparate impact claim for equitable relief pursuant to Section 703(k) of Title VII, 42 U.S.C. §2000c-2(k)); (2) a disparate treatment and/or pattern or practice claim for equitable relief pursuant to §703(a) of such Act; and (3) a compensatory and punitive damage claim pursuant to 42 U.S.C. §1981a, as specified.
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4. Class certification is sought separately for each of plaintiffs’ three causes of action. Class certification is sought pursuant to Federal Rule of Civil Procedure 23(b)(2) for the equitable relief on plaintiffs’ disparate impact claim. Class certification is also appropriate under Rule 23(b)(2) for the equitable relief sought on plaintiffs’ pattern or practice claim under Title VII. For plaintiffs’ third cause of action for compensatory, as specifically limited in this complaint, and punitive damages under §1981a, plaintiffs seek class certification under either Rule 23(b)(2) as part of the relief available at Stage I of a bifurcated trial of their pattern or practice claim for injunctive relief, or as a hybrid certification under both Rules 23(b)(2) and 23(b)(3). II. JURISDICTION AND VENUE
5. The jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 1331, 1343(a)(3),1343(a)(4), and 42 U.S.C. § 2000e-5.
6. Plaintiff, Linda Smith, is a resident of Walker County, Alabama; plaintiff, Heather McGuffie is a resident of Bibb County, Alabama; and plaintiffs Arleen Thomas, Christy Warren, Angela Farmer, Jamie Allen, Teresa Davis, Lucie Johnson, Ginger Beasley, Annette Pack, Odora Beckwood, Phyllis Andrews and Ann Shaw are residents of Jefferson County, Alabama. The defendant does business throughout the United States, including its
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facilities located in Jefferson County, Alabama. Venue is proper pursuant to 28 U.S.C. § 1391(b) and 42 U.S.C. § 2000e-5. III. EXHAUSTION OF CONDITIONS PRECEDENT TO SUIT
7. Plaintiff Smith filed a charge of discrimination against the defendant with the Equal Employment Opportunity Commission within 180 days of being denied employment. Such EEOC Charge alleged on-going sex discrimination against all women who sought production jobs, may in the future seek such jobs, or who would in the past have sought such jobs in the absence of the discriminatory practices challenged in this case. Defendant has previously acknowledged that it was given notice of class allegations in Smith’s EEOC Charge when it responded in writing to such Charge on October 15, 2004, stating, among other things, that “[t]he Company denies that it engages in a pattern and practice of discriminating against females in its hiring process and other selection processes,” and that it “also denies that its selection process disparately impacts females.” Smith has instituted this action on behalf of herself and all such women within 90 days of receiving a Right to Sue Notice from the Equal Employment Opportunity Commission.
8. Smith’s EEOC charge and timely institution of this action tolled the limitations period for all women who sought production jobs, may in the future
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seek such jobs, or who would in the past have sought such jobs in the absence of such discriminatory practices from 180 days before the filing of her EEOC Charge to the date that a final judgment regarding her class allegations is entered. The claims brought by plaintiffs Heather McGuffie, Arleen Thomas, Christy Warren, Angela Farmer, Jamie Allen, Teresa Davis, Lucie Johnson, Ginger Beasley, Annette Pack, Odora Beckwood, Phyllis Andrews and Ann Shaw arose during such tolling period.
9. As an additional procedural precaution on behalf of themselves and other women affected by the discriminatory practices challenged in this case, plaintiffs Arleen Thomas and Teresa Davis, also filed their own EEOC Charges during the tolling period. Their EEOC Charges were filed on behalf of the named Charging Parties and all women who sought production jobs, may in the future seek such jobs, or who would in the past have sought such jobs in the absence of the discriminatory practices challenged in this case. Within the 180 days prior to plaintiff Smith’s EEOC Charge, plaintiffs, Arleen Thomas and Teresa Davis, filled out an application for employment with the defendant for the same or similar production type job as Smith, and they were rejected for employment. After Smith filed her EEOC Charge, Thomas and Davis applied again for the same or similar production type job, took a test and
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were rejected at that stage, again allegedly because they did not have two years of related heavy industrial experience. Davis filed her own EEOC Charge against the respondent on May 5, 2006, complaining about not being hired after she took the test in late 2005, and a Right-To-Sue letter was issued on September 20, 2006. Thomas filed her own EEOC charge against the respondent on June 16, 2006, complaining about not being hired when she applied in May 2006. On November 16, 2006, the EEOC issued a Right-ToSue letter to Ms. Thomas. This Amended Complaint adding Arleen Thomas and Teresa Davis is filed within the 90 days allowed by Title VII. IV. PARTIES
10. Each of the named plaintiffs are female citizens of the United States, over the age of nineteen, are residents of the State of Alabama.
11. The defendant, United States Steel Corporation is an employer within the meaning of that term as used in Title VII. At all times pertinent to the matters alleged herein, the defendant has employed fifteen (15) or more employees. V. FACTUAL ALLEGATIONS
12. The plaintiffs reallege and incorporate by reference paragraphs 111 above with the same force and effect as if fully set out in specific detail
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hereinbelow. 13. On or about May 12, 2004, plaintiff Smith filled out an application
for employment with the defendant for a production position, and she was subsequently given a telephone interview for the position.
14. On or around June 15, 2004, the defendant rejected Smith’s application in writing after her telephone interview.
15. At all times, Smith was qualified to perform the production jobs she sought.
16. On September 9, 2004, Smith filed an EEOC Charge against the defendant on her own behalf and on behalf of all women who sought production jobs, may in the future seek such jobs, or who would in the past have sought such jobs in the absence of the discriminatory practices challenged in this case.
17. On October 15, 2004, the defendant responded to Smith’s EEOC Charge stating that she was not selected because she did not satisfy the following requirement: “Two years of related heavy industrial experience (steel mill/mining/construction/industrial).”
18. In particular, the defendant stated the following in the position statement to the EEOC as its reasons for not selecting Smith:
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The position is within a heavy industrial environment, which may be hot, cold, dirty, greasy, wet or noisy, depending on the area. Two years of related heavy industrial experience is a required minimum qualification for the Entry Level Production position. In the Particulars of her charge, Charging Party claims that she has nearly twenty (20) years of industrial experience working in a plant. Even if true, as stated above, the minimum requirement is two years of related heavy industrial experience, a requirement Charging Party clearly does not meet. . . . In summary, Charging Party did not meet the minimum qualifications required for the Entry Level Production position. She does not have two years of related heavy industrial experience.
19. Upon information and belief, the requirement or consideration of
heavy industrial experience disparately impacts female applicants, including
the named plaintiffs, in the same way as it impacted plaintiff Smith. Such
practice also discourages female applicants from applying for production
positions for which the defendant requires or considers “heavy industrial
experience” and/or tests or other selection criteria that incorporate or were
affected by such experience.
20. Defendant relies upon such heavy industrial experience
throughout its selection process for production positions, including, but not
limited to, initial screening, internet application screening, testing, phone
interviews, face-to-face interviews, and the selection decision itself. Defendant
discriminates on the basis of sex at each such stage of the selection process
as well as throughout the selection process as a whole. Such discrimination
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is accomplished through: (a) disparate impact; (b) disparate treatment; and (c) a pattern or practice of sex discrimination.
21. The named plaintiffs were rejected at one or more stages of the selection process for production jobs because of their sex and/or defendant’s discriminatory consideration of heavy industrial experience which was used as a proxy for sex discrimination. Plaintiff Smith was rejected on this basis at the telephone interview stage of the defendant’s selection process; Heather McGuffie was rejected on this basis at the internet application screening phase of defendant’s selection process; Arleen Thomas, who applied more than once, was rejected on this basis each time she applied at the testing phase of the defendant’s selection process; Christy Warren, who applied more than once, was rejected on this basis at the internet application phase and the testing phase of the defendant’s selection process; Angela Farmer, who applied more than once, was rejected on this basis at the internet application phase and the testing phase of the defendant’s selection process; Jamie Allen, who applied more than once, was rejected on this basis, at the internet application phase and the face-to-face interview phase of the defendant’s selection process; Teresa Davis, who applied more than once, was rejected on this basis at the internet application phase and the testing phase of the
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defendant’s selection process; Lucie Johnson, who applied more than once, was rejected on this basis in or around April 2004 and November 2005 at the internet application phase of the defendant’s selection process; Ginger Beasley was rejected on this basis at the internet application phase of the defendant’s selection process; Annette Pack was rejected on this basis at the testing phase of the defendant’s selection process; Odora Beckwood, was rejected on this basis at the internet application phase of the defendant’s selection process; Phyllis Andrews, was rejected on this basis at the telephone interview phase of the defendant’s selection process; Ann Shaw, who applied more than once, was rejected at the testing phase of the defendant’s selection process.
22. The requirement or consideration of heavy industrial experience serves no legitimate business purpose. On information and belief, defendant does not require such experience at its other steel manufacturing plants. Other companies involved in similar manufacturing processes also successfully operate without requiring two years heavy industrial experience for production jobs. Male employees hired into the same or similar positions at defendant’s Fairfield Works are trained on the job for the production work involved in such jobs. Males have also been employed in production jobs at
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such plant without two years heavy industrial experience. 23. In addition to having disparate impact on women interested in
production jobs, defendant’s requirement or use of heavy industrial experience as a selection device is part of a pattern and practice of discouraging women from applying for traditionally male production positions and rejecting them for such positions whenever they express interest in or apply for such jobs at its Fairfield, Alabama plant. The defendant does not require many male applicants to have two years of heavy industrial experience for production jobs at such plants or at its other steel manufacturing plants. The defendant has hired male employees into the production positions at such plants, including the Fairfield, Alabama plant, without requiring them to have two years of related heavy industrial experience. Women, however, are not afforded or made aware of such opportunities to be employed in production positions at the Fairfield, Alabama plant without two years heavy industrial experience. Women are notified instead that such experience is required, and they have been consistently rejected whenever they lack such experience. Women are also rejected for such jobs even when they have two or more years of heavy industrial experience and are obviously qualified for the production work involved. For example, Arleen Thomas, Christy Warren, Angela Farmer,
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Teresa Davis, Lucie Johnson and Annette Pack were qualified to perform the production jobs they sought, but they were rejected despite having two years of heavy industrial experience.
24. Within the 180 days prior to plaintiff Smith’s EEOC Charge, plaintiff, Heather McGuffie, filled out an application for employment with the defendant, on or about April 15, 2004, for the same or similar production type job as Smith. She was qualified to perform the production job she sought, but she was denied such position on the pretext that she did not have two years of related heavy industrial experience.
25. Within the 180 days prior to plaintiff Smith’s EEOC Charge, plaintiff, Arleen Thomas, filled out a application for employment on or about April 15, 2004, with the defendant for the same or similar production type job as Smith, and she was rejected for employment, allegedly because she did not have two years of related heavy industrial experience. After Smith filed her EEOC Charge, Thomas applied again on or about May 25, 2006, for the same or similar production type job as Smith, took a test and was again rejected for employment on the pretext that she was not qualified and/or that she did not have two years of related heavy industrial experience. Thomas did have the required industrial experience.
12

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26. After Smith filed her EEOC Charge, Christy Warren, filled out an application for employment in early 2006 with the defendant for the same or similar production type job as Smith. She was qualified for the work involved in such job, but she was rejected without ever being tested or interviewed. Warren subsequently reapplied, around April 2006, took a test and was again rejected. At all times, she was qualified to perform the production job she sought, but she was denied such position on the pretext that she was not qualified and/or she did not have two years related heavy industrial experience. Warren did have two years of related heavy industrial experience.
27. After Smith filed her EEOC Charge, plaintiff, Angela Farmer, filled out an application for employment with the defendant in May 2005, for the same or similar production type job as Smith. She was qualified for the work involved, but like the other plaintiffs she was rejected for employment. After Smith filed her EEOC Charge, Farmer reapplied for the same or similar production type job, took a test and was again rejected. At all times, she was qualified to perform the production job she sought, but she was denied such position on the pretext that she was not qualified and/or she did not have two years of related heavy industrial experience. Farmer did have two years of related of related heavy industrial experience.
13

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28. Within the 180 days prior to plaintiff Smith’s EEOC Charge, plaintiff, Jamie Allen, filled out an application on April 12, 2004, took a test, went through a phone interview and was given a face-to-face interview for employment with the defendant for the same or similar production type job as Smith. She was rejected at that face-to-face interview stage, on or around June 2004, on the pretext that she did not have two years of related heavy industrial experience. After Smith filed her EEOC Charge, Allen reapplied around February 2006, for the same or similar production type job, and was rejected at the internet application phase, once again because she allegedly did not have two years of related heavy industrial experience. At all times, she was qualified to perform the production job she sought, but she was denied such position on the pretext that she did not have two years of related heavy industrial experience.
29. Within the 180 days prior to plaintiff Smith’s EEOC Charge, plaintiff, Teresa Davis, filled out an application for employment on or around April 15, 2004, with the defendant for the same or similar production type job as Smith. She was qualified for the work involved, but was rejected in spite of her qualifications. After Smith filed her EEOC Charge, Davis reapplied again for the same or similar production type job in 2005, took a test and was once
14

Case 2:05-cv-01359-VEH Document 48 Filed 06/19/2008 Page 15 of 31
again rejected in late 2005 despite her obvious qualifications for the job she sought. At all times, she was qualified to perform the production job she sought, but she was denied such position on the pretext that she was not qualified and/or on the pretext that she did not have two years of related heavy industrial experience. Davis did have two years of related heavy industrial experience.
30. Within the 180 days prior to plaintiff Smith’s EEOC Charge, plaintiff, Lucie Johnson, filled out an application for employment with the defendant on or about April 13, 2004, for the same or similar production type job as Smith. She was qualified for the work involved, but was rejected in spite of her qualifications. After Smith filed her EEOC Charge, Johnson applied again for the same or similar production type job, on or about November 22, 2005, and once again was not hired despite her qualifications for the job she sought. At all times, she was qualified to perform the production job she sought, but she was denied such position on the pretext that she was not qualified and/or on the pretext that she did not have two years of related heavy industrial experience. Johnson did have two years of related heavy industrial experience.
31. After plaintiff Smith filed her EEOC Charge, plaintiff, Ginger
15

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Beasley, filled out an application for employment with the defendant on or about September 2, 2005, for the same or similar production type job as Smith. She was qualified to perform the production job she sought, but she was denied such position on the pretext that she was not qualified and/or she did not have two years of related heavy industrial experience.
32. After plaintiff Smith filed her EEOC Charge, plaintiff, Annette Pack, filled out an application for employment on May 3, 2005, with the defendant for the same or similar production type job as Smith. She was qualified for the work involved, but was rejected after taking the test in spite of her qualifications. At all times, she was qualified to perform the production job she sought, but she was denied such position on the pretext that she was not qualified and/or on the pretext that she did not have two years of related heavy industrial experience. Pack did have two years of related heavy industrial experience.
33. Within the 180 days prior to plaintiff Smith’s EEOC Charge, plaintiff, Odora Beckwood, filled out an application for employment with the defendant in April 2004 for the same or similar production type job as Smith. She was qualified for the work involved, but like the other plaintiffs she was rejected for employment. At all times, she was qualified to perform the
16

Case 2:05-cv-01359-VEH Document 48 Filed 06/19/2008 Page 17 of 31
production job she sought, but she was denied such position on the pretext that she did not have two years of related heavy industrial experience.
34. After plaintiff Smith filed her EEOC Charge, plaintiff, Phyllis Andrews, filled out an application for employment with the defendant in or around June of 2006, for the same or similar production type job as Smith. She was qualified to perform the production job she sought, but she was denied such position on the pretext that she was not qualified and/or she did not have two years of related heavy industrial experience. Andrews filed her own timely EEOC Charge, which has been pending at the EEOC over 180 days.
35. After plaintiff Smith filed her EEOC Charge, plaintiff, Ann Shaw, filled out an application for employment with the defendant for the second time in or around May of 2006, for the same or similar production type job as Smith. She was qualified to perform the production job she sought, but she was denied such position on the pretext that she was not qualified and/or she did not have two years of related heavy industrial experience. Shaw filed her own timely EEOC Charge, which has been pending at the EEOC over 180 days. VI. FIRST CAUSE OF ACTION — DISPARATE IMPACT
36. Plaintiffs restate and incorporate paragraphs 1 through 35 above,
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with particular emphasis on paragraphs 13-22, 24, 28, 30, and 31, as part of this first count of their amended complaint.
37. The criteria utilized by the defendant in making selection decisions for production positions discriminate on the basis of sex in violation of §703(k) of Title VII, 42 U.S.C. §2000e-2(k). Among other things, defendant’s reliance upon “heavy industrial experience” and other selection criteria that incorporate or apply such experience has disparate impact on female applicants and discourages women as a class from applying for employment in traditionally male production jobs.
38. Plaintiffs seek only equitable relief, including backpay, declaratory and injunctive relief for such unlawful disparate impact, making class certification appropriate under Federal Rule of Civil Procedure 23(b)(2).
39. Defendant’s reliance on heavy industrial experience as a selection criteria is not valid, job related or justified by business necessity. There are alternative selection procedures available to the defendant that have less disparate impact on females and equal or greater validity and job relatedness, but the defendant has refused to consider or use such alternatives. Not being valid or necessary, heavy industrial experience is used by the defendant as a pretext to exclude women from traditionally male production jobs.
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40. Such discrimination further adversely affects the plaintiffs and the class they seek to represent by promoting and reinforcing sexual stereotypes and sexual bias. Such stereotypes and bias adversely affected all women interested in production jobs, including those who have two years or more of related heavy industrial experience, by maintaining the production areas of the plant as a predominantly male workforce, making it less likely for any women, including those with two years or more heavy industrial experience, from gaining a foothold in such jobs. Only a token number of women have ever been employed in such production jobs. In the absence of such sexual discrimination, the plaintiffs and the class they seek to represent would have had a greater opportunity of employment and to otherwise move into production positions, as well as a greater corresponding opportunity to then move into other jobs, including supervisory and management positions.
41. The plaintiffs and the class they seek to represent have no plain, adequate or complete remedy at law to redress the wrongs alleged herein, and this suit for backpay, instatement, and other injunctive and declaratory remedies is their only means of securing adequate relief. The plaintiffs and the class they seek to represent are now suffering, and will continue to suffer, irreparable injury from the defendant's unlawful policies and practices as set
19

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forth herein unless enjoined and remedied by this Court. VII. SECOND CAUSE OF ACTION — DISPARATE TREATMENT
42. The plaintiffs restate and incorporate by reference Paragraphs 1 through 41 above, with particular emphasis on paragraph 23, 25, 26, 27, 29, 30, and 32, as part of this second count of their amended complaint.
43. The defendant has engaged in a pattern and practice of discriminating against females on the basis of their sex with respect to production positions, which then prevents females from moving into supervisory and management positions.
44. The defendant's selection procedures are intended to have a disparate impact on the individual female plaintiffs and the class they seek to represent. Such practices form a part of the defendant's overall pattern and practice of keeping female employees out of its production and maintenance workforce. The defendant's selection system perpetuates the defendant's decades-old policy and practice of keeping females out of its workforce. By requiring female employees seeking employment with the defendant in production positions to have experience that can only be gained in traditionally male positions, the defendant perpetuates prior sexual discrimination and a predominately male workforce.
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45. Plaintiffs seek only equitable relief in this count of the Complaint, including backpay, instatement, retroactive seniority and status and other declaratory and injunctive relief for such unlawful disparate treatment, making class certification appropriate under Federal Rule of Civil Procedure 23(b)(2).
46. The defendant's selection procedures have adversely affected the named plaintiffs and the class they seek to represent by, among other things, failing to select women for traditionally male job classifications. Because of the defendant's discriminatory employment practices, the plaintiffs have experienced harm, including the loss of wages, back and front pay, and other employment benefits.
47. The plaintiffs and the class they seek to represent seek to redress the wrongs alleged herein and this suit for back-pay (plus interest), instatement, retroactive seniority and status, and other declaratory and injunctive relief is their only means of securing adequate relief. VIII. THIRD CAUSE OF ACTION — COMPENSATORY AND PUNITIVE DAMAGES
48. Plaintiffs restate and incorporate paragraphs 1 through 47 above, with particular emphasis on paragraphs 23, 25, 26, 27, 29, 30, and 32, as part of this third count of their amended complaint.
49. Reliance on practices requiring or applying heavy industrial
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experience as a selection criteria is such an obvious barrier to women being selected for production jobs, and is so inconsistent with ordinary business practices at defendant’s other plants and in the steel industry in general, that defendant acted maliciously, willfully, and with reckless disregard for the rights of the plaintiffs and the class they seek to represent, making punitive damages an appropriate remedy under 42 U.S.C. §1981a.
50. Such punitive damages are sought for the defendant’s conduct towards women, not for any individualized injury or harm. As such, the entitlement to such damages are properly part of the same proof at Stage I of a bifurcated trial for classwide injunctive relief sought as part of plaintiffs’ Second Cause of Action, and do not require individualized proof from each member of the class of women towards whom such discrimination was directed.
51. Each of the named Plaintiff’s also seek Compensatory Damages for the emotional damages they suffered as a result of Defendant’s actions. IX. CLASS CERTIFICATION ALLEGATIONS
52. Class certification is sought separately for each of plaintiffs’ three causes of action set forth above. Class certification is sought pursuant to Federal Rule of Civil Procedure 23(b)(2) for the equitable relief on plaintiffs’
22

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disparate impact claim. Class certification is also appropriate under Rule 23(b)(2) for the equitable relief sought on plaintiffs’ pattern or practice claim under Title VII. For plaintiffs’ third cause of action for punitive damages under §1981a, plaintiffs seek class certification under either Rule 23(b)(2) as part of the relief available at Stage I of a bifurcated trial of their pattern or practice claim for injunctive relief, or as a hybrid certification under both Rules 23(b)(2) and 23(b)(3).
53. The named plaintiffs are members of the class they seek to represent for each of the three causes of action stated hereinabove. The prosecution of the claims of the named individual plaintiffs require adjudication of the question common to the putative class: does use of heavy industrial experience and selection procedures incorporating the effects of such experience have disparate impact on women or is otherwise part of an overall pattern or practice of excluding women from traditionally male production jobs? The claims of the named individual plaintiffs are embedded in common questions of law and fact because the defendant has prevented the hiring of female applicants and discouraged qualified female applicants from applying for production positions on the basis of such practices.
54. The relief necessary to remedy the claims of the plaintiffs are the
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same relief that is necessary for the class, and therefore satisfies the typicality requirement of Rule 23(a)(3). The named plaintiffs seek the following relief for their individual claims and those of the class: a declaratory judgment that the defendant has engaged in systemic gender discrimination by limiting the employment opportunities of females; a permanent injunction against such continuing discrimination; a restructuring of the defendant's selection procedures so that females are able to learn about and fairly compete in the future for jobs; a restructuring of the defendant's workforce so that females are assigned to jobs that they would have held in the absence of the defendant's past sex discrimination; back pay and any other monetary relief, instatement or front pay, and other non-monetary remedies necessary to make the plaintiffs and the class they seek to represent whole from the defendant's past discrimination; and attorneys’ fees and expenses.
55. The class that the named plaintiffs seek to represent is too numerous to make joinder practicable. The proposed class consists of all women who sought production jobs, may in the future seek such jobs, or who would in the past have sought such jobs in the absence of the discriminatory practices challenged in this case. The challenged employment discrimination makes joinder impracticable by discouraging females from applying for or
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pursuing employment opportunities, thereby making it impractical and inefficient to identify many members of the class prior to a determination of the merits of the defendant's class-wide liability.
56. The class representatives’ interest is coextensive with those of the class in that they seek to remedy the defendant's discriminatory employment practices so that females will no longer be prevented from obtaining production positions at the defendant company. The class representatives are able and willing to represent the class fairly and vigorously, as they pursue their goals common to the class through this action. The plaintiffs’ counsel is also qualified, experienced, and able to conduct the litigation and to meet the time and fiscal demands required to litigate an employment discrimination class action of this size and complexity. The combined interest, experience and resources of the plaintiffs and their counsel to litigate competently the individual and class claims of gender-based employment discrimination at issue satisfy the adequacy of representation requirement under Fed. R. Civ. P. 23(a)(4).
57. Certification of a class of similarly situated females is the most efficient and economical means of resolving the questions of law and fact that are common to the individual claims of the named plaintiffs. The individual
25

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claims of the named plaintiffs require resolution of the common question of whether the defendant has engaged in a systemic pattern of gender discrimination against females. The named plaintiffs seek remedies to undo the adverse effects of such discrimination in their own lives and careers and to prevent continued gender discrimination in the future. The named plaintiffs have standing to seek such relief in part because of the adverse effect that gender discrimination against females has on their own interest in working and living in conditions free from the pernicious effects of gender bias. In order to gain such relief for themselves, as well as for the putative class members, the named plaintiffs must first establish the existence of disparate impact and/or systemic gender discrimination as the premise of the relief they seek. Without class certification, the same evidence and issues would be subject to repeated re-litigation in a multitude of individual lawsuits with an attendant risk of inconsistent adjudications and conflicting obligations. Certification of the class of females affected by the common questions of law and fact is the most efficient and judicious means of presenting the evidence and arguments necessary to resolve such questions for the plaintiffs, the class and the defendant. The named plaintiffs’ individual and class claims are premised upon the traditional bifurcated method of proof and trial for disparate impact
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and systemic disparate treatment claims of the type at issue in this complaint. Such a bifurcated method of proof and trial is the most efficient method of resolving such common issues.
58. The defendant has acted on grounds generally applicable to the class by adopting and following systemic practices and procedures that are discriminatory on the basis of gender. The defendant's gender discrimination is its standard operating procedure rather than a sporadic occurrence. The defendant has refused to act on grounds generally applicable to the class by refusing to adopt or follow selection procedures which do not have disparate impact or otherwise systemically discriminate against females. The defendant's systemic discrimination and refusal to act on grounds that are not sexually discriminatory have made appropriate final injunctive relief and declaratory relief with respect to the class as a whole.
59. Injunctive and declaratory remedies are the predominant relief sought. They are both dependent upon proof of the defendant’s individual and class-wide liability at the end of Stage I of a bifurcated trial. Such determination at Stage I is also the essential predicate for the named plaintiffs and class members’ entitlement to monetary and non-monetary remedies at Stage II of such a trial. Declaratory and injunctive relief flows directly and
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automatically from proof of the common questions of law and fact regarding the existence of systemic gender discrimination against females. 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 such systemic discrimination.
60. Alternatively, certification is sought pursuant to Fed. R. Civ. P. 23(b)(3). The common issues of fact and law affecting the claims of the named plaintiffs and the proposed class members, including, but not limited to, the common issues identified in the above paragraphs, predominate, over any issues affecting only individual claims. A class action is superior to other available means for the fair and efficient adjudication of the claims of the named plaintiffs and members of the proposed class. The cost of proving the defendant’s pattern and practice of discrimination makes it impracticable for the named plaintiffs and members of the proposed class to control the prosecution of their claims individually.
61. Alternatively, certification is sought under a combination of Fed. R. Civ. P. 23(b)(2) and 23(b)(3). The plaintiffs restate and incorporate by reference the above paragraphs. X. PRAYER FOR RELIEF
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Wherefore, the plaintiffs, on behalf of themselves and the class members whom they seek to represent, request the following relief, pursuant to Title VII of the act of Congress known as the "Civil Rights Act of 1964," U.S.C. § 2000e et seq. as amended, the "Civil Rights Act of 1991," and 42 and 42 U.S.C. § 1981a.
a. Acceptance of jurisdiction of this cause; b. Certification of the case as a class action maintainable under Federal Rules of Civil Procedure Rule 23 (a) and (b)(2) and/or (b)(3), on behalf of the proposed plaintiff class, and designation of the plaintiffs as representatives of the class and their counsel of record as class counsel; c. A declaratory judgment that the defendant's employment practices alleged herein are illegal and in violation of Title VII of the Act of Congress known as the Civil Rights Act of 1964, as amended; d. A preliminary and permanent injunction against the defendant and its partners, officers, owners, agents, successors, employees, representatives and any and all persons acting in concert with it, from engaging in gender discrimination in hiring; e. An Order requiring the defendant to initiate and implement programs that (i) provide equal employment opportunities for female
29

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employees to be hired; (ii) remedy the effects of the defendant’s past and present unlawful hiring practices; and (iii) eliminate the continuing effects of the discriminatory hiring practices described above;
f. An Order requiring the defendant to initiate and implement systems of recruiting and selecting female employees into Entry Level Production positions in a non-discriminatory manner;
g. An Order establishing a task force on equality and fairness determine the effectiveness of the defendant’s hiring procedures which would provide for (i) the monitoring, reporting, and retaining of jurisdiction to ensure equal employment opportunity, (ii) the assurance that injunctive relief is properly implemented, and (iii) a quarterly report setting forth information relevant to the determination of the effectiveness of these programs;
h. An Order placing or restoring the plaintiffs and the class they seek to represent into those jobs they would now be occupying but for the defendant’s discriminatory practices;
i. An award of back pay, instatement or front pay, retroactive seniority or status, lost benefits, preferential rights to jobs, and any other appropriate equitable relief to the plaintiff and class members;
j. An award of punitive damages and nominal damages
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pursuant to Title VII of the Act of Congress known as the Civil Rights Act of 1964, as amended and 42 U.S.C. §1981a;
k. An award of compensatory damages for each of the Named Plaintiffs pursuant to 42 U.S.C. §1981a;
l. An award of litigation costs and expenses, including reasonable attorneys’ fees, to the plaintiffs and class members;
m. Prejudgment and post judgment interest; and n. Such other and further relief as the Court may deem just and proper. THE PLAINTIFFS’ DEMAND A TRIAL BY STRUCK JURY OF ALL CLAIMS TRIABLE TO A JURY
Respectfully submitted,

OF COUNSEL:

s/Jon C. Goldfarb Robert F. Childs, Jr. Jon C. Goldfarb Counsel for Plaintiff

WIGGINS, CHILDS, PANTAZIS & QUINN LLC The Kress Building 301 19th Street North Birmingham, Alabama 35203 Telephone No.: (205) 314-0500 Facsimile No.: (205) 254-1500

31

 
 Case 2:05-cv-01359-VEH Document 59 Filed 02/13/09 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

FILED
2009 Feb-13 AM 11:22 U.S. DISTRICT COURT
N.D. OF ALABAMA

LINDA SMITH, et al., and the Class )

She Seeks To Represent,

)

)

PLAINTIFFS,

)

)

vs.

)

)

U. S. STEEL CORPORATION and )

UNITED STATES STEEL

)

CORPORATION FAIRFIELD

)

WORKS,

)

)

DEFENDANT.

)

CIVIL ACTION NO: CV-05-01359-VEH

JOINT MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT

COME NOW Plaintiffs and Defendant, and jointly move this Court to enter

Final Approval of the Class Action Settlement in this case. More particularly, in

support of this Motion, the parties state as follows:

1. On December 4, 2008, this Court entered its Preliminary Approval

Order of the Class Action Settlement in this case.

2. In accordance with the Court's Preliminary Approval Order, notice has

been provided to class members.

3. As of the date of this filing, the parties understand that no objections

have been filed to the Class Action Settlement, that no notices of intent to appear

to oppose the Class Action Settlement have been filed or served, that only two

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individuals have opted out of the Class, and that over 500 persons are eligible for a claims payment.
4. As shown by the Claim Administrator's Report filed with the Court, 510 valid and timely claims were submitted by class members (Exhibit 4 attached to the Declaration of Brian Collis (Document #58)). In addition, 45 valid claims were submitted by class members but were untimely for a variety of reasons (Exhibit 3 attached to the Declaration of Brian Collis (Document #58)). The parties jointly request that these 45 claims be approved by the Court, resulting in a total of 555 approved claims (consisting of Exhibits 3 and 4 attached to the Declaration of Brian Collis (Document #58)).
5. As shown by the overwhelming support of the class by the settlement, and the lack of any objections to the settlement, the Class Action Settlement Agreement is fair, reasonable, just and adequate and should be finally approved.
6. The parties file a joint submission in support of final approval of the Class Action Settlement contemporaneously with the filing of this motion.
WHEREFORE, Plaintiffs and Defendant request this Court rule that this action shall remain certified as a class action pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure; that the Class Action Settlement Agreement is fair, reasonable, just and adequate and should be finally approved; enter final

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Case 2:05-cv-01359-VEH Document 59 Filed 02/13/09 Page 3 of 3
judgment pursuant to the terms of the Class Action Settlement Agreement; and rule on all others matters related to or impacted by the Agreement.

/s/ Jon C. Goldfarb Robert F. Childs, Jr. (ASB-2223-c60r) Jon C. Goldfarb (ASB-5401-f58j) WIGGINS, CHILDS
QUINN & PANTAZIS, LLC The Kress Building 301 19th Street North Birmingham, AL 35203 Attorneys for Plaintiffs

/s/ Michael L. Lucas Michael L. Lucas (ASB-0118-u69m) Ashley H. Hattaway(ASB-2001-a60a) BURR & FORMAN LLP 3400 Wachovia Tower 420 North 20th Street Birmingham, Alabama 35203
Attorneys for Defendant, United States Steel Corporation

1726104 v1

3

 
 Case 2:05-cv-01359-VEH Document 60 Filed 02/13/09 Page 1 of 29

FILED
2009 Feb-13 AM 11:24 U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

LINDA SMITH, et al., and the Class )

She Seeks To Represent,

)

)

PLAINTIFFS,

)

)

vs.

)

)

U. S. STEEL CORPORATION and )

UNITED STATES STEEL

)

CORPORATION FAIRFIELD

)

WORKS,

)

)

DEFENDANT.

)

CIVIL ACTION NO: CV-05-01359-VEH

JOINT SUBMISSION IN SUPPORT OF JOINT MOTION FOR FINAL APPROVAL OF A CLASS ACTION SETTLEMENT

COME NOW Plaintiffs and Defendant and file this submission in support of

the parties' Joint Motion for Final Approval of a Class Action Settlement. For the

reasons stated herein, this Court should grant final approval of the proposed

settlement of this action.

I. INTRODUCTION On December 4, 2008, this Court entered its Preliminary Approval Order of

the Class Action Settlement in this case. Thereafter, notice was provided to class

members. Five hundred and ten class members filed valid and timely claims

(Declaration of Brian Collis at ¶ 9, Ex. 4 (Document #58)). An additional 45 class

members submitted valid but untimely claims (Declaration of Brian Collis at ¶ 9,

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Case 2:05-cv-01359-VEH Document 60 Filed 02/13/09 Page 2 of 29
Ex. 3 (Document #58)). The parties have jointly requested that the Court approve
these additional 45 claims as well, resulting in 555 class members who will each
receive a payment under the Settlement Agreement in the sum of approximately $1000.00.1 In addition, no class member filed an objection to the settlement, no
class member filed a notice of intent to appear at the Final Hearing, and only two potential class members opted out of participation in the settlement.2
II. STATEMENT OF THE CASE On June 28, 2005, plaintiffs filed their complaint in this action. In their
complaint, plaintiffs allege that they applied for an entry level production position
at United States Steel's ("USS") Fairfield Works and that their application was
denied because of their sex. This action was brought on behalf of a class of
similarly situated female employees and contended that USS's hiring process had a
disparate impact on females. Specifically, plaintiffs claimed that the requirement
by USS of two years of heavy industrial experience had a disparate impact on
1 The parties request the Court approve the 45 valid but untimely claims because: (1) such approval will permit additional class members to receive compensation; (2) the amount each eligible class member receives will not be substantially impacted by the addition of these 45 claimants; and (3) such inclusion will lessen the likelihood of an appeal being filed which would significantly delay payment of benefits to all class members.
2 According to the Claims Administrator, it received two valid opt out requests (Susan L. Hurley and Jerry W. Wilson) (Declaration of Brian Collis at ¶ 10 (Document #58)). To constitute a valid opt out request, the potential class member was required to submit the opt out documentation to the Claims Administrator, as well as file a copy with the Court (Notice). In addition, Atrina Pugh filed documentation with the Court requesting to be excluded from settlement, but apparently did not submit such documentation to the Claims Administrator. Hurley, Wilson and Pugh do not appear on either Exs. 3 or 4 of the Claims Administrator's Declaration and are not bound by the Settlement Agreement in any event.
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females and violated Title VII of the Civil Rights Act of 1991, as amended. USS answered the complaint, generally denied its allegations, and discovery was initiated among the parties. During the course of discovery, USS produced over 12,000 pages of documents. In addition, USS produced a voluminous database, including hiring data, and numerous depositions were taken.
Plaintiffs retained multiple expert witnesses including Rebecca Klemm, a statistical expert, to analyze the database produced by USS. Klemm concluded that the heavy industrial experience requirement had a disparate impact on females. Plaintiffs also retained Drs. Joel Lefkowitz and Jay Finkleman, industrial psychologists, to evaluate the USS hiring process. Drs. Lefkowitz and Finkleman concluded that the hiring process had a disparate impact on females and was not appropriately validated in accordance with the EEOC Uniform Guidelines On Employee Selection Procedures.
USS retained statistical experts, Mary Dunn Baker and ERS Group, who concluded that USS's hiring process did not have a disparate impact on females. Further, USS retained industrial psychologist experts Applied Psychological
Techniques, Inc., ("APT") and Dr. Kathleen K. Lundquist to evaluate its hiring
process. Dr. Lundquist concluded that the two year heavy industrial experience requirement was valid and in accordance with the EEOC Uniform Guidelines On Employee Selection Procedures.
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Plaintiffs filed a Motion to Amend the Complaint that added ten additional named plaintiffs and defendant opposed that Motion. In addition, two other individuals filed EEOC Charges with the EEOC. Subsequently, plaintiffs filed an Amended Motion to Amend, including all twelve individuals as named plaintiffs. The Court has allowed the Amended Complaint conditioned upon approval of this settlement.
In view of the differing expert testimony in this case, the additional expert witness and litigation expenses that would be incurred with the continued litigation of this case, and the uncertainties regarding the outcome of this case, the parties decided to enter into non-binding mediation before Hunter R. Hughes of Rogers & Hardin, LLP in Atlanta, Georgia. After extensive mediation, the parties were finally able to reach an arms-length settlement in principle. As part of that settlement, USS agreed to implement a new hiring process that was appropriately validated by APT and subject to review by plaintiffs' expert witnesses. APT thereafter undertook this assignment, conducted various focus groups, analyzed extensive materials and data, and developed a new hiring process that was reviewed, modified and approved by plaintiffs' experts. The parties then finalized the settlement agreement and presented it to the Court which preliminarily approved the agreement.
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III. BACKGROUND REGARDING USS'S CURRENT HIRING PROCESS A. Fairfield Works USS operates a fully integrated steel making facility in Fairfield, Alabama
("Fairfield Works"). (Anthony Depo. p. 73).3 Fairfield, Alabama is located contiguous to Birmingham, Alabama in Jefferson County, Alabama. The Fairfield Works employs approximately 1600 bargaining unit production and maintenance employees. (Bennick Depo., p. 233).4 These employees are represented by the United Steel Workers of America ("USWA") and the terms and conditions of their employment are subject to the Basic Labor Agreement ("BLA"). (Bennick Depo., pp. 32-35). USS has other steel making facilities located throughout the country and the world. (Bennick Depo., pp. 192-93).
B. Hiring In May 2003, USS and the USWA entered into the May, 2003 BLA. (Bennick Depo., pp. 32-35). Prior to the BLA, the production and maintenance employees at USS held thirty-six (36) different job classifications. (Id. at pp. 36, 95-96). In the 2003 BLA, USS and USWA agreed to reduce the number of job classifications to five (5) labor grades, with the former job classifications basically becoming job assignments within the five new labor grades. (Id. at pp. 36, 95-99,

3

Excerpts from the Deposition of Larry Anthony are attached hereto as Ex. 1.

4

Excerpts from the Deposition of Charles D. Bennick are attached hereto as Ex. 2.

5

Case 2:05-cv-01359-VEH Document 60 Filed 02/13/09 Page 6 of 29
105). The Labor Grade 1 job is referred to as Utility Person and the Labor Grade 2 job is referred to as Utility Technician. (Id. at p. 99).
C. The RTI Process Beginning in early 2004, USS contracted out to The Right Thing, Inc., ("RTI") portions of its hiring procedure. (Bennick Depo., pp. 29, 32, 57-59). RTI is a staffing company located in Ohio. (Id. at pp. 134-35). New hiring procedures were developed that involved multiple stages. (Anthony Depo., pp. 157-58, 18184, 217-18; Bennick Depo., pp. 35, 57-60, 177-78, 184-86, 210). Initially, RTI was responsible for advertising the entry level production positions. (Anthony Depo., p. 76; Bennick Depo., pp. 57-59). Such positions were also listed with the State Employment Service. (Anthony Depo., pp. 14-15, 37; Bennick Depo., pp. 60-61). RTI advertised these positions on the internet, as well as through notices to various labor unions, lodges, and organizations such as the YWCA. (Anthony Depo., p. 74; Bennick Depo., pp. 142-43, 163). An electronic job seeker would access an internet screen (AP Screen) and complete that screen. (Anthony Depo., pp. 34, 149; Bennick Depo., pp. 47-48, 60, 120). Certain questions on the AP Screen would be disqualifiers. (Anthony Depo., pp. 76, 80, 112, 126, 137-38; Bennick Depo., pp. 47-49). If the individual satisfactorily completed the AP Screen, then RTI would schedule them for testing conducted by RTI at Fairfield Works. (Anthony Depo., pp. 126-27, 135-37;
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Bennick Depo., pp. 55-56, 83-84, 121). This testing would include four pen and pencil tests. (Anthony Depo., pp. 66-67, 137; Bennick Depo., pp. 53, 55-56, 91). Additionally, the individual would complete various documents at this time, including an application and a release for background checks. (Anthony Depo., p. 137; Bennick Depo., pp. 55, 85-86, 88-90, 121).
If the individual satisfactorily completed the testing stage, an APP review was conducted by USS. (Anthony Depo., pp. 52-58, 68, 137; Bennick Depo., p. 56). This APP review was a modification that USS implemented after a short period of time under the RTI process. (Anthony Depo., pp. 53-55). The APP review primarily was to make sure that the individuals possessed the requisite experience. (Anthony Depo., pp. 54, 57-58). If any argument could be made that the individual had the necessary experience, they were passed through the APP review. (Anthony Depo., pp. 57-58). Assuming satisfactory completion of the APP review, RTI would conduct a telephone interview. (Anthony Depo., pp. 5658; Bennick Depo., pp. 54-55, 121, 128-29). Assuming satisfactory completion of the telephone interview and the background check, the individual would be scheduled for an on-site interview by USS personnel. (Anthony Depo., pp. 68, 160; Bennick Depo., pp. 121-22, 183). At that time, the individual would also be subject to drug screens. (Bennick Depo., pp. 121-22, 213-14). Assuming satisfactory completion of these steps, the individual would be extended a
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conditional job offer subject to a physical and another drug screen. (Anthony Depo., p. 97; Bennick Depo., pp. 122, 213-14).
IV. TERMS OF THE SETTLEMENT The settlement agreement consists of three primary elements. First, USS has agreed to implement a new hiring process which has been validated in accordance with the EEOC Uniform Guidelines On Employee Selection Procedures. (APT Report).5 APT developed the new process after extensive research, review of materials and data and employee interviews. Plaintiffs' expert witnesses have approved this new process. As part of the new hiring process, USS has agreed to change the two year heavy industrial experience requirement to a one year industrial experience requirement. USS has also deleted a question that plaintiffs' expert asserted had the highest disparate impact on females. USS estimates that the development and implementation of the new process including incurred expert fees, future expert fees, legal fees, and internal time and effort, has and will cost it in excess of Five Hundred Thousand and No/100 Dollars ($500,000.00). Second, the settlement agreement establishes that USS will pay up to Five Hundred Eighty Thousand and No/100 Dollars ($580,000.00) in approved claims (less administrative expenses of $25,000.00) by eligible class members. Each

5

APT's Report is attached hereto as Ex. 3.

8

Case 2:05-cv-01359-VEH Document 60 Filed 02/13/09 Page 9 of 29
eligible class member with an approved claim will receive approximately $1000.00 as non-wage damages.
USS also will pay Ten Thousand and No/100 Dollars ($10,000.00) to each of the following named plaintiffs for the emotional distress allegedly suffered in assuming the risks and notoriety related to being a named plaintiff and bringing EEOC charges in this class action litigation, including the potential liability for USS's taxable legal costs had USS litigated this action to a conclusion in its favor: Linda Smith, Heather McGuffie, Arleen Thomas, Christy Warren, Angela Farmer, Jamie Allen, Teresa Davis, Lucie Johnson, Ginger Beasley, Annette Pack, Odora Beckwood, Phyllis Andrews and Ann Shaw. In addition, USS will pay Linda Smith $10,000.00 for time spent preparing for and giving of her deposition, for time spent in reviewing the records of USS, and for time spent meeting with and talking to class counsel to help in the prosecution of this case. USS also will pay Linda Smith $80,000.00 for her agreement not to apply for employment with USS in the future. The payments to the named plaintiffs are in lieu of payment from the claim fund.
Finally, the settlement agreement also provides for payment of Class Counsel attorneys' fee and costs in the amount of $500,000.00. This includes over $169,000.00 Class Counsel incurred in costs and expenses in this action. Additionally, Class Counsel represents they expended in excess of 1075 hours of
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attorney time prosecuting this case over the last four years. An award of $500,000.00 for attorney's fees and costs is thus reasonable.
V. NOTICE TO THE CLASS The settlement agreement provided for individual notice to the class of the terms of the agreement. The individual notice is constitutionally adequate and complies with Rule 23 of the Federal Rules of Civil Procedure, both in substance and in the methods by which it will be disseminated. Rule 23 requires that notice be given "in a reasonable manner" to all class members. United States v. Alabama, 271 Fed. Appx. 896, 900-901 (11th Cir. 2008). The individual notice provided in this case contained all of the essential elements necessary to satisfy any due process concerns and actually included a copy of the settlement agreement. See United States v. Alabama, 271 Fed. Appx. at 901 (finding notice sufficient where class members were apprised that they could view the settlement agreement on a website). The individual notice and enclosures set forth the class definition; showed the terms of the settlement, including the amount of incentive payments and the amount of Class Counsel's fees; showed the formula for distribution of benefits under the settlement; and provided information regarding the manner in which objections, opt-outs and notices of intent to appear at the hearing could have been submitted. The individual notice also gave the date and location of the Fairness Hearing on the
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settlement and generally explained what would take place at the Fairness Hearing. See Perez v. Asurion Corp., 501 F. Supp. 2d 1360, 1377 (S.D. Fla. 2007); Borcea v. Carnival Corp., 238 F.R.D. 664, 677 (S.D. Fla. 2006) (finding notice adequate after a review of similar factors).
The settlement agreement also provided a method of disseminating the individual notices that satisfied the requirements of Rule 23 and due process. The Notice was disseminated by a Claims Administrator. USS provided to plaintiffs' counsel and the Claims Administrator a list of all class members which was drawn from a computerized database maintained by RTI. Following the Court's preliminary approval of the settlement agreement, the Claims Administrator provided individual notice to each class member for whom deliverable addresses were obtained. The Claims Administrator kept records of all notices returned for any reason, and made substantial efforts to determine recent addresses for returned notices and forwarded new notices. See Adams v. Southern Farm Bureau Life Ins. Co., 493 F.3d 1276, 1286-87 (11th Cir. 2007) (approving of a similar process). The Claims Administrator has filed its report with the Court as required by the Court's Preliminary Approval Order.
VI. APPROPRIATENESS OF CLASS CERTIFICATION A class may be certified solely for purposes of settlement when settlement is reached before a litigated determination of the class certification issue. See
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Woodward v. NOR-AM Chem. Co., No. Civ. 94-0780-CB-C, 1996 WL 1063670, at *14 (S.D. Ala. May 23, 1996) (citing In re Beef Indus. Antitrust Litig., 607 F.2d 167, 173-78 (5th Cir. 1979)); see also Borcea, 238 F.R.D. at 670 (giving preliminary approval of the settlement agreement, lifting the stay, authorizing the filing of the second amended complaint, conditionally certifying the class for settlement purposes, and authorizing distribution of the settlement notice) and Ingram v. Coca-Cola Co., 200 F.R.D. 685 (N.D. Ga. 2001). In fact, "[c]ertification of settlement classes after a settlement has been reached has become routine." Woodward, 1996 WL 1063670, at *14. Where, as in this case, a class action is settled prior to certification, the appropriate procedure is for the Court to conditionally certify a temporary settlement class for the purpose of providing notice to putative members of the proposed class of the terms of the anticipated settlement and of their opportunity to opt out and/or object. Id.
In order to certify a class action under Rule 23(a), the Court must find that: "(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interest of the class." FED. R. CIV. P. 23(a). In addition, the Court must find that "the questions of law or fact common to the members of the class predominate" over individual issues of
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law or fact, and that "a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." FED. R. CIV. P. 23(b)(3).
As a threshold matter, there are in excess of 500 class members, easily meeting the requirement of numerosity. Cox v. American Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir. 1986) (numerosity requirement usually satisfied where putative class exceeds forty members).
The issues in this case are typical and common to the class and predominate over any individual issues pertinent to the resolution of the remainder of class members' claims, both in terms of the common core facts relating to USS's hiring process and the legal claims which have been asserted by the plaintiffs. The plaintiffs assert that USS's two year heavy industrial experience requirement has a disparate impact on females. Thus, each class member is impacted in the same manner and method by the alleged wrongdoing. Likewise, USS's defense that its experience requirement is job related and consistent with business necessity will be common and typical to all class members. Finally, plaintiffs' allegation that less burdensome alternative means are available is likewise common to all class members. See e.g., Busby v. JRHBW Realty, Inc., 513 F.3d 1314, 1322-27 (11th Cir. 2008); Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1337 (11th Cir. 1984), cert. denied, 420 U.S. 1004 (1985); Ingram, 200 F.R.D. at 697-701
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(cases finding commonality, typicality and predominance when the plaintiff's allegation is one of discrimination based on a company policy).
The named plaintiffs and Class Counsel have adequately represented the class. Class Counsel is well-experienced in complex litigation and class actions in the employment area and their work has been both effective and adequate. See Woodward, 1996 WL 1063670, at *15. Likewise, there is no evidence that the named plaintiffs have interests antagonistic to the class. Id. "[A]ll are united in asserting a common right and achieving a common goal - specifically, the maximum positive recovery for the class under the fairest terms possible." Id.
Class resolution of these claims is superior to individual litigation for the fair and efficient adjudication of the case. Because the case alleges that USS's hiring process has a disparate impact on females, statistical analysis and other analysis by expert witnesses is necessary and very costly. The documents and database at issue are voluminous, which increases the expense necessary to litigate the case. The cost of litigation and the expertise and other resources necessary to litigate the case make it cost prohibitive for persons to bring and maintain the case on an individual basis. See Ingram, 200 F.R.D. at 701. All requirements of Rule 23 certification are thus met, and the case is appropriately certified as a class action.
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VII. STANDARDS FOR EVALUATING THE PROPOSED CLASS SETTLEMENT AGREEMENT
Settlement of class actions are "highly favored in the law and will be upheld whenever possible." Bennett v. Behring Corp., 96 F.R.D. 343, 348 (S.D. Fla. 1982), aff'd, 737 F.2d 982 (11th Cir. 1984); see also, Cotton v. Hinton, 559 F.2d 1326, 1331 (5th Cir. 1977) ("Particularly in class action suits, there is an overriding public interest in favor of settlement."). In order to approve settlement, the district court must find that it "is fair, adequate and reasonable and is not the product of collusion between the parties." Id. at 1330. As discussed below, the settlement agreement was reached after extensive arms-length negotiations before a neutral mediator free of fraud and collusion, and is a fair, adequate and reasonable settlement for all parties. The Court therefore should grant preliminary approval of the settlement agreement.
A. There Has Been No Fraud Or Collusion Between The Parties. In approving the settlement agreement, the Court must first examine whether the agreement has resulted from fraud or collusion, or instead whether the settlement was achieved in good faith after arms-length negotiations. Knight v. Alabama, 469 F. Supp. 2d 1016, 1031 (N.D. Ala. 2006), aff'd sub nom. United States v. Alabama, No. 07-10235, 2008 WL 834130 (11th Cir. Mar. 28, 2008). This requirement is easily met here, where the settlement agreement resulted from arms-length negotiation after an intensive mediation process.
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The mediator in the case was Hunter Hughes of the Rogers & Hardin firm in Atlanta, Georgia. Mr. Hughes is a distinguished, highly respected mediator who has had substantial experience in mediating complex employment litigation. The formal mediation proceeding took place at Mr. Hughes' office on March 12, 2007. The parties did not reach settlement at that time but continued to negotiate for approximately five (5) months. After reaching an agreement in principle at that time, the parties spent approximately ten (10) more months finalizing the details of the agreement. The parties communicated with Mr. Hughes separately at mediation meetings and continued to negotiate until the final details of the settlement agreement were reached. It is clear that the settlement agreement was the result of adversarial negotiations, without any fraud or collusion. See Ashley v. Regional Transp. Dist. & Amalgated Transit Union Div. 1001 Pension Fund Trust, No. 05-CV-01567-WYD-BNB, 2008 WL 384579, at *6 (D. Colo. Feb. 11, 2008) (finding that involvement by a mediator and a four month negotiation period indicated no fraud or collusion).
B. The Terms Of The Settlement Are Fair, Adequate And Reasonable.
In addition to determining that a proposed settlement is free of fraud or collision, the Court must also determine whether the terms of the settlement are fair, adequate and reasonable. Bennett v. Behring Corp., 737 F. 2d 982, 986 (11th Cir. 1984). Where settlement of a class action results from arm's length
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negotiations between experienced counsel after significant discovery has occurred, the Court may presume the settlement to be fair, adequate, and reasonable. See Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 116 (2d Cir.), cert. denied, 544 U.S. 1044 (2005). See also, Lucas v. Kmart Corp., 234 F.R.D. 688, 693 (D. Colo. 2006) (finding same); Ingles v. Toro, 438 F. Supp. 2d 203, 216 (S.D.N.Y. 2006) (same). The judgment of experienced counsel is relevant to approval. See Cotton v. Hinton, 559 F.2d 1326, 1331 (5th Cir. 1977) (holding that the court is entitled to rely on the judgment of experienced counsel for the parties in evaluating settlement and should be hesitant to substitute its judgment for that of counsel in the absence of fraud or collusion).
Here, the settlement agreement will end over three years of complex, expensive and hard fought litigation which benefits all parties and eliminates the extensive risks and difficulties each party would have faced if this case continued to trial. The settlement occurred only after the parties had conducted substantial discovery and evaluated their positions and then engaged in lengthy settlement negotiations.
The settlement results in an immediate change in USS's hiring process. Because of these changes, USS will have an improved process that has been validated, and the elements of the previous hiring process that plaintiffs alleged had caused a disparate impact will have been eliminated. The plaintiffs will have a
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better hiring process in place through which they will have an opportunity to obtain employment at USS. The settlement agreement also provides the plaintiffs with a fair and reasonable monetary recovery, which treats each class member fairly by providing a similar amount of compensation to each and incentive payments to the named plaintiffs. The settlement agreement is fair to USS by providing a release of liability. Finally, the settlement will further conserve considerable judicial resources that the continued litigation of this case would have required. It is the opinion of Class Counsel and counsel for USS that the terms of the settlement agreement are fair, adequate and reasonable.
In evaluating the settlement agreement, "[t]he Court must be guided by 'the strong judicial policy favoring settlement as well as by the realization that compromise is the essence of settlement.'" Carnegie v. Mutual Sav. Life Ins. Co., No. CV-99-S-3292-NE, 2004 WL 3715446, at *17 (N.D. Ala. Nov. 23, 2004) (quoting Bennett, 737 F.2d at 986). With this in mind, the Court should examine the following factors: "(1) the likelihood of success; (2) the range of possible recovery; (3) the point on or below the range of recovery at which settlement is fair, adequate and reasonable; (4) the complexity, expense and duration of the litigation; (5) the substance and amount of opposition to the settlement; and (6) the stage of proceedings at which the settlement was achieved." Bennett, 737 F.2d at 986.
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As shown below, all six of the necessary Bennett factors confirm that the Settlement Agreement is fair, reasonable and adequate, and should therefore be approved by the Court.
1. The Likelihood of Success at Trial. In evaluating the likelihood of success at trial, the Court should take into account the merits of the class members' claims, the defenses raised by the defendant and the manageability of the trial, but "should not reach any ultimate conclusions with respect to issues of fact or law involved in the case." Knight, 469 F. Supp. 2d at 1033. Instead, the Court should determine whether the risks faced by the parties and the difficulty of trial weigh in favor of approving the settlement. Id. "The Court's role is not to engage in a claim-by-claim, dollar by dollar evaluation, but to evaluate the proposed settlement in its totality." Borcea, 238 F.R.D. at 673. Here, the likelihood of success at trial for either party was undercut by the risks, difficulty and expense of further litigation. This is a complex case where the burden of proof shifts between the parties. Plaintiffs must first prove that USS's experience requirement has a disparate impact on females. If the plaintiffs meet this burden, USS must then prove that the requirement is job related and consistent with business necessity. If USS is successful, plaintiffs must show that less burdensome alternative means are available. Proof of these matters is complex and expensive, requiring statistical
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experts and I.O. psychologists who are extremely expensive. The experts on both sides of this case had opposing views that were well thought out and argued. For this reason, neither side could be sure which view would have been ultimately accepted by the Court if this case went to trial. Thus, it is entirely possible that plaintiffs could spend significant amounts of money in this case and recover nothing. Likewise, the defendant could have spent significant amounts of money and still lost this case. See Ingram, 200 F.R.D. at 689 (noting that "plaintiffs face an uphill battle in prevailing on employment discrimination cases in federal court"). The settlement agreement is preferable to the risks of continued litigation faced by both parties.
In addition, the settlement agreement spares the parties the difficulties and risks that they would have faced in litigating the issue of damages. The federal courts have emphasized that "[i]n class actions, the 'complexities of calculating damages increase geometrically[,]'" Chatelain v. Prudential-Bache Sec., Inc., 805 F. Supp. 209, 214 (S.D.N.Y. 1992) (quoting Bonime v. Doyle, 416 F. Supp. 1372, 1384 (S.D.N.Y. 1976), aff'd, 556 F.2d 554 (2d Cir.), cert. denied, 434 U.S. 924 (1977)), and that the "risk of proving damages [can] not be eliminated until after a successful trial and exhaustion of all the appeals." In re General Instrument Sec. Litig., 209 F. Supp. 2d 423, 430 (E.D. Pa. 2001). Accordingly, federal courts routinely find that avoiding the difficulties of proving damages -- particularly
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where the damages litigation will likely become an expensive battle of the experts - is a benefit to the parties that weighs in favor of approving a class settlement. Id; In re Warner Commc'ns Sec. Litig., 618 F. Supp. 735, 744 (S.D.N.Y. 1985) (settlement approved where litigation of damages issues would be a "battle of the experts" and where it was "virtually impossible to predict with any certainty which testimony would be credited"), aff'd, 798 F.2d 35 (2d Cir. 1986).
Finally, as the federal courts have pointed out, "victory -- even at the trial stage -- is not a guarantee of ultimate success[,]" given the risks and expense of appeal. In re Milken & Assoc. Sec. Litig., 150 F.R.D. 46, 53 (S.D.N.Y. 1993). Even if plaintiffs could succeed at trial, they may still face the possibility of an appeal by USS. The appeals process would, at the very least, postpone any payment of damages for years, and could result in USS paying no damages at all. The fact that settlement allows both parties to avoid the risk and expense of further litigation is a factor in support of settlement approval.
2. The Range of Possible Recovery and the Point on or Below the Range of Possible Recovery at Which the Settlement is Fair, Adequate and Reasonable.
The Court should consider the damages that could be recovered at trial, plaintiffs' likelihood of prevailing at trial and other relevant factors to determine whether the settlement is fair to the class. Carnegie, 2004 WL 3715446, at *20; see also In re Domestic Transp. Antitrust Litig., 148 F.R.D. 297, 319 (N.D. Ga.
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1993). Punitive recovery should not be considered in assessing the adequacy of

the settlement. See Carnegie, 2004 WL 3715446, at *21. Where relief other than

monetary compensation is a part of the settlement, the Court should consider

whether that non-monetary benefit outweighs the risks of litigation. See DeHoyos

v. Allstate Corp., 240 F.R.D. 269, 291 (W.D. Tex. 2007) (finding that the proposed

settlement was in the best interests of the class because of the substantial and

immediate benefits provided to class members, including implementation of a new

policy aimed at correcting the disparate impact on minorities, the risks and length

of trial in class actions, and the likelihood of appeals and subsequent proceedings if

the case proceeded on the litigation track).

The settlement in this case provides an immediate benefit to the class

members because they can apply for employment at USS under a new and

improved hiring process aimed at correcting the alleged disparate impact. As

discussed above, plaintiffs have many hurdles to jump through in order to establish

liability and damages and ultimately may not recover anything from USS. Under

the settlement, the class members obtain an immediate monetary benefit and also

the opportunity to reapply for employment at USS if desired regardless of personal circumstances.6 The immediate monetary recovery and opportunity to apply for

employment weighs in favor of approving the settlement. See Francisco v.

6

Linda Smith is the only plaintiff who will waive the ability to reapply for

employment at USS.

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Numismatic Guaranty Corp. of America, No. 06-61677-CIV, 2008 WL 649124, at *10 (S.D. Fla. Jan. 31, 2008) ("Where, as here, the injunctive relief addresses the very practices that gave rise to the suit - and indeed are at the core of the Plaintiff's goals in pursuing the litigation - a court is justified in viewing such injunctive relief as a significant component of the settlement.")
3. The Complexity, Expense and Duration of Litigation. The complexity, expense and duration of the litigation of this case also weighs in favor of settlement. See Carnegie, 2004 WL 3715446, at *22 (finding the complexity, expense, and duration of continued litigation and possible appeals weighs in favor of the proposed settlement because expert testimony on complex actuarial methodologies would be mandatory and trial likely would consume several months and postpone conclusion of the action); In re Metropolitan Life Derivative Litig., 935 F. Supp. 286, 293-94 (S.D.N.Y. 1996) (finding that settlement would undoubtedly be in the best interest of all the parties, in light of the effort and expense that would be required to take the case to and through trial). "The Court should consider the vagaries of litigation and compare the significance of immediate recovery by way of the compromise of the mere possibility of relief in the future, after protracted and extensive litigation. In this respect '[i]t has been held proper to take the bird in the hand instead of a prospective flock in the bush.'" Borcea, 238 F.R.D. at 674 (citation omitted). In
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addition to the cost and expense of additional discovery, significant resources (including time, money, effort and expertise) will need to be expended in the summary judgment and/or trial phases of this case. The parties anticipate that extensive briefing and evidence will be needed for summary judgment and should the court deny summary judgment, extensive trial preparation will be necessary. The parties anticipate numerous pre-trial issues and a complex and lengthy trial. In addition to other things, expert expenses will be significant. Should liability be established, the determination of damages also will be time-consuming. The settlement conserves the resources of all parties and the Court, which weighs in favor of its approval. Borcea, 238 F.R.D. at 674 (approving of a settlement while recognizing that complex litigation can deplete the resources of the parties and the taxpayers).
4. The Substance and Amount of Opposition to the Settlement. When determining whether a proposed settlement is fair, adequate, and reasonable, the Court must "examine the settlement in light of the objections raised." Cotton, 559 F.2d at 1331. In fact, the reaction of the Class to the settlement is perhaps the most significant factor to be weighed in considering its adequacy. See In re Top Tankers, Inc. Securities Litig., No. 06 CIV. 13761 (CM), 2008 WL 2944620, at *7 (S.D.N.Y. July 31, 2008). The absence of objectants and minimal exclusions militate strongly in favor of approval of a settlement. Id. The
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agreement provides a monetary distribution to each class member without those class members having to bear the expense, duration and uncertainty of litigation or prove individual damages. Moreover, class members may apply for employment with USS through its new hiring process. In short, the Settlement Agreement simply gives class members little reason for objection. Indeed, no class member has objected to the settlement. This factor weighs heavily in favor of this Court's approval of the Settlement Agreement. See Francisco, 2008 WL 649124, at *12 (finding that no opposition and only two opt outs weighed in favor of approving the settlement); In re Top Tankers, Inc., Securities Litig., 2008 WL 2944620 at *7 (approving a settlement with no objection and three opt outs).
5. Stage of Proceedings at Which Settlement was Achieved. In order to reach a fair settlement, the "parties must have an 'adequate appreciation of the merits of the case before negotiating.'" In re Prudential Ins. Co. America Sales Practice Litig. Agent Actions, 148 F.3d 283, 319 (3d Cir. 1998), cert. denied, 525 U.S. 1114 (1999) (citation omitted). Certainly, the parties have investigated the merits in this case. This matter has been litigated for almost four years. EEOC charges were filed and investigated and extensive discovery was entered into by the parties. Voluminous documents and other data were produced. Numerous witnesses were deposed. Various experts were obtained and reports compiled at great expense to both parties. Extensive arms-length mediation was
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entered into before a neutral mediator. "These facts suggest that the proceedings were fairly advanced, and that the parties had sufficient opportunity to evaluate the strengths and weaknesses of the case." See Carnegie, 2004 WL 3715446, at *19 (finding proposed settlement fair because it was reached four years after the action was commenced, following extensive discovery and retained experts by both parties). The parties have had ample discovery to evaluate their positions in the case and believe this settlement agreement to be a fair resolution. Under these circumstances, the settlement should be approved.
6. Provisions in the Settlement Agreement for Payment of Class Counsel Fees and Incentive Payments.
The fee to Class Counsel in this case (which also includes expert witness fees) is reasonable in light of the time and effort that Class Counsel expended on this case and the result that has been obtained for the class. Class Counsel first filed EEOC charges in this matter over four years ago (September 9, 2004) and have been litigating the case since that time. The settlement agreement provides significant monetary recovery for the class and also changes the alleged discriminatory experience requirement at USS. This factor clearly weighs in favor of approval of the settlement.
The settlement agreement provides monetary payments to all class members and provides them with a new hiring process at USS. The settlement also provides incentive awards to the named plaintiffs which is entirely appropriate. Federal
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courts "routinely approve incentive awards to compensate class representatives for the services they provided and the risks they incurred during the course of the class action litigation." Allapattah Servs., Inc. v. Exxon Corp., 454 F. Supp. 2d 1185, 1218 (S.D. Fla. 2006) (awarding $1,766,666.00 per class representative). "Incentive awards serve an important function, particularly where the named plaintiffs participated actively in the litigation." Id.
When examining awards to named plaintiffs, courts review (1) the actions taken by the class representatives to protect the interests of class members and others; (2) whether those actions resulted in substantial benefit to the class members; and (3) the amount of time and effort spent by the class representatives in pursuing the litigation. See Spicer v. Chicago Bd. Options Exch., Inc., 844 F. Supp. 1226, 1266 (N.D. Ill. 1993). See also, Carnegie, 2004 WL 3715446, at *24 (finding incentive payment fair where named plaintiffs were required to devote a substantial amount of time to prepare for and provide lengthy and personal deposition testimony); and Ingram, 200 F.R.D. at 694 (N.D. Ga. 2001) (approving approximately $300,000 for each named plaintiff as an incentive award in an employment discrimination case). In reviewing incentive awards, Courts should also consider the general public policy in favor of amicable settlement of legal disputes, which is especially favored in discrimination cases. Carnegie, 2004 WL 3715446, at *24.
27

Case 2:05-cv-01359-VEH Document 60 Filed 02/13/09 Page 28 of 29
Ms. Smith has been involved in this matter since at least September 9, 2004, when she filed an EEOC charge. The majority of other plaintiffs are "piggy backing" on her EEOC charge and would not have been able to bring a claim if she had not filed her charge. According to Class Counsel, Ms. Smith has been very involved in the prosecution of the action and has conferred with Class Counsel on a regular basis since 2004. She also gave deposition testimony in the case. Moreover, unlike any other class member she is waiving her right to reapply for employment at USS which is a significant benefit to USS.
Four of the other twelve plaintiffs also filed EEOC charges. According to Class Counsel, all of the named plaintiffs have provided information and assistance in the prosecution of the case. Importantly, all of the named plaintiffs have borne the risks and notoriety related to being a named plaintiff in this class action litigation, including the potential liability for USS's taxable legal costs had USS litigated this action to a conclusion in its favor. Because all class members are receiving monetary and other relief (change in the hiring process) and the named class members are receiving additional relief consistent with their roles in the case, the settlement should be approved.
"[U]niformity of relief provided to all class members supports acceptance of the proposed Settlement Agreement[]." Knight, 469 F. Supp. 2d at 1036. Class members in this case have an opportunity to share equally in the settlement fund to
28

Case 2:05-cv-01359-VEH Document 60 Filed 02/13/09 Page 29 of 29
be established in accordance with the settlement agreement without having to prove individual damages. Also, with the exception of Linda Smith, all class members have the opportunity to re-apply for employment at USS. The uniformity of the benefits to the class weighs in favor of the Court's approval of the settlement agreement. See Ingram, 200 F.R.D. at 690 (approving of settlement in which all class members are compensated without an individual determination).
VII. CONCLUSION Based on the foregoing, the parties respectfully request that the Court grant the Joint Motion for Final Approval of the Class Action Settlement.

/s/ Jon C. Goldfarb Robert F. Childs, Jr. (ASB-2223-c60r) Jon C. Goldfarb (ASB-5401-f58j) WIGGINS, CHILDS
QUINN & PANTAZIS, LLC The Kress Building 301 19th Street North Birmingham, AL 35203
Attorneys for Plaintiffs

/s/ Michael L. Lucas Michael L. Lucas (ASB-0118-u69m) Ashley H. Hattaway(ASB-2001-a60a) BURR & FORMAN LLP 3400 Wachovia Tower 420 North 20th Street Birmingham, Alabama 35203
Attorneys for Defendant, United States Steel Corporation

29

 
 Case 2:05-cv-01359-VEH Document 62 Filed 03/02/09 Page 1 of 10

FILED
2009 Mar-02 PM 02:26 U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

LINDA SMITH, et al., and the )

Class They Seek to Represent

)

Represent,

)

)

Plaintiffs,

)

)

v.

) CIVIL ACTION NO:

) 2:05-CV-01359-VEH

UNITED STATES STEEL

)

CORPORATION,

)

)

Defendant.

)

MEMORANDUM OPINION APPROVING CLASS ACTION SETTLEMENT
AND SUPPORTING FINAL ORDER AND JUDGMENT

Pending before the court is the parties’ Joint Motion for Final Approval of

Class Action Settlement (Doc. 59) (the “Joint Motion”) filed on February 13, 2009.

The parties also jointly filed, on February 13, 2009, their supporting brief and

exhibits. (Doc. 60).

The court held a Fairness Hearing on February 20, 2009, after due process

notice to all class members, to determine: (a) whether this action should remain

certified as a class action pursuant to Rule 23(b)(3) of the Federal Rules of Civil

Procedure; (b) whether the Class Action Settlement Agreement (hereinafter referred

to as the “Agreement” or “Settlement”) is fair, reasonable, just and adequate and

should be finally approved; (c) the appropriateness of any objections of any affected

persons as to the approval of the Agreement and all matters related thereto; (d)

whether final judgment should be entered thereon pursuant to the terms of the

Agreement; and (e) to rule on all other matters related to or impacted by the

Case 2:05-cv-01359-VEH Document 62 Filed 03/02/09 Page 2 of 10
Agreement. The Court preliminarily approved the proposed settlement between the
plaintiffs and the defendant by Order (Doc. 55) entered on December 4, 2008, and directed notice to the settlement class of the status of the pendency of this class action and the terms of the proposed settlement, the manner of submitting objections, the manner of submitting requests for exclusion, the manner of submitting claims, and the date of the Fairness Hearing. The terms and definitions used in the Agreement are incorporated herein by reference and are adopted for use herein.
The Court has fully evaluated the terms of the Agreement between Plaintiffs Linda Smith, Heather McGuffie, Arleen Thomas, Christy Warren, Angela Farmer, Jamie Allen, Teresa Davis, Lucie Johnson, Ginger Beasley, Annette Pack, Odora Beckwood, Phyllis Andrews, and Ann Shaw as Class Representatives (“Plaintiffs”), and Defendant United States Steel Corporation (“USS”), reviewed all pleadings, relevant briefs and other papers in this matter, considered the report (Doc. 58) and supplemental report (Doc. 61) provided by the claims administrator, including the lack of any objections to the Agreement and the lack of any notices requesting to be heard at the Fairness Hearing (Doc. 58 at Collis Declr. ¶ 12; Doc. 61 at Collis Declr. ¶ 12), heard arguments from counsel presented at the Fairness Hearing, and deliberated over the totality of the circumstances surrounding the Settlement. Based upon the foregoing, the Court hereby concludes that the parties’ Joint Motion is due to be granted and enters final judgment approving the class action settlement as follows:
2

Case 2:05-cv-01359-VEH Document 62 Filed 03/02/09 Page 3 of 10
FINDINGS 1. This Court has subject matter jurisdiction over the claims at issue in this action, as well as in personam jurisdiction over the named parties and the class members. 2. The Court’s Order entered on December 4, 2008, preliminarily approving the class action settlement was appropriate and warranted under the circumstances. 3. The Court finds and determines that the settlement class is defined by paragraph II 6 of the Agreement and should be and hereby remains certified pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure. 4. The claims of the named plaintiffs are typical of the claims of the class against USS in that they arose out of the same alleged pattern of conduct which allegedly injured the class. 5. The named plaintiffs are adequate class representatives whose interests are consistent with the interests of the class members. Through counsel and individually, the named plaintiffs have vigorously represented the class. 6. Robert F. Childs, Jr., and Jon Goldfarb and the law firm Wiggins, Childs, Quinn & Pantazis, LLC, as class counsel have acted appropriately and have vigorously pursued the interests of the class. They have engaged in extensive discovery on behalf of the named plaintiffs and the class members, addressed numerous legal issues, retained and utilized well-qualified experts and compiled evidence in a professional and organized fashion. 7. Class counsel have a wide range of experience with respect to complex
3

Case 2:05-cv-01359-VEH Document 62 Filed 03/02/09 Page 4 of 10
and class action litigation. Class counsel have demonstrated their familiarity with the claims and facts of this case and have negotiated, at arms length, a fair, adequate and reasonable settlement with USS. The Court finds that the adequacy of representation requirements of Rule 23(a)(4) have been satisfied.
8. The settlement class is numerous, consisting of in excess of 500 members (Doc. 58 at Collis Declr. ¶ 9; ; Doc. 61 at Collis Declr. ¶ 9), such that the numerousity requirements of Rule 23(a)(1) are satisfied.
9. Common issues have been alleged by the plaintiffs and they predominate both in terms of the common core facts alleged relating to the plaintiffs’ assertion that USS’s heavy industrial experience requirement has a disparate impact on females in the hiring process at USS’s Fairfield Works and the legal claims which have been asserted by plaintiffs. These issues of law and fact are typical and common to the class.
10. The case is manageable with certification of the clearly defined settlement class consisting of all females: (1) who applied via RTI’s USS website for employment as a Utility Person or Utility Technician at USS’s Fairfield Works from March 3, 2004 to February 29, 2008; (2) who did not voluntarily withdraw that application; (3) who subsequent to making that application were not hired or offered employment by USS at USS’s Fairfield Works as a Utility Person or Utility Technician; (4) who have been legally authorized to work in the United States at all times since making that application; (5) who have been ready, willing and able to work at all times since making that application; (6) who at the time of making that application had one year of industrial experience as described in the Claim Form
4

Case 2:05-cv-01359-VEH Document 62 Filed 03/02/09 Page 5 of 10
attached as Exhibit 1 to the Agreement; (7) who have not filed for bankruptcy since making that application; and (8) who have not been in prison and unable to work since making that application.
11. Notice to the settlement class was constitutionally adequate, both in terms of its substance and in the manner in which it was disseminated. The individual notice contained all of the essential elements necessary to satisfy any due process concerns, including the class definition, the identities of the parties, the terms of the proposed settlement, and information regarding the manner in which objections could be submitted and requests for exclusion could be filed. The notice properly informed settlement class members of the distribution of benefits under the Settlement. The Court-Approved Notice also informed settlement class members of the date and location of the Fairness Hearing on the Settlement. The contents of the notice, therefore, satisfied all requirements of Rule 23 of the Federal Rules of Civil Procedure and due process.
12. The manner in which the notice was disseminated satisfied the requirements of due process and Rule 23 of the Federal Rules of Civil Procedure. Individual notice was mailed at the Court’s direction to all settlement class members whose names and last known addresses were reasonably available. In addition, all notices that were returned by the U.S. Postal Service with a “forwarding order expired” sticker were re-mailed to updated addresses via a social security number check. The Court further finds that the timing of the dissemination of the individual notice at least sixty (60) days prior to the Fairness Hearing comports with due process and the requirements of Rule 23 of the Federal Rules of Civil Procedure.
5

Case 2:05-cv-01359-VEH Document 62 Filed 03/02/09 Page 6 of 10
13. The Court has had the benefit of the evidence and argument presented by counsel for USS and class counsel. These presentations as well as a review of all the pleadings, relevant motions, and briefs, have enabled the Court to evaluate the strength of the plaintiffs' claims, the propriety of class certification and the value of the settlement.
14. The Settlement proposed by the parties is fair, adequate, and reasonable and it deserves final approval. It provides immediate benefits to all class members, including significant monetary relief.
15. The Agreement will fund up to $580,000.00 of approved claims (less administrative expenses of $25,000.00) to eligible class members, which sum shall be paid as non-wage damages. The mechanisms for the distribution of payment for these approved claims is fair and reasonable.
16. Class counsel will be awarded $500,000.00 as compensation for their services in the prosecution and settlement of this action, which sum will be paid by USS separately from the fund identified in Paragraph 15 above.
17. The terms of the Agreement are favorable to the settlement class. The parties have presented evidence to the Court which demonstrates that the settlement class members have obtained fair, adequate, and reasonable relief under the Agreement. USS will or has implemented a new validated hiring process at an estimated cost of over $500,000,00. The response of the settlement class to the settlement has been overwhelmingly favorable.
18. The Settlement was a product of arms length negotiations subsequent to Court approved mediation. The Court was informed that the settlement discussions
6

Case 2:05-cv-01359-VEH Document 62 Filed 03/02/09 Page 7 of 10
were adversarial in nature and hard fought on both sides. 19. The Settlement avoids complex, expensive, and prolonged litigation
which could disadvantage any of the parties and the Court. It is possible that, absent a settlement, individual class members could face the risk of receiving zero compensation as a result of USS’s prevailing on its affirmative defenses at trial.
20. The Settlement is supported by discovery which has been thorough in this case. Class counsel has taken numerous depositions, thousands of pages of documents have been produced, numerous expert witnesses have been utilized, and an extensive database has been produced and analyzed by experts for both the plaintiffs and defendant. Class counsel and counsel for USS are aware of the strengths and weaknesses of the claims and defenses in this case. The Settlement reflects a mutually negotiated and satisfactory compromise over such competing legal assessments and related uncertainties as to the results in continuing with the litigation process. This Court specifically finds the settlement to be fair, reasonable and adequate.
THEREFORE, it is hereby ORDERED, ADJUDGED AND DECREED as follows:
1. The Court confirms certification of the settlement class defined in Paragraph II (6) of the Agreement as follows:
All females: (1) who applied via RTI’s USS website for employment as a Utility Person or Utility Technician at USS’s Fairfield Works from March 3, 2004 to February 29, 2008; (2) who did not voluntarily withdraw that application; (3) who subsequent to making that application for employment at USS were not hired or offered employment by USS at USS’s Fairfield Works as a Utility Person or Utility Technician; (4) who have been legally authorized to work in the United States at all times since making that application; (5) who have
7

Case 2:05-cv-01359-VEH Document 62 Filed 03/02/09 Page 8 of 10
been ready, willing and able to work at all times since making that application; (6) who at the time of making that application had one year of industrial experience as described in the Claim Form attached as Exhibit 1 to the Settlement Agreement; (7) who have not filed for bankruptcy since making that application; and (8) who have not been in prison and unable to work since making that application. Class members shall further include the heirs, executors, administrators, representatives, agents and assigns of any such persons. 2. The certification of this proceeding as a class action pursuant to Rule 23(b)(3) Federal Rules of Civil Procedures is affirmed. 3. Linda Smith, as named plaintiff, as well as Heather McGuffie, Arleen Thomas, Christy Warren, Angela Farmer, Jamie Allen, Teresa Davis, Lucie Johnson, Ginger Beasley, Annette Pack, Odora Beckwood, Phyllis Andrews and Ann Shaw, have fairly and adequately represented and protected the interest of the settlement class. 4. The method of identifying settlement class members, as well as the timing, method, content and form of the individual notice given to the settlement class members, and the dissemination thereof, satisfy the requirements of both Rule 23 of the Federal Rules of Civil Procedure and due process. A list of the nonexcluded class members bound by this final judgment is attached hereto as Exhibit A. 5. The Settlement set forth in the Agreement is, in all respects, fair, reasonable, adequate, and just to the settlement class members, and is finally approved. Judgment as set forth herein is entered thereon and the parties are directed to perform and carry out their respective obligations under the Agreement as approved by in this memorandum opinion and the separately entered Final Order and Judgment and otherwise consistently therewith.
8

Case 2:05-cv-01359-VEH Document 62 Filed 03/02/09 Page 9 of 10
6. Named plaintiffs release USS, together with its past and present divisions, subsidiaries, parent corporations, stockholders, partners, directors, officers, agents, employees, attorneys, representatives, instrumentalities, assignors, assignees, transferors and affiliates from any and all claims, rights, actions, suits, causes of action, demands, matters and issues of every nature and description (whether class, individual, derivative, or otherwise in nature) known or unknown, which have been asserted in the action, which could have been asserted in this action, or which arise out of or in any way relate to the subject matter of the action.
7. All non-excluded class members release any and all claims that they may have against USS that were asserted in or could have been asserted in the lawsuit.
8. All claims asserted in this action against USS are dismissed on the merits and with prejudice. Named plaintiffs and all non-excluded class members are permanently enjoined from bringing or prosecuting any claim or action which they released under paragraphs 6 or 7 above.
9. The Court retains continuing jurisdiction over: (a) all matters and issues related to the interpretation, administration, implementation, effectuation, and enforcement of the Agreement, this memorandum opinion, and the Final Order and Judgment; and (b) all parties to this action, including all non-excluded class members, for the purpose of enforcing and administering the Settlement, this memorandum opinion, and the Final Order and Judgment.
10. The Court finds and determines that USS shall implement the new hiring process as described in the attachment to the Agreement.
11. The terms of the Agreement, this memorandum opinion, and the Final
9

Case 2:05-cv-01359-VEH Document 62 Filed 03/02/09 Page 10 of 10
Order and Judgment cannot be modified absent a written court order. DONE and ORDERED this the 2nd day of March, 2009. VIRGINIA EMERSON HOPKINS United States District Judge
10

 
 Case 2:05-cv-01359-VEH Document 63 Filed 03/02/09 Page 1 of 2

FILED
2009 Mar-02 PM 02:29 U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

LINDA SMITH, et al., and the )

Class They Seek to Represent

)

Represent,

)

)

Plaintiffs,

)

)

v.

) CIVIL ACTION NO:

) 2:05-CV-01359-VEH

UNITED STATES STEEL

)

CORPORATION,

)

)

Defendant.

)

FINAL ORDER AND JUDGMENT

Pending before the court is the parties’ Joint Motion for Final Approval of

Class Action Settlement (Doc. 59) (the “Joint Motion”) filed on February 13, 2009.

In accordance with the Memorandum Opinion Approving Class Action Settlement

and Supporting Final Order and Judgment (the “Opinion”), the Joint Motion is

GRANTED.

More specifically, it is ORDERED (1) that the parties’ Class Action

Settlement is HEREBY FINALLY APPROVED pursuant to all applicable

requirements under Rule 23 of the Federal Rules of Civil Procedure, (2) that the

settling parties, including any non-excluded class members, are HEREBY BOUND

by the terms of the Agreement, the Opinion, and this Final Order and Judgment over

which the court retains jurisdiction and which cannot be modified absent a written

court order, and (3) that this case is HEREBY DISMISSED WITH PREJUDICE

with costs, expenses, and fees to be paid as agreed by the parties.

Case 2:05-cv-01359-VEH Document 63 Filed 03/02/09 Page 2 of 2
DONE and ORDERED this the 2nd day of March, 2009. VIRGINIA EMERSON HOPKINS United States District Judge
2

 
 Case 2:05-cv-01359-VEH Document 55 Filed 12/03/08 Page 1 of 15

FILED
2008 Dec-04 AM 09:43 U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

LINDA SMITH, et al., and the )

Class They Seek to Represent, )

)

Plaintiffs,

)

)

v.

) CIVIL ACTION NO:

) 2:05-CV-1359-VEH

UNITED STATES STEEL

)

CORPORATION,

)

)

Defendant.

)

PRELIMINARY APPROVAL ORDER This cause is now before the Court on the Joint Motion for Preliminary Approval of a Class Action Settlement (Doc. 53) between plaintiffs, Linda Smith, Heather McGuffie, Arleen Thomas, Christy Warren, Angela Farmer, Jamie Allen, Teresa Davis, Lucie Johnson, Ginger Beasley, Annette Pack, Odora Beckwood, Phyllis Andrews and Ann Shaw as Class Representatives (“Plaintiffs”), and defendant, United States Steel Corporation (“USS”) filed on November 21, 2008. The Court has been advised that the parties have agreed, subject to Court approval following notice to the class members and a hearing, to settle this action upon the terms and conditions set forth in the Class Action Settlement Agreement

Case 2:05-cv-01359-VEH Document 55 Filed 12/03/08 Page 2 of 15
(“Agreement”), which has been submitted to the Court and is hereby adopted and made a part of this Order as if fully set forth herein.
The Court has now thoroughly reviewed the Agreement, in light of all of the filings, records, and proceedings in this case. Based upon this review and after careful consideration, the Joint Motion for Preliminary Approval of a Class Action Settlement is GRANTED. Relatedly, the Court further finds and orders as follows:
JURISDICTION 1. This Court has jurisdiction over the claims at issue in this action, as well as to the parties to this proceeding. PREVIOUS PROCEEDINGS 2. Substantial discovery has been initiated and completed in this case. Plaintiff has filed a Motion to Amend the Complaint (Doc. 26) to allow additional named plaintiffs to join the case, and defendant opposed this Motion. Subsequent to discovery, the parties have engaged in extensive mediation and settlement discussions. The parties have kept the Court informed of the status of their settlement efforts. AMENDMENT 3. The Court has granted (Doc. 47) Plaintiffs’ Amended Motion to Amend (Doc. 46) and Plaintiffs’ earlier Motion to Amend (Doc. 26) has been deemed moot.
2

Case 2:05-cv-01359-VEH Document 55 Filed 12/03/08 Page 3 of 15
(Doc. 47). In the event the Agreement is not finally approved or does not become effective, then, upon the request of either party, the Court will vacate its Order (Doc. 47) granting the Amended Motion to Amend and mooting Plaintiffs’ earlier Motion to Amend (Doc. 26), and will set a new briefing schedule on such Motions. In such event, no party shall have waived any right to seek approval of or challenge/contest the Motions to Amend. (Docs. 26 and 46).
THE SETTLEMENT CLASS 4. For the purposes of settlement of this case only, Plaintiffs seek to have the following settlement class certified: all females (1) who applied via RTI's USS website for employment as a Utility Person or Utility Technician at USS's Fairfield Works from March 3, 2004 to February 29, 2008; (2) who did not voluntarily withdraw that application; (3) who subsequent to making that application were not hired or offered employment by USS at USS's Fairfield Works as a Utility Person or Utility Technician; (4) who have been legally authorized to work in the United States at all times since making that application; (5) who have been ready, willing and able to work at all times since making that application; (6) who at the time of making that application had one year of industrial experience as described in the Claim Form attached as Exhibit 1 to the Settlement Agreement; (7) who have not filed for bankruptcy since making that application; and (8) who have not been in prison and
3

Case 2:05-cv-01359-VEH Document 55 Filed 12/03/08 Page 4 of 15
unable to work since making that application. For the purposes of settlement, defendant USS agrees to the conditional certification of said class. Applying the factors set forth in Rule 23(a) and Rule 23(b)(3), the Court determines that it is appropriate to conditionally certify said class for settlement purposes.
a. Numerosity The numerosity requirement of Rule 23(a) is satisfied because the
proposed class involves in excess of 500 females who have accessed the internet intake screen (Doc. 54), the initial step in the hiring process at USS’s Fairfield Works for entry level production positions during the relevant time period. The Court also finds that joinder would be impracticable.
b. Commonality The commonality requirement of Rule 23(a)(2) is satisfied because
there is at least one factual or legal issue which is common to all or substantially all of the class members. Plaintiffs allege that USS’s requirement of two years heavy industrial experience has a disparate impact on females. This allegation involves interrelated factual and legal issues for each potential member of the class. Stated another way, Plaintiffs allege USS’s conduct impacts all class members by a general policy.
4

Case 2:05-cv-01359-VEH Document 55 Filed 12/03/08 Page 5 of 15
c. Typicality Rule 23(a)(3) typicality is generally satisfied when the named
plaintiffs’ claims arise from the same common nucleus of operative facts as the claims of absent class members. In this case, the typicality requirement is satisfied as the named plaintiffs and the potential class members all claim that USS’s two years heavy industrial experience requirement had a disparate impact upon them in the same fashion.
d. Adequacy of Representation Rule 23(a)(4) requires that the class representatives and their
counsel fairly and adequately protect the interests of the class. Class counsel in this case are highly skilled, competent and experienced class action attorneys who have a long history of successfully litigating class action civil rights lawsuits, are knowledgeable of the applicable law, and have committed the necessary resources to the case. Further, the Court notes that class counsel have vigorously litigated this case for several years, have done extensive work in identifying and investigating potential claims in this action, and have successfully negotiated a settlement for the class. The Court is satisfied class counsel have and will continue to adequately represent the class. The Court also finds that the class representatives have adequately represented the class. The class representatives’ interests are sufficiently
5

Case 2:05-cv-01359-VEH Document 55 Filed 12/03/08 Page 6 of 15
aligned with the interests of the unnamed class members and they have taken an active role in working with class counsel in the prosecution of this litigation.
e. Predominance Rule 23(b)(3) requires that questions of law and fact common to
the claims of Plaintiffs and each class member predominate over any questions or law or fact affecting any individual members of the class. All claims by named plaintiffs and the unnamed class members are based on an allegation that USS's two year heavy industrial experience requirement had a disparate impact on females in hiring for entry level production positions at USS's Fairfield Works. Thus, the liability issue is common to the class in this case. As all claims by Plaintiffs and the class members are based on the same alleged across the board experience requirement, the predominance requirement of Fed. Civ. P. 23(b)(3) is satisfied.
f. Superiority Pursuant to Rule 23(b)(3), the court finds that a class action is
superior to individuals' actions in this case because (1) joinder of all class members would create extreme hardship and inconvenience for the class members due to the geographic dispersion of the class members; (2) there are no known individual class members who are interested in individually controlling the prosecution of separate actions; (3) the interest of justice would be well served by resolving the common
6

Case 2:05-cv-01359-VEH Document 55 Filed 12/03/08 Page 7 of 15
disputes of the class members in one forum resulting in efficiencies to the Court system; (4) individual suits would not be cost effective and would have a potential detrimental impact on the Court's ability to manage and control its docket; and (5) this action is manageable as a class action and individual lawsuits would result in great inefficiencies and cost to the Court, Plaintiffs, class members, and USS.
In the event the Agreement is not finally approved by the Court, than this conditional class certification is null and void, shall no longer be in effect and shall not be used or referred to for any further purpose in this action or any other action or proceeding. In such event, no party shall have waived the right to seek approval of or challenge/contest class certification in this case.
NOTICE TO CLASS MEMBERS 5. The Court finds that the proposed notice to the class members attached to the Agreement as Exhibit 3 satisfies due process and is constitutionally adequate, both in terms of its substance and the manner in which it is to be disseminated. First, the methods employed by the parties to identify settlement class members are reasonable. Second, the notice contains all of the essential elements necessary to satisfy any due process concerns, including: (a) the nature of the action; (b) the definition of the class certified; (c) a description of the class claims, issues and defenses; (d) the identities of the parties; (e) a summary of the terms of the proposed
7

Case 2:05-cv-01359-VEH Document 55 Filed 12/03/08 Page 8 of 15
settlement and of class counsel’s intent to apply for fees; (f) notice that the class member may appear through an attorney; and (g) information regarding the manner in which objections can be submitted, how a class member can seek exclusion from the class, what facts will result in denial of a class member's claim, and the binding effect of the class judgment. The notice properly informs the settlement class members of the basis for distribution of benefits under the settlement, as well as the date and location of the fairness hearing (“Fairness Hearing”) on the settlement. The contents of the notice, accordingly, satisfy all of the requirements of Rule 23 and due process.
6. The manner in which the notice is to be disseminated also satisfies the requirements of Rule 23 and due process. Notice will be sent by first class mail at the Court’s direction to all settlement class members whose names and last known addresses are reasonably available. The Court finds that reasonable efforts have been made to obtain the most current addresses for all settlement class members. The individual notices will be disseminated at least sixty (60) days prior to the Fairness Hearing, providing ample time for the settlement class members to decide whether to accept or reject the settlement. If class notice sent to any class member is returned, the claims administrator will make an attempt to determine the class member’s current address via a social security number search and then, if a more current address is
8

Case 2:05-cv-01359-VEH Document 55 Filed 12/03/08 Page 9 of 15
located, re-mail the notice to that address. Accordingly, the Court finds that the method of identifying settlement class members, as well as the timing, form, content and method of disseminating the individual notice to those persons, comports with due process and the requirements of Rule 23.
PRELIMINARY APPROVAL OF SETTLEMENT TERMS 7. The Class Action Settlement Agreement and the terms contained therein are preliminary approved as fair, reasonable, just and adequate provided, however, that to the extent there is any conflict between the Agreement and this Order, this Order controls. FAIRNESS HEARING 8. The Fairness Hearing shall be conducted on Friday, February 20, 2009, which is a date no earlier than seventy-five (75) days from the date of entry of this Order. The Fairness Hearing shall take place beginning at 1:00 p.m. in Courtroom 6A of the Hugo L. Black Federal Courthouse, 1729 5th Avenue North, Birmingham, Alabama 35203, for this Court to consider and determine: (a) whether the proposed settlement of this action is fair, reasonable, and adequate and should be approved; (b) the merit of the objections, if any, made to the Agreement or any of its terms; and (c) other matters related to the settlement.
9

Case 2:05-cv-01359-VEH Document 55 Filed 12/03/08 Page 10 of 15
9. The Fairness Hearing described herein may be postponed, adjourned or continued by order of the Court without further notice to the settlement class. If after the Fairness Hearing the Court finds the proposed settlement of this Action to be fair, reasonable, and adequate, it shall enter a Final Order and Judgment approving the Agreement between Plaintiffs, the settlement class members, and USS in accordance with the Agreement, which order and judgment will fully adjudicate the rights of all Non-Excluded Class Members.
10. Pursuant to the terms of paragraph V(A) of the Agreement, USS is hereby directed to prepare and provide to the Claims Administrator the class member list within fourteen (14) calendar days of the entry of this Order. Promptly thereafter, pursuant to the procedures detailed in the Agreement, the Claims Administrator must provide notice of the Fairness Hearing to all class members as follows:
(a) by mailing a copy of the class notice substantially in the form attached to the Agreement as Exhibit 3; and
(b) by undertaking such further efforts at notice as required by the Agreement.
11. The Claims Administrator shall print such individual notices with the address of the Claims Administrator as the return address. The Claims Administrator shall record all notices returned for any reason and shall comply with the terms of the Agreement in response to any such returned notice.
10

Case 2:05-cv-01359-VEH Document 55 Filed 12/03/08 Page 11 of 15
12. The reasonable cost and expense of printing and preparing to mail the notices and the reasonable costs and expenses of the Claims Administrator and other related administrative expenses shall be reimbursed from the payment obligations as set forth in paragraph VI of the Agreement.
13. Prior to the Fairness Hearing described in paragraph 8 above, class counsel shall serve and file a sworn statement of the Claims Administrator evidencing compliance with the provisions of this Order concerning the mailing of the class notices.
14. Any non-excluded class member who objects to the approval of the proposed Agreement may appear at the Fairness Hearing in person or through counsel to show cause why the proposed Agreement should not be approved as fair, reasonable, and adequate.
15. Any and all objections by a Non-Excluded Class Member must be set forth in writing, be mailed via First Class Mail, postage prepaid and postmarked at least thirty (30) days prior to the Fairness Hearing, be personally signed by the objecting class member and be delivered at least fourteen (14) days prior to the Fairness Hearing, to the Clerk of the Court and to the Claims Administrator. Any notice of intent to appear at the Fairness Hearing to present objections must also be in writing, personally signed by the objecting class member, postmarked at least thirty
11

Case 2:05-cv-01359-VEH Document 55 Filed 12/03/08 Page 12 of 15
(30) days prior to the Fairness Hearing and delivered so that it is received no later than fourteen (14) days prior to the Fairness Hearing, to the Clerk of the Court and to the Claims Administrator. No Non-Excluded Class Member will be allowed to appear and object at the Fairness Hearing unless she timely submits her Notice to Appear.
16. Any class member whose objection is not post-marked at least thirty (30) days prior to the Fairness Hearing and whose objection is not received at least fourteen (14) days prior to the Fairness Hearing in the manner provided for in the Agreement and class notice shall be deemed to have waived any such objections to the settlement for all purposes. This waiver shall preclude any assertion of any grounds for objection in an appeal filed in these actions, through collateral attack and other proceedings, or otherwise. Said Non-Excluded Class Member shall be bound by all terms of the Agreement and by all proceedings, orders and judgments in this action.
17. If a Non-Excluded Class Member hires an attorney to represent her, she must do so at her own expense. Any such attorney must file a notice of appearance with the Clerk of the Court and deliver it to Class Counsel and Counsel for USS so that it is received at least fourteen (14) days prior to the Fairness Hearing. If such attorney is not admitted to practice before this Court, the attorney must file a pro hac
12

Case 2:05-cv-01359-VEH Document 55 Filed 12/03/08 Page 13 of 15
vice motion and pay the appropriate fee no later than three (3) business days prior to the Fairness Hearing.
18. Any class member who desires to submit a proof of claim form must submit a complete, verified and signed claim form by First Class Mail, postage prepaid and postmarked at least thirty (30) days prior to the Fairness Hearing, to the Claims Administrator and in time to be received by the Claims Administrator at least fourteen (14) days prior to the Fairness Hearing. The proof of claim shall be in the form as attached to the Agreement as Exhibit 1. By submitting a proof of claim, the class member thereby submits to the jurisdiction of the Court for purposes of this action and agrees that her proof of claim is subject to investigation and discovery. Approval and payment of a claim shall be in accordance with the procedures set forth in the Agreement.
19. Any request for exclusion from the settlement must be set forth in writing, mailed via First Class Mail, postage prepaid and postmarked at least thirty (30) days prior to the Fairness Hearing, be personally signed by the class member and be received by the Clerk of the Court and to the Claims Administrator no later than fourteen (14) days prior to the Fairness Hearing.
20. Within ten (10) days before the Fairness Hearing, the Claims Administrator shall:
13

Case 2:05-cv-01359-VEH Document 55 Filed 12/03/08 Page 14 of 15
(a) notify in writing USS counsel and class counsel and provide the names of class members, if any, who request exclusion;
(b) file with the Court a sworn statement listing all persons who have submitted timely requests for exclusion;
(c) provide copies of all requests for exclusion received to USS’s counsel and class counsel. The originals of all requests for exclusion shall be retained by the Settlement Administrator unless and until such originals are delivered to the Court or to class counsel at the conclusion of these proceedings; and
(d) conventionally file (not e-file) with the Court and provide copies to USS’s counsel and class counsel of all objections and notices of intent to appear (with the envelope in which such objections and notices were delivered) received by the Settlement Administrator. The original of all objections and notices of intent to appear and envelopes shall be retained by the Settlement Administrator unless and until such originals are delivered to the Court or to class counsel at the conclusion of these proceedings.
21. Any submissions in support of the proposed settlement shall be filed
with the Court not less than seven (7) days prior to the Fairness Hearing. Plaintiffs
and/or USS shall submit their replies, if any, to any written objections to the
Agreement not less than three (3) days prior to the Fairness Hearing.
22. All Pretrial proceedings in this action are stayed and suspended, except
such actions as may be necessary to implement the Agreement and this Order or as
hereafter may be ordered.
14

Case 2:05-cv-01359-VEH Document 55 Filed 12/03/08 Page 15 of 15
23. Plaintiffs, Linda Smith, Heather McGuffie, Arleen Thomas, Christy Warren, Angela Farmer, Jamie Allen, Teresa Davis, Lucie Johnson, Ginger Beasley, Annette Pack, Odora Beckwood, Phyllis Andrews and Ann Shaw, and the firm of Wiggins, Childs, Quinn & Pantazis have thus far fairly and adequately protected and represented the interests of the settlement class.
24. In the event that the proposed settlement embodied in the Agreement is not finally approved by the Court, or for any reason does not become final, or in the event that the Agreement becomes null and void, pursuant to its terms, then the Agreement and all orders entered in connection therewith shall become null, void and of no further force and effect and shall not be used or referred to for any purpose whatsoever in this action or in any other case or controversy. In such event, the Agreement and all negotiations and proceedings related thereto shall be deemed to be without prejudice as to the rights of any and all parties thereto, and the parties shall be restored to their respective litigation positions as of the date immediately preceding the execution of the Agreement.
DONE and ORDERED this 3rd day of December, 2008.
VIRGINIA EMERSON HOPKINS United States District Judge
15

 
 Case: 2:05-cv-1359 As of: 06/09/2010 04:20 PM CDT 1 of 6
U.S. District Court Northern District of Alabama (Southern) CIVIL DOCKET FOR CASE #: 2:05−cv−01359−VEH

CLOSED

Smith v. United States Steel Corporation et al Assigned to: Judge Virginia Emerson Hopkins Cause: 42:2000 Job Discrimination (Sex)
Plaintiff Linda Smith and the class she seeks to represent

Date Filed: 06/23/2005 Date Terminated: 03/02/2009 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question
represented by Jon C Goldfarb WIGGINS CHILDS QUINN &PANTAZIS LLC 301 19th Street, North Birmingham, AL 35203−3204 205−314−0500 Fax: 205−254−1500 Email: jcg@wcqp.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kell A Simon ROSS LAW GROUP 1104 San Antonio Street Austin, TX 78701 512−474−7677 Fax: 512−474−5306 Email: ksimon@rosslawpc.com TERMINATED: 07/30/2006 ATTORNEY TO BE NOTICED
Maury S Weiner WIGGINS CHILDS QUINN &PANTAZIS LLC The Kress Building 301 19th Street North Birmingham, AL 35203−3204 205−314−0590 Fax: 205−254−1500 Email: mweiner@wcqp.com TERMINATED: 01/22/2008
Robert F Childs , Jr WIGGINS CHILDS QUINN &PANTAZIS 301 19th Street, North Birmingham, AL 35203−3204 205−328−0640 Email: RFC@wcqp.com ATTORNEY TO BE NOTICED
Robert L Wiggins , Jr WIGGINS CHILDS QUINN &PANTAZIS LLC The Kress Building 301 19th Street North Birmingham, AL 35203−3204 205−314−0500 Fax: 205−254−1500 Email: RWiggins@WCQP.com ATTORNEY TO BE NOTICED

Case: 2:05-cv-1359 As of: 06/09/2010 04:20 PM CDT 2 of 6

V. Defendant United States Steel Corporation
Defendant United States Steel Corporation, Fairfield Works TERMINATED: 08/17/2005

represented by Michael L Lucas BURR &FORMAN LLP 3400 Wachovia Tower 420 North 20th Street Birmingham, AL 35203 205−251−3000 Fax: 205−244−5673 Email: mlucas@burr.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ashley H Hattaway BURR &FORMAN LLP 3400 Wachovia Tower 420 North 20th Street Birmingham, AL 35203 205−251−3000 Fax: 205−244−5655 Email: ahattawa@burr.com ATTORNEY TO BE NOTICED
represented by Michael L Lucas (See above for address) ATTORNEY TO BE NOTICED

Date Filed 06/23/2005
06/23/2005 06/23/2005 06/28/2005
07/11/2005 07/12/2005 08/16/2005 08/16/2005
08/16/2005
08/17/2005

# Docket Text
1 COMPLAINT against United States Steel Corporation, United States Steel Corporation, Fairfield Works (Filing fee $ 250.00 receipt # 200 216565) , filed by Linda Smith. (Attachments: # 1 Civil Cover Sheet)(JLC, ) (Entered: 06/24/2005)
2 Request for service by certified mail filed by Linda Smith. (JLC, ) (Entered: 06/24/2005)
3 Summons Issued as to United States Steel Corporation, United States Steel Corporation, Fairfield Works, by certified mail. (JLC, ) (Entered: 06/24/2005)
4 SUMMONS Returned Executed United States Steel Corporation served on 6/17/2005, answer due 7/7/2005; United States Steel Corporation, Fairfield Works served on 6/17/2005, answer due 7/7/2005. (JLC, ) (Entered: 06/28/2005)
5 MOTION for Extension of Time To Answer or Otherwise Respond to Complaint by United States Steel Corporation. (Lucas, Michael) (Entered: 07/11/2005)
ORDER granting 5 Motion for Extension of Time. Signed by Judge Virginia Emerson Hopkins on 7/12/05. (ACW) (Entered: 07/12/2005)
6 ANSWER to Complaint by United States Steel Corporation, United States Steel Corporation, Fairfield Works.(Lucas, Michael) (Entered: 08/16/2005)
7 MOTION to Dismiss United States Steel Corporation, Fairfield Works by United States Steel Corporation, United States Steel Corporation, Fairfield Works. (Lucas, Michael) (Entered: 08/16/2005)
ORDER granting 7 Motion to Dismiss. In addition, all pleadings filed in this matter from this date forward must be filed in 14 point type. Signed by Judge Virginia Emerson Hopkins on 8/16/05. (ACW) (Entered: 08/16/2005)
8 UNIFORM INITIAL ORDER − with appendices attached. Signed by Judge Virginia Emerson Hopkins on 8/17/05. (YMB, ) (Entered: 08/17/2005)

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09/07/2005 09/13/2005 09/16/2005
10/06/2005 10/12/2005 10/13/2005 10/21/2005
12/19/2005 12/22/2005
02/02/2006 02/02/2006 04/26/2006 04/27/2006 06/12/2006 06/13/2006 07/03/2006
07/20/2006 07/20/2006 07/24/2006 07/30/2006
09/05/2006 09/07/2006

9 NOTICE of Appearance by Robert F Childs, Jr on behalf of Linda Smith (Childs, Robert) (Entered: 09/07/2005)
10 REPORT of Rule 26(f) Planning Meeting. (Lucas, Michael) (Entered: 09/13/2005)
11 SCHEDULING ORDER: Discovery due by 6/30/2006. A deadline for dispositive motions shall be set after the class certification issue is resolved. Signed by Judge Virginia Emerson Hopkins on 9/16/05. (YMB, ) (Entered: 09/16/2005)
12 Corporate Disclosure Statement by United States Steel Corporation. (Lucas, Michael) (Entered: 10/06/2005)
13 Joint MOTION for Hipaa Order by Linda Smith, United States Steel Corporation. (Attachments: # 1 Exhibit A)(Lucas, Michael) (Entered: 10/12/2005)
14 QUALIFIED PROTECTIVE ORDER . Signed by Judge Virginia Emerson Hopkins on 10/13/2005. (JLC, ) (Entered: 10/13/2005)
15 AMENDED DOCUMENT by Linda Smith. Amendment to 8 Uniform Initial Order (Plaintiff's Supplement to Complaint). (Attachments: # 1 Supplement EEOC Charge# 2 Supplement Right to Sue)(Goldfarb, Jon) (Entered: 10/21/2005)
16 Joint MOTION for Protective Order by United States Steel Corporation. (Attachments: # 1 Exhibit A)(Lucas, Michael) (Entered: 12/19/2005)
17 ORDER GRANTING 16 Joint MOTION for Protective Order filed by United States Steel Corporation. PROTECTIVE ORDER. Signed by Judge Virginia Emerson Hopkins on 12/22/2005. (JLC, ) (Entered: 12/22/2005)
18 Joint MOTION for Extension of Time of Pending Deadlines by Linda Smith, United States Steel Corporation. (Lucas, Michael) (Entered: 02/02/2006)
ORDER granting 18 Motion for Extension of Time. Signed by Judge Virginia Emerson Hopkins on 2/2/06. (ACW) (Entered: 02/02/2006)
19 Joint MOTION for Extension of Time (Joint Motion for a Thirty−Day Extension of Pending Deadlines) by Linda Smith. (Weiner, Maury) (Entered: 04/26/2006)
ORDER granting 19 Motion for Extension of Time. Signed by Judge Virginia Emerson Hopkins on 4/27/06. (ACW) (Entered: 04/27/2006)
20 Third MOTION for Extension of Time (Joint Motion for Extension of Pending Deadlines) by Linda Smith. (Goldfarb, Jon) (Entered: 06/12/2006)
ORDER granting 20 Motion for Extension of Time. Signed by Judge Virginia Emerson Hopkins on 6/13/06. (ACW) (Entered: 06/13/2006)
Set/Reset Deadlines: Discovery due by 10/28/2006. A deadline for dispositive motions will be set after the class certification issue is resolved. (YMB) (Entered: 07/03/2006)
21 Joint MOTION for Extension of Time by Linda Smith. (Goldfarb, Jon) (Entered: 07/20/2006)
ORDER granting 21 Motion for Extension of Time. Signed by Judge Virginia Emerson Hopkins on 7/20/06. (ACW) (Entered: 07/20/2006)
22 MOTION to Withdraw as Attorney by Linda Smith. (Simon, Kell) (Entered: 07/24/2006)
ORDER granting 22 Motion to Withdraw as Attorney. Attorney Kell A Simon terminated. Signed by Judge Virginia Emerson Hopkins on 7/30/2006. (Hopkins, Virginia) (Entered: 07/30/2006)
23 Joint MOTION for Extension of Time of Pending Deadlines by Linda Smith. (Goldfarb, Jon) (Entered: 09/05/2006)
24 ORDER granting 23 Motion for Extension of Time. No further extensions will be granted. Signed by Judge Virginia Emerson Hopkins on 9/7/06. (YMB) (Entered: 09/07/2006)

Case: 2:05-cv-1359 As of: 06/09/2010 04:20 PM CDT 4 of 6

09/07/2006 11/16/2006 11/17/2006
11/28/2006
12/01/2006 12/01/2006 12/05/2006 12/06/2006 12/06/2006 12/06/2006 02/01/2007 02/01/2007 03/30/2007 04/02/2007 05/30/2007 05/30/2007 08/01/2007 08/02/2007

25 REVISED SCHEDULING ORDER: Discovery due by 1/12/2007. Signed by Judge Virginia Emerson Hopkins on 9/7/06. (YMB) (Entered: 09/07/2006)
26 MOTION to Amend/Correct (Opposed) by Linda Smith. (Attachments: # 1 − Amended Complaint)(Goldfarb, Jon) (Entered: 11/16/2006)
27 ORDER SETTING BRIEFING SCHEDULE; All non−summary judgment motions in this Court should conform to "Exhibit B", attached hereto and made a part of this Order as if fully set out herein. Any non−summary judgment motions filed after the entry of this Order shall comply with the provisions of Exhibit B without further Order from the Court. Signed by Judge Virginia Emerson Hopkins on 11/17/2006. (JLC, ) (Entered: 11/17/2006)
28 RESPONSE in Opposition re 26 MOTION to Amend/Correct (Opposed) filed by United States Steel Corporation. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J# 11 Exhibit K# 12 Exhibit L)(Lucas, Michael) (Entered: 11/28/2006)
29 MOTION for Extension of Time to File Response/Reply as to 28 Response in Opposition to Motion, (Unopposed) by Linda Smith. (Weiner, Maury) (Entered: 12/01/2006)
ORDER granting 29 Motion for Extension of Time to File Response/Reply. Signed by Judge Virginia Emerson Hopkins on 12/1/06. (YMB) (Entered: 12/01/2006)
30 MOTION to Stay Unopposed Motion for Sixty (60) Day Settlement Stay by Linda Smith. (Goldfarb, Jon) (Entered: 12/05/2006)
31 NOTICE of Appearance by Ashley Hattaway on behalf of United States Steel Corporation (Hattaway, Ashley) (Entered: 12/06/2006)
ORDER granting 30 Motion to Stay. The parties shall file a joint status report no later than February 5, 2007. Signed by Judge Virginia Emerson Hopkins on 12/6/06. (ACW) (Entered: 12/06/2006)
32 NOTICE of Appearance by Robert L Wiggins, Jr on behalf of Linda Smith (Wiggins, Robert) (Entered: 12/06/2006)
33 STATUS REPORT and Request for Sixty Day Extension of Stay by Linda Smith, United States Steel Corporation. (Lucas, Michael) (Entered: 02/01/2007)
ORDER granting 26 Motion to Extend Stay. The parties shall file a joint status report no later than April 5, 2007. Signed by Judge Virginia Emerson Hopkins on 2/1/2007. (Hopkins, Virginia) (Entered: 02/01/2007)
34 STATUS REPORT and Unopposed Request for Sixty Day Extension of Stay by Linda Smith, United States Steel Corporation. (Lucas, Michael) (Entered: 03/30/2007)
ORDER GRANTING 34 Joint Status Report to the Court, and Unopposed Request for Sixty Day Extension of Stay. Joint Status Report due May 31, 2007. Signed by Judge Virginia Emerson Hopkins on 4/2/07. (ACW) (Entered: 04/02/2007)
35 STATUS REPORT (Joint) and Unopposed Request for Sixty Day Extension of Stay by Linda Smith, United States Steel Corporation. (Lucas, Michael) (Entered: 05/30/2007)
ORDER GRANTING Unopposed Request for Sixty Day Extension of Stay 35 − parties are to file report by August 1, 2007. Signed by Judge Virginia Emerson Hopkins on 5/30/07. (ACW) (Entered: 05/30/2007)
36 STATUS REPORT by Linda Smith, United States Steel Corporation. (Lucas, Michael) (Entered: 08/01/2007)
ORDER GRANTING Unopposed Request for Ninety Day Extension of [doc.36] Status Report − parties are to file report by November 1, 2007. Signed by Judge Virginia Emerson Hopkins on 8/2/07. (ACW) (Entered: 08/02/2007)

Case: 2:05-cv-1359 As of: 06/09/2010 04:20 PM CDT 5 of 6

11/01/2007 11/02/2007 01/22/2008 01/28/2008 01/30/2008 03/17/2008 03/18/2008 04/29/2008 04/30/2008 06/13/2008 06/16/2008
06/17/2008 06/18/2008 06/19/2008 07/02/2008 07/02/2008
09/04/2008 09/19/2008 11/18/2008

37 STATUS REPORT and Unopposed Request for Ninety Day Extension of Stay by Linda Smith, United States Steel Corporation. (Lucas, Michael) (Entered: 11/01/2007)
ORDER GRANTING 37 Unopposed Request for Ninety Day Extension of Stay. Signed by Judge Virginia Emerson Hopkins on 11/2/07. (ACW) (Entered: 11/02/2007)
38 ORDER that the parties are to file, no later than Friday, February 15, 2008, a joint report regarding the status of settlement discussions. Signed by Judge Virginia Emerson Hopkins on 1/22/2008. (JLC, ) (Entered: 01/22/2008)
39 STATUS REPORT and Unopposed Request for Fourty−Five Day Extension of Settlement Stay by Linda Smith, United States Steel Corporation. (Lucas, Michael) (Entered: 01/28/2008)
40 ORDER GRANTING 39 Unopposed Request for 45 Day Extension of Settlement Stay as set out herein. Signed by Judge Virginia Emerson Hopkins on 1/30/2008. (JLC, ) (Entered: 01/30/2008)
41 STATUS REPORT And Unopposed Request for Forty−Five Day Extension of Settlement Stay by Linda Smith, United States Steel Corporation. (Lucas, Michael) (Entered: 03/17/2008)
ORDER GRANTING 41 Unopposed Request for Forty−Five Day Extension of Settlement Stay filed by Linda Smith, United States Steel Corporation. Signed by Judge Virginia Emerson Hopkins on 3/18/08. (ACW) (Entered: 03/18/2008)
42 STATUS REPORT and Unoppossed Request for 45−day Extension of Settlement Stay by Linda Smith. (Goldfarb, Jon) (Entered: 04/29/2008)
43 ORDER GRANTING 42 Request for 45 day Extension of Settlement Stay. Signed by Judge Virginia Emerson Hopkins on 4/30/2008. (JLC, ) (Entered: 04/30/2008)
44 STATUS REPORT by Linda Smith, United States Steel Corporation. (Lucas, Michael) (Entered: 06/13/2008)
45 ORDER LIFTING STAY; SETTING DEADLINES re: 44 Joint Status Report, to the extent the report asks the court to lift the stay previously imposed in this case, the request is GRANTED and the stay in this case is LIFTED. Signed by Judge Virginia Emerson Hopkins on 6/16/2008. (KSS, ) (Entered: 06/16/2008)
46 MOTION to Amend/Correct Complaint by Linda Smith. (Attachments: # 1 Exhibit Ex. A. Amended Class Action Complaint)(Goldfarb, Jon) (Entered: 06/17/2008)
47 ORDER GRANTING 46 MOTION to Amend Complaint; Terming 26 Motion and 28 Opposition as Moot. Signed by Judge Virginia Emerson Hopkins on 6/18/2008. (JLC, ) (Entered: 06/18/2008)
48 AMENDED COMPLAINT against United States Steel Corporation, filed by Linda Smith.(Goldfarb, Jon) (Entered: 06/19/2008)
49 Joint MOTION for Settlement − Preliminary Approval of Class Action Settlement by United States Steel Corporation. (Attachments: # 1 Exhibit A −)(Lucas, Michael) (Entered: 07/02/2008)
50 Brief re 49 Joint MOTION for Settlement − Preliminary Approval of Class Action Settlement [Submission in Support of Joint Motion] filed by United States Steel Corporation. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Lucas, Michael) (Entered: 07/02/2008)
NOTICE of Hearing: Telephone Conference set for Friday, 9/19/2008 at 10:00 AM, before Judge Virginia Emerson Hopkins. The call will be initiated by court staff.(YMB) (Entered: 09/04/2008)
Minute Entry for proceedings held before Judge Virginia Emerson Hopkins: Telephone Conference held on 9/19/2008. (YMB) (Entered: 09/19/2008)
51 Joint MOTION to Withdraw Documents Numbered 49 &50 by United States Steel Corporation. (Lucas, Michael) (Entered: 11/18/2008)

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11/19/2008 11/21/2008 11/21/2008
11/24/2008 12/03/2008 12/29/2008 01/08/2009 02/10/2009 02/13/2009 02/13/2009
02/20/2009 02/25/2009 03/02/2009
03/02/2009

ORDER granting 51 Motion to Withdraw Documents Numbered 49 And 50. Signed by Judge Virginia Emerson Hopkins on 11/19/08. (ACW) (Entered: 11/19/2008)
52 Joint MOTION for Leave to File Tentative Class List Under Seal by United States Steel Corporation. (Lucas, Michael) (Entered: 11/21/2008)
53 Joint MOTION for Settlement (Preliminary Approval of Class Action Settlement) by United States Steel Corporation. (Attachments: # 1 Exhibit A − Class Action Settlement Agreement, # 2 Exhibit 1 to Settlement Agreement − Claim Form, # 3 Exhibit 2 to Settlement Agreement − Process Summary, # 4 Exhibit 3 to Settlement Agreement − Court Ordered Notice, # 5 Exhibit 4 to Settlement Agreement − Smith Release, # 6 Exhibit 5 to Settlement Agreement − General Release, # 7 Exhibit 6 to Settlement Agreement − Preliminary Approval Order, # 8 Exhibit 7 to Settlement Agreement − Final Order)(Lucas, Michael) (Entered: 11/21/2008)
ORDER granting 52 Motion for Leave to File. Signed by Judge Virginia Emerson Hopkins on 11/24/08. (ACW) (Entered: 11/24/2008)
55 PRELIMINARY APPROVAL ORDER GRANTING 53 Joint MOTION for Preliminary Approval of Class Action Settlement. Signed by Judge Virginia Emerson Hopkins on 12/4/2008. (JLC, ) (Entered: 12/04/2008)
56 NOTICE to Opt Out of Class Action by Atrina Pugh. (JLC, ) (Entered: 12/30/2008)
57 NOTICE to Opt−Out by Susan L. Hurley. (JLC, ) (Entered: 01/08/2009)
58 NOTICE by Linda Smith re 55 Order, Terminate Motions Notice of Filing Claims Administrator Report pursuant to Preliminary Approval Order (Attachments: # 1 Attachment)(Lucas, Michael) (Entered: 02/10/2009)
59 Joint MOTION for Settlement [Final Approval of Class Action Settlement] by Linda Smith, United States Steel Corporation. (Lucas, Michael) (Entered: 02/13/2009)
60 Brief re 59 Joint MOTION for Settlement [Final Approval of Class Action Settlement] filed by Linda Smith, United States Steel Corporation. (Attachments: # 1 Exhibit 1 − Excerpts from the Deposition of Larry Anthony, # 2 Exhibit 2 − Excerpts from the Deposition of Charles Bennick, # 3 Exhibit 3 − APT Report)(Lucas, Michael) (Entered: 02/13/2009)
Minute Entry for proceedings held before Judge Virginia Emerson Hopkins: Fairness Hearing held on 2/20/2009. Written order to follow. (Court Reporter Chanetta Sinkfield.) (YMB) (Entered: 02/20/2009)
61 NOTICE by Linda Smith Notice of Filing Supplemental Claims Adminstrator Report (Attachments: # 1 Affidavit Supplemental Claims Adminstrator Report)(Lucas, Michael) (Entered: 02/25/2009)
62 MEMORANDUM OPINION APPROVING CLASS ACTION SETTLEMENT AND SUPPORTING FINAL ORDER AND JUDGMENT. Signed by Judge Virginia Emerson Hopkins on 3/2/2009. (Attachments: # 1 Exhibit A)(JLC, ) (Entered: 03/02/2009)
63 FINAL ORDER AND JUDGMENT DISMISSING CASE WITH PREJUDICE in accordance with the 62 Memorandum Opinion entered herewith. The 59 Joint MOTION for Settlement, Final Approval of Class Action Settlement is GRANTED. Signed by Judge Virginia Emerson Hopkins on 3/2/2009. (JLC, ) (Entered: 03/02/2009)