111 F.Supp.2d 1101 (2000)
Eurlene ROBINSON; Rashad L. Atkinson; Carla Droughn; David Fitzpatrick; Kirestin J. Harris; Janice L. Medley; Willie L. Toombs, Jr.; Kahlil Watkins; and Tamera L. Williams, on behalf of themselves and all
other persons similarly situated, Plaintiffs, v.
SEARS, ROEBUCK AND CO., Defendant.
No. 4:98CV00739 SWW.
United States District Court, E.D. Arkansas, Western Division.
July 3, 2000.
1102*1102 1103*1103 1104*1104 1105*1105 Daniel R. Carter, Holly E. Isaac, James & Carter, Little Rock, AR, for plaintiff.
John M. Dickman, Peggy A. Davis, Winston & Strawn, Chicago, IL, for defendant.
MEMORANDUM AND ORDER
SUSAN WEBBER WRIGHT, Chief Judge.
This is a case of alleged employment discrimination and is brought pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq., 42 U.S.C. § 1981, and the Arkansas Civil Rights Act of 1993 ("ACRA"), Ark.Code Ann. §§ 16-123-101 et seq. The nine named plaintiffs in this matter, eight of whom are African-American and one who is Asian-American, are current and former employees of the store operated by defendant, Sears, Roebuck and Company ("Sears"), at 600 South University in Little Rock, Arkansas ("University Store"). Plaintiffs allege disparate treatment and disparate impact based on race. The following motions are before the Court: (1) motion of Sears for summary judgment with respect to plaintiffs' individual claims of discrimination [doc. # 134]; and (2) motion of plaintiffs for class certification pursuant to Rule 23 of the Federal Rules of Civil Procedure [doc. # 115]. Having carefully considered the matter, the Court 1106*1106 denies Sears' motion for summary judgment and grants plaintiffs' motion for class certification as herein modified.
I. Background
The plaintiffs bringing this lawsuit are as follows: (1) Eurlene Robinson, an African-American female formerly employed at Sears' University Store; (2) Rashad L. Atkinson, an African-American Male currently employed at Sears' University Store; (3) Carla Droughn, an African-American female currently employed at Sears' University Store; (4) David Fitzpatrick, an Asian-American male formerly employed at Sears' University Store; (5) Kirestin J. Harris, an African-American female currently employed at Sears' University Store; (6) Janice L. Medley, an African-American female currently employed at Sears' University Store; (7) Willie L. Toombs, Jr., an African-American male formerly employed at Sears' University Store; (8) Kahlil Watkins, an African-American male formerly employed at Sears' University Store; and (9) Tamera L. Williams, an African-American female currently employed at Sears' University Store. See Pl.s' Mot. for Class Cert. (Ex. 2-10). All of the plaintiffs worked as hourly, non-commissioned sales associates in the Men's Department at Sears' University Store. Id.

This lawsuit stems from a decision by Sears to implement a store wide increase in starting pay in August 1998. Def.s' St. of Mat. Facts at ¶ 15; Pl.s' St. of Undisp. Facts at ¶ 12. In 1995, the designated starting hourly rate of pay for newly hired non-commissioned sales associates was $5.00 per hour. Def.s' St. of Mat. Facts at ¶ 15. In March 1996, the designated starting hourly rate was increased to 5.50 per hour. Id. Effective August 2, 1998, the designated starting hourly rate of pay was increased to $6.25 per hour. Id. According to Sears, newly hired noncommissioned sales associates are "generally" paid the designated starting hourly rate of pay. Id.
Plaintiffs state that prior to the effective date of the store wide increase, they learned that certain of their White counterparts were making a higher hourly rate. Compl. at ¶ 32. Upon discovering this apparent disparity in pay, each plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"), with plaintiffs Robinson, Atkinson, Droughn, Harris, Medley, Toombs, Watkins, and Williams essentially claiming in their respective EEOC charges that they are being paid less than their White counterparts because of their race, Black, see Compl. (Ex. 1-3, 5-9), while plaintiff Fitzpatrick likewise claimed in his EEOC charge that he is being paid less than White employees because of his race, Asian. Id. (Ex. 4).
Following receipt of their right to sue letters from the EEOC, plaintiffs filed this lawsuit on November 4, 1998, on behalf of themselves and all other persons similarly situated. Plaintiffs essentially claim that they and the putative class received less pay than their White counterparts at the Sears University Store because of Sears' subjective and discriminatory decision making process with respect to placement, transfer, and promotion. Compl. at ¶¶ 44, 49. Plaintiffs seek "a declaratory judgment as to plaintiffs' rights and for a permanent injunction, restraining defendant from maintaining a policy, practice, custom or usage of discriminating against plaintiffs and other persons based upon their race with respect to compensation, terms, promotions, privileges, and conditions of employment and in ways that deprive plaintiffs and other persons in the class of equal employment opportunities and otherwise adversely affect their status as employees because of race." Id. at ¶ 10. Plaintiffs also seek "restitution to plaintiffs and the class they represent of all rights, privileges, benefits, and income that would have been and should be received by them but for defendant's unlawful and discriminatory practices." Id.
Following extensive discovery and several delays occasioned by the discovery process, plaintiffs, on May 1, 2000, filed 1107*1107 their motion for class certification.[1] Plaintiffs seek to certify a class of 932 current and former minority employees of Sears' University Store who allegedly "have been discriminated against by Sears' employment practices in hiring/initial job assignment and placement, pay and promotion." Mot. for Class Cert. at ¶ 1; Pl.s' Br. in Supp. of Mot. for Class Cert. at 2. Plaintiffs state that certification is necessary to address the problem of racial discrimination which permeates each department of the Sears University Store. Pl.s' Br. in Supp. of Mot. for Class Cert. at 1. They state that Sears treats minorities differently in every aspect of employment which affects pay, and that each named plaintiff complained about the pay they received vis a vis their White counterparts. Id. Plaintiffs state that their pay, like that of the putative class, is affected by hiring, placement, and promotion decisions made by the core White management group at the University Store. Id.; Mot. for Class Cert. at ¶ 3. They state that minority employees' pay is adversely affected by management's decisions regarding placement, initial salary, advancement, and promotion, and that like the named plaintiffs, minority employees are assigned to low pay departments, disproportionately assigned to and kept in part-time jobs, and denied the opportunity to advance to full-time status, jobs with higher earning potential, such as the Big Ticket Departments and Brand Central, and denied management positions. Mot. for Class Cert. at ¶ 4; Pl.s' Br. in Supp. of Mot. for Class Cert. at 1. Plaintiffs state that minorities are not assigned to the predominantly White commissioned sales positions at Sears which pay more than the positions to which minorities are typically assigned, and that once minorities are in their initial low pay part-time jobs, they are as a class passed over for promotion to full-time positions in favor of non-minority persons. Pl.s' Br. in Supp. of Mot. for Class Cert. at 1. They state that minorities are denied or are not given transfers to higher paying departments, and that as a class, they are paid less than their White counterparts. Id. at 1-2.
Plaintiffs state that evidentiary support which meets the requirements of Fed. R.Civ.P. 23 is found in the June 13, 2000 statistical analysis of Martin Shapiro, Ph. D., a labor audit performed by the United States

Department of Labor ("DOL"), and twenty affidavits of current and former Sears employees. Id. at 2; Pl.s' Reply Br. Re. Class Cert. at 11-12. They state that a common theme runs throughout this evidence, that theme being that minorities are discriminated against with respect to their initial job assignments and placement, pay, and promotions. Pl.s' Br. in Supp. of Mot. for Class Cert. at 2. Plaintiffs state that the DOL found that minorities were under-utilized in higher pay departments and over-utilized in lower pay departments, and that Dr. Shapiro's analysis makes similar, more detailed findings, which show the reason for the discrepancy in pay, finding that minorities are discriminated against in all aspects of initial assignment and subsequent movement. Pl.s' Reply Br. Re. Class Cert. at 11-12.[2] In 1108*1108 this respect, plaintiffs assert that the report prepared by Sears' expert, Dr. Finis Welch, shows a statistically significant standard deviation of 6.69 and 6.24 respectively for differences in pay between non-White and White employees' pay for all sales associates, and a statistically significant disparity of 7.83 and 7.29 respectively for the time periods analyzed for all Sears' University Store employees. Id. at 12 (citing Def.'s Ex. 1).[3] They go on to state that the evidence submitted via the affidavits of current and former employees, who worked or are working at Sears in fourteen different departments, are real life experiences of the common practice of discrimination throughout the entire University Store. Br. in Supp. of Mot. for Class Cert. at 2.
Plaintiffs state that the putative class consisting of 932 current and former minority employees of which certification is sought is made up of persons who have been discriminated against by Sears' employment practices in hiring/initial job assignment and placement, pay, and promotion, and that these persons' claims against Sears are typical of those of the named plaintiffs. Id. Plaintiffs state that common questions of law and fact are present on issues for the named plaintiffs, as well as the putative class. Id. They state that for all these reasons, class certification is necessary and will allow the Court, if liability is proven, to remedy the racial injustice and discrimination found at the University Store. Id.
Sears denies that it discriminated against plaintiffs, stating that "due to a delay in obtaining approval for a new wage rate, many incumbent employees, White and Minority, including some Plaintiffs, were paid less than newly-hired non-commissioned sales associates, White and Minority, during the Summer of 1998." Def.'s Mem. of Law in Opp. to Pl.s' Mot. for Class Cert. at 2. Sears states that following approval of the new rate, it was implemented for all non-commissioned sales associates effective August 2, 1998. Id. Sears further asserts that plaintiffs have no standing under Article III of the Constitution to assert acrossthe-board claims for themselves or the putative class, and that plaintiffs' Title VII across-the-board claims are also beyond the scope of their charges filed with the EEOC. Id. Finally, Sears asserts that plaintiffs have failed to meet the requirements of Rule 23(a) and (b)(2). Id.
In addition to filing a response in opposition to plaintiffs' motion for class certification, Sears, on June 2, 2000, filed a motion for summary judgment with respect to plaintiffs' individual claims of discrimination. Sears asserts that in early 1998, the management at Sears' University Store determined that its starting pay rate of $5.50 per hour was not competitive with the rates being paid by area businesses against which it competes for employees and decided that its wage rate should be increased. Def.'s Mem. of Law in Supp. of Mot. for Summ.J. at 1. Sears states that 1109*1109 before adjusting the wages of its incumbent employees, however, it started paying newly hired sales associates a wage rate that exceed the wage rates of many incumbent employees. Id. Sears states that in retrospect, this was probably not a wise decision because many incumbent employees, including plaintiffs, learned that new employees were being paid more than they were and, seeing that the new hires in their department were White, concluded that the disparity in pay was race related. Id. at 1-2. Nevertheless, Sears states that a full presentation of the facts makes clear that race was not a factor as White and non-White employees were impacted equally by the University Store's decisions. Id. at 2. Sears goes on to state that while the University Store's compensation practices have not been perfect, they have not been racially discriminatory and the facts do not support a reasonable inference of race discrimination. Id.
Plaintiffs, however, state that they are alleging that because they are minorities, they were steered into lower paying jobs, actually paid less than White employees doing the same work, and not given opportunities to advance in a manner proportional to similarly situated White employees. Pl.s' Br. in Supp. of Resp. to Def.'s Mot. for Summ.J. at 1-2. Plaintiffs note that although they have alleged both disparate

treatment and impact under Title VII, § 1981, and ACRA, Sears' motion addresses only their claims for disparate treatment in hourly rates of pay received, and does not address discrimination in pay as it relates to benefits, placement, promotion, transfer, and segregation in the workplace, or the impact the placement of plaintiffs into part-time, lower paying, hourly jobs has on their pay. Id. at 2. As for their claims of disparate treatment in hourly rates of pay received, plaintiffs state that they have established a prima facie case of race discrimination with respect to pay, based on both statistical and non-statistical evidence, and that Sears has failed to state credible, logical, legitimate nondiscriminatory reasons for disparate treatment in hourly rates of pay received. Id. at 6-17. Plaintiffs go on to assert that there exist genuine issues of fact with respect to both plaintiff Harris' failure to promote claim and plaintiff Watkins' discrimination in pay claim. Id. at 17-20.
It is plaintiffs' motion for class certification and Sears' motion for summary judgment to which the Court now turns, beginning first with Sears' motion for summary judgment since resolution of that motion affects issues of class certification.
II. Discussion
1. Sears' Motion for Summary Judgment
Sears moves for summary judgment with respect to plaintiffs' individual claims of discrimination on the following grounds: (1) plaintiffs cannot establish a prima facie case of unequal pay based on race; (2) Sears has articulated nondiscriminatory reasons for the differences in pay; (3) plaintiff Harris' claim regarding her denial of a full-time position is without merit; and (4) plaintiff Watkins' claim regarding his failure to receive a pay increase likewise is without merit. Sears argues that there are no genuine issues of material fact with respect to any of these issues and that it is entitled to summary judgment on plaintiffs' individual claims of discrimination as a matter of law.
A. Standard of Review
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). As a prerequisite to summary judgment, a moving party must demonstrate "an absence of evidence to support the non-moving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has properly supported its motion for summary judgment, 1110*1110 the nonmoving party must "do more than simply show there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The nonmoving party may not rest on mere allegations or denials of his pleading, but must "come forward with `specific facts showing that there is a genuine issue for trial.'" Id. at 587, 106 S.Ct. 1348 (quoting Fed.R.Civ.P. 56(e) and adding emphasis). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. 1348 (citations omitted). However, "[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'" Id. (citation omitted).[4]
B. Discussion
This Court analyzes plaintiffs' circumstantial evidence of race discrimination with respect to their Title VII, § 1981, and ACRA claims under the McDonnell Douglas frame work. See Chock v. Northwest Airlines, Inc., 113 F.3d 861, 863 (8th Cir. 1997); Roark v. City of Hazen, Arkansas, 189 F.3d 758, 761 (8th

Cir.1999). See also Roxas v. Presentation College, 90 F.3d 310, 315 (8th Cir.1996) (Title VII analysis applicable to § 1981 claims); Henderson v. Simmons Foods, Inc., 217 F.3d 612, 615 n. 3 (8th Cir.2000) (noting that claims premised under ACRA "are analyzed in the same manner as Title VII claims"); Flentje v. First National Bank of Wynne, 340 Ark. 563, 11 S.W.3d 531, 536-38 (2000) (applying federal Title VII analysis and cases to ACRA claim).[5] In order to establish a prima facie case of race discrimination with respect to the matters raised in Sears' motion for summary judgment, plaintiffs must establish (1) they are members of a protected class; (2) they were qualified for equal pay or, in the case of plaintiff Harris, a fulltime position; and (3) their failure to receive equal pay or a full-time position was under circumstances giving rise to an inference of discrimination. Chock, 113 F.3d at 863. The burden then shifts to the employer to articulate some legitimate, nondiscriminatory reason for plaintiffs' failure to receive equal pay or a full-time position. Roark, 189 F.3d at 761. If the employer satisfies its burden of production, the employees must show that the proffered reason is pretextual. Id. At all times the ultimate burden of persuasion remains with the employees. Id. See also Reeves v. Sanderson Plumbing Products, Inc., ___ U.S. ___, 120 S.Ct. 2097, 2106, 147 L.Ed.2d 105 (2000) (citing Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)).
i. Prima facie case
Sears argues that plaintiffs cannot establish a prima facie case of race discrimination with respect to pay because White and non-White non-commissioned sales associates were treated identically. Sears further argues that many non-White non-commissioned sales associates, including 1111*1111 some of the plaintiffs, had higher rates of pay than many White non-commissioned sales associates. That being the case, argues Sears, no reasonable inference can be drawn that plaintiffs were paid less than their White counterparts because of race.
The Court finds that plaintiffs have established the first two elements of a prima facie case of race discrimination with respect to pay as they are members of a protected class (non-White employees) and Sears does not contest for purposes of this motion that plaintiffs performed work substantially equal to that of the White non-commissioned sales associates identified as having been compensated at higher rates. See Def.'s Mem. of Law in Supp. of its Mot. for Summ.J. at 7 n. 4.
The Court additionally finds that plaintiffs have alleged sufficient facts to show that the disparity in pay occurred under circumstances giving rise to an inference of discrimination on the basis of race, thus satisfying the third element of a prima facie case. Plaintiffs point to evidence showing that there is a statistically significant difference between the mean earnings of White employees and the mean earnings of minority employees for the workforce as a whole at the University Store, including for hourly employees and sales associates, see Pl.s' Ex. 1 (Dr. Shapiro's June 13, 2000 statistical analysis), and plaintiffs identify a number of White employees as having received rates higher than themselves. See Pl.s' St. of Undisp. Facts at ¶¶ 20-29.[6] For example, the highest paid plaintiff in May 1998, plaintiff Atkinson, was earning $6.18 per hour after having been employed at Sears for two years, when Sears hired another White employee at $6.75 per hour. See Def.'s St. of Mat. Facts at ¶¶ 56, 175. Indeed, between January 1, 1998, and July 15, 1998, Sears hired five employees into the Men's Department at the University Store, four of whom were White and one who was African-American. The one minority was paid at the existing start rate of $5.50 per hour, while the four White employees were paid in excess of the start rate — between $6.00 and $6.75 per hour. See Pl.s' St. of Undisp. Facts at ¶ 42 (citing Pl.s' Ex. 24 (Sear's HR Decision Reports at 4361)).
Sears may be correct that certain non-White non-commissioned sales associates, including some of the plaintiffs, had higher rates of pay than other White non-commissioned sales associates, but merely because certain members of a protected class had higher rates of pay than other non-protected employees does not demonstrate an absence of discrimination. Bell v. Bolger, 708 F.2d 1312, 1318 (8th Cir.1983). In any case, the threshold of proof necessary to establish a prima facie case of discrimination is minimal, see Allen v. Interior Constr. Services, Ltd, 214 F.3d 978, 983 (8th Cir.2000) (citation omitted), and this Court concludes that plaintiffs have presented sufficient evidence to meet this threshold.

ii. Nondiscriminatory Reason and Pretext
Sears argues that even if plaintiffs are able to establish a prima facie case of race discrimination with respect to pay, it has articulated nondiscriminatory reasons for its decisions. Specifically, Sears asserts that it determined that its starting rate of $5.50 per hour was not competitive with the employers against which it competes for employees and that it accordingly started paying newly hired non-commissioned sales associates in the Spring and Summer of 1998 more than that rate in anticipation of the start rate being increased. Sears argues that this practice affected White and non-White employees equally and resulted in many newly hired White and non-White associates receiving a higher rate than many incumbent associates.
1112*1112 To establish a fact issue on pretext, a plaintiff must present evidence that: (1) creates a factual dispute as to whether the employer's proffered reasons for the challenged employment action are pretextual; and (2) allows a reasonable jury to infer that the employer's action was motivated by a discriminatory animus. Allen, 214 F.3d 978, 983 (citations omitted). The Court finds that plaintiffs have presented such evidence.
Plaintiffs point out that Sears' use of subjective criteria, such as "experience," in establishing pay rates has apparently resulted in White employees being paid more for experience than was paid to thenexisting non-White employees. See Pl.s' Br. in Supp. of Resp. to Def.'s Mot. for Summ.J. at 13-16; Pl.s' Ex. 3 (Murphy Depo. at 24). The Court notes that subjective employment procedures are to be closely scrutinized in disparate treatment cases because of their susceptibility to discriminatory abuse and, coupled with statistical evidence of a pattern of a discrimination, may be evidence of pretext. Bell, 708 F.2d at 1319-20. In this respect, Sears has acknowledged that the employment decisions of department managers and human resources with respect to hiring, pay and promotions "contain elements of subjectivity," see Def.'s Mem. of Law in Opp. to Pl.s' Mot. for Class Cert. at 14, and Dr. Shapiro's June 13, 2000 statistical analysis found that disparity between White and minority employee pay is attributable to differential job assignments unrelated to knowledge, skill, ability or interests. See Pl.s' Ex. 1. Indeed, Sears' own expert, Dr. Welch, found a "statistically significant" disparity between the pay rates for nonWhite employees and White employees. See n. 3, supra (quoting Def.'s Ex. 1).
Moreover, the Court has previously noted that of the five employees hired into the Men's Department at the University Store between January 1, 1998, and July 15, 1998, the one minority was paid at the existing start rate of $5.50 per hour, while the four White employees were paid in excess of the start rate — between $6.00 and $6.75 per hour. See Pl.s' St. of Undisp. Facts at ¶ 42 (citing Pl.s' Ex. 24, Sear's HR Decision Reports at 4361). While this fact certainly does not prove race discrimination, it is " `the kind of fact which could cause a reasonable trier of fact to raise an eyebrow, and proceed to assess the employer's explanation for this outcome.' " Widoe v. District # 111 Otoe County School, 147 F.3d 726, 732 (8th Cir. 1998) (quoting Ryther v. KARE 11, 108 F.3d 832, 844 (8th Cir.) (en banc), cert. denied, 521 U.S. 1119, 117 S.Ct. 2510, 138 L.Ed.2d 1013 (1997)).
Upon consideration of the record in the light most favorable to plaintiffs, this Court finds that a genuine issue of fact exists as to whether Sears' proffered reasons are not the true reasons for Sears' apparent failure to pay plaintiffs at a rate equal to that of their White counterparts.
iii. Plaintiff Harris
Sears argues that plaintiff Harris' claim regarding her denial of a full-time position is without merit as the decision was made by the sales manager for the Men's Department, Oneida Phillips, who, like Harris, is African-American. In any case, argues Sears, Harris' request to be promoted to a full-time position in the Men's department was denied because she did not comply with the dress code, she was late often, she had limited flexibility in her schedule, and she had a tendency to stand around and talk with her

coworkers. The Court has carefully considered the matter and finds that there remain genuine issues of material fact with respect to the reasons Harris' request to be promoted to a full-time position was denied.
The mere fact that Phillips is the same race as Harris is not dispositive of Harris's discrimination claim. The Supreme Court has noted that "in the ... context of racial discrimination in the workplace we have rejected any conclusive presumption that an employer will not discriminate against members of his own 1113*1113 race. `Because of the many facets of human motivation, it would be unwise to presume as a matter of law that human beings of one definable group will not discriminate against other members of that group.'" Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 78, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998) (quoting Castaneda v. Partida, 430 U.S. 482, 499, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977)). Cf. Curley v. St. John's University, 19 F.Supp.2d 181, 193 (S.D.N.Y.1998) (noting that "skin tone variation among black workers ... clearly may be a basis for discrimination"). In any case, Harris claims, and certain evidence indicates, that Store Manager Mike Gibby, who is White, must approve of an employee moving from part-time to full-time. See Murphy Depo. at 53.
Nor has Sears demonstrated that it is entitled to summary judgment with respect to Harris's claim of discrimination because of any alleged deficiencies in her work habits. Harris claims that she was qualified for the job while Sears argues she was not. The Court agrees with plaintiffs that "[w]hether plaintiff Harris was not promoted .... because she is a poor employee or whether it was because she is Black is a question for the jury." See Pl.s' Br. in Supp. of Resp. to Def.'s Mot. for Summ.J. at 18. While Sears may succeed in convincing a jury that plaintiff Harris was in fact unqualified for a full-time position, the Court is unable to resolve this factual dispute on the record as it now stands.
iv. Plaintiff Watkins
Sears argues that plaintiff Watkins' claim regarding his failure to receive a pay increase is without merit as the decision was made by Phillips, who like Watkins is African-American. For the reasons previously stated, the mere fact that Phillips is the same race as Watkins is not dispositive of Watkin's discrimination claim, see Oncale, 523 U.S. at 78, 118 S.Ct. 998, and there is evidence in the record that the Store Manager, who is White, must approve of an employee moving from part-time to full-time. See Murphy Depo. at 53.
Sears also argues that it is entitled to summary judgment as Phillips mistakenly thought Watkins was requesting a $10 to 15 increase rather than the actual request of an increase of "$.10 - $.15" (which, Sears argues, also constitutes a nondiscriminatory reason), that Watkins was in any case compensated at a rate more than the raise he requested (thus, Sears argues, Watkins was not damaged by the denial of a pay increase), and that Watkins has not identified a similarly situated White employee who was treated more favorably by Phillips.
These assertions do not entitle Sears to summary judgment. Watkins worked at Sears from July 1997 to March 1998, and at the request of Phillips, he returned to work at Sears in July 1998 at the rate of $6.25 per hour. Pl.s' Ex. 4 (Watkins' Depo. at 18-19). The record shows, however, that a White counterpart was hired in May 1998 at the rate of $6.75 per hour for his less than one year experience. See Pl.s' Br. in Supp. of Resp. to Def.'s Mot. for Summ.J. at 20; Def.'s St. of Mat. Facts at ¶ 175. The fact that Watkins may have been compensated at a rate more than the "$.10 - $.15" rate he initially requested does not answer the question of whether his compensation in any case was less than the pay rates of other White employees performing substantially the same work as he because of race. Further plaintiffs dispute any mistake that Phillips may have made regarding Watkins' request for a pay increase. Considering the entire evidence of record, this Court finds that Watkins' claim regarding his failure to receive a pay increase is for the jury.
* * * * * *

For the foregoing reasons, the Court finds that Sears' motion for summary judgment with respect to plaintiffs' individual claims of discrimination should be and hereby is denied. The Court now turns to plaintiffs' motion for class certification.
1114*1114 2. Plaintiffs' Motion for Class Certification
In order to obtain class certification, plaintiffs have the burden of showing that the class should be certified and that the requirements of Fed.R.Civ.P. 23 are met. Bishop v. Committee on Professional Ethics & Conduct of the Iowa State Bar Ass'n, 686 F.2d 1278, 1288 (8th Cir.1982). Rule 23(a) permits class certification where
(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
Fed.R.Civ.P. 23(a). A district court must "evaluate carefully the legitimacy of the named plaintiff's plea that he is a proper class representative under Rule 23(a)." General Tel. Co. v. Falcon, 457 U.S. 147, 160, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). See also In re Milk Products Antitrust Litigation, 195 F.3d 430, 436 (8th Cir. 1999), cert. denied, ___ U.S. ___, 120 S.Ct. 1534, 146 L.Ed.2d 348 (2000). In this regard, "a Title VII class action, like any other class action, may only be certified if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied." Falcon, 457 U.S. at 161, 102 S.Ct. 2364. However, "nothing in either the language or history of Rule 23 ... gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action." Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974). "In determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met." Id. at 178, 94 S.Ct. 2140 (citation omitted). "A district court has broad discretion in determining whether to certify a class, and its determination will not be overturned absent a showing that it abused its discretion." In re Milk Products Antitrust Litigation, 195 F.3d at 436 (quoting Gilbert v. City of Little Rock, 722 F.2d 1390, 1399 (8th Cir.1983), cert. denied, 466 U.S. 972, 104 S.Ct. 2347, 80 L.Ed.2d 820 (1984)).
In addition to satisfying Rule 23(a)'s prerequisites, parties seeking class certification must show that the action is maintainable under Rule 23(b)(1), (2), or (3). Amchem Products, Inc. v. Windsor, 521 U.S. 591, 614, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). The plaintiffs in this case seek certification under Rule 23(b)(2), which permits class actions for declaratory or injunctive relief where "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole." Fed.R.Civ.P. 23(b)(2). Thus, certification pursuant to Rule 23(b)(2) "is appropriate when plaintiffs seek injunctive relief from acts of an employer `on (the) grounds generally applicable to the class.'" Paxton v. Union Nat'l Bank, 688 F.2d 552, 563 (8th Cir.1982), cert. denied, 460 U.S. 1083, 103 S.Ct. 1772, 76 L.Ed.2d 345 (1983) (quoting United States Fidelity & Guar. Co. v. Lord, 585 F.2d 860, 875 (8th Cir.1978), cert. denied, 440 U.S. 913, 99 S.Ct. 1228, 59 L.Ed.2d 462 (1979)). See also DeBoer v. Mellon Mortg. Co., 64 F.3d 1171, 1174 (8th Cir.1995), cert. denied sub nom., Michael Thomas Crehan v. Gretchen DeBoer, 517 U.S. 1156, 116 S.Ct. 1544, 134 L.Ed.2d 648 (1996). Racial discrimination is such a ground and cases seeking injunctive relief against class-wide race discrimination are appropriately brought under Rule 23(b)(2). Paxton, 688 F.2d at 563.
A. Article III Standing
The Court first addresses Sears' argument that plaintiffs failed to establish they have Article III standing to assert across-the-board discrimination claims. Sears argues 1115*1115 that plaintiffs have failed to

demonstrate that they have suffered the same injury as the putative class, and that they therefore do not satisfy constitutional standing requirements to assert those claims.
Certainly, the Court would agree that a named plaintiff complaining of a particular employment practice cannot assert claims on behalf of the putative class concerning other employment practices as to which he or she has not been personally injured. See, e.g., Roby v. St. Louis Southwestern Railway Co., 775 F.2d 959 (8th Cir.1985) (class representatives must possess same interest and suffer same injury as their fellow class members; black railroad employees not affected by railroad's promotion policies were not proper class representatives for employees affected by those policies). Here, however, plaintiffs allege in their lawsuit that Sears maintains "a policy, practice, custom or usage of discriminating against plaintiffs and other persons based upon their race with respect to compensation, terms, promotions, privileges, and conditions of employment and in ways that deprive plaintiffs and other persons in the class of equal employment opportunities and otherwise adversely affect their status as employees because of race." Compl. at ¶ 10. See also Compl. at ¶ 44 (noting that common questions of law and fact include whether Sears denies promotions and pay raises to non-White employees while allowing the same promotions and pay raises to White employees). Plaintiffs have submitted affidavits detailing discriminatory acts clearly within the purview of these allegations. See Pl.s' Mot. for Class Cert. (Ex. 2-10).
Nevertheless, Sears points out that plaintiffs testified at their respective depositions that being paid less than their newly-hired White counterparts was the only discrimination to which he or she suffered. Citing Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1364-65 (8th Cir.1983), and RSBI Aerospace, Inc. v. Affiliated FM Ins. Co., 49 F.3d 399, 402-03 (8th Cir.1995), Sears argues that the affidavits submitted by plaintiffs are thus contrary to and inconsistent with their deposition testimony and sworn EEOC charge and, as such, are "shams" that must be disregarded by the Court. See Def.'s Mem. of Law in Opp. to Pl.s' Mot. for Class Cert. at 6-7. The Court disagrees.
It is true that the Eighth Circuit has held a party cannot create a genuine issue of material fact in opposing a motion for summary judgment by submitting an affidavit contradictory to their deposition testimony, absent confusion on the part of the witness and an explanation of why the earlier testimony is in conflict with the affidavit. See RSBI, 49 F.3d at 402 (citing Camfield, 719 F.2d 1361). Plaintiffs point out, however, that they were not questioned at their depositions regarding the issues of placement, transfer and promotion despite these matters being made in the complaint. Pl.s' Reply Br. Regarding Class Cert. at 3. Moreover, plaintiffs are claiming in this lawsuit that they and the putative class received less pay than their White counterparts at the University Store because of Sears' subjective decision making process with respect to placement, transfer, and promotion, see id. at 1, and plaintiffs argue, and this Court agrees, that one's pay may be affected by decisions regarding placement, transfer and promotion. Id. at 2-3. In short, the Court finds that plaintiffs' deposition testimony is consistent with their affidavits alleging such discrimination, and, accordingly, determines that plaintiffs have Article III standing to represent the putative class.
B. Scope of EEOC Charges
Sears also argues that plaintiffs' Title VII claims are beyond the scope of the substantive and temporal scope of their EEOC charges. It argues that plaintiffs' EEOC charges only allege that Sears paid newly hired White non-commissioned sales associates at the University Store more 1116*1116 than they were earning, thus precluding consideration by this Court of any claims relating to hiring, initial assignment, promotion, and transfer, and that plaintiffs' EEOC charges only provide a basis for Title VII claims based on alleged conduct occurring after January 16, 1998 (180 days prior to the filing of the earliest charge). The Court will address these claims in turn.
i. Substantive Scope

A Title VII plaintiff must file a charge of discrimination with the EEOC before bringing a civil suit, but the scope of the subsequent action is not necessarily limited to the specific allegations in the charge. Nichols v. American National Ins. Co., 154 F.3d 875, 886 (8th Cir.1998). Rather, in determining whether an alleged discriminatory act falls within the scope of a Title VII claim, "the administrative complaint must be construed liberally" in order not to frustrate the remedial purposes of Title VII, and the plaintiff may seek relief "for any discrimination that grows out of or is like or reasonably related to the substance of the allegations in the administrative charge." Id. at 886-87 (citations omitted). See also Williams v. Little Rock Municipal Water Works, 21 F.3d 218, 222 (8th Cir.1994); E.E.O.C. v. Delight Wholesale Co., 973 F.2d 664, 668 (8th Cir.1992). "Accordingly, the sweep of any subsequent judicial complaint may be as broad as the scope of the EEOC `investigation which could reasonably be expected to grow out of the charge of discrimination.' " Kells v. Sinclair Buick — GMC Truck, Inc., 210 F.3d 827, 836 (8th Cir. 2000) (quoting Cobb v. Stringer, 850 F.2d 356, 359 (8th Cir.1988)).
It is true that plaintiffs Robinson, Atkinson, Droughn, Harris, Medley, Toombs, Watkins, and Williams essentially claim in their respective EEOC charges only that they are being paid less than their White counterparts because of their race, Black, see Compl. (Ex. 1-3, 5-9), while plaintiff Fitzpatrick likewise claims in his EEOC charge only that he is being paid less than White employees because of his race, Asian. Id. (Ex. 4). As previously noted, however, the gist of plaintiffs' law-suit is that Sears maintains a policy, practice, custom or usage of discriminating against plaintiffs and other persons based upon their race with respect to compensation, terms, promotions, privileges, and conditions of employment, i.e., that they and the putative class received less pay than their White counterparts at the University Store because of Sears' subjective decision making process with respect to placement, transfer, and promotion. See Compl. at ¶ 10; Pl.s' Reply Br. Regarding Class Cert. at 1. Had the EEOC investigated plaintiffs' claims of discrimination in pay as set forth in plaintiffs' EEOC charges, the investigation would have sought evidence of the actions and motivations of Sears relating not only to plaintiffs' pay, but to other circumstances that would tend to demonstrate Sears' motives or attitudes. See Tart v. Hill Behan Lumber Co., 31 F.3d 668, 673 (8th Cir.1994). Such an investigation would reasonably be expected to uncover evidence relating to Sears' allegedly discriminatory employment practices in job assignment or placement, pay and promotion. Compl. at ¶ 10. These allegations are not a separate theory of discrimination, at least in the context of this lawsuit, and they do not involve a distinct discriminatory action that is different in nature or distanced in time from their pay claims. The Court thus rejects Sears' argument that plaintiffs' Title VII claims are beyond the substantive scope of their EEOC charges.
ii. Temporal Scope
Although plaintiffs' Title VII claims are not beyond the substantive scope of their EEOC charges, such claims must be limited to a certain time period. Specifically, Title VII requires that claimants exhaust their administrative remedies by filing a charge of discrimination within 180 days after the "alleged unlawful employment action occurred." 42 U.S.C. 1117*1117 § 2000e-5(e)(1).[7] Job assignments, transfers, and non-promotions constitute completed acts at the time they occur and do not constitute continuing violations, even if some of the effects do not occur until later and are long-lasting. See Gipson v. KAS Snacktime Co., 83 F.3d 225, 229 (8th Cir. 1996); Ashley v. Boyle's Famous Corned Beef Co., 66 F.3d 164, 167 (8th Cir.1995) (en banc). Thus, the time for filing an EEOC charge runs from the date of any such discriminatory act, see Gipson, 83 F.3d at 229, and all such discriminatory acts that occurred more than 180 days before the filing of said charge are time-barred under Title VII.
Unlike job assignments, transfers, and non-promotions, discrimination in rates of pay is an ongoing practice that constitutes a continuing violation. See Ashley, 66 F.3d at 167-68. Nevertheless, relief in such cases "back to the beginning of the limitations period strikes a reasonable balance between permitting redress of an ongoing wrong and imposing liability for conduct long past." See id. at 168. Thus, as with their other claims, plaintiffs will be limited to relief under Title VII, if any, for discriminatory rates of pay going back no more than 180 days from the filing of the EEOC charge.

There remains the question of determining the EEOC charge filing date upon which the 180 day period will be based. Courts have regularly held that the timely filing of an administrative charge by a named plaintiff in a class action satisfies the charge obligation of all members of the class. Beckmann v. CBS, Inc., 192 F.R.D. 608, 616 (D.Minn.2000) (citing Tolliver v. Xerox Corp., 918 F.2d 1052, 1056 (2nd Cir.1990), cert. denied, 499 U.S. 983, 111 S.Ct. 1641, 113 L.Ed.2d 736 (1991)). This is known as the "piggybacking" rule, and it will be applicable if two essential requirements are met: (1) the charge being relied upon must be timely and not otherwise defective; and (2) the individual claims of the filing and nonfiling plaintiffs must have arisen out of similar discriminatory treatment in the same time frame. Id. (citing Calloway v. Partners Nat'l Health Plans, 986 F.2d 446, 449 (11th Cir.1993)). These requirements have been satisfied in this case, and the 180 day period will therefore be determined on the basis of the earliest charge filed, which was by plaintiffs Robinson and Droughn on July 15, 1998. See Compl. (Ex. 1, 3). Thus, the time period for plaintiffs' Title VII class claims must begin no earlier than 180 days prior to July 15, 1998, or January 16, 1998.[8]
C. Statute of Limitations Issues
An additional matter concerns the time period for plaintiffs' § 1981 and ACRA claims. The statute of limitations for a § 1981 action in Arkansas is three years, see Martin v. Georgia-Pacific Corp., 568 F.2d 58, 62-63 (8th Cir.1977), while the statute of limitations for a claim under ACRA is one year after the alleged employment 1118*1118 discrimination occurred, or within ninety days of receipt of any right to sue letter from the EEOC, whichever is later. See Ark.Code Ann. § 16-123-107(c)(3). Under these standards, plaintiffs are entitled to relief under § 1981, if any, for alleged discrimination occurring no earlier than November 4, 1995 (three years prior to the filing of this lawsuit), and are entitled to relief under ACRA, if any, for alleged discrimination occurring no earlier than November 4, 1997 (one year prior to the filing of this lawsuit).
D. Time Period for Class
Finally, the Court addresses the time period for the class. To this point, the Court has determined that the time period for plaintiffs' Title VII class claims must begin no earlier than January 16, 1998, that the time period for their § 1981 class claims must begin no earlier than November 4, 1995, and that the time period for their ACRA class claims must begin no earlier than November 4, 1997. As previously noted, however, the Court determines that plaintiffs' Title VII claims, § 1981 claims, and ACRA claims will be considered together and under the same standards. See Roxas, 90 F.3d at 315; Henderson, 217 F.3d 612, 615 n. 3; Flentje, 340 Ark. 563, 11 S.W.3d at 536-38; Kim, 123 F.3d at 1063. The question thus becomes which statute of limitations will control for purposes of defining the time period for the class.
With respect to plaintiffs' disparate treatment claims, this Court will utilize the longest statute of limitations applicable — that of § 1981 — in establishing the time period for the class. Thus, insofar as plaintiffs' disparate treatment claims are concerned, the class certified in this action will be limited to individuals who suffered discrimination that is within the parameters of the class on or after November 4, 1995.
With respect to plaintiffs' disparate impact claims, however, § 1981's statute of limitations does not appear to be applicable as the Supreme Court has concluded that § 1981 can be violated only by purposeful discrimination. General Bldg. Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 389-90, 102 S.Ct. 3141, 73 L.Ed.2d 835 (1982). Thus, a showing of disparate impact through a neutral practice is insufficient to prove a § 1981 violation because proof of discriminatory intent is essential. See, e.g., Ferrill v. The Parker Group, Inc., 168 F.3d 468, 472 (11th Cir.1999). That being so, this Court will utilize the next longest statute of limitations applicable — that of ACRA — in establishing the time period for the class.[9] Accordingly, with respect to claims of disparate impact, the class certified in this action will be limited to individuals who suffered discrimination that is within the parameters of the class on or after November 4, 1997.[10]

* * * * * *
1119*1119 In sum, the Court determines that plaintiffs' have Article III standing to represent the putative class, that their Title VII claims are not beyond the substantive scope of their EEOC charges, that with respect to claims of disparate treatment, the class certified in this action will be limited to individuals who suffered discrimination that is within the parameters of the class on or after November 4, 1995, and that with respect to claims of disparate impact, the class certified in this action will at this time be limited to individuals who suffered discrimination that is within the parameters of the class on or after November 4, 1997. That established, the Court now proceeds to a determination of the appropriateness of a class action for resolution of plaintiffs' claims.
E. Rule 23(a)
As previously noted, plaintiffs seek to certify a class of 932 current and former minority employees of Sears' University Store who allegedly "have been discriminated against by Sears' employment practices in hiring/initial job assignment and placement, pay and promotion." Mot. for Class Cert. at ¶ 1; Pl.s' Br. in Supp. of Mot. for Class Cert. at 2. Having carefully considered the matter, this Court finds that plaintiffs have met the requirements of Rule 23(a) as to the following individuals:
Current and former non-White hourly employees of Sears' University Store who allege acts of discrimination as follows:
1. That they were paid less than their White counterparts for the same work when the White employees had equal or lesser qualifications for the work;
2. That they were assigned to or placed in part-time positions even though they requested full-time positions, while White employees with equal or lesser qualifications were assigned to or placed in full-time positions;
3. That they were assigned to or placed in lower paying positions or departments while Whites with equal or lesser qualifications were placed in higher paying positions or departments;
4. That they were evaluated by Sears, the evaluations were conducted in an arbitrary and subjective manner, the evaluations were used to deny promotions and/or assignment to or placement in higher paying positions (whether in other departments or not) including, but not limited to, commissioned positions and, for part-time employees, full-time positions, and White employees with equal or lesser qualifications were promoted instead of non-White employees and/or assigned to or placed in those higher paying positions instead of non-White employees; and
5. That they either were not informed of job openings for positions that paid more than their current positions or otherwise were not promoted to such positions and, therefore, did not apply for or were not promoted to these open positions, and these positions were filled by White employees with equal or lesser qualifications. These higher paying positions to which non-White employees either did not apply or were not promoted include, but are not limited to, positions in other departments, commissioned positions and, for part-time employees, full-time positions.
In essence, then, the class will be limited to current and former non-White hourly employees of Sears' University Store who allegedly have been discriminated against by Sears' employment practices in job assignment or placement, pay and promotion in the manner set forth above. For disparate treatment claims, the class will be limited to individuals who allegedly suffered 1120*1120 such discrimination on or after November 4, 1995. For disparate impact claims, the class will be limited to individuals who allegedly suffered such discrimination on or after November 4, 1997. With this class in mind, the Court now turns to the requirements of Rule 23(a).
1. Numerosity

Plaintiffs must demonstrate that the class is so numerous that joinder of all members is impracticable. A number of factors are relevant to this inquiry, the most obvious of which is the number of persons in the proposed class. Paxton, 688 F.2d at 559. No arbitrary rules regarding the necessary size of classes have been established. Id. (citing Boyd v. Ozark Air Lines, Inc., 568 F.2d 50, 54 (8th Cir.1977)). In addition to the size of the class, the court may also consider the nature of the action, the size of the individual claims, the inconvenience of trying individual suits, and any other factor relevant to the practicability of joining all the putative class members. Id. (citing 7A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1762). See also Parkhill v. Minn. Mutual Life Ins. Co., 188 F.R.D. 332, 337 (D.Minn.1999) (noting that what constitutes impracticability depends upon the facts of each case).
The Court determines that the current and former non-White hourly employees of Sears' University Store who allegedly have been discriminated against by Sears' employment practices within the relevant time period in job assignment or placement, pay and promotion in the manner set forth above makes joinder of all such individuals impracticable. The Eighth Circuit has approved a class of as low as 20 members, see Arkansas Educ. Ass'n v. Bd. of Educ., Portland Ark. Sch. Dist., 446 F.2d 763 (8th Cir.1971), and "the plaintiff whose class is [larger than forty] should meet the test of Rule 23(a)(1) on that fact alone." 3 H. Newberg and A. Conte, Newberg on Class Actions § 3.05 at 3-25 (3d ed.1992). Cf. Paxton, 688 F.2d 552 (discharge of 53 African-Americans met numerosity requirement). In this regard, Sears appears to concede that the total number of putative class members would at least approach 99. See Def.'s Mem. of Law in Opp. to Pl.s' Mot. for Class Cert. at 33 (citing Pl.s' Ex. 48 at 3206 [1997 Utilization Analysis]). This Court agrees and, considering the nature of this case and the affidavits already of record, finds that the numerosity requirement has been satisfied.
2. Commonality
Plaintiffs also must demonstrate that there are questions of law or fact common to the class. Commonality under Rule 23(a)(2) does not require that every question of law or fact be common to every member of the class, see Paxton, 688 F.2d at 561 (citing Mosley v. General Motors Corp., 497 F.2d 1330, 1334 (8th Cir.1974); Like v. Carter, 448 F.2d 798, 802 (8th Cir.1971), cert. denied, 405 U.S. 1045, 92 S.Ct. 1309, 31 L.Ed.2d 588 (1972)), and may be satisfied, for example, "where the question of law linking the class members is substantially related to the resolution of the litigation even though the individuals are not identically situated." See id. (quoting American Finance Sys., Inc. v. Harlow, 65 F.R.D. 94, 107 (D.Md.1974)). See also DeBoer, 64 F.3d at 1174. Thus, factual differences are not fatal to maintenance of the class action if common questions of law exist. Parkhill, 188 F.R.D. at 338. Indeed, "there need be only a single issue common to all members of the class ... [t]herefore, this requirement is easily met in most cases." 3 Newberg and Conte, Newberg on Class Actions § 3.10 at 3-50. Nevertheless, with the Supreme Court's decision in General Tel. Co. v. Falcon, 457 U.S. 147, 102 S.Ct. 2364, 72 L.Ed.2d 740, allegations alone of a pattern and practice of discrimination are inadequate to satisfy the commonality requirement.[11] 1121*1121 See 5 Newberg and Conte, Newberg on Class Actions § 24.21 at 24-89, 2490. Rather, what is necessary is a specific showing of underlying facts which might raise an inference of a common question of pattern and practice through allegations of specific incidents of discrimination, supporting affidavits, or evidence at a certification hearing. Id. at 24-90. See also Zachery v. Texaco Exploration and Production, Inc., 185 F.R.D. 230, 238 (W.D.Tex.1999) (noting that if broad discrimination is the only common denominator in the class, the commonality requirement will not be satisfied; rather, the class representative alleging class-wide racial discrimination must specifically enumerate the questions of law or fact common to the class). In this respect, "[a] pattern or practice is present when the discriminatory acts were not isolated, insignificant, or sporadic, but were repeated, routine, or of a generalized nature; in other words, discrimination must have been `the company's standard operating procedure — the regular rather than the unusual practice.'" Catlett v. Missouri Highway and Transportation Comm'n, 828 F.2d 1260, 1265 (8th Cir.1987) (quoting International Brotherhood of Teamsters v. United States, 431 U.S. 324, 336 & n. 16, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977)).
The affidavits submitted in support of plaintiffs' motion for class certification present specific underlying facts which might raise an inference of a common question of pattern and practice. For example, plaintiff

Robinson claims that she was placed in the Men's Department despite requesting placement in the Children's Department, and that she was hired at a rate of $5.50 an hour, while four White employees hired into the Men's Department after her were hired at a pay rate of $6.00 and $6.50. Robinson Aff. at ¶¶ 3-5. Plaintiff Droughn likewise claims that she was placed in the Men's Department at a starting rate of $5.50, and that Black employees were training the new White employees who were hired in at a higher rate of pay and worked alongside the Black employees. Droughn Aff. at ¶¶ 3, 7. Plaintiff Harris, in turn, claims that she has requested a full-time position but to date has not been promoted to such a position, even though new White employees have received full-time positions and greater pay subsequent to her requests for full-time employment. Harris Aff. at ¶¶ at 6-8. She claims that those White employees were no better qualified and less qualified in some cases, and that those full-time positions were not posted or otherwise disclosed to her. Id. at ¶ 8. Plaintiff Harris goes on to claim that White associates are given better evaluations than minority associates, and that Sears' promotional requirements are arbitrary and applied on a subjective basis, as is the evaluative process. Id. at ¶ 16. The affidavits of the other named plaintiffs make similar allegations.
There are also in the record numerous affidavits of other current and former non-White employees of Sears' University Store detailing allegations of discrimination similar to those of the named plaintiffs. For example, Malcolm Aadil, an African-American male currently working in the Shipping & Receiving Department at Sears' University Store, claims that he requested a full-time position, but that two White employees hired after him were made full-time without those positions being posted. Aadil Aff. at ¶¶ 3-5. Amir Bey'ah, another African-American male currently working in the Shipping & Receiving Department of Sears' University Store, claims that Sears has hired White employees within the department at a higher rate of pay even though they did not have any more experience than he, and 1122*1122 that he requested full-time employment but that another White employee was hired and given a full-time position within the department without the position being posted. Bey'ah Aff. at ¶¶ 4-6. Similarly, Michael Tate, an African-American employee of Sears' University Store, claims he was assigned to the Replenishment Department over Footwear in 1993 and still works there today, even though he has asked for a promotion or transfer many times. Tate Aff. at ¶¶ 1-3. Tate claims that White employees in his department make more money than he does, that openings in other departments were filled without being posted, that White employees have been hired and given full-time hours despite his request for such hours, that a White manager blocked his request to be moved to the Bed & Bath Department, and that he was passed over for a supervisory position that was given to a White associate. Id. at ¶¶ 4-10. Affidavits of other current and former non-White employees of Sears' University Store make similar allegations.
In further support of plaintiffs' claim that they and the putative class received less pay than their White counterparts at the University Store because of Sears' subjective decision making process with respect to placement, transfer, and promotion, plaintiffs have submitted testimonial evidence suggesting that managers at Sears' University Store do in fact base employment decisions at least in part on subjective guidelines. For example, Brand Central Sales Manager, Scott Stacks, testified at his deposition that he has the discretion to determine qualifications for hire. Stacks' Depo. at 17. In this respect, Stacks hired the White wife of the number one producer at the McCain Mall Sears Store without knowing her previous sales experience because, among other things, of her "attitude." Id. at 31. Similarly, Allen Davis, Sales Manager for Home Improvement, acknowledged subjective decision making by testifying at his deposition that if an individual is aggressive and can learn the product, they will be hired. Davis Depo. at 23. Indeed, as previously noted, Sears itself acknowledges that the employment decisions of department managers and human resources with respect to hiring, pay and promotions "contain elements of subjectivity," although it argues that such decisions are based on objective criteria as well. Def.'s Mem. of Law in Opp. to Pl.s' Mot. for Class Cert. at 14. In any case, such evidence, when considered with the affidavits and statistical evidence of record,[12] is sufficient to raise an inference of a common question of pattern and practice and leaves no doubt that there are questions of law or fact common to the class. See, e.g., Catlett, 828 F.2d at 1265 (noting that either statistical evidence showing disparity and/or anecdotal evidence recounting instances of discrimination against specific class members may be sufficient to establish a pattern or practice of discrimination).

In short, "[t]he presence of a discriminatory rule or practice, as well as a general policy of discrimination, have been held common issues in actions charging discrimination on the basis of race or sex," see 3 Newberg and Conte, Newberg on Class Actions § 3.10 at 3-52, 3-53, and plaintiffs in this case have produced evidence in support of their claim that they and the putative class received less pay than their White counterparts at the University Store 1123*1123 because of Sears' subjective decision making process with respect to placement, transfer, and promotion. Plaintiffs seek declaratory and injunctive relief for these alleged discriminatory acts, and such a declaratory and injunctive nexus is sufficient to establish the requisite commonality. DeBoer, 64 F.3d at 1174. Cf. Paxton, 688 F.2d at 561 (noting that although bank's allegedly discriminatory promotion procedures would affect individual employees in different ways because of their diverse qualifications and ambitions, such factual variations are not sufficient to deny class treatment to the claims that have a common thread of discrimination); Cox v. American Cast Iron Pipe Co., 784 F.2d 1546, 1558 (11th Cir.), cert. denied, 479 U.S. 883, 107 S.Ct. 274, 93 L.Ed.2d 250 (1986) (noting that among plaintiffs, allegations of similar discriminatory employment practices, such as the use of entirely subjective personnel processes that operated to discriminate, would satisfy the commonality and typicality requirements of Rule 23(a), and that individual acts of discrimination could very likely be manifestations of a policy of discrimination).
3. Typicality
Plaintiffs also must demonstrate that the claims or defenses of the representative parties are typical of the claims or defenses of the class. Typicality under Rule 23(a)(3) means that there are "other members of the class who have the same or similar grievances as the plaintiff." Alpern v. UtiliCorp United, Inc., 84 F.3d 1525, 1540 (8th Cir.1996) (quoting Donaldson v. Pillsbury Co., 554 F.2d 825, 830 (8th Cir.), cert. denied, 434 U.S. 856, 98 S.Ct. 177, 54 L.Ed.2d 128 (1977)). "[T]he representative plaintiff must demonstrate that his or her factual circumstances or underlying legal theories are reasonably aligned or coextensive with the interests of the class members." 5 Newberg and Conte, Newberg on Class Actions § 24.27 at 24-110. The burden is "fairly easily met so long as other class members have claims similar to the named plaintiff." Alpern, 84 F.3d at 1540 (quoting DeBoer, 64 F.3d at 1174). "Factual variations in the individual claims will not normally preclude class certification if the claim arises from the same event or course of conduct as the class claims, and gives rise to the same legal or remedial theory." Id. (citing Donaldson, 554 F.2d at 831). See also 5 Newberg and Conte, Newberg on Class Actions § 24.29 at 24-119, 24-124 (noting that the employment status of the plaintiff need not be identical to that of the class members or other plaintiffs, particularly when the representative plaintiff employees are subject to practices arising from the same course of conduct as the class members, such as the uniform administration of allegedly discriminatory policies).
The Court finds that the claims or defenses of the representative parties are typical of the claims or defenses of the class. As previously noted, there are in the record numerous affidavits of current and former non-White employees of Sears' University Store detailing allegations of discrimination similar to those of the named plaintiffs. The consistent theme in both sets of affidavits is that minority employees received less pay than their White counterparts at the University Store because of Sears' subjective decision making process with respect to placement, transfer, and promotion. Compare, for example, plaintiff Harris's affidavit (noting that new White employees received full-time positions and greater pay subsequent to her requests for full-time employment, that such employees were no better qualified and less qualified in some cases, and did not have an equal or greater amount of experience as a retail sales associate in the Men's Department as she did, and that those job openings were not posted, nor was she told about the job openings) with non-plaintiff Bey'Ah's affidavit (noting that Sears has paid him less money than White employees with less experience who do the same job and has kept him from becoming a full-time employee) and non-plaintiff Tate's affidavit (noting that there are 1124*1124 White employees in his department that make more money than he does but that he has not been given the opportunity to better his pay or position with Sears, that openings in other departments were filled but were never posted and he was never informed of the openings, that White employees have been hired and given fulltime hours despite his request for such hours, that a White manager blocked his request to be moved to the Bed & Bath Department, and that he was passed over for a supervisory position that was given to a

White associate). In short, typicality has been established as the alleged discriminatory acts upon which this lawsuit is based and the legal theories applicable to those discriminatory acts are essentially the same as between the named plaintiffs and the class delineated above.
4. Adequacy
Finally, it must be shown that the representative parties will fairly and adequately protect the interests of the class. The adequacy inquiry under Rule 23(a)(4) serves to uncover conflicts of interest between named parties and the class they seek to represent. Amchem Products, 521 U.S. at 625, 117 S.Ct. 2231 (citing Falcon, 457 U.S. at 157-158, 102 S.Ct. 2364). "[A] class representative must be part of the class and `possess the same interest and suffer the same injury' as the class members." Id. (quoting East Tex. Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 403, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977)). The adequacy inquiry also factors in competency and conflicts of class counsel. Id. at 626 n. 20, 117 S.Ct. 2231 (citing Falcon, 457 U.S. at 157-58 n. 13, 102 S.Ct. 2364). See also Paxton, 688 F.2d at 562-63 (noting that the focus of Rule 23(a)(4) is whether the class representatives have common interests with the members of the class, and whether the class representatives will vigorously prosecute the interests of the class through qualified counsel); 5 Newberg and Conte, Newberg on Class Actions § 24.30 at 24-126 (noting that vigorous prosecution and the absence of antagonistic interests are generally the central tests in a Rule 23(a)(4) analysis).
Sears does not seriously dispute the competency or qualifications of plaintiffs' counsel, and it does not argue that counsel has any conflicts of interest. In any case, this Court has considered the conduct of plaintiffs' counsel throughout the course of this litigation and finds that counsel are both competent and qualified to prosecute this class action, and that counsel have vigorously pursued the object of plaintiffs' lawsuit. In addition, no conflicts of interest on the part of counsel appear in the record.
Sears does argue, however, that plaintiffs are inadequate representative of the putative class. Specifically, Sears argues that plaintiffs are not members of and cannot represent a class of all minority employees, and that because plaintiffs are or were all hourly employees, they are not members of a class including non-hourly employees. Sears goes on to argue that plaintiffs have failed to adequately represent the interests of the putative class by their selection of Dr. Shapiro to perform a statistical analysis. The Court rejects these arguments.
As noted in Amchem Products, "[t]he adequacy-of-representation requirement `tend[s] to merge' with the commonality and typicality criteria of Rule 23(a), which `serve as guideposts for determining whether ... maintenance of a class action is economical and whether the named plaintiff's claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence." 521 U.S. at 626 n. 20, 117 S.Ct. 2231 (quoting Falcon, 457 U.S. at 157 n. 13, 102 S.Ct. 2364). The Court has already found that the class will be limited to current and former non-White hourly employees of Sears' University Store who allegedly have been discriminated against by Sears' employment practices on or after November 4, 1995, in 1125*1125 job assignment or placement, pay and promotion in the manner set forth above. In this regard, the Court finds the plaintiffs' claims that they and the putative class received less pay than their White counterparts at the University Store because of Sears' subjective decision making process with respect to placement, transfer, and promotion present questions of law or fact common to the class, and that typicality has been established as the alleged discriminatory acts upon which this lawsuit is based and the legal theories applicable to those alleged discriminatory acts are essentially the same as between the named plaintiffs and the class delineated above. Thus, the plaintiffs are a part of the class as defined by this Court and possess the same interest and have suffered the same alleged injury as the class members.
Although Sears argues that several courts have criticized Dr. Shapiro's analysis, this Court is not concerned with any deficiencies on the part of Dr. Shapiro that may have existed in other cases and under other circumstances, but is only concerned with Dr. Shapiro's analysis in this case. As it now stands, Dr. Shapiro's June 13, 2000 report detailing his findings is properly of record and has not been

stricken from the record or otherwise declared inadmissible. See n. 2, supra. Thus, plaintiffs' selection of Dr. Shapiro to perform a statistical analysis provides no basis for concluding that plaintiffs have failed to adequately represent the interests of the putative class.
* * * * * *
In sum, the Court finds that the prerequisites of Fed.R.Civ.P. 23(a) — numerosity, commonality, typicality, and adequacy — have been satisfied as to current and former non-White hourly employees of Sears' University Store who allegedly have been discriminated against by Sears' employment practices on or after November 4, 1995, in job assignment or placement, pay and promotion in the manner set forth above.
F. Rule 23(b)(2)
The Court additionally finds that this case is maintainable as a class action under Rule 23(b)(2). "Civil rights cases against parties charged with unlawful, class-based discrimination are prime examples" of Rule 23(b)(2) class actions, see Amchem Products, 521 U.S. at 614, 117 S.Ct. 2231, and plaintiffs in this case charge Sears with unlawful, class-based discrimination and seek declaratory and injunctive relief of a type contemplated by Rule 23(b)(2). See Compl. at ¶¶ 10, 53-62; Mot. for Class Cert. at ¶¶ 25-26. See also 5 Newberg and Conte, Newberg on Class Actions § 24.81 at 24-265 (noting that the aptness of designating employment discrimination suits as class actions under Rule 23(b)(2) has been recognized repeatedly and definitively by the courts). Cf. Paxton, 688 F.2d at 563 (case seeking injunctive relief against class-wide race discrimination in bank's promotion practices was appropriately brought under Rule 23(b)(2)); DeBoer, 64 F.3d at 1175 (citing Wright & Miller for the proposition that if the Rule 23(a) prerequisites have been met and declaratory or injunctive relief has been requested, the action usually should be allowed to proceed under subdivision (b)(2)).
There is an issue concerning damages, however, that has caused the Court some difficulty. Plaintiffs state in the introduction to their complaint that they "seek compensatory and punitive damages based upon defendant's deliberate and willful violation" of the respective statutes under which they are proceeding. See Compl. at ¶ 2. In this regard, plaintiffs state in their prayer for relief that they request, in addition to relief that is declaratory and injunctive in nature, id. at ¶ 53-62, that Sears "[c]ompensate and make whole plaintiffs and the class they represent for all earnings, wages, and other benefits they would have received but for the discriminatory practices of defendant...." See Compl. at 1126*1126 ¶ 60.[13] The difficulty with this prayer for relief is that the advisory note to Rule 23(b)(2) explains that the subsection "does not extend to cases in which the appropriate final relief relates exclusively or predominately to money damages." See Fed. R.Civ.P. 23(b)(2) advisory committee's note. Thus, "nonequitable monetary relief may be obtained in a class action certified under Rule 23(b)(2) only if the predominate relief sought is injunctive or declaratory." Allison v. Citgo Petroleum Corp., 151 F.3d 402, 425 (5th Cir.1998). Notwithstanding this rule, plaintiffs specifically request that this action be maintained only under Rule 23(b)(2) without addressing or even acknowledging the complex issues raised by a prayer for compensatory and punitive damages in such a case. See, e.g., Jefferson v. Ingersoll International Inc., 195 F.3d 894 (7th Cir.1999) (noting that it is an open question whether Rule 23(b)(2) ever may be used to certify a no-notice, no-opt out class when compensatory or punitive damages are at issue). As the Seventh Circuit explained in Lemon v. International Union of Operating Eng., Local No. 139, AFL—CIO, 216 F.3d 577 (7th Cir.2000), the problem with a request for compensatory or punitive damages in a Rule 23(b)(2) action
is that Rule 23(b)(2) provides for binding litigation on all class members without guarantees of personal notice and the opportunity to opt out of the suit. By virtue of its requirement that the plaintiffs seek to redress a common injury properly addressed by a class-wide injunctive or declaratory remedy, Rule 23(b)(2) operates under the presumption that the interests of the class members are cohesive and homogeneous such that the case will not depend on adjudication of facts particular to any subset of the

class nor require a remedy that differentiates materially among class members. A suit for money damages, even if the plaintiffs seek uniform, class-wide equitable relief as well, jeopardizes that presumption of cohesion and homogeneity because individual claims for compensatory or punitive damages typically require judicial inquiry into the particularized merits of each individual plaintiff's claim.
Indeed, in recognition of the potential divergence of interests within the class, each class member in actions for money damages is entitled as a matter of due process to personal notice and an opportunity to opt out of the class action. See Ortiz v. Fibreboard Corp., 527 U.S. 815, 119 S.Ct. 2295, 2314-15, 144 L.Ed.2d 715 (1999). Accordingly, Rule 23(c)(2) guarantees those rights for each member of a class certified under Rule 23(b)(3). See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974); Fed.R.Civ.P. 23(c)(2). However, the Federal Rules of Civil Procedure do not provide comparable guarantees of those rights for a class certified under subsections (b)(1) or (b)(2), and as a result, Rule 23(b)(2) certification does not ensure personal notice or opportunity to opt out even if some or all the plaintiffs pray for monetary damages.
Id., 216 F.3d 577, 580.
In noting the difficulty with a prayer for compensatory and punitive damages in a Rule 23(b)(2) action, the Court recognizes that a request for damages that is merely incidental to a prayer for declaratory and injunctive relief does not affect the maintenance of a case as a class action under Rule 23(b)(2). See, e.g., DeBoer, 64 F.3d at 1175 (citing Paxton, 688 F.2d at 563). The request for compensatory damages in the case at bar, however, appears to be more than "incidental." The Fifth Circuit in Allison defined "incidental" as "damages that flow directly from liability to the class as a whole on the claims forming the basis of the injunctive or declaratory relief." 151 F.3d 402, 415. Incidental damages, thus, do not depend 1127*1127 "in any significant way on the intangible, subjective differences of each class member's circumstances" and do not "require additional hearings to resolve the disparate merits of each individuals's case." Id. See also Lemon, 216 F.3d 577, 580; Jefferson, 195 F.3d at 898. Here, determining "earnings, wages, and other benefits [plaintiffs and the class they represent] would have received but for the discriminatory practices of defendant ...," see Compl. at ¶ 60, depends on an individualized analysis of each class member's circumstances and requires hearings to resolve the disparate merits of each individual's case. See Lemon, 216 F.3d 577, 581 (citing Allison, 151 F.3d at 417). Likewise, an award of punitive damages (should plaintiffs be pursuing such an award) would require a fact-specific inquiry into the individual plaintiff's circumstances. Id. (citation omitted). See also Faulk v. Home Oil Co., 186 F.R.D. 660, 662 (M.D.Al.1999).[14]
Because plaintiffs seek certification exclusively under Rule 23(b)(2), the question remains how this class action can be so maintained having determined that the request for damages is not incidental to the prayer for declaratory and injunctive relief. The Seventh Circuit in Jefferson and Lemon outlined three alternative procedures for handling such a case: (1) certify the class under Rule 23(b)(3) for all proceedings; (2) certify a Rule 23(b)(2) class for the portion of the case addressing equitable relief and a Rule 23(b)(3) class for the portion of the case addressing damages (divided certification); and (3) certify the class under Rule 23(b)(2) for both monetary and equitable remedies but exercise its plenary authority under Rules 23(d)(2) and 23(d)(5) to provide all class members with personal notice and opportunity to opt out, as though the class was certified under Rule 23(b)(3). Jefferson, 195 F.3d at 898-99; Lemon, 216 F.3d 577, 581-82.
This Court has carefully considered the matter and will utilize the third procedure outlined by the Seventh Circuit. Such a procedure comports with the Eighth Circuit's decision in DeBoer, 64 F.3d at 1175, in which the Court held that a class action should be allowed to proceed under subdivision (b)(2) if Rule 23(a)'s prerequisites have been met and declaratory or injunctive relief has been requested (as is the case here), while at the same time providing class plaintiffs personal notice and the opportunity to opt out, as though the class were certified under subsection (b)(3). See Lemon, 216 F.3d 577, 582.
In adopting for this case the third procedure outlined by the Seventh Circuit, the Court recognizes that DeBoer held that "[w]hen either subsection (b)(1) or (b)(2) is applicable, ... (b)(3) should not be used, so

as to avoid unnecessary inconsistencies and compromises in future litigation." 64 F.3d at 1175. The court in DeBoer was not, however, addressing a race discrimination case such as this in which a request for damages is not incidental to the prayer for declaratory and injunctive relief and certification is sought exclusively under Rule 23(b)(2), but, rather, was addressing escrow accounting practices of a mortgage company in which "[t]he relief sought in the action is the same regardless of the amount of overage in any particular account." Id. DeBoer, then, did not foreclose the possibility that a district court might, in appropriate circumstances, certify a class under Rule 23(b)(2) for both monetary and equitable remedies but provide all class members with the protections envisioned by Fed.R.Civ. 23(c)(2) as though the class were certified under Rule 23(b)(3). This Court determines that such 1128*1128 a procedure is appropriate for adjudication of this particular case and, therefore, it is that procedure which will be applied.
G. Burden of Proof
The Court now addresses the burden of proof with respect to plaintiffs' claims of disparate treatment and disparate impact.
1. Disparate Treatment
Claims of disparate treatment turn on one basic issue: " `whether the employer intentionally treated some people less favorably than others because of their race, color, religion, sex, or national origin.'" Craik v. Minnesota State Univ. Bd., 731 F.2d 465, 468-69 (8th Cir.1984) (quoting Teamsters, 431 U.S. at 335 n. 15, 97 S.Ct. 1843). See also Reeves, 120 S.Ct. at 2111 (noting that "[t]he ultimate question in every employment discrimination case involving a claim of disparate treatment is whether the plaintiff was the victim of intentional discrimination"). Were this a private, non-class action Title VII case alleging disparate treatment, this Court would apply the McDonnell Douglas framework set forth previously in analyzing such a claim. See, e.g., Kim, 123 F.3d at 1056-57. However, for cases brought by private plaintiffs on behalf of many employees, charging that an employer engages in discriminatory practices throughout most or all of its operations, a different order of proof is prescribed. Craik, 731 F.2d at 469-70 (citing Franks v. Bowman Transportation Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976); Teamsters, 431 U.S. 324, 97 S.Ct. 1843). First, in the liability phase of the action,[15] the plaintiff must prove by a preponderance of the evidence that the defendant engaged in a pattern or practice of unlawful discrimination in various company policies, that discrimination, as previously noted, " `was the company's standard operating procedure— the regular rather than the unusual practice.'" Id. at 470 (quoting Teamsters, 431 U.S. at 336, 97 S.Ct. 1843). See also Catlett, 828 F.2d at 1265. "Normally, the plaintiff will produce statistical evidence showing disparities between similarly situated protected and unprotected employees with respect to hiring, job assignments, promotions, and salary, supplemented with other evidence, such as testimony about specific incidents of discrimination." Craik, 731 F.2d at 470. In rebuttal, the defendant will attempt to show that the plaintiff's " `proof is either inaccurate or insignificant.'" Id. (quoting Teamsters, 431 U.S. at 360, 97 S.Ct. 1843). If the defendant fails, the " `trial court may then conclude that a violation has occurred and determine the appropriate remedy.'" Id. (quoting Teamsters, 431 U.S. at 361, 97 S.Ct. 1843).
If the plaintiff proves that the defendant engaged in a pattern or practice of discrimination, not only is the class's eligibility for appropriate prospective relief established, a prima facie case is also established for the remedial phase of the suit, in which relief for individuals is considered. Id. (citing Teamsters, 431 U.S. at 359, 97 S.Ct. 1843). The Court thus presumes that the employer unlawfully discriminated against individual class members. Id. "In pattern or practice cases, however, the presumption shifts to the employer not only the burden of production, but also the burden of persuading the trier of fact that it is more likely than not that the employer did not unlawfully discriminate against the individual." Id.
The [plaintiffs] need only show that an alleged individual discriminatee unsuccessfully applied for a job and therefore was a potential victim of the proved discrimination.... [T]he burden then rests on the

employer to demonstrate that the individual applicant was denied an employment opportunity for lawful reasons.
Id. (quoting Teamsters, 431 U.S. at 362, 97 S.Ct. 1843). The burden of persuasion 1129*1129 shifts to the employer with regard to the claims of both named plaintiffs and unnamed class members. Id. (citing Taylor v. Teletype Corp., 648 F.2d 1129, 1136-38 (8th Cir.), cert. denied, 454 U.S. 969, 102 S.Ct. 515, 70 L.Ed.2d 386 (1981)).
In employing the burden-shifting presumption of Teamsters, the Court notes that neither statistical nor anecdotal evidence is automatically entitled to reverence to the exclusion of the other, and that evidence relating to the individual claims will be considered in the assessment of the class claims, and vise-versa, since evidence relevant to one is also relevant to the other. Coates v. Johnson & Johnson, 756 F.2d 524, 533 (7th Cir.1985). See also Craik, 731 F.2d at 471-72 (noting that statistical and other evidence is relevant to individual claims because "it is often a telltale sign of purposeful discrimination," and that evidence of specific incidents of alleged discriminatory treatment is relevant to the class claims because it may bring "cold numbers convincingly to life") (quoting Teamsters, 431 U.S. at 339, 340 n. 20, 97 S.Ct. 1843). The class claim is to be considered first, since if the class claim has merit, the named and unnamed individual class members are entitled to the burden-shifting presumption of Teamsters. See Coates, 756 F.2d at 533 (citing Craik, 731 F.2d at 471).
2. Disparate Impact
To prove discrimination under the theory of disparate impact, a plaintiff must identify a facially-neutral employment practice, demonstrate a disparate impact upon the group to which he or she belongs, and prove causation. Langlie v. Onan Corp., 192 F.3d 1137, 1140 (8th Cir. 1999), cert. denied, ___ U.S. ___, 120 S.Ct. 1719, 146 L.Ed.2d 641 (2000) (quoting Lewis v. Aerospace Community Credit Union, 114 F.3d 745, 750 (8th Cir.1997), cert. denied, 523 U.S. 1062, 118 S.Ct. 1392, 140 L.Ed.2d 651 (1998)). To prove a prima facie case of causation, a plaintiff must offer statistical evidence of a kind and degree sufficient to raise an inference that the practice in question has caused significant adverse effects on the members of a protected group because of their membership in the group. Id. (quoting Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994, 108 S.Ct. 2777, 101 L.Ed.2d 827 (1988)). The burden then falls on the employer "to demonstrate that the challenged practice is job related ... and consistent with business necessity." Allen v. Entergy Corp., Inc., 193 F.3d 1010, 1013 (8th Cir. 1999). If the employer meets its burden, the burden then shifts to the complaining party to show that another practice or practices, without a similarly undesirable impact on members of the protected group, would also serve the employer's legitimate business interests. Id. at 1013 n. 4.
H. Appeal pursuant to Rule 23(f)
One final matter concerns Sears' right to appeal today's Order. Rule 23(f) of the Federal Rules of Civil Procedure provides that "[a] court of appeals may in its discretion permit an appeal from an order of a district court granting or denying class certification under this rule if application is made to it within ten days after entry of the order." The rule further provides that "[a]n appeal does not stay proceedings in the district court unless the district judge or the court of appeals so orders." Id. Although not addressed by the Eighth Circuit, other courts have found that there are generally three categories of cases upon which Rule 23(f) rests. First, an appeal ordinarily should be permitted when a denial of class status effectively ends the case. Second, an appeal ordinarily should be permitted when the grant of class status raises the stakes of the litigation so substantially that the defendant likely will feel irresistible pressure to settle. Third, an appeal ordinarily should be permitted when it will lead to clarification of the law. See Waste Management Holdings, Inc. v. Mowbray, 208 F.3d 288, 293 (1st Cir.2000) (citing Blair v. Equifax 1130*1130 Check Services, Inc., 181 F.3d 832 (7th Cir.1999)).

The Court would note that this case arguably falls within the third category, even if such an appeal "should be restricted to those instances in which an appeal will permit the resolution of an unsettled legal issue that is important to the particular litigation as well as important in itself and likely to escape effective review if left hanging until the end of the case." Waste Mgt., 208 F.3d at 294.[16] It is not clear that plaintiffs will prevail at the trial of this matter, and an appeal of this Court's ruling that a district court might certify a class under Rule 23(b)(2) for both monetary and equitable remedies but provide all class members with the protections envisioned by Fed.R.Civ. 23(c)(2) as though the class were certified under Rule 23(b)(3) will permit the resolution of an unsettled legal issue in this Circuit that is important to this particular litigation as well as important in itself.[17] In this regard, the Court would consider staying the proceedings were it asked to do so.
III. Conclusion
For the foregoing reasons, the Court finds that Sears' motion for summary judgment with respect to plaintiffs' individual claims of discrimination should be and hereby is denied. The Court further finds that plaintiffs have satisfied the requirements of Fed.R.Civ.P. 23(a) and (b)(2) and that their motion for class certification should be and hereby is granted as modified by today's Order. The Court hereby certifies a class consisting of current and former non-White hourly employees of Sears' University Store who allegedly have been discriminated against by Sears' employment practices in job assignment or placement, pay and promotion in the manner and time periods set forth above.
[1] On January 6, 1999, after having granted Sears an extension of until and including December 30, 1999, in which to respond to the complaint, this Court issued its first scheduling order establishing a trial date of November 1, 1999, and a deadline of September 17, 1999, for the completion of discovery and the filing of motions. Discovery in this case proved to be difficult and contentious, and resulted in the filing of over 25 motions and the issuance of some 30 Orders by this Court. In addition, this Court has conducted numerous phone conferences to address discovery issues. These discovery disputes have resulted in several delays and has resulted in the scheduled trial date being pushed back on more than one occasion, with the latest trial date being set for September 11, 2000. See Amended Scheduling Order dated March 15, 2000 [doc. # 96].
[2] Sears has filed a motion to strike Dr. Shapiro's June 13, 2000 report on grounds that it is untimely and contains new opinions, and would thus prejudice Sears were it to be considered. This motion will be addressed in a separate Order as plaintiffs filed their response to Sears' motion on June 30, 2000, after the substance of today's Memorandum and Order had been prepared and finalized for filing. The Court will note at this time, however, that it is aware of the history surrounding Dr. Shapiro's reasons for submitting an amended report. Based on that history, the Court is inclined to deny Sears' motion to strike, although it will consider the matter further. In the meantime, the Court will utilize Dr. Shapiro's June 13th report in analyzing the issues in today's Memorandum and Order.
[3] Dr. Welch stated that "[t]he initial comparisons show that average pay rates for nonwhites are below pay rates for whites by over 26% if job code and full-time status are not taken into account." Def.'s Ex. 1. He states, however, that these differences, which he acknowledges are "statistically significant," reflect for the most part "the difference in pay rates between commissioned jobs and hourly sales jobs." Id. Of course, plaintiffs claim in this lawsuit that minorities are not assigned to the predominantly White commissioned sales positions at Sears which pay more than the positions to which minorities are typically assigned, and that once minorities are in their initial low pay part-time jobs, they are as a class passed over for promotion to full-time positions in favor of non-minority persons, Pl.s' Br. in Supp. of Mot. for Class Cert. at 1.
[4] In applying this standard of review, the Court is also cognizant of the Eighth Circuit's recent opinion "emphasiz[ing] the oft repeated phrase that summary judgment should seldom be granted in discrimination cases." See Bassett v. City of Minneapolis, 211 F.3d 1097, 1099 (8th Cir.2000) (citing 10 Eighth Circuit cases).
[5] Plaintiffs acknowledge that Arkansas courts have applied Title VII analysis and law to ACRA claims, but nevertheless argue that such analysis and law is not binding on this Court and that "[a] separate analysis applies under the Arkansas Civil Rights Act." Pl.s' Br. in Supp. of Resp. to Def.'s Mot. for Summ.J. at 2 n. 5. Plaintiffs do not suggest a different analysis that should be applied, however, and, indeed, themselves base their response to Sears' motion for summary judgment on the McDonnell Douglas framework applicable to Title VII cases. Id. at 5-6. Accordingly, this Court will consider plaintiffs' ACRA claims utilizing Title VII analysis and law.
[6] In the interests of privacy, this Court will not reveal in this Memorandum and Order the identity of any such employees.
[7] In certain circumstances not applicable here, a plaintiff will have 300 days in which to file a charge of discrimination. See id. ("in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred ...").

[8] Even were the Court to fully accept Sears' argument that plaintiffs' Title VII claims are beyond the substantive and temporal scope of their EEOC charges, plaintiffs also seek relief under § 1981, which does not require the administrative exhaustion procedures found under Title VII. See, e.g., Winbush v. State of Iowa, 66 F.3d 1471, 1486 (8th Cir.1995). In this regard, Title VII and § 1981 set forth parallel, substantially identical, legal theories of recovery in cases alleging intentional discrimination on the basis of race, and the availability of damages under § 1981 is broader than that of Title VII. See Kim v. Nash Finch Co., 123 F.3d 1046, 1063 (8th Cir.1997).
[9] Although the Court is not aware of any court to have specifically considered a claim of disparate impact under ACRA, such a claim would appear to fall within the scope of ACRA as the Act distinguishes between intentional employment discrimination and other "discriminatory practices" in employment for which "affirmative relief from the effects of the practices" is available. See Ark.Code Ann. § 16-123-107(c)(1)(A) and (2)(A). That being so, and because both the Arkansas Supreme Court and the Eighth Circuit Court of Appeals have applied Title VII analysis and law to ACRA claims, see Flentje, 340 Ark. 563, 11 S.W.3d at 536-38; Henderson, 217 F.3d 612, 615, this Court concludes that disparate impact claims as analyzed under Title VII may be so analyzed under ACRA as well. See n. 5, supra.
[10] In Edwards v. Jewish Hosp. of St. Louis, 855 F.2d 1345, 1351 (8th Cir.1988), the Eighth Circuit noted that General Building "eliminated from § 1981's sphere of liability those cases that have a disparate impact upon racial minorities unless that impact can be traced to discriminatory purpose" (emphasis added). The Court will revisit the question of the applicability of § 1981's statute of limitations to plaintiffs' disparate impact claims should it be shown that the challenged employment practices of Sears that allegedly had a disparate impact upon minorities "can be traced to discriminatory purpose," thus arguably bringing such a claim within the ambit of § 1981.
[11] In Falcon, the Supreme Court noted that "[s]ignificant proof than an employer operated under a general policy of discrimination conceivably could justify a class of both applicants and employees if the discrimination manifested itself in hiring and promotion practices in the same general fashion, such as through entirely subjective decisionmaking processes." 457 U.S. at 159 n. 15, 102 S.Ct. 2364.
[12] See, e.g., Pl.s' Ex. 47 (DOL report finding that minorities were over-represented in low-pay positions); Pl.s' Ex. 51 (June 13, 2000 statistical analysis prepared by Dr. Shapiro finding a disparity between White and minority employee pay attributable to differential job assignments unrelated to knowledge, skill, ability or interests, and finding that minority employees are statistically significantly disfavored in all aspects of initial assignment and subsequent movements); Def.'s Ex 1 (statistical analysis prepared by Dr. Welch finding a "statistically significant" disparity between the pay rates for non-White employees and White employees due "primarily" to the difference in pay rates between commissioned jobs and hourly sales jobs).
[13] Plaintiffs do not mention punitive damages in their prayer for relief, and the status of any request for an award of punitive damages is thus unclear.
[14] Punitive damages are available in claims under Title VII where the employer has engaged in intentional discrimination and has done so with malice or reckless indifference to the federally protected rights of an individual. Kolstad v. American Dental Assn., 527 U.S. 526, 119 S.Ct. 2118, 2121, 144 L.Ed.2d 494 (1999) (citing 42 U.S.C. § 1981a(b)(1)). See also Ogden v. Wax Works, Inc., 214 F.3d 999, 1007-09 (8th Cir.2000) (discussing Kolstad).
[15] The trial of class actions is usually bifurcated into a liability phase and a remedial phase. Craik, 731 F.2d at 470 (citing Teamsters, 431 U.S. at 360-62, 97 S.Ct. 1843).
[16] This assumes, of course, that the Eighth Circuit would accept Waste Management's characterization of Rule 23(f).
[17] Sears also may be able to fit this case within the second category, although it would have to demonstrate that this Court's ruling on class certification "is questionable — and must do this taking into account the discretion the district judge possesses in implementing Rule 23, and the correspondingly deferential standard of appellate review." Waste Mgt., 208 F.3d at 294 (quoting Blair, 181 F.3d at 835).

 
 Eurlene ROBINSON; Rashad L. Atkinson; Carla Droughn;..., 2000 WL 34542862...
2000 WL 34542862 (E.D.Ark.) (Trial Pleading) United States District Court, E.D. Arkansas.
Eurlene ROBINSON; Rashad L. Atkinson; Carla Droughn; David Fitzpatrick; Kirestin J. Harris; Janice L. Medley; Willie L. Toombs, Jr.; Kahlil Watkins; and Tamera L. Williams, on Behalf of Themselves and all Other
Persons Similarly Situated, Plaintiffs, v.
SEARS, ROEBUCK AND CO., Defendant. Civil No. 4:98cv00739 SWW. July 14, 2000.
First Amended Complaint - Class Action
Come now the Plaintiffs, by and through their attorneys, James & Carter, PLC, and for their Complaint against the Defendant, state:
I.
NATURE OF CLAIM 1. This action is brought by the named Plaintiffs on behalf of themselves and all other members of the class defined in the Complaint who are similarly situated.
2. This is an action to redress employment discrimination on the basis of race in violation of and instituted pursuant to Title VII of the Civil Rights Act of 1964 (codified as amended at 42 U.S.C.S. §§ 2000e - 2000e-17 (1996)), and under Section 1 of the Civil Rights Act of 1866 (codified as amended at 42 U.S.C.S. § 1981 (1986)), and under the Arkansas Civil Rights Act of 1993 (codified as amended at Ark. Code Ann. § 16-123-101 to 108 (Michie 1997)). Plaintiffs and the class they represent seek compensatory and punitive damages based upon Defendant’s deliberate and willful violation of 42 U.S.C.S. § 1981, 2000e, et. seq., and the Arkansas Civil Rights Act, and for an award of costs, attorneys’ fees, and other relief to which they were entitled had they not been victims of the Defendant’s racial discrimination. Declaratory relief is also sought under 28 U.S.C.S. §§ 2201, 2202 declaring that Defendant has discriminated against Plaintiffs and members of the class in the terms and conditions of employment.
II.
JURISDICTION AND VENUE 3. Jurisdiction of this Court is invoked pursuant to 28 U.S.C.S. § 1343(3) and (4) and 42 U.S.C.S. § 2000e-5(f). The jurisdiction of this Court is invoked to secure protection of and to redress deprivation of civil rights secured by 42 U.S.C.S. §§ 2000e et seq., as well as 28 U.S.C.S. § 1981 and the Arkansas Civil Rights Act which provide for injunctive and other relief against racial discrimination in employment.
4. Plaintiffs Eurlene Robinson, Rashad L. Atkinson, Carla Droughn, Kirestin J. Harris, Janice L. Medley, Willie L. Toombs, Jr., Kahlil Watkins and Tamera L. Williams are African American citizens of the United States and the State of Arkansas, and reside in Pulaski County.
1

Eurlene ROBINSON; Rashad L. Atkinson; Carla Droughn;..., 2000 WL 34542862...
5. Plaintiff David Fitzpatrick is an Asian American citizen of the United States and the State of Arkansas, and resides in Pulaski County.
6. Defendant is a corporation incorporated under the laws of the State of New York, licensed to do business in the State of Arkansas, and is doing business in the State of Arkansas.
7. Defendant operates a store at 600 South University in Little Rock, Arkansas (“University Store”) at which all the named Plaintiffs are employed.
8. The unlawful employment practices alleged herein were committed within the State of Arkansas.
9. Defendant is an employer within the meaning of 42 U.S.C.S. § 2000e(b) and employs more than 500 people.
10. This is a proceeding for a declaratory judgment as to Plaintiffs’ rights and for a permanent injunction, restraining Defendant from maintaining a policy, practice, custom or usage of discriminating against Plaintiffs and other persons based upon their race with respect to compensation, terms, promotions, privileges, and conditions of employment and in ways that deprive Plaintiffs and other persons in the class of equal employment opportunities and otherwise adversely affect their status as employees because of race. This Complaint also seeks restitution to Plaintiffs and the class they represent of all rights, privileges, benefits, and income that would have been and should be received by them but for Defendant’s unlawful and discriminatory practices.
III.
PROCEDURAL REQUIREMENTS 11. All conditions precedent to jurisdiction under 42 U.S.C.S. § 2000e-5(f)(3) have occurred or been complied with, to wit: (a) a charge of employment discrimination was filed with the Equal Employment Opportunity Commission (“EEOC”) within 180 days of the commission of the unfair employment practices;
(b) Notifications of Rights to Sue were received from the EEOC; and
(c) this complaint has been filed within 90 days of receipt of the Notifications of Right to Sue.
12. Plaintiff Eurlene Robinson filed a charge of discrimination with the EEOC on July 15, 1998 and received a Notice of Right to Sue (“NRTS”) issued October 29, 1998. A copy of Plaintiff Robinson’s NRTS is designated Exhibit 1, attached hereto and made a part hereof.
13. Plaintiff Rashad L. Atkinson filed a charge of discrimination with the EEOC on August 3, 1998, and received a NRTS issued August 6, 1998. A copy of Plaintiff Atkinson’s NRTS is designated Exhibit 2, attached hereto and made a part hereof.
14. Plaintiff Carla Droughn filed a charge of discrimination with the EEOC on July 15, 1998 and received a NRTS issued October 29, 1998. A copy of Plaintiff Droughn’s NRTS is designated Exhibit 3, attached hereto and made a part hereof.
15. Plaintiff David Fitzpatrick filed a charge of discrimination with the EEOC on August 25, 1998, and received a NRTS issued August 31, 1998. A copy of Plaintiff Fitzpatrick’s NRTS is designated Exhibit 4, attached hereto and made a part hereof.
16. Plaintiff Kirestin J. Harris filed a charge of discrimination with the EEOC on September 30, 1998 and received a NRTS issued September 30,1998. A copy of Plaintiff Harris’ NRTS is designated Exhibit 5, attached hereto and made a part hereof.
2

Eurlene ROBINSON; Rashad L. Atkinson; Carla Droughn;..., 2000 WL 34542862...
17. Plaintiff Janice L. Medley filed a charge of discrimination with the EEOC on August 3, 1998 and received a NRTS issued August 12, 1998. A copy of Plaintiff Medley’s NRTS is designated Exhibit 6, attached hereto and made a part hereof.
18. Plaintiff Willie L. Toombs, Jr. filed a charge of discrimination with the EEOC dated July 8, 1998 and marked received by the EEOC July 24,1998. He received a NRTS issued August 12, 1998. A copy of Plaintiff Toombs’ NRTS is designated Exhibit 7, attached hereto and made a part hereof.
19. Plaintiff Kahlil Watkins submitted a charge of discrimination with EEOC dated August 31, 1998 and marked received by the EEOC September 14, 1998. He received a NRTS issued October 30, 1998. A copy of Plaintiff Watkins’ NRTS is designated Exhibit 8, attached hereto and made a part hereof.
20. Plaintiff Tamera L. Williams filed a charge of discrimination with EEOC on August 3, 1998, and received a NRTS on August 12, 1998. A copy of Plaintiff Williams’ NRTS is designated Exhibit 9, attached hereto and made a part hereof.
IV.
FACTS 21. Plaintiff Tamera L. Williams began working for the Defendant’s University Store in October of 1994.
22. Plaintiff Rashad L. Atkinson began working for the Defendant’s University Store in August of 1995.
23. Plaintiff Janice L. Medley began working for the Defendant’s University Store in October of 1995.
24. Plaintiff Willie L. Toombs, Jr. began working for the Defendant’s University Store in November of 1996.
25. Plaintiff Kirestin J. Harris began working for the Defendant’s University Store in October of 1996.
26. Plaintiffs Carla Droughn, David Fitzpatrick, and Eurlene Robinson began working for the Defendant’s University Store in November of 1997.
27. Plaintiff Kahlil Watkins was re-hired by the Defendant’s University Store in August of 1998.
28. The above Plaintiffs, as part time, hourly employees, each received wages in an amount less than $6.25 per hour until after charges were filed with the EEOC.
29. The above Plaintiffs worked alongside white counterparts who made at least $6.00 to $6.25 hourly while the above Plaintiffs, who had more experience and seniority in the Defendant’s company, were paid less than their white counterparts.
30. Approximately one month after the above Plaintiffs first began filing charges with the EEOC, the Defendant gave a store wide pay increase to all hourly employees of the University Store.
31. This store wide increase raised each of the above Plaintiffs’ pay to $6.25 per hour. This increase raised Plaintiffs only to the same rate as their lesser experienced white counterparts had already been making.
32. On or about July 4, 1998, the above Plaintiffs learned that their white counterparts were receiving a higher hourly rate for work which required lesser or equal skill, effort, and responsibility under the same working conditions.
33. The above Plaintiffs’ white counterparts had no education or experience level above that of the above Plaintiffs which would have entitled the counterparts to more salary than the Plaintiffs received.
34. The above Plaintiffs were given the responsibility of training their new white employee counterparts, who made more
3

Eurlene ROBINSON; Rashad L. Atkinson; Carla Droughn;..., 2000 WL 34542862...
money for the same type position, and those new counterparts were making more money per hour than the Plaintiffs even while Plaintiffs were training the white counterparts.
35. Plaintiff Kahlil Watkins was rehired by the Defendant in October of 1998. Plaintiff Watkins had previously worked for the Defendant from July 1997 to March 1998.
36. In July of 1998, Plaintiff Watkins requested a $.10 to $.15 cent increase over the $5.50 hourly rate, yet Defendant denied this increase.
37. In late July or early August of 1998, Defendant hired a white male with little or no retail sales experience at the hourly rate of $6.25. The rate for this new employee was higher than that for any of the named Plaintiffs’ hourly rates, despite Plaintiffs’ seniority and experience.
38. Defendant hired other white employees with less or comparable experience than that of the named Plaintiffs for retail sales positions at the rates from $6.00 to $6.50 per hour. This rate was higher than any of the named Plaintiffs’ hourly rates.
39. These white counterparts were hired at an hourly rates of $6.00 to $6.50, yet Plaintiff Kahlil Watkins was rehired at or after these persons at the rate of $5.50 per hour.
40. During this time, the other Plaintiffs continued to be paid at rates lower than their white counterparts while maintaining the same part time status, job duties, and responsibilities as their newly hired, higher paid white counterparts.
41. White counterparts of the Plaintiffs have consistently been hired in and maintained rates of pay higher than that which Plaintiffs received, and a raise of all employees to the same level of pay after charges of discrimination were filed with the EEOC does not remedy such racial discrimination.
V.
CLASS ACTION ALLEGATIONS
42. Plaintiffs bring this action on their own behalf as well as on behalf of other persons similarly situated pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure.
43. The class that Plaintiffs represent is composed of all non-white persons who are or who have been employed, or may become employed, by Defendant’s University Store who have been and/or continue to be or who will be adversely affected by the practices complained of herein.
44. There are common questions of law and fact affecting the rights of the Plaintiffs and the members of this class who are and continue to be limited, classified, and discriminated against in ways that deprive and tend to deprive them of equal employment opportunities and income and otherwise adversely affect their status as employees because of race, namely: (a) Whether the Defendant maintained and continues to maintain a policy, practice, custom, or usage of discrimination against non-white, minority personnel based upon their race with respect to compensation, terms, promotions, privileges, and conditions of employment, and otherwise adversely affected their status as employees because of race;
(b) Whether Defendant has established, implemented, and utilized a system of pay, placement, and classification which resulted in and perpetuates discrimination against non-white persons;
(c) Whether Defendant compensated non-white employees at lower rates of pay than white employees who performed work of lesser or equal skill, effort, and responsibility under similar working conditions;
(d) Whether Defendant gave more favorable treatment to white employees than of similarly situated non-white employees;
4

Eurlene ROBINSON; Rashad L. Atkinson; Carla Droughn;..., 2000 WL 34542862...
(e) Whether Defendant hires white employees initially at higher salaries than non-white employees being hired at or near the same time and for the same positions;
(f) Whether Defendant denies promotions, training, and pay raises to non-white employees while allowing the same promotions and pay raises to white employees;
(g) Whether the Defendant pairs members of its management with assistants of the same race;
(h) Whether Defendant maintains a work environment/atmosphere permeated with unprofessional supervision, subjective employment decisions, and racial disparity;
(i) Whether Defendant has continuously maintained or has utilized a subjective evaluation process that has a racially discriminatory effect;
(j) Whether Defendant applies the results of its employees’ evaluations in a subjective manner that has a racially discriminatory effect;
(k) Whether such actions by the Defendant constituted discrimination against members of the class based on race in violation of the class’ rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e, et. seq.;
(l) Whether such actions by the Defendant constituted discrimination against members of the class based on race in violation of the class’ rights under the Civil Rights Act of 1866, 42 U.S.C.S. § 1981; and
(m) Whether such actions by the Defendant constituted discrimination against members of the class based on race in violation of the class’ rights under the Arkansas Civil Rights Act (codified as amended at Ark. Code Ann. §§ 16-23-101 to 108 (Michie 1997)).
45. The prosecution of separate actions by individual members of the class would create the risk of inconsistent, varying, and needlessly time consuming adjudications with respect to individual members of the class which would, as a practical matter, also be dispositive of the interests of the other members of the class, or would substantially impair or impede their ability to protect such interests.
46. The questions of law and fact common to members of the class raised by this action predominate over any questions that affect or may affect only individual members of the class. The class action is superior to any other method available for the fair and efficient adjudication of the controversy between the class and the Defendant, in that the questions of law common to the above described class is whether or not the hiring, compensation, and placement of other terms and conditions of employment of the Defendant intentionally deprived the class of civil rights secured to them by the laws of the United States and of the State of Arkansas by denying them beneficial working conditions granted to similarly situated white employees.
47. The named Plaintiffs believe that the members of the class are in excess of 400 employees. The class is so numerous that joinder of all class members is impracticable. The claims of the named individual Plaintiffs are typical of those of the class as a whole. A common relief is sought. The interests of the class are fairly and adequately represented and protected by Plaintiffs who have no interests adverse to those of the class or its members. Plaintiffs will aggressively pursue the interests of the entire class. The named Plaintiffs are actively involved in the current litigation and plan to be actively involved in this case through its conclusion. The named Plaintiffs have stayed in contact with their attorneys and will continue to do so throughout their litigation. The named Plaintiffs wish to pursue this matter for themselves and on behalf of all other potential Plaintiffs.
48. Defendant has acted or refused to act on grounds generally applicable to the class, making appropriate final declaratory and injunctive relief with respect to the class as a whole. The certification of a plaintiff class in this action will avoid a multiplicity of suits with the consequent burden on the court system.
49. Defendant has intentionally and continuously maintained a pattern and practice of employment discrimination against non-whites. The acts, practices, and policies of discrimination for which Defendant is responsible include, but are not limited
5

Eurlene ROBINSON; Rashad L. Atkinson; Carla Droughn;..., 2000 WL 34542862...
to the following: (a) Establishment, implementation, and use of a system of pay, placement, and classification which results in and perpetuates discrimination in compensation against non-white employees;
(b) Compensation at lower rates of compensation for non-white employees than white employees performing work of lesser or equal skill, effort, and responsibility under similar working conditions;
(c) More favorable treatment of white employees than of similarly situated non-white employees;
(d) Hires white employees initially at higher salaries than non-white employees;
(e) Denies promotions, training, and pay raises to non-white employees while allowing the same promotions and pay raises to white employees;
(f) Pairs members of management with assistants of the same race;
(g) Maintains a work environment/atmosphere permeated with unprofessional supervision, subjective employment decisions, and racial disparity; and
(h) The Defendant maintained and still maintains a policy, practice, custom, or usage of discriminating against non-white, minority personnel based upon their race with respect to compensation, terms, promotions, privileges, and conditions of employment and otherwise adversely affects their status as employees because of race.
50. Defendant knowingly and willfully deprived Plaintiffs and the class they represent of their constitutional rights and privileges. As a direct and proximate result of the acts of the Defendant set forth above, Plaintiffs have suffered severe mental anguish, embarrassment, loss of esteem in the eyes of the community and of their fellow employees, and other damages, mental, physical, and emotional. These damages flow directly from and are eminently connected to the deprivations, violations and infringement of the plaintiff’s constitutional and statutory rights as guaranteed by the Constitution of the United States and protected by 42 U.S.C.S. § 2000e, et. seq., 42 U.S.C.S. § 1981, and Ark. Code Ann §§ 16-123-101 to 108 (Supp. 1995).
51. Plaintiffs and the class they represent have no plain, adequate or complete remedy at law to redress the wrongs alleged, and this suit is their only means of securing adequate relief. Plaintiffs and the class they represent are now suffering and will continue to suffer irreparable injury from the Defendant’s policy, practice, custom, and usage as set forth herein until and unless enjoined and remedied by this Court.

VI.
RESERVATION OF RIGHTS 52. Plaintiffs reserve their right to add other individuals who may be employees within the meaning of Title VII, 42 U.S.C.S. § 1981, et seq., and the Arkansas Civil Rights Act.

53. WHEREFORE, Plaintiffs pray that this Court: 6

VII. RELIEF

Eurlene ROBINSON; Rashad L. Atkinson; Carla Droughn;..., 2000 WL 34542862... 54. Certify this case, pursuant to Rule 23(c) of the Federal Rules of Civil Procedure, as a class action; 55. Enter a declaratory judgment that the practices complained of herein are unlawful and violative of the laws plead herein; 56. Permanently enjoin Defendant, its agents, successors, officers, employees, attorneys, and those acting in concert with it or them from engaging in unlawful practices shown to be in violation of applicable law; 57. Retain jurisdiction of this action for such period as may be necessary in order to assure compliance with injunctive orders and judgments entered; 58. Order modification or elimination of the Defendant’s practices, policies, customs, and usages set forth herein and all other such practices shown to be in violation of applicable law to eliminate discrimination on the basis of race. 59. Immediately adjust the wage rates, salaries, bonuses, and benefits for Plaintiffs and the class they represent to that level which they would be enjoying but for the discriminatory practices of Defendant; 60. Compensate and make whole Plaintiffs and the class they represent for all earnings, wages, and other benefits they would have received but for the discriminatory practices of Defendant, together with prejudgment interest as authorized by 42 U.S.C.S. § 2000e-5(g); 61. Award Plaintiffs the costs and expenses of this action, including reasonable attorneys’ fees and costs in accordance with 42 U.S.C.S. §§ 1988, 2000e-5(k), Ark. Code Ann. § 16-123-105(b); and 62. Grant such other relief, in law and in equity, as may be just and proper.
7

 
 Case 4:98-cv-00739-SWW Document 196 Filed 05/17/01 Page 1 of 27

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN [)[VISION

utURj~CgRT
EASTERN DISTRICT ARKANSAS
MAY 1 7 2001

EURLENE ROBINSON; RASHAD L.

•

ATKINSON; CARLA DROUGHN;

•

DAVID FITZPATRICK; KIRESTIN J.

•

HARRIS; JANICE L. MEDLEY; WiLliE

•

L. TOOMBS, JR.: KABLIL WATKINS;

•

and TAMERA L. WILLIAMS, on

•

behalf of themselves and all other persons

•

similarly situated.

•

•

Plaintiffs,

•

•

VS.

• 4:98cv00739 SWW

•

•

SEARS, ROEBUCK AND CO..

•

•

Defendant.

•

Before the Court is ajoint motion of the parties for preliminary approval of settlement

agreement [doc.#1 95]. The Court has carefully considered the settlement agreement. which is

attached to this Order, and hereby preliminarily approves said agreement.' The Court will in due

course consult with the parties regarding a date for a fairness hearing and other matters requiring

the Court's attention."

IT IS SO ORDERED this 17th day of May 2001.

THIS DOCUMENT ENTERED ON

DOCKET SHEET IN COMPLIANCE

WITH RULE 58 ANDJOR~

ON ,5"---/ g: CJ ( BY.

----

(.r·· / (\ J/1~~'f~ t",~ CilIEF JUDGE

~ L!=

UNITED STATES DISTRlCT COURT

I Because this approval is prl'!iminul)", thl' Court may later disapprove in part or in whole the settlement agreement should circumstances not now before the Court arise which necessitates such disapproval.
,
- The motion by plaintiffs for preliminary approval and enfon.:ement of settlement agreement [doc.# 187] is moot and need not be addressed_ Thl' Clerk is directed to remove this motion from the pending motions report.

Case 4:98-cv-00739-SWW Document 196 Filed 05/17/01 Page 2 of 27

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS LITTLE ROCK DIVISION

EURLENE ROBINSON; RASHAD ATKINSON; )

CARlA DROUGHN; DAVID FITZPATRICK; )

KIRESTIN J. HARRIS; JANICE MEDLEY;

)

WILLIE 1. TOOMBS, JR.; KABLIL WATKINS; )

and TAMERA 1. WILLIAMS, on behalf of

)

themselves and all other persons similarly

)

situated,

)

)

Plaintiffs,

)

)

v.

)

)

SEARS, ROEBUCK AND CO.,

)

)

Defendant.

)

4:98 CV 00739 SWW

SETTLEMENT AGREEMENT
I. INTRODUCTION WHEREAS Plaintiffs, RashadAtkinson, Carla Droughn, David Fitzpatrick, Kirestin Harris, Janice Medley, Eurlene Robinson, Willie Toombs, Jr., Kahlil Watkins, and Tamera Williams (collectively "Class Representatives") filed a complaint (the "Complaint") individually and on behalf of other similarly situated nonwhite persons against Sears pursuant to Title VII of the Civil Rights Act of 1964 (codified as amended at 42 U.S.C. §§ 2000e - 2000e-17), Section 1 of the Civil Rights Act of 1866 (codified as amended at 42 U.S.c. § 1981), and the Arkansas Civil Rights Act of 1993 (codified as amended at Ark. Code Am1. § 16-123-101 to 108). The Complaint alleged that Plaintiffs and similarly situated nonwhite employees at the Sears store located at 600 South University Avenue in Little Rock, Arkansas ("University Store") had been discriminated against in placement, compensation, promotions, training, and other privl1eges and conditions of employment.

Case 4:98-cv-00739-SWW Document 196 Filed 05/17/01 Page 3 of 27
WHEREAS, Sears, by its Answer and in other pleadings, denied and continues to deny all allegations that Plaintiffs and the class they sought to represent had suffered any discrimination at Sears.
WHEREAS, from November 1998 to the present, the parties have engaged in extensive discovery and trial preparation on both class certification issues and the merits of Plaintiffs' and potential class members' claims and Sears' defenses including but not limited to, document review, deposition testimony and expert statistical analysis.
WHEREAS, the Court granted Plaintiffs' motion for class certification. The Court certified a class of current and fonner nonwhite hourly non-commission employees of Sears University Store who allege discrimination in the areas ofpay, placement, promotion and evaluation. Class members must have been employed at the University Store between November 4, 1995 and July 14,2000 ("Class" or "Class Members").
\VHEREAS, since August 2000, the parties have engaged in settlement negotiations, in correspondence and face-to-face negotiation and participated in arduous arms-length negotiations, including utilizing the services ofa private independent mediator who assisted the parties in reaching the Settlement Agreement ("Agreement" or "Settlement Agreement") memorialized herein.
WHEREAS, after extensive discussion between and among the parties and counsel, and based upon counsels' full review ofthe record compiled in this case, the parties have determined that it is in their best interests to settle this case on the terms and provisions set forth herein, given the risks and uncertainties of protracted litigation.
WHEREAS, to resolve completely and to secure the total and final settlement of all claims Plaintiffs and Class Members have against Sears arising out of allegations of discrimination
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Case 4:98-cv-00739-SWW Document 196 Filed 05/17/01 Page 4 of 27
in pay, promotion and evaluation as set forth in Plaintiffs' Amended Complaint, the parties hereby stipulate and agree as follows:
II. JURISDICTION The parties agree that this Court has jurisdiction over the parties and the subject matter of this action and that venue is proper in this district. This Court shall retain jurisdiction of this action during the duration of the Agreement for the purpose of entering all orders, judgments and agreements which may be necessary to implement the relief provided herein for a period of one year from the date upon which finaJ approval of the Agreement is granted by the Court (the "Effective Date"). III. EFFECTIVE DATE AND DURATION OF AGREEMENT The injunctive provisions and agreements contained herein shall be implemented on the Effective Date. Except as othemise provided herein, the provisions of this Agreement and the agreements contained herein shall remain in effect for one year from the Effective Date.
IV. NO ADMISSION OF LIABILITY Sears denied and continues to deny any legal liability arising out of any ofthe claims in this lawsuit. The Court has made no findings concerning Sears' alleged violations of Title VII, or any other federal, state, or local law, regulation, order, or rule prohibiting race discrimination. Accordingly, this Agreement shall not constitute, and shall not be used in this or any other case or action as an admission or evidence of any violation of Title VII, or any other federal, state, or local law, regulation, order, or rule. If for any reason settlement is not effectuated, no evidence of this proposed Agreement shall be admissible for any purpose in this or any other action.
V. SCOPE AND EFFECT OF SETTLEMENT A Settlement Scope This Agreement is intended to and does effectuate the full, final, and complete
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Case 4:98-cv-00739-SWW Document 196 Filed 05/17/01 Page 5 of 27
resolution of all allegations of discriminatory, unlawful employment practices because of race, occurring on or before the Preliminary Approval Date, that were or could have been brought by or on behalf of the Plaintiffs and the members of the class as defined by the Court under the discrimination charges filed by the Plaintiffs with the EEOC or under the original and amended complaints filed herein, including but not limited to all claims arising under federal, state, and local laws, and all claims for attorney's fees and costs. For purposes of this Agreement, Preliminary Approval Date is the date on which the Court grants its preliminary approval of the settlement and authorizes notice to be sent to the Cl~ss.
B. Release of ClaIms The negotiation and entry ofthis Agreement have been undertaken by the parties for the purpose of settling all claims ofrace discrimination which the Plaintiffs and the Class Members brought or could have brought under the charges filed by them with the EEOC or in the original and amended complaints filed herein by the Plaintiffs. On the Effective Date, the Plaintiffs and all Class Members, both individually and as a class, for themselves, their attorneys, spouses, executors, representatives, heirs, successors, and assigns, or any other persons who could claim through them, in consideration of the monetary and injunctive relief set forth herein, the sufficiency of which is expressly acknowledged, fully and finally release and forever discharge Sears, its affiliated or subsidiary companies, and each of their respective present, former or future officers, directors, shareholders, agents, employees, representatives, consultants, attorneys, successors and assigns and their respective pension, profit-sharing, savings and other employee benefit plans of any nature, and those plans' fiduciaries, representatives, trustees and administrators (the "Released Parties") from any and all past and/or present claim, right, demand, charge, complaint, action, cause of action, obligation, or liability of any and every kind for individual and/or class injunctive and monetary
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Case 4:98-cv-00739-SWW Document 196 Filed 05/17/01 Page 6 of 27
relief based upon any and all claims of employment discrimination because ofrace whether or not known, arising in any way out of the alleged facts, circumstances and occurrences underlying the allegations contained in the original and all amended complaints filed in this action or before the EEOC, whether such causes of action were or could have been based in tort; contract; any collective bargaining agreement; public policy; or any federal, state, or local law, statute, corrunon law or administrative regulation, which arose before the Preliminary Approval Date and which were raised or could have been raised in these actions, including, but not limited to, any and all claims for alleged race discrimination relating Lo initial placement, compensation, job assignments, job or department transfers, training, scheduling, allocation of hours, full-time or part-time status, promotion, evaluations, or to the terms, conditions, or privileges of employment, and further including, without limitation, any such claims of race discrimination that any Class Member may have filed or caused to be filed in any complaint before any court of law, or before any administrative agency (state, federal or local), or before any arbitrator or board, prior to the Preliminary Approval Date (the "Released Claims"). This Agreement releases all class and individual claims ofrace discrimination underlying the allegations contained in Plaintiffs' EEOC charges or in the original complaint and all amended complaints in this action for both monetary and injunctive relief and which arose before the Preliminary Approval Date except as hereinafter stated. This release is not applicable to and does not pertain to any claim a Class Member may possess as a commissioned employee of the Sears University Store, either individually or as a member of the Class. This Agreement also resolves all claims for attorneys' fees and expenses, including claims for attorneys' fees and expenses incurred in connection with the implementation ofthis Agreement. This Release shall survive the expiration of the Agreement.
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Case 4:98-cv-00739-SWW Document 196 Filed 05/17/01 Page 7 of 27
This is a full and final release applying not only to all Released Claims of race discrimination that are currently known, anticipated, or disclosed to Class Members, but also to all Released Claims of race discrimination that are presently unknown, unanticipated, and undisclosed to any and all Class Members.
VI. INJUNCTIVE RELIEF PROVISIONS As part of this Settlement Agreement, the parties have agreed to the following injunctive relief to be implemented at the University Store: A. Job Fair Sears will hold a job fair for all Class Members in or before August 200 I. Through the job fair, Sears will fill all open commission sales, full-time, management, and management trainee positions for which there is a qualified Class Member. Other qualified Class Members will be considered for future vacancies to the extent they are qualified and apply for open positions. Sears will discuss its benefits and opportunities including, but not limited to, explaining the nature and requirements of commission sales, full-time, management, and management trainee positions. Sears' Vice-President of Diversity will attend the job fair and make a presentation to the attendees. B. Job Posting and Application Procedures Sears will seek qualified persons from within Sears before hiring from outside by posting all open positions for commissioned sales, management, sales coordinator, management training, and full-time positions as soon as practicable and before any such position is filled. Sears shall maintain appropriate records of alljob postings for not less than one year following the posting. Postings for management and management trainee positions will include job descriptions and competency requirements. Sears will reaffirm this policy to all hiring personnel.
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Case 4:98-cv-00739-SWW Document 196 Filed 05/17/01 Page 8 of 27
Scars will modify the employment application to permit an applicant to identify the department(s) and positions for which the applicant has an interest and/or preference. Sears will also modify the interview guide to ensure that different store areas and job posting procedures are discussed with each applicant.
Scars will require that the trainer and/or hiring officials, in connection with employee orientation, explain to new applicants the job posting andjob application procedures and show new applicants the locations for job postings. Job applications will be located where jobs are posted.
Sears will inform all new applicants of the nature and requirements ofjob postings that are open, including commission sales and hourly assignments.
Sears will reaffirm with all employees with hiring responsibility that they must follow the pay-for-experience guidelines set forth in Sears Compensation Resource Guide, including appropriately documenting the employee's experience.
Sears will publish, during new employee orientation, by posting and by brochure dissemination, information pertaining to its management training program including any competency or mobility requirements.
C. Evaluations and Updating of Employment Records Sears will reaffirm with all managers that they must follow Sears' guidelines for conducting employee evaluations. Sears will require that managers, as part of the annual performance evaluation process, obtain updated personnel information for employees, such as educational achievements, for Sears' personnel records. Sears will modify the one-time 60-day and annual employee evaluation form as necessary to permit employees to list their Sears career aspirations. If such employees are qualified
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Case 4:98-cv-00739-SWW Document 196 Filed 05/17/01 Page 9 of 27
for promotion, they will be instructed regarding the process for getting their names on the "promotable log" in the human resources department.
Sears will communicate to all managers that employees with an overall evaluation score of2.5 or more are eligible for pay increases and for promotions to full-time. These standards shall be applied without regard to race. At the conclusion of one (I) year following the Effective Date, the score required to be eligible for a promotion to full-time shall be prevailing company standard.
D. Monitoring and Rel?orting Sears' Vice President of Diversity will monitor Sears' implementation of this Agreement for the term of the Agreement. In that regard, during the term of this Agreement, the Vice President of Diversity will submit quarterly reports which will be provided to Class Counsel pertaining to the progress ofthe injunctive reliefprovisions ofthis Agreement. Sears' Vice President of Diversity will also review a log of all calls from University Store employees to the Sears' Ethics Hotline. The University Store General Manager will submit monthly monitoring reports pertaining to the progress ofthe injunctive reliefprovisions ofthis Agreement to the District Human Resources Manager for the University Store. The District Human Resources Manager for the University Store will submit quarterly monitoring reports pertaining to, but not limited to, job posting, promotable log, and the pay for experience policy compliance to the Vice President of Diversity.
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Case 4:98-cv-00739-SWW Document 196 Filed 05/17/01 Page 10 of 27
VII. MONETARY RELIEF, NOTICE AND DISTRIBUTION
A. Creation ofOualified Settlement Fund
1. Class Counsel shall be responsible for establishing and maintaining a Qualified Settlement Fund ("QSF"), including the drafting of all necessary documentation and retaining a suitable administrator who will perform duties consistent with the terms of this Agreement, in accordance with Section 468B of the Internal Revenue Code of 1986, as mended, (the "Code") and the regulations promulgated thereunder, including 26 C.F.R. § 1.468B-I, el. seq., as may be amended hereafter. The QSF shall be administered at all times to comply with Section 468B ofthe Code and the applicable regulations. and the Court shall have continuing j urisdiction over the QSF. Class Counsel shall be responsible for the costs of establishing and maintaining the QSF, including all fees and costs incurred or charged by the administrator of the QSF. Sears shall have no obligations with respect to the establishment or maintenance of the QSF, or for the payment of the fees or costs of the administrator of the QSF. The administrator of the QSF shall apply for the tax identification number required for the QSF and timely provide that number to Sears. The administrator shall comply with all applicable federal, state and local tax laws and regulations, including all tax filing, payment, and reporting obligations'under applicable law.
2. The parties agree that there must be proper withholding of federal, state, and local income taxes, and the employees' share of FICA and Medicare on the portions of the settlement payments that are allocated to and constitute back wages. Accordingly, without limiting any other provision ofthis Agreement, the administrator shall be responsible for calculating the proper amount of withholding for federal, state, and local income taxes on the back wage portion of each Class Members' allocation, and the employees' share of FICA and Medicare on such portion, and the
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Case 4:98-cv-00739-SWW Document 196 Filed 05/17/01 Page 11 of 27
administrator shall timely pay such tax amounts from the QSF to the applicable governmental authority or depository as required by the apphcable tax law under the QSF's Tax Identification Number. Furthermore, the administrator shall be responsible for calculating the applicable federal and state unemployment taxes and the employer's share of FICA and Medicare on all amounts allocated to and constituting back wages to the class members, and the administrator shall timely pay such tax amounts from the QSF to the applicable governmental authority or depository as required by the applicable tax law under the QSF's Tax Identification Number; provided, however, that upon receipt of notice from the administrator at the time that payments are to be made to the applicable government authority, Sears shall make a payment to the QSF in the amount of the federal and state unemployment taxes and the employer's share of FICA and Medicare on all amounts allocated to and constituting back wages to the class members. Such payment shall be made by Sears within ten (10) days after notice of the amount due. The QSF shall act as the "employer" with respect to all such FICA, Medicare, and unemployment taxes on the back wage amounts.
a) Without limiting any other provision of this Agreement, the administrator shall determine if any other portion ofpayments to the class members are subject to withholding and if so make the applicable withholding required by applicable law. The administrator shall timely pay such withheld amounts to the applicable governmental authority or depository as required by the applicable law under the QSF's Tax Identification Number.
b) Without limiting any other provision of this Agreement, the administrator shall prepare, distribute, and file on behalf of the QSF any tax informational returns required for payments from the QSF, including, without limitation, IRS Forms W-2 and 1099. If required, the
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Case 4:98-cv-00739-SWW Document 196 Filed 05/17/01 Page 12 of 27
administrator shall obtain IRS FornI W-4 from each of the class members in order to establish the appropriate withholding amounts.
c) The administrator shall administer the QSF so that the QSF qualifies as a qualified settlement fW1d under Code Section 468B and the Treasury Regulations promulgated thereunder. The administrator shall take no action, or fail to take any action, that would cause the QSF not to qualify as a qualified settlement fund under Code Section 468 B and the Treasury Regulations thereW1der.
d) The administrator shall provide a separate indemnity agreement to Sears.
B. Funding of OSF
In consideration of the releases, promIses, and representations made by Plaintiffs, Class Members, and Class Counsel throughout this Agreement, Sears agrees to pay one million one hundred forty-two thousand dollars ($1, I 42,000.00) (the "Class Fund") to the QSF for distribution to the Plaintiffs and Class Members in accordance with the terms and conditions of this Agreement. Within forty (40) days after final approval of the Settlement Agreement by the Court, Sears shall deliver to Class COW1Se! a check made payable to Robinson v. Sears Qualified Settlement Fund ("QSF") in the arnoW1t of the Class Fund. If any appeal or collateral attack is filed within thirty (30) days of the Effective Date, however. Sears will not deliver the check until all appeals and collateral attacks are finally resolved with no material ch,mge to the Agreement. In that event, the delivery of the check shall be made within thirty (30) days of the final resolution of all appeals and collateral attacks. Except for the payment of Sears' share of FICA, FUTA, SUTA and Medicare, Sears shall have no further obligations with respect to the administration or distribution ofthe Class Fund upon delivery of the Class Fund to Class Counsel. In the event that final approval ofthis Agreement is
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Case 4:98-cv-00739-SWW Document 196 Filed 05/17/01 Page 13 of 27
denied or is ultimately reversed on appeal, Sears shall have no obligation to make any payments to Plaintiffs, Class Members or Class Counsel, and all releases pursuant to this Agreement shall be null and void.
C. Notice to the Class Promptly following the Preliminary Approval Date, Class Counsel shall mail, via fust class United States mail, postage prepaid, the Notice of Pendency of Class Action, Proposed Class Settlement, and Hearing on Final Approval ("Notice"), which is attached hereto as Exhibit "A." Class Counsel shall pay the expenses of the mailing. Class Counsel shall also cause the Notice attached hereto as Exhibit "B" to be published once a week for two (2) consecutive weeks in the Arkansas Democrat Gazette. D. Objections and Exclusions 1. Objections
Class Members who wish to present objections to the proposed settlement must do so in writing. Written objections must be received by Class Counsel at least fourteen (14) days before the Final Approval hearing. Class Counsel shall stamp the date received on the original of any objection it receives and serve copies of the objections on Sears' counsel not later than two (2) business days after receipt thereofand shall file the date-stamped originals ofany objections with the Clerk of Court no later than five (5) business days prior to the date ofthe Final Approval hearing.
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Case 4:98-cv-00739-SWW Document 196 Filed 05/17/01 Page 14 of 27
2. Exclusions Consistent with the Court's July 3, 2000 order, any potential Class Member,
including the Named Plaintiffs, may request exclusion from the Class for purposes ofmonetary relief only. Class Members who wish to exclude themselves from membership in the Class for purposes of participation in the monetary portion of the settlement must do so in writing by filing with Class Counsel a signed and dated "Opt-Out" statement. Written Opt-Out statements must be received by Class Counsel at least twenty-one (21) days before the Final Approval hearing, Class Counsel shall stamp the date received on the original of any "Opt-Out" statement it receives and serve copies of the statements on Sears' counsel no later than two (2) business days after receipt thereof.
Only those Class Members who request exclusion in the time and manner set forth herein shall be excluded from the Class. The terms and provisions of this Agreement concerning monetary relief shall have no binding effect on any person who makes a timely request for exclusion in the manner required by this Agreement.
3. Excessive Number of Opt-Outs In the event that sixty (60) or more of the total number of Class Members elect to opt out for purposes of participation in the monetary portion of this settlement, Sears may, at its option, void this Agreement. Sears shall notifY Class Counsel of its decision to void this Agreement at least seven (7) days prior to the date set for the Final Approval hearing, In the event that Sears elects to void this Agreement, it shall have no obligations to pay any monetary relief, attorney's fees, expenses or implement any injunctive relief under this Agreement.
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Case 4:98-cv-00739-SWW Document 196 Filed 05/17/01 Page 15 of 27
A. Class Monetarv Distrihution
1. Basic Eligibility for Pavments from the Class Fund
Eligibility for payments from the Class Fund to Named Plaintiffs and Class Members shall be made in accordance with the following:
To qualify for any payment from the Class Fund, an individual must:
-
(a) not have previously released hislher race discriminatIOn claims against-Sears;
(b) not have filed an opt-out form; and (c) must have been employed as an hourly employee at the University
Store between November 4, 1995 and July 14,2000. 2. Distribution Payment from the Class Fund will be paid as provided in this paragraph. The Class Representatives will be paid a dividend from the Class Fund of$20,000.00 per representative. Those Class Members who submitted Affidavits will be paid a dividend of$5,000.00 per person. These dividends are to be paid for the greater risks taken and burdens shouldered by these individuals in bringing this action and assisting in the action despite being. identified by their employer and the public. The balance of the Class Fund will be distributed to the entire Class on the basis of their longevity with Sears as detennined by Sears' records. Each Class Members' payment will be calculated based on the number of months that the Class Member worked at Sears as an hourly employee. Partial months of work will be counted as a complete month. Assuming that all Class Members are located, it is estimated that Class Members will receive a gross amount of approximately $140.00 for each month they were employed at Sears. For example, Class Members
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Case 4:98-cv-00739-SWW Document 196 Filed 05/17/01 Page 16 of 27
who have been employed by Sears throughout the period for which the case is certified should receive gross damages of approximately $7.980.00.
It is contemplated by the parties to this Settlement Agreement that some members of this Class will not be located. The parties expect that some of the Notices of Pendency of Class Action, Proposed Class Settlement, and Hearing on Final Approval (Notice) will be returned to Class Counselor the Administrator for one reason or another.
Class Counsel and the Administrator must use due diligence to locate missing or unlocatable Class Members (those Members whose Notice are returned to Class Counselor Sears) for forty (40) days following the Effective Date. Sears agrees to cooperate in providing Class Counsel and the Administrator infonnation necessary to assist in finding the unlocated Class Members. If Class Members cannot be located or do not come forward within forty (40) days from the Effective Date, their share of the Class Fund shall revert to the remainder of the Class. as detailed below.
If Class Members are detennined to be missing or unlocatable, such persons will not be paid and their forfeited share shall revert to the Class Fund for distribution to the located Class Members as provided in this paragraph.
2. Reversion
None of the money paid for the benefit of the Class shall revert to Sears. Any payments that are returned to the Class Counselor the Administrator shall again be deposited in the QSF. At least one hundred eighty (180) days and no later than two hundred ten (2 I 0) days following the distribution ofthe payments described in the paragraph above, any monies remaining in the account on account of any such returned payments or uncashed checks, after payment of any account
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Case 4:98-cv-00739-SWW Document 196 Filed 05/17/01 Page 17 of 27
maintenance expenses, shall be distributed to the nine Class Representative Plaintiffs identified herein in equal shares, to be paid in the same manner as the initial payments or to charity at which time the QSF shall be closed.
VIII. ATTORNEY'S FEES AND EXPENSES A The parties have agreed that it is appropriate as part of the settlement underlying this Agreement for Sears to pay Class Counsel, on behalf of the Plaintiffs and Class Members, reasonable attorneys' fees, litigation expenses, and costs in this case, suJ?iect to the Court's approval thereof. B. Sears has agreed to pay Class Counsel two hundred ninety nine thousand nine hundred thirty six and 75/100 dollars ($299,936.75) for reasonable attorneys' fees, and one hundred seventeen thousand seven hundred eighty and 23/1 00 dollars ($117,780.23) for litigation expenses, and costs as awarded by the Court for work performed or to be performed and costs and expenses incurred or to be incurred through the expiration of the Agreement. Included in this amount is approximately sixty-two thousand three hundred and forty-one dollars ($62,341.00) for fees and expenses incurred or to be incurred by Class Counsel for administrative and monitoring work required to be performed by Class Counsel in the claims distribution process and after the Effective Date of the Agreement. Total payment to Class Counsel for fees, litigation expenses, and costs is four hundred seventeen thousand seven hundred seventeen and 00/1 00 dollars ($417,717.00). This amount fully satisfies any arguable obligation Sears may have to pay attorneys' fees, litigation expenses, and costs for and on behalf of the Named Plaintiffs and the Class Members for any and all work performed and costs and expenses incurred through the expiration ofthis Agreement, with the exception of any fees and costs which may be awarded by the Court to Class Counsel if an enforcement proceeding before the Court is successful. Sears does not concede that it has or would
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Case 4:98-cv-00739-SWW Document 196 Filed 05/17/01 Page 18 of 27
have any obligation to pay Class Counsel's fees in such an event and will oppose any petition for additional fees. Sears will pay Class Counsel by check to be delivered within forty (40) days after final approval of the Settlement Agreement by the Court along with the settlement check to the QSF. Sears will issue an IRS Fonn 1099 to James & Carter, PLC with respect to the payment.
C. Sears has also agreed to pay the fees ofthe mediator who was retained by the parties to assist in the settlement negotiations.
D. Under no circumstances shall Sears be required to pay the Named Plaintiffs or the Class Members any funds in excess of those set forth in Section VII above nor any legal fees or expenses to Class Counsel greater than those set forth in this Section VIII, unless the Court awards attorneys' fees and expenses to Class Counsel for the enforcement of this Settlement Agreement.
IX. JUDGMENT TO BE ENTERED APPROVING THE SETTLEMENT
Upon final approval by the Court of this Settlement Agreement, the parties will request that the Judgment be entered by the Court in the fonn of Exhibit C.
X. RETAINED RIGHTS
A Nothing in this Agreement shall be construed to limit, modify, or compromise in any way the existing right of Sears and its management to exercise their discretion in making business decisions, including but not limited to the right to decide:
(a) The number of employees to employ at the University Story as a whole or in any particular department, job classification (including, without limitation, part-time or full-time status), or job title;
(b) The number and types ofjob classifications and job titles; (c) The gUIdelines for establishing employee compensation;
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Case 4:98-cv-00739-SWW Document 196 Filed 05/17/01 Page 19 of 27
(d) The specific or aggregate number of hours available for work in any particular department, job classification, or job title;
(e) The labor costs for the University Store or any department; (I) The number and types of departments and services provided at the
University Store; (g) The most efficient and productive manner for operating the
University Store; and (h) The qualifications of any employee either in their current position or
in consideration for training and/or promotion to another position. However, notwithstanding these retained rights, such retained rights shall not be useato modify, abrogate, or circumvent the equitable relief specified in Section VI of this Settlement Agreement.
B Nothing in this Agreement is intended to preclude or prevent Sears from developing additional programs, policies or practices that further EEO compliance or that may enable Sears to identifY the interests or preferences of its employees through other means.
XI. ENFORCEMENT OF THE AGREEMENT AND DISPUTE RESOLUTION PROCEDURES
A. Enforcement 9fthe Agreement For purposes of interpreting this Agreement, individual Class Members shall not be deemed to be third party beneficiaries ofthis Agreement, nor shall they have any right to enforce its terms. Only Class Counsel may seek to enforce this Agreement in Court. The Court alone shall have plenary authority to resolve all disputes arising under the Agreement. At the request of Class Counselor Sears, Class Counsel and Sears shall confer, as necessary, and an earnest effort shall be made by the parties to resolve promptly any differences or any disputes regarding the interpretation or implementation of the Agreement, including Sears' compliance with the Agreement. Ifany issue is not resolved informally, Class Counselor Sears may seek relief from the Court.
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Case 4:98-cv-00739-SWW Document 196 Filed 05/17/01 Page 20 of 27
XII. CONFIDENTIALITY AND RETUR.N OF DOCUMENTS PROVIDED TO CLASS COUNSEL UNDER THE TERMS OF THIS AGREEMENT The parties acknowledge that certain information provided by Sears pursuant to this
Agreement is required for the sole purpose of investigating, monitoring and enforcing Sears' compliance with this Agreement. All records, reports and other documents generated, maintained or produced pursuant to the terms of the Agreement shall be kept confidential and used solely for the purpose of monitoring compliance with this Agreement. Class Counsel shall not disclose such information to any person, except as is reasonably necessary to enforce, monitor or administer the provisions of this Agreement or to comply with otherwise applicable laws.
IfClass Counsel desires to disclose information made confidential by this Agreement, Class Counsel shall promptly notify Sears of the information it seeks to disclose and the reasons for disclosing it. If Sears objects to the disclosure, the disclosure shall not occur unless the parties have agreed to the disclosure or the Court has granted Class Counsel's request to disclose the information based upon a finding that good cause exists for such disclosure. However, this confidentiality provision shall not bar Class Counsel from disclosing such information to the Court in any enforcement proceeding consistent with the temlS of the Stipulated Protective Order entered in this action. Within thirty (30) days after expiration of this Agreement, Class Counsel shall return to Sears' counsel all documents produced by Sears pursuant to the terms of this Agreement.
XIII. MISCELLANEOUS PROVISIONS
A. Construction of Agreement Each party has been given an opportunity to participate in the drafting and preparation of this Agreement. Hence, in any construction to be made ofthis Agreement, the same shall not be construed against any party.
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Case 4:98-cv-00739-SWW Document 196 Filed 05/17/01 Page 21 of 27
B. Entire Agreement The parties represent and warrant that no promise or inducement has been offered or made except as set forth herein and that they are entering into and executing this Agreement without reliance on any statement or representation not set forth within this Agreement. The consideration stated herein is the sole consideration for this Agreement. This Agreement reflects the entire agreement between the parties and supersedes all prior or contemporaneous agreements, discussions, or representations, oral or written, with respect to the subject matter hereof. C. Cooperation The parties agree to cooperate in implementing the terms of this Settlement Agreement. Sears agrees to furnish Class Counsei such employment information as is necessary to make the monetary distribution as provided by this Settlement Agreement. D. Modification Sears and Class Counsel shall have the right to seek relevant modification of the Agreement to ensure that its purposes are fully effectuated following good faith negotiations as to such modifications. Sears and Class Counsel may jointly agree to modify the Agreement with the approval of the Court. No modifications or amendments to this Agreement shall be valid unless made in writing and signed by or on behalf of Sears and Class Counsel. The parties agree that additional consideration for modifications or amendments to this Agreement is unnecessary provided that the modifications or amendments are made according to the terms of this Paragraph. E. Severability Whenever possible, each provision and term ofthis Agreement shall be interpreted in such a manner as to be valid and enforceable; provided, however, that in the event any provision or term of this Agreement should be determined to be or rendered invalid or unenforceable (by an
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Case 4:98-cv-00739-SWW Document 196 Filed 05/17/01 Page 22 of 27
Act of Congress, or otherwise), all other provisions and terms of this Agreement and the application thereof to all persons and circumstances subject thereto shall remain unaffected to the extent permitted by law; provided, however, that if any Class Member who has not opted out and who has received payment brings an action against Sears and a court determines that the Release or any part thereof is invalid or unenforceable, such Class Member shall be required to forfeit and return to Sears all payments received by the Class Member under the Agreement.
F. Successors and Assigns This Agreement shall)e binding upon and shall inure to the benefit of the parties hereto and their heirs, successors and assigns. G. Discovery of Additional Facts or Claims The parties are aware that hereafter there may be a discovery of claims or facts in addition to or different from those they now know or believe to be true with respect to the matters related herein. Nevertheless, it is the intention of the parties to settle and release fully, finally, and forever all such matters, and all claims relative thereto, which do not now exist, may exist, or heretofore have existed between them, whether suspected or unsuspected. In furtherance of this intention, the release given herein shall be and remain in effect as a full and complete release of all such matters, notwithstanding the discovery or existence ofany additional or different claims or facts relative thereto. H. CQ.mmitment to Defend Agreement Sears and Class Counsel shall make a good faith effort to defend this Agreement from any legal challenge whether by appeal, collateral attack or objection.
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Case 4:98-cv-00739-SWW Document 196 Filed 05/17/01 Page 23 of 27
I. Calculation of Time In computing any penod of time prescribed or allowed by this Agreement, unless otherwise stated, such computation or calculation shall be made consistent with Federal Rules of Civil Procedure 6(a) and (e). J. Deadlines Sears, Class Counsel and the Court recognize that from time to time unforeseen events, such as exigent business circumstances, cause delays in the accomplishment oklbjectives no matter how well intentioned and diligent the parties may be. Accordingly, with regard to the provisions ofthis Agreement that require certain acts to be taken within specified time periods, Sears and Class Counsel understand and agree that Court approval shall not be required for reasonable extensions of deadlines. In the event that either Sears or Class Counsel determines that an action required by this Agreement cannot be taken within the specified time period, that party shall promptly notifY the other party that it anticipates a delay. Such notice shall include the reasons for the delay and a proposed alternative deadline. Sears and Class Counsel shall endeavor to cooperate in reasonably rescheduling such deadlines. However, unless the parties agree to an alternative deadline, all deadlines set forth in this Settlement Agreement shall remain in effect. K. Notices All notices and other communications required under this Agreement shall be in writing and delivered either personally or by depositing the same, postage prepaid, in the United States mail, addressed to the party hereto to whom the same is directed at the following addresses:
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Case 4:98-cv-00739-SWW Document 196 Filed 05/17/01 Page 24 of 27
To the Named Plaintiffs and Class Members: Daniel R. Carter, Esq. Holly E. Isaac, Esq. James & Carter, PLC 500 Broadway, Suite 400 Superior Federal Building Little Rock, Arkansas 72201-3343 To Sears: Peggy Davis, Esq. John Dickman, Esq. Winston & Strawn 35 West Wacker Drive Chicago, Illinois 60601 The parties may from time to time change their address for the purposes of this Section by providing written notice, return receipt requested, of such change to the other parties. L. Return of Documents The parties agree that the Stipulated Protective Order entered by the Court remains in full force and effect, and Sears has elected under Paragraph 6 of the Stipulated Protective Order to have Confidential materials, including copies thereof, returned to Sears immediately following the Effective Date. M. Counte!J?arts This Agreement may be executed in multiple counterparts, each of which when so executed shall constitute an original.
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Case 4:98-cv-00739-SWW Document 196 Filed 05/17/01 Page 25 of 27

IN WlTNESS WHEREOF, the parties have executed and agreed to this Agreement

consisting of 24 pages.
BY~~r-Daniel R. Carter, Esq. Holly E. Isaac, Esq. JAMES & CARTER, PLC Attorneys for the Class 500 Broadway, Suite 400 Superior Federal Building Little Rock, Arkansas 72201:.3343

Date: ~_:>

,2001

By: !f~~ Deborah Pierce Vice President, Employment Practices SEARS, ROEBUCK & CO. 3333 Beverly Road Hoffinan Estates. Illinois 60179

_ _ Date:_-"_ -0_~-fJ---,--J

,2001

The provisions of the foregoing Agreement are hereby approved, and compliance with all provisions is HEREBY ORDERED.

Dated:

...".' 200 I

By:

---',

Tudge

United States District Court

827218.2

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Case 4:98-cv-00739-SWW Document 196 Filed 05/17/01 Page 26 of 27
F I L E COP Y bm
UNITED STATES DISTRICT COURT Eastern District of Arkansas
U.S. Court House 600 West Capitol, Suite 402 Little Rock, Arkansas 72201-3325
May 18, 2001
* * MAILING CERTIFICATE OF CLERK * *
Re: 4:98-cv-00739.
True and correct copies of the attached were mailed by the clerk to the followinq:
Peggy A. Davis, Esq. Winston & Strawn 35 West Wacker Drive Chicago, IL 60601-9703
Gerald C. Peterson, Esq. Winston & Strawn 35 West Wacker Drive Chicago, IL 60601-9703
Peter C. Warman, Esq. Winston & Strawn 35 West Wacker Drive Chicago, IL 60601-9703
John M. Dickman, Esq. Winston & Strawn 35 West Wacker Drive Chicago, IL 60601-9703
Columbus R. Gangemi Jr., Esq. Winston & Strawn 35 West Wacker Drive Chicago, IL 60601-9703
Aida M. Alaka, Esq. Winston & Strawn 35 West Wacker Drive Chicago, IL 60601-9703
David A. Couch, Esq. Dover & Dixon TCBY Building 425 West Capitol Avenue Suite 3700

Case 4:98-cv-00739-SWW Document 196 Filed 05/17/01 Page 27 of 27
Little Rock, AR 72201-2692
Philip E. Dixon, Esq. Dover & Dixon TCBY Building 425 West Capitol Avenue Suite 3700 Little Rock, AR 72201-2692
Steve L. Riggs, Esq. Dover & Dixon TCBY Building 425 West Capitol Avenue Suite 3700 Little Rock, AR 72201-2692
Paul J. James, Esq. James & Carter, PLC Superior Federal Building 500 Broadway, Suite 400 Post Office Box 907 Little Rock, AR 72203-0907
Holly Hambrick Isaac, Esq. James & Carter, PLC Superior Federal Building 500 Broadway, Suite 400 Post Office Box 907 Little Rock, AR 72203-0907
press

c;It (
Date: ---'----'--------

rmack, Clerk BY:

 
 Case 4:98-cv-00739-SWW Document 202 Filed 08/17/01 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT

FILED

EASTERN DISTRICT OF ARKANSAS

u.s. DISTRICT CDURT
EASTERN ptSTRICT ARKANSAS

LITTLE ROCK DIVISION

AUG I 7 2001

EURLENE ROBINSON; RASHAD ATKINSON; )

CARLA DROUGHN; DAVID FITZPATRICK;

)

KIRESTIN J. HARRIS; JANICE MEDLEY;

)

WILLIE L. TOOMBS, JR.; KAHLIL WATKINS;

)

and TAMERA L. WILLIAMS, on behalf of

)

themselves and all other persons similarly

)

situated,

)

)

Plaintiffs,

)

)

v.

)

)

SEARS, ROEBUCK AND CO.,

)

)

Defendant.

)

jA~WMc.O~ACK, CLERK
By:_.~~S~
DEPCLERK
4:98 CV 00739 SWW

ORDER APPROVING SETTLEMENT AGREEMENT Pending before the Court for consideration is the Settlement Agreement reached by the Plaintiffs and the Defendant. The Court preliminarily approved the Settlement Agreement, directed that notices be sent to the class and published, and set a Fairness Hearing for August 17, 2001 to determine the adequacy, reasonableness, and fairness of the proposed settlement. After reviewing the record, the proposed Settlement Agreement, and considering the evidence and arguments presented at the Fairness Hearing, the Court finds:

1.

Plaintiffs, Rashad Atkinson, Carla Draughn, David Fitzpatrick, Kirestin Harris, Janice

Medley, Eurlene Robinson, Willie Toombs, Jr., Kahlil Watkins, and Tamera Williams (collectively

"Plaintiffs") filed a complaint(the "Complainf') individually and on behalf of other similarly situated

nonwhite persons against Sears pursuant to Title VII of the Civil Rights Act of 1964 (codified as

" amended at 42 U.S.C.§§ 2000e ~.,

2000e-17). Section 1 of the Civil Rights Ac. t of 1866 (codified

as amended at 42 U.S.C. § 1981), and the Arkansas Civil Rights Act of 1993 (codified as amended

at Ark. Code Ann. § 16-123-101 to 108). The Complaint alleged that Plaintiffs and similarly situated

Case 4:98-cv-00739-SWW Document 202 Filed 08/17/01 Page 2 of 6

nonwhite employees of the Sears store located at 600 South University Avenue in Little Rock,

Arkansas ("University Store") had been discriminated against in placement, compensation,

promotions, training, and other privileges and conditions of employment.

2. Sears, by its Answer and in other pleadings, denied and continues to deny all

allegations that Plaintiffs and the class they sought to represent had suffered any discrimination

at Sears.

3.

From November, 1998 to May 3, 2001, the parties engaged in extensive

communication with clients, document review, deposition testimony, expert statistical analysis,

litigation, discovery, and trial preparation on class certification issues, the merits of Plaintiffs' and

potential class members' claims, and Sears' defenses.

4. The Court granted Plaintiffs' motion for class certification on July 3,2000. The Court

certified a class of current and former nonwhite hourly non-commission employees of Sears

University Store who alleged discrimination in the areas of pay, placement, promotion and

evaluation. Class members ("Class" or "Class Members") includes all minority hourly employees

at the University Store between November 4, 1995 and JUly 14, 2000.

5.

Between August, 2000 and May 3, 2001, the parties engaged in settlement

negotiations, corresponded, participated in face-to-face negotiation and arduous arms-length

negotiations, including utilization of the services of a private independent mediator who assisted

the parties in reaching the Settlement Agreement ("Agreement," "Settlement," or "Settlement

Agreement") filed herein.

6. After extensive discussion between and among the parties andcounsel, the parties

determined that it was in their best interests to settle this case on the terms and provisions set forth

in the Settlement Agreement, given the risks and uncertainties of protracted litigation.

7. If this case were not settled, further extensive court proceedings would be required.

Regardless of the initial outcome of the case in the trial court, there almost certainly would be an

2

Case 4:98-cv-00739-SWW Document 202 Filed 08/17/01 Page 3 of 6
appeal by either or both sides to the United States Court of Appeals for the Eighth Circuit and possibly the United States Supreme Court. Thus, unless this case is resolved by settlement, it could be a number of years before this matter is finally resolved.
8. In order to avoid the uncertainty, delay, expense and risk associated with trial and appeal, counsel forthe Plaintiffs and Defendant have agreed to resolve this case by the negotiated settlement.
9. The settlement reached by the parties prOVides for affirmative relief which will be of benefit to the class and to non-class minority employees or applicants.
10. The settlement provides that all class members will receive monetary compensation based on the number of months the class member was employed as an hourly employee at the Sears University Store between November 4, 1995 and July 14, 2000.
11. The Court approved Notice waS mailed to each class member on June 19, 2001, informing them of the terms of their rights and responsibilities under the terms of the settlement. The Notices were sent by RustConsulting, Inc., the Class Administrator retainedby Class Counsel.
12. On June 22,2001 and again on June 28, 2001, the Notice which the Court approved for pUblication was published in the Arkansas Democrat-Gazette.
13. Class Counsel received returned notices which were undeliverable or for which the forwarding order had expired. ClasS Counsel also received numerous telephone calls in response to the published notice from class members informing Class Counsel of address changes. The current addresses were forwarded to Rust Consulting, who re-sent the Notice. The names of the class members whose notices were returned were forwarded to Rust Consulting who searched for a new address via data bases used for that purpose. Notices were then re-sent to the new addresses.
14. The Court finds that class members have been sufficiently notified of the terms of the proposed settlement and the procedure for bringing objections to the attention of the Court.
3

Case 4:98-cv-00739-SWW Document 202 Filed 08/17/01 Page 4 of 6

15. The affirmative relief and monetary benefits of the settlement are fair when compared to the risks associated with a jury trial and the inevitable appeal.
16. The case involves complex issues of fact and law. The Court actively participated in this case. and is familiar with all the legal issues raised both in the class certification motion and Defendant's Motion for Summary JUdgment which were fully briefed by the Parties and supported by voluminous evidentiary submissions, including expert reports.
17. Class response to the settlement has been positive. No class member has opted out of the Class. No class member has submitted a written objection on or before August 3,2001, the deadline specified in the mailed Notices.
18. The attorneys' fees and costs set forth in the Settlement Agreement are not paid out of the settlement fund and are in addition to class damages. These attorneys' fees and costs which are to be paid by the Defendant are just and reasonable.
19. The Settlement Agreement presented to the Court is fair, reasonable and adequate. THEREFORE. for the reasons stated above, the Settlement Agreement is approved and the Court simultaneously enters a separate Judgment and Order of Dismissal regarding the further disposition of this case. IT IS SO ORDERED.

dZru* Date:

/?t cJeol

THIS DOCUMENT ENTERED ON

DOCKET SHEET IN COMPLIANCE

8 WITH
ON

RoUaL-E_'8'~0NBDy/~OTRJ79r(:a)UF.R~C~P-

4

Case 4:98-cv-00739-SWW Document 202 Filed 08/17/01 Page 5 of 6
F I L E COP Y vjt
UNITED STATES DISTRICT COURT Eastern District of Arkansas
U.S. Court House 600 West Capitol, Suite 402 Little Rock, Arkansas 72201-3325
August 21, 2001
* * MAILING CERTIFICATE OF CLERK * *
Re: 4:98-cv-00739.
True and correct copies of the attached were mailed by the clerk to the following:
Aida M. Alaka, Esq. Winston & Strawn 35 West Wacker Drive Chicago, IL 60601-9703
Peggy A. Davis, Esq. Winston & Strawn 35 West Wacker Drive Chicago, IL 60601-9703
Gerald C. Peterson, Esq. Winston & Strawn 35 West Wacker Drive Chicago, IL 60601-9703
Peter C. Warman, Esq. Winston & Strawn 35 West Wacker Drive Chicago, IL 60601-9703
John M. Dickman, Esq. Winston & Strawn 35 West Wacker Drive Chicago, IL 60601-9703
Columbus R. Gangemi Jr., Esq. Winston & Strawn 35 West Wacker Drive Chicago, IL 60601-9703
David A. Couch, Esq. Dover & Dixon TCBY Building 425 West Capitol Avenue Suite 3700

Case 4:98-cv-00739-SWW Document 202 Filed 08/17/01 Page 6 of 6
"Little Rock, AR 72201-2692
Philip E. Dixon, Esq. Dover & Dixon TCBY Building 425 West Capitol Avenue Suite 3700 Little Rock, AR 72201-2692
Steve L. Riggs, Esq. Dover & Dixon TCBY Building 425 West Capitol Avenue Suite 3700 Little Rock, AR 72201-2692
Paul J. James, Esq. James & Carter, PLC Superior Federal Building 500 Broadway, Suite 400 Post Office Box 907 Little Rock, AR 72203-0907
Holly Hambrick Isaac, Esq. James & Carter, PLC Superior Federal Building 500 Broadway, Suite 400 Post Office Box 907 Little Rock, AR 72203-0907
cc: press, post

--~.,---

8/21/01 Date:

James W. McCormack, Clerk
V. Turner BY:

 
 Case: 4:98-cv-739 As of:09/29/2010 03:25 PM CDT 1 of 19
DISC, HLJ, TERMED
U.S. District Court Eastern District of Arkansas (Little Rock) CIVIL DOCKET FOR CASE #: 4:98−cv−00739−SWW

Robinson, et al v. Sears Roebuck &Co Assigned to: Judge Susan Webber Wright Demand: $0 Case in other court: USCA8, :00−00000−08015 Cause: 42:2000e Job Discrimination (Employment)
Plaintiff

Date Filed: 11/04/1998 Date Terminated: 08/17/2001 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

Eurlene Robinson on behalf of herself and all other persons similarly situated

represented by Holly Elizabeth Dickson Arkansas Civil Liberties Union Foundation, Inc. 904 West Second Street Suite 1 Little Rock, AR 72205 501−374−2842 Email: holly@acluarkansas.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul J. James James, Carter &Coulter, P.L.C. Post Office Box 907 Little Rock, AR 72203 (501) 372−1414 Email: pjj@jamescarterlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Rashad L Atkinson on behalf of himself and all other persons similarly situated

represented by Holly Elizabeth Dickson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul J. James (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Carla Droughn on behalf of herself and all other persons similarly situated

represented by Holly Elizabeth Dickson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul J. James (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
David Fitzpatrick on behalf of himself and all other persons similarly situated

represented by Holly Elizabeth Dickson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul J. James

Case: 4:98-cv-739 As of:09/29/2010 03:25 PM CDT 2 of 19

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Kirestin J Harris on behalf of herself and all other persons similarly situated

represented by Holly Elizabeth Dickson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul J. James (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Janice L Medley on behalf of herself and all other persons similarly situated

represented by Holly Elizabeth Dickson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul J. James (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Willie L Toombs, Jr on behalf of himself and all other persons similarly situated

represented by Holly Elizabeth Dickson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul J. James (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Kahlil Watkins on behalf of himself and all other persons similarly situated

represented by Holly Elizabeth Dickson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul J. James (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Tamera L Williams on behalf of herself and all other persons similarly situated

represented by Holly Elizabeth Dickson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul J. James (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.

Case: 4:98-cv-739 As of:09/29/2010 03:25 PM CDT 3 of 19

Defendant Sears Roebuck &Company

represented by Aida M. Alaka Winston &Strawn − Chicago 35 West Wacker Drive Chicago, IL 60601−9703 (312) 558−5600 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Columbus R. Gangemi , Jr. Winston &Strawn − Chicago 35 West Wacker Drive Chicago, IL 60601−9703 (312) 558−5600 LEAD ATTORNEY ATTORNEY TO BE NOTICED

David A. Couch David A. Couch, PLLC 1501 North University Suite 568 Little Rock, AR 72207 (501) 370−9192 Email: dacouch@aristotle.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gerald C. Peterson Winston &Strawn − Chicago 35 West Wacker Drive Chicago, IL 60601−9703 (312) 558−5600 LEAD ATTORNEY ATTORNEY TO BE NOTICED

John M. Dickman Winston &Strawn − Chicago 35 West Wacker Drive Chicago, IL 60601−9703 (312) 558−5600 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peggy A. Davis Winston &Strawn − Chicago 35 West Wacker Drive Chicago, IL 60601−9703 (312) 558−5600 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter C. Warman Winston &Strawn − Chicago 35 West Wacker Drive Chicago, IL 60601−9703 (312) 558−5600 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Philip E. Dixon Dover Dixon Horne PLLC 425 West Capitol Avenue Suite 3700 Little Rock, AR 72201−2692

Case: 4:98-cv-739 As of:09/29/2010 03:25 PM CDT 4 of 19
(501) 375−9151 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steve L. Riggs Dover Dixon Horne PLLC 425 West Capitol Avenue Suite 3700 Little Rock, AR 72201−2692 (501) 375−9151 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 11/04/1998 11/09/1998 11/24/1998 11/24/1998 12/02/1998
12/02/1998
12/30/1998 01/06/1999 01/06/1999
04/26/1999 04/27/1999
04/27/1999 05/14/1999 05/26/1999

# Docket Text
1 COMPLAINT−CLASS ACTION, $150.00 filing fee/receipt #81666; summons issued &returned to counsel (jap) (Entered: 11/05/1998)
2 RETURN OF SERVICE executed upon defendant Sears Roebuck &Co on 11/6/98 (vjt) (Entered: 11/10/1998)
3 MOTION by Columbus R. Gangemi, Jr. and John M. Dickman through local counsel, Dover &Dixon to appear pro hac vice for deft Sears (vjt) (Entered: 11/24/1998)
4 MOTION by defendant for extension of time to answer or otherwise respond to the complt and to extend time to respond to discovery (vjt) (Entered: 11/25/1998)
5 ORDER by Chief Judge Susan W. Wright granting motion by Columbus R. Gangemi, Jr. and John M. Dickman through local counsel, Dover &Dixon to appear pro hac vice for deft Sears [3−1] (cc: all counsel) EOD 12/2/98 (vjt) (Entered: 12/02/1998)
6 ORDER by Chief Judge Susan W. Wright granting deft's motion for extension of time until 12/30/98 to answer or otherwise respond to the complt [4−1]; granting deft's motion to extend time until 2/5/99 to respond to discovery requests [4−2]; the time in which pltf has to move for a determination under FRCP 23(c)(1) is hereby extended up to and including 5/5/99, unless extended by subsequent order (cc: all counsel) EOD 12/2/98 (vjt) (Entered: 12/02/1998)
7 ANSWER by defendant (vjt) (Entered: 12/30/1998)
8 DEMAND for jury trial by plaintiffs (vjt) (Entered: 01/06/1999)
9 SCHEDULING ORDER by Chief Judge Susan W. Wright; jury trial set for 9:30 11/1/99 in Little Rock; motions to amend pleadings due 8/20/99; motions in limine due 10 calendar days prior to trial; all other motions and discovery due 9/17/99; pretrial info sheet due 10/1/99 (cc: all counsel) (vjt) (Entered: 01/07/1999)
10 MOTION by pltfs for extension of time to move for class certification (vjt) (Entered: 04/26/1999)
11 STIPULATED PROTECTIVE ORDER by Chief Judge Susan W. Wright, upon stipulation of the parties, all personnel documents and affirmative action plans produced by any party in this action, unless otherwise ordered by the Court, shall be treated as confidential (cc: all counsel) EOD 4/27/99 (vjt) (Entered: 04/27/1999)
12 ORDER by Chief Judge Susan W. Wright granting pltfs' motion for extension of time until 6/30/99 to move for class certification [10−1] (cc: all counsel) EOD 4/27/99 (vjt) (Entered: 04/27/1999)
13 MOTION by counsel for deft Sears Roebuck &Co for attorney Peter C. Warman to appear pro hac vice (bsm) Modified on 05/17/1999 (Entered: 05/17/1999)
14 ORDER by Chief Judge Susan W. Wright granting motion for atty Peter C. Warman to appear pro hac vice for deft Sears [13−1] (cc: all counsel) (vjt) (Entered: 05/27/1999)

Case: 4:98-cv-739 As of:09/29/2010 03:25 PM CDT 5 of 19

06/28/1999 06/28/1999 06/28/1999 06/28/1999 07/12/1999 07/16/1999 08/06/1999 08/13/1999
08/16/1999 08/20/1999 09/02/1999
09/03/1999 09/03/1999 09/03/1999 09/22/1999 09/29/1999
09/30/1999 09/30/1999 09/30/1999 09/30/1999

15 MOTION by pltf for extension of time to move for class certification (vjt) (Entered: 06/28/1999)
16 BRIEF by pltfs in support of motion for extension of time to move for class certification [15−1] (vjt) (Entered: 06/28/1999)
17 MOTION by pltfs to compel deft to answer pltfs' first set of interrogs and requests for production of documents (vjt) (Entered: 06/28/1999)
18 BRIEF by pltfs in support of motion to compel deft to answer pltfs' first set of interrogs and requests for production of documents [17−1] (vjt) (Entered: 06/28/1999)
19 OPPOSITION RESPONSE by deft to motion for extension of time to move for class certification [15−1] (vjt) (Entered: 07/12/1999)
20 OPPOSITION RESPONSE by deft to motion to compel [17−1] (vjt) (Entered: 07/19/1999)
21 REPLY by plaintiffs to deft's opposition to motion to compel [17−1] (bsm) (Entered: 08/09/1999)
22 ORDER by Chief Judge Susan W. Wright granting motion to compel [17−1], deft Sears is directed to provide complete responses to pltfs' discovry requests (with the exception of interrogatory Nos. 38, 53 &54; granting motion for extension of time until 10/18/99 to move for class certification [15−1]; Jury trial continued ; Court will issue an amended scheduling order setting a new trial date and a new completion of disovery and the filing of motions (cc: all counsel) (bsm) (Entered: 08/16/1999)
23 MOTION by plaintiffs for continuance (former empl) (Entered: 08/16/1999)
24 ORDER by Chief Judge Susan W. Wright that deft's motion for continuance is denied as moot since the trial has already been continued by Order filed 8/13/99 [23−1] (EOD 8/20/99) (cc: all counsel) (bsm) (Entered: 08/20/1999)
25 AMENDED SCHEDULING ORDER by Chief Judge Susan W. Wright; jury trial set for 9:30 a.m. on 6/26/00 in Little Rock, AR; discovery due 2/29/00; pretrial info sheet due 5/26/00; all other deadlines remain as previously scheduled (cc: all counsel) (bsm) (Entered: 09/03/1999)
26 MOTION by defendant for protective order and for clarification (bmt) (Entered: 09/07/1999)
27 MEMORANDUM by defendant in support of motion for protective order [26−1] and for clarification [26−2] (bmt) (Entered: 09/07/1999)
28 MOTION by defendant to extend time to provide supplemental discovery responses (bmt) (Entered: 09/07/1999)
29 MOTION by plaintiffs to extend time to respond to deft's motion for extension of time, motion for protective order and request for clarification (bsm) (Entered: 09/22/1999)
30 ORDER by Chief Judge Susan W. Wright granting pltfs' motion to extend time until 10/1/99 to respond to deft's motion for extension of time, motion for protective order and request for clarification [29−1] [28−1] [26−1] [26−2] (cc: all counsel) (vjt) (Entered: 09/30/1999)
31 RESPONSE by pltfs to deft's motion for extension of time to provide supplemental discovery responses [28−1] (vjt) (Entered: 10/01/1999)
32 RESPONSE with Exhibits by pltfs to deft's motion for protective order [26−1] and for clarification [26−2] (vjt) (Entered: 10/01/1999)
33 EXHIBIT 2 to pltfs' response to deft's motion for protective order and request for clarification [32−1] (FILED UNDER SEAL) (vjt) (Entered: 10/01/1999)
34 BRIEF by pltfs in support of response to deft's motion for protective order and clarification [32−1] (vjt) (Entered: 10/01/1999)

Case: 4:98-cv-739 As of:09/29/2010 03:25 PM CDT 6 of 19

10/12/1999 10/27/1999
11/10/1999 11/10/1999 11/10/1999 11/17/1999 11/19/1999 11/19/1999 11/22/1999 11/22/1999 11/26/1999 11/26/1999 11/30/1999
12/03/1999
12/14/1999
12/15/1999

35 REPLY MEMORANDUM by deft in support of motion for protective order [26−1] and request for clarification [26−2] (vjt) (Entered: 10/13/1999)
36 NOTICE OF HEARING by Chief Judge Susan W. Wright granting deft's request for a hearing to present oral argument in this matter; a hearing is scheduled on pending motions, including deft's motion for protective order [26−1] and for clarification [26−2], and any other matters the Court deems appropriate for 9:30 11/30/99 in Little Rock; any documents to be examined by the Court shall be submitted no later than noon on Friday, 11/19/99, along with names of any witnessess to be called (cc: all counsel) (vjt) (Entered: 10/27/1999)
37 MOTION by deft to dismiss putative across−the−board class claims (vjt) (Entered: 11/12/1999)
38 MEMORANDUM by deft in support of motion to dismiss putative across−the−board class claims [37−1] (vjt) (Entered: 11/12/1999)
39 DECLARATION by Kim Murphy in support of deft's motion to dismiss putative across−the−board class claims [37−1] (FILED UNDER SEAL) (vjt) (Entered: 11/12/1999)
40 MOTION by Gerald C. Peterson to appear pro hac vice for deft (vjt) (Entered: 11/18/1999)
41 MOTION by pltfs for extension of time to respond to deft's motion to dismiss class claims (vjt) (Entered: 11/22/1999)
42 ORDER by Chief Judge Susan W. Wright granting motion by Gerald C. Peterson to appear pro hac vice for deft [40−1] (cc: all counsel) (vjt) (Entered: 11/22/1999)
43 ORDER by Chief Judge Susan W. Wright granting pltfs' motion for extension of time until 11/26/99 to respond to deft's motion to dismiss class claims [41−1] [37−1] (cc: all counsel) (vjt) (Entered: 11/22/1999)
44 OPPOSITION RESPONSE by deft to pltfs' motion for extension of time to file brief in response to motion to dismiss (vjt) (Entered: 11/23/1999)
45 RESPONSE by pltfs to deft's motion to dismiss class claims [37−1] (vjt) (Entered: 11/29/1999)
46 BRIEF by pltfs in support of response to deft's motion to dismiss class claims [45−1] (vjt) (Entered: 11/29/1999)
47 CLERK'S MINUTES: HEARING before Chief Judge Susan W Wright at defendant's request to take up pending motions; oral argument by deft and response by pltfs; Court will conduct phone conference each week until discovery is completed to begin in two weeks, and decision will be made on discovery issues (Lois Lambert, court reporter) (sjc) (Entered: 11/30/1999)
48 ORDER by Chief Judge Susan W. Wright denying in large part Sears' motion for protective order [26−1] and request for clarification [26−2]; granting Sears' motion to extend time until 20 days from the date of entry of this Order, to provide supplemental discovery responses [28−1]; denying w/o prej Sears' motion to dismiss putative across−the−board class claims [37−1]; Sears is directed to fully and in good faith comply with the requirements set forth in the Court's August 13th Order (doc.#22) as herein limited, w/in 20 days of the date of entry of this Order; pltfs have until 3/14/00 in which to file a motion for class certification (cc: all counsel) (vjt) (Entered: 12/06/1999)
49 CLERK'S MINUTES: PHONE CONFERENCE before Chief Judge Susan W Wright re: discovery problems; deft will produce electronic evidence by 1/7/00 at 5:00 p.m.; pltfs are to submit affidavits to the Court and deft that data turned over is to be used only for court purposes and pltfs' counsel is to control access to data by pltfs; deft is to identify officers; phone conference to be next week (Lois Lambert, court reporter) (sjc) (Entered: 12/14/1999)
50 ORDER by Chief Judge Susan W. Wright in accordance with the telephone conference on 12/14/99, deft is directed to produce to pltf's counsel the electronice evidence the Court has ordered the deft to produce and pltfs' expert and deft's

Case: 4:98-cv-739 As of:09/29/2010 03:25 PM CDT 7 of 19

12/21/1999 12/27/1999
12/28/1999 12/28/1999 01/04/2000 01/04/2000 01/11/2000 01/11/2000

technical staff my communmicate in the exchange of information w/out waiving any privileges that exist; pltfs must obtain the unredacted portion of the DOL report from the DOL pursuant to a Freedom of Infomation Act request; pltfs must submit an afdt before pltfs will have access to personnel data produced in discovery by deft; counsel for pltfs must allow pltfs access to such personnel data and deft is ordered to fully answer Interrogatory No. 4 within the applicable deadline cc: all counsel) (bsm) (Entered: 12/16/1999)
51 CLERK'S MINUTES: PHONE conference before Chief Judge Susan W Wright; matter of affidavit of pltfs regarding confidentiality discussed, and Court will require language that pltfs are not to talk to anyone about information, including family members and that information is to be used only for this lawsuit; Court will issue order to this effect and that supplemental responses to discovery will be due 1/7/00, and phone conference will be next week; pltfs are to advise Court after 1/7/00 when export will be ready and and he will be available for deposition (Lois Lambert, court reporter) (sjc) (Entered: 12/21/1999)
52 ORDER by Chief Judge Susan W. Wright purs to the telephone conference on 12/21/99, it is hereby ordered as follows: (1) The following sentence shall be included in the Affidavit of Confidentiality that any pltf must submit before that pltf will have access to personnel data produced in discovery by deft: "I will not discuss, talk about, disclose, or share any such personnel information with anyone other than my attys, the other named pltfs, or any expert retained by my attys in this lawsuit." (2) any supplemental responses to discovery requests due Friday, 1/7/99 @ 5:00 p.m. (CDT). (3) the telephone conference scheduled for 12/28/99 @ 12:45 p.m. remains as scheduled; (4) after 1/7/99, counsel for pltf shall present to the Court a schedule in which they propose to have an expert report ready for purposes of class certification and when such expert will be made available for deposition; after deft has had an opportunity to review the info contained in said expert's report and/or deposition, deft will be required to name, on or before a date to later to be determined, any expert it intends to call in this matter (cc: all counsel) (vjt) (Entered: 12/28/1999)
53 CLERK'S MINUTES: PHONE conference before Chief Judge Susan W Wright; pltfs' counsel states that she has reviewed discovery and deft objects to Interrogatory #79; after response, the Court rules that pltfs have a right to the information requested and directs Sears to respond (Lois Lambert, court reporter) (sjc) (Entered: 12/28/1999)
54 ORDER by Chief Judge Susan W. Wright purs to the telephone conference held on 12/28/99, it is hereby ordered as follows: the deft is ordered to answer Interrogatory No. 79 insofar as it relates to what employees of the University Store are paid; the Court takes an expansive view of this interrogatory and anticipates that many factors relate to and affect what employees of the University Store are paid, including, for example, inventory, advertising, etc. (cc: all counsel) (vjt) (Entered: 12/29/1999)
55 CLERK'S MINUTES: PHONE conference before Chief Judge Susan W Wright; pltfs' counsel states there is a dispute with respect to Interrogatory #80; after discussion, the Court directs Sears to provide pltfs with any manual or policy that deft refers to in handling claims, complaints, charges of discrimination; deft is allowed until 1/14/00 to provide information to pltfs (Lois Lambert, court reporter) (sjc) (Entered: 01/04/2000)
56 ORDER by Chief Judge Susan W. Wright in accordance with the telephone conference on 1/4/00, it is hereby ordered as follows: as requested by Interrogatory No. 80, deft is ordered to provide pltfs with copies of all policies, procedures, and manuals used or referred to by Sears in investigating allegations, complts, claims, or charges of discrimination; deft is to provide the requested info on or before 1/14/00 (cc: all counsel) (vjt) (Entered: 01/05/2000)
57 CLERK'S MINUTES: weekly telephone conference from chambers. Lois Lambert reporter. Written order to follow. (mar) (Entered: 01/11/2000)
58 ORDER by Chief Judge Susan W. Wright telephone conference is scheduled for 1/19/00 at 12:45 p.m. ; Court will take up at the telephone conference the question of which departments at the University Store have hourly and/or commissioned

Case: 4:98-cv-739 As of:09/29/2010 03:25 PM CDT 8 of 19

01/19/2000 01/19/2000
01/21/2000 01/21/2000 01/21/2000 01/25/2000 01/25/2000 01/27/2000
01/31/2000

employees and whether pltfs have been provided such information; on or before 10:00 a.m. on 1/19/00 deft is ordered to provide pltf with the identity of the custodian(s) of HR Decisions Support Reports 2592−2695 and 4319−4360; Court's Order of 8/13/99 remains in full force and effect, including that portion of the Order addressing Interrogatory No. 38 however, the Court requires that Sears disclosed any information regarding additional charging parties as requested by Interrogatory No. 38 should Sears at any time become aware of any such information; in accordance with Interrogatory No. 80, this Court ordered the deft to provide pltfs with copies of all policies, procedures, and manuals used or referred to by Sears in investigating allegations, complts, claims, or charges of discrimination; deft was oredered to provide the requested information on or before 1/14/00, although deft stated that it has not yet provided the requested information, the Court continues to expect that said information will be provided on or before Friday, 1/14/00 (cc: all counsel) (former empl) (Entered: 01/13/2000)
59 CLERK'S MINUTES: PHONE conference before Chief Judge Susan W Wright; the Court has received pltfs' proposed schedule re: class action, and deft will submit counter proposal prior to next week's conference at 12:30 p.m. on Tuesday; discovery issues still concern Interrogatory #80 and #79, and Court will issue an order on this that #80 information is to be provided by 1/20 and #79 information within 7 days from today (Lois Lambert, court reporter) (sjc) (Entered: 01/19/2000)
60 ORDER by Chief Judge Susan W. Wright, in accordance with the telephone conference held on the afternoon of 1/19/00, it is hereby ordered as follows: 1. As requested by Interrogatory No. 80, the deft is ordered to provide pltfs with copies of all policies, procedures, and manuals used or referred to by Sears in investigating allegations, complts, claims, or charges of discrimination; the info requested by Interrogatory No. 80 and as set forth in this order must be placed in the mail to pltfs' counsel on or before Thursday, 1/20/00; 2. the deft was previously ordered to answer Interrogatory No. 79 insofar as it relates to what employees of the University Store are paid; the Court will allow Sears an additional period of time to gather the relevant info; accordingly, Sears is hereby ordered to provide to pltfs' counsel the info relevant to Interrogatory No. 79 and as ordered by this Court on or before Wednesday, 1/26/00 (cc: all counsel) (vjt) (Entered: 01/20/2000)
61 TRANSCRIPT (Volume I) of Motions Hearing before the Honorable Susan Webber Wright on 11/30/99 (vjt) (Entered: 01/21/2000)
62 TRANSCRIPT (Volume I) of Telephone Conference before the Honorable Susan Webber Wright on 12/14/99 (vjt) (Entered: 01/21/2000)
63 MOTION by Peggy A. Davis for admission to appear pro hac vice for deft (vjt) (Entered: 01/24/2000)
64 CLERK'S MINUTES: HEARING before Chief Judge Susan W Wright; parties indicate there are no discovery issues to take up; Court reminds counsel that trial is scheduled for 6/26; after discussions concerning scheduling, the Court sets certain deadlines for counsel to follow; order will issue setting forth deadlines (Elaine Hinson, court reporter) (sjc) (Entered: 01/25/2000)
65 ORDER by Chief Judge Susan W. Wright granting motion by Peggy A. Davis for admission to appear pro hac vice for deft [63−1] (cc: all counsel) (vjt) (Entered: 01/26/2000)
66 AMENDED SCHEDULING ORDER by Chief Judge Susan W. Wright; jury trial set for 9:30 6/26/00 in Little Rock; report of pltfs' expert must be provided to deft 3/1/00; pltfs' motion for class certification due 3/10/00; deposition of pltfs' expert by deft must be conducted on or before 3/22/00; report of deft's expert must be provided to pltfs 3/24/00; response to pltfs' motion for class certification due 3/31/00; deposition of defts' expert by pltfs must be conducted on or before 4/3/00; pltfs' reply to deft's response to the motion for class certification due 4/10/00; motions in limine due 6/16/00; discovery and dispositive motions due 4/28/00; response to dispositive motions due 5/19/00; pretrial info sheet due 5/26/00; jury instr due 6/16/00; (cc: all counsel) (vjt) (Entered: 01/31/2000)
67 MOTION by pltfs to shorten time for deft to respond to discovery requests (vjt) (Entered: 02/01/2000)

Case: 4:98-cv-739 As of:09/29/2010 03:25 PM CDT 9 of 19

01/31/2000 01/31/2000 01/31/2000 01/31/2000 01/31/2000 01/31/2000 01/31/2000 01/31/2000 01/31/2000 01/31/2000 02/01/2000 02/02/2000
02/07/2000 02/07/2000 02/08/2000
02/09/2000

68 BRIEF by pltfs in support of motion to shorten time for deft to respond to discovery requests [67−1] (vjt) (Entered: 02/01/2000)
69 AFFIDAVIT OF CONFIDENTIALITY of Janice Medley regarding Protective Order [11−1] (vjt) (Entered: 02/01/2000)
70 AFFIDAVIT OF CONFIDENTIALITY of Eurlene Robinson regarding Protective Order [11−1] (vjt) (Entered: 02/01/2000)
71 AFFIDAVIT OF CONFIDENTIALITY of David Fitzpatrick regarding Protective Order [11−1] (vjt) (Entered: 02/01/2000)
72 AFFIDAVIT OF CONFIDENTIALITY of Kahlil Watkins regarding Protective Order [11−1] (vjt) (Entered: 02/01/2000)
73 AFFIDAVIT OF CONFIDENTIALITY of Willie Toombs, Jr. regarding Protective Order [11−1] (vjt) (Entered: 02/01/2000)
74 AFFIDAVIT OF CONFIDENTIALITY of Rashad Atkinson regarding Protective Order [11−1] (vjt) (Entered: 02/01/2000)
75 AFFIDAVIT OF CONFIDENTIALITY of Carla Droughn regarding Protective Order [11−1] (vjt) (Entered: 02/01/2000)
76 AFFIDAVIT OF CONFIDENTIALITY of Kirestin Harris regarding Protective Order [11−1] (vjt) (Entered: 02/01/2000)
77 AFFIDAVIT OF CONFIDENTIALITY of Tamera Williams regarding Protective Order [11−1] (vjt) (Entered: 02/01/2000)
78 CLERK'S MINUTES: PHONE conference before Chief Judge Susan W Wright; parties are directed to provide certain discovery information to opposing counsel prior to depositions; deft's request that rules be established for phone conferences is denied (Lois Lambert, court reporter) (sjc) (Entered: 02/01/2000)
79 ORDER by Chief Judge Susan W. Wright in accordance with the telephone conference on 2/1/00, it is hereby ordered as follows: pltfs' motion to shorten time [67−1] is granted in part and denied in part; Sears is directed to serve on pltfs, prior to depositions scheduled for February 9 &10, 2000, all info &documents responsive to pltfs' interrogs 86 &87 and corresponding Requests for Production of Documents that Sears currently possesses or obtains prior to depositions; directing Sears to serve on pltfs at this time its response to interrog 88, which requests the identity of the custodian of the REMIS report; pltfs are directed to serve deft, prior to depositions scheduled for February 9 &10, 2000, all info and documents responsive to deft's first set of discovery requests that pltfs currently possess or obtain prior to depositions; pltfs are directed to fully &completely respond to deft's additional discovery requests, which were served on pltfs on 1/24/00; the Court will not require that any party provide two−day written notice to the opposing party regarding any issue to be raised at the weekly conference (cc: all counsel) (vjt) (Entered: 02/04/2000)
80 MEMORANDUM by pltfs regarding contact with former employees of adverse corporate party (vjt) (Entered: 02/08/2000)
81 MEMORANDUM of points and authorities by deft regarding ex parte communications with former management employees (vjt) (Entered: 02/08/2000)
82 CLERK'S MINUTES: PHONE conference before Chief Judge Susan W Wright; submissions have been received regarding contact by pltfs of former employees of deft; the Court advises as to improper ex parte communications by pltfs; the parties and the Court discuss problems with CD information provided to pltfs that is not complete and that defense counsel should contact Sears for information (Lois Lambert, court reporter) (sjc) (Entered: 02/08/2000)
83 ORDER by Chief Judge Susan W. Wright in accordance with the telephone conference held on 2/8/00, it is hereby ordered as follows: the Court will not prohibit pltfs' counsel from engaging in ex parte communications with any former managerial employee of deft if the purpose of such communication is to gather factual info relevant to this litigation; if however, pltfs' counsel seeks by way of

Case: 4:98-cv-739 As of:09/29/2010 03:25 PM CDT 10 of 19

02/15/2000
02/16/2000
02/18/2000 02/18/2000 02/22/2000 02/23/2000 02/23/2000 02/25/2000
02/29/2000 03/01/2000

any such communication to impute an act or omission of any former managerial employee to deft for purposes of liability in this litigation, or seeks to have any statement by a former managerial employee deemed an admission against deft, then pltfs' counsel should not engage in any ex parte communications with said former managerial employee; given the difficulty of pltfs' counsel in obtaining info concerning the addresses and telephone numbers of deft's former managers from the CD−ROM provided by deft to pltfs' counsel, deft is directed to take any appropriate steps to facilitate the delivery of such info to pltfs' counsel (cc: all counsel) (vjt) (Entered: 02/10/2000)
84 CLERK'S MINUTES: PHONE conference before Chief Judge Susan Webber Wright; due to incomplete data being provided by deft, the Court will allow an extension to 3/8/00 for pltfs' expert's report; pltfs are having problems interpreting data field codes and are directed to put examples in writing; deft is directed to provide information forthwith to help pltfs understand materials produced; deft's request for an additional 7 days for its expert is denied (Lois Lambert, court reporter) (sjc) (Entered: 02/15/2000)
85 ORDER by Chief Judge Susan W. Wright, the next teleconf is scheduled for 12:45 2/23/00 ; pltfs are given an extension of until 3/8/00 to provide their expert's report to deft; pltfs are directed to submit the report prior to that time if at all possible, however, the report of deft's expert must be provided to pltfs on or before 3/24/00; the Court directs that pltfs' counsel submit to deft a list setting forth examples of such codes and fields of data that she does not understand; upon receipt of such list, deft is directed to forthwith provide pltfs' counsel with useful and decipherable info that clears up any such confusion and/or to direct pltfs' counsel to the appropriate person or persons who will provide such useful and decipherable info in a deposition (cc: all counsel) (vjt) (Entered: 02/17/2000)
86 MOTION by pltfs to extend time to respond to contention interrogs (vjt) (Entered: 02/22/2000)
87 OPPOSITION RESPONSE by deft to pltfs' motion to extend time to respond to first and second combined interrogs and document requests [86−1] (vjt) (Entered: 02/22/2000)
88 MOTION by pltfs for continuance (vjt) (Entered: 02/23/2000)
89 CLERK'S MINUTES: PHONE conference before Chief Judge Susan W Wright; pltfs' mot to continue trial is granted and parties are to work out a proposed schedule for class certification motion and the response; pltfs' motion to extend time to respond to contention interrogatories is granted; counsel are to advise Court of anticipated length of trial (Genie Power, court reporter) (sjc) (Entered: 02/23/2000)
90 RESPONSE by deft to motion for continuance [88−1] (vjt) (Entered: 02/23/2000)
91 ORDER by Chief Judge Susan W. Wright purs to the telephone conference on 2/23/00, it is hereby ordered as follows: the next telephone conference is set for 2/29/00 @ 12:45 p.m.; pltfs' motion for continuance [88−1] is granted; parties are directed to confer and submit to the Court for approval a new schedule for the filing of pltfs' motion for class certification and deft's response; granting pltfs' motion to extend time until 4/10/00 to respond to contention interrogs [86−1]; pltfs should state with more specificity the subject matter and facts of which that person has personal knowledge regarding any facts or circumstances which refer to or relate to the allegations in the complt; jury trial scheduled for 6/26/00 will be reset by separate order (cc: all counsel) (vjt) (Entered: 02/28/2000)
92 CLERK'S MINUTES: PHONE conference before Chief Judge Susan W Wright; possible trial dates are discussed and 9/11 is agreed date; conference with counsel to be held week before trial to handle preliminary matters (Lois Lambert, court reporter) (sjc) Modified on 03/01/2000 (Entered: 02/29/2000)
93 AMENDED SCHEDULING ORDER by Chief Judge Susan W. Wright; jury trial is reset for 9:30 9/11/00 in Little Rock; pretrial info sheet due 8/11/00; all other deadlines remain in effect (cc: all counsel) (vjt) (Entered: 03/02/2000)

Case: 4:98-cv-739 As of:09/29/2010 03:25 PM CDT 11 of 19

03/07/2000
03/14/2000 03/15/2000
03/22/2000 03/27/2000 04/03/2000 04/03/2000 04/07/2000 04/10/2000
04/10/2000 04/10/2000 04/10/2000

94 CLERK'S MINUTES: PHONE conference before Chief Judge Susan W. Wright; Holly Isaac indicates the parties are working on the schedule previously ordered; pltfs propose to have discovery cut−off date in June, but the Court is not willing to do this and indicates that a motion for extension may be filed for consideration if necessary; if the proposed schedule is not ready by next Tuesday, parties are to submit what they do have (Lois Lambert, court reporter) (sjc) (Entered: 03/07/2000)
95 CLERK'S MINUTES: PHONE conference before Chief Judge Susan W. Wright; the Court and counsel discuss scheduling deadlines; a scheduling order will issue (Lois Lambert, court reporter) (sjc) (Entered: 03/14/2000)
96 ORDER by Chief Judge Susan W. Wright in accordance with the telephone conference on 3/14/00, the next telephone conference is scheduled for 12:45 p.m. on Wednesday, March 22, 2000; the following deadlines are to be adhered to by the parties; 3/31/00 − exchange of preliminary witness lists; 4/10/00 − pltfs' response to contention interrogs; 4/17/00 − report by pltfs' expert due, list of any additional witnesses deft might call regarding responses to contention interrogs, and pltfs' deadline to ask to supplement witness list; 4/28/00 − discovery deadline; 5/1/00 − motion for class certification due; May 1st − May 5th − deposition of pltfs' expert; 5/15/00 − report by deft's expert due; May 31st to June 7th − deposition of deft's expert; 6/1/00 − deft's response to motion for class certification; 6/15/00 − reply by pltfs to response; 7/14/00 − dispositive motion due; 7/28/00 − response due; 8/18/00 − pretrial info sheets due; 8/25/00 − motions in limine due; 9/1/00 − responses to motion in limine, proposed jury instr and voir dire questions, stipulation of agreed facts due; 9/5/00 − final witness and exhibit lists due; 9/8/00 − pretrial conference @ 9:30 a.m. (cc: all counsel) (vjt) (Entered: 03/16/2000)
97 CLERK'S MINUTES: PHONE conference before Chief Judge Susan W. Wright; counsel have no questions concerning order entered on March 15th and have nothing to bring up in this conference; the next phone conference is scheduled for April 3rd at 12:45 p.m. (Lois Lambert, court reporter) (sjc) (Entered: 03/22/2000)
98 FIRST SET OF REQUESTS for Admissions by pltfs to deft (vjt) (Entered: 03/28/2000)
99 CLERK'S MINUTES: PHONE conference before Chief Judge Susan W. Wright; pltfs' counsel state concerns about the current discovery deadlines in light of the witness lists exchanged; the Court will not move anything at this time, and parties should try to work this out and, if unable to do so, they should bring it up next week (Carolyn Fant, court reporter) (sjc) (Entered: 04/03/2000)
100 REQUEST by plaintiffs for admissions (former empl) (Entered: 04/04/2000)
101 MOTION by pltfs regarding discovery cut−off and witness identification (vjt) (Entered: 04/10/2000)
102 CLERK'S MINUTES: PHONE conference before Chief Judge Susan W. Wright. After discussions regarding pltfs' mot regarding discovery cut−off and witness identification, the Court directs both sides to identify where possible knowledge of each witness to class issues. With respect to pltfs' mot to enjoin deft from ex parte communication with putative class members, deft is temporarily enjoined pending response to motion. The next conference will be April 19th at 12:45 p.m. (Lois Lambert, court reporter) (sjc) (Entered: 04/10/2000)
103 MOTION by pltfs to enjoin ex parte communication with putative class members (vjt) (Entered: 04/11/2000)
104 BRIEF by pltfs in support of motion to enjoin ex parte communication with putative class members [103−1] (vjt) (Entered: 04/11/2000)
105 ORDER by Chief Judge Susan W. Wright in accordance with the telephone conference held on 4/10/00, it is hereby ordered as follows: the next telephone conference is on 4/19/00 @ 12:45 p.m.; with respect to pltfs' motion regarding discovery cut−off and witness identification [101−1] both sides are directed to identify each witness who has knowledge about class certification issues and about liability issues, i.e., individual claims; otherwise, deft is given until 4/13/00 to file a response to pltfs' motion [101−1]; with respect to pltfs' motion to enjoin ex parte

Case: 4:98-cv-739 As of:09/29/2010 03:25 PM CDT 12 of 19

04/14/2000 04/14/2000 04/14/2000 04/17/2000 04/17/2000 04/19/2000
04/21/2000
04/25/2000
05/01/2000 05/01/2000 05/01/2000 05/01/2000 05/01/2000 05/02/2000

communication with putative class members [103−1] deft is temporarily enjoined from contacting putative class members about this lawsuit w/o the Court's approval until further notice; in the meantime, deft is given until 4/14/00 to file a response to pltfs' motion [103−1] (cc: all counsel) (vjt) (Entered: 04/11/2000)
106 OPPOSITION RESPONSE by deft to motion to enjoin ex parte communication with putative class members [103−1] (vjt) (Entered: 04/17/2000)
107 NOTICE of Motion to Extend the Date for Submitting Supplemental Witness List by deft (vjt) (Entered: 04/17/2000)
108 MOTION by deft to extend the date for submitting supplemental witness list (vjt) (Entered: 04/17/2000)
109 REPLY by pltfs to deft's response to motion regarding discovery cut−off and witness identification [101−1] (vjt) (Entered: 04/18/2000)
109 RESPONSE by pltf to deft's motion to compel (vjt) (Entered: 04/18/2000)
110 CLERK'S MINUTES: PHONE conference before Chief Judge Susan W. Wright. The Court takes up pltfs' mot regarding the discovery cut−off and extends date to July 14th. Deft's mot concerning an extension for supplemental witnesses is denied without prejudice. An order will be issued on pltfs' mot for ex parte communications. (Lois Lambert, court reporter) (sjc) (Entered: 04/19/2000)
111 ORDER by Chief Judge Susan W. Wright that the next telephone conference is hereby scheduled to begin at 12:45 on 4/25/00; the Court will grant pltfs' motion for an extension of the discovery cut−off date [101−1] and extend the deadline for the completion of discovery regarding liability issues to 7/14/00, the date that dispositive motions are due; all deadlines concerning class certification issues shall remain as currently scheduled; denying deft's motion to extend the date for submitting supplemental witness list [108−1]; the Court will require the "NOTICE" (as set forth in this Order) to be posted w/in 7 days of the date of entry of this Order in the same manner and in all locations as the memo posted by deft; the Court permanently enjoins deft from posting any other memorandums or notices that would relate in any way to this lawsuit w/o first obtaining this Court's approval; the Court will not at this time enjoin deft from communicating with putative class members; therefore pltfs' motion [103−1] is denied at this time; deft may not in any way give false or misleading information or attempt to influence class members in making their decision whether to join or remain in the class (if certified); should such misconduct occur, the Court will entertain a motion for the imposition of sanctions (cc: all counsel) (vjt) (Entered: 04/24/2000)
112 CLERK'S MINUTES: PHONE conference before Chief Judge Susan W. Wright. Counsel advise there is nothing to take up today, but pltfs indicate a conference may be necessary later in the week. The Court will conduct another phone conference on Wednesday at 2:30 p.m. (Lois Lambert, court reporter) (sjc) (Entered: 04/25/2000)
113 MOTION by deft to stay enforcement of the April 24, 2000 Order compelling deft to post a corrective notice pending appeal (vjt) (Entered: 05/02/2000)
114 MEMORANDUM by deft in support of motion to stay enforcement of the April 24, 2000 Order compelling deft to post a corrective notice pending appeal [113−1] (vjt) (Entered: 05/02/2000)
115 MOTION by pltfs for class certification (vjt) (Entered: 05/02/2000)
116 BRIEF by pltfs in support of motion for class certification [115−1] (vjt) (Entered: 05/02/2000)
117 EXHIBITS by pltfs to motion for class certification (FILED UNDER SEAL) (vjt) (Entered: 05/02/2000)
118 CLERK'S MINUTES: PHONE conference before Chief Judge Susan W. Wright; deft advises that it has filed a motion to stay the order regarding the notice pending appeal; pltfs respond which the Court will consider as an oral response; an order will be issued by the end of the week. (Lois Lambert, court reporter) (sjc) (Entered:

Case: 4:98-cv-739 As of:09/29/2010 03:25 PM CDT 13 of 19

05/03/2000 05/03/2000 05/03/2000
05/03/2000
05/04/2000 05/04/2000
05/08/2000 05/08/2000 05/09/2000 05/23/2000
05/24/2000 05/24/2000

05/02/2000)
119 RESPONSE by pltfs to Sears' motion to stay enforcement of the April 24, 2000 Order pending appeal [113−1] (vjt) (Entered: 05/03/2000)
120 BRIEF by pltf in support of response to deft's motion to stay [119−1] (vjt) (Entered: 05/03/2000)
121 ORDER by Chief Judge Susan W. Wright denying deft's motion to stay enforcement, pending appeal, of the April 24, 2000 Order compelling deft to post a corrective notice [113−1]; however, so that deft may have an opportunity to seek relief with the Court of Appeals for the Eighth Circuit from today's Order, the Court will extend the time by which deft must post the corrective notice; accordingly, unless instructed otherwise by the Eighth Circuit, deft is hereby ordered to fully comply with this Court's April 24th Order [111−1] by posting the corrective notice as therein set forth beginning on or before May 11, 2000 (cc: counsel) (vjt) (Entered: 05/03/2000)
122 ORDER by Chief Judge Susan W. Wright amending footnote four of the Court's May 3rd Order [121−1] to provide as follows: The Court notes that deft could moot many of the issues addressed in today's Order by agreeing to provide a list of the identities and addresses of all putative class members. Defendant has not agreed to provide such a list, however, thus requiring the posting of a corrective notice to correct any misleading or deterrent effect that may have occurred with the distribution of deft's misleading memo (cc: all counsel) (vjt) (Entered: 05/04/2000)
123 CLERK'S MINUTES: PHONE conference before Chief Judge Susan W. Wright at deft's request; Dickman states concerns as to footnote four of the Court's orders; after discussion, the Court will amend the corrective notice previously ordered and will issue another order today (Lois Lambert, court reporter) (sjc) (Entered: 05/04/2000)
124 ORDER by Chief Judge Susan W. Wright granting request that a corrective notice be posted and that the corrective notice as drafted by this Court be amended by inserting a sentence stating that Sears denies the allegations of pltfs' lawsuit; the Court reaffirms its previous Orders in all other respects; unless instructed otherwise by the Eighth Circuit, deft is hereby ordered to fully comply with this Court's April 24th Order [111−1] by posting the corrective notice as therein set forth, and amended by today's Order, beginning on or before May 11, 2000 (cc: all counsel) (vjt) (Entered: 05/04/2000)
125 TRANSCRIPT (Volume I) of Telephone Conference before the Honorable Susan Webber Wright on 4/19/00 @ 12:45 p.m. (vjt) (Entered: 05/08/2000)
126 TRANSCRIPT (Volume I) of Telephone Conference before the Honorable Susan Webber Wright on 5/4/00 @ 2:00 p.m. (vjt) (Entered: 05/08/2000)
127 CLERK'S MINUTES: PHONE conference before Chief Judge Susan W Wright. Counsel advise there is nothing to take up today. There will be no conference next week unless problems arise, and the next conference will be the following Tuesday. (Lois Lambert, court reporter) (sjc) (Entered: 05/09/2000)
128 CLERK'S MINUTES: PHONE conference before Chief Judge Susan W. Wright. After lengthy discussions regarding deft's answers to pltfs' interrogatories, the Court directs deft to answer interrogatories 89 through 99 and requires deft to produce corresponding documents. Deft is required to answer requests for admissions 1 and 4. (Lois Lambert, court reporter) (sjc) Modified on 05/25/2000 (Entered: 05/24/2000)
129 MOTION by defendant to supplement witness list (former empl) Modified on 05/25/2000 (Entered: 05/24/2000)
130 ORDER by Chief Judge Susan W. Wright as set forth during the telephone conference of 5/23/00, deft is ordered to fully answer pltfs' Fourth Set of Interrogatories 89−99 and to produce the documents requested in the corresponding Requests for Production of Documents; if deft has fully answered any of these interrogatories and fully produced the documents requested it should so state where applicable; deft is ordered to fully answer pltfs' First Set of Requests

Case: 4:98-cv-739 As of:09/29/2010 03:25 PM CDT 14 of 19

05/30/2000
05/31/2000
05/31/2000 06/02/2000 06/02/2000 06/02/2000 06/02/2000 06/02/2000 06/05/2000 06/06/2000
06/07/2000

for Admission No.'s l and 4; Court finds that said interrogratories, requests for production, requests for admissions are not vague and are reasonable calculated to lead to the discovery of admissible evidence and Court is not at this time ruling on whether any such evidence will in fact be admissible (cc: all counsel) (bsm) Modified on 05/25/2000 (Entered: 05/25/2000)
131 CLERK'S MINUTES: PHONE conference before Chief Judge Susan W. Wright. After discussions that pltfs have discovered that employee identifier numbers provided by deft are not unique to an employee, the Court directs deft to turn over employees' social security numbers or altered numbers to pltfs. Any document filed containing these numbers should be filed under seal. Pltfs suggest a hearing on motion for class certification. Deft does not see the need for such hearing. The Court will not rule on this issue, but pltfs may file a motion requesting a hearing. (Lois Lambert, court reporter) (sjc) (Entered: 05/31/2000)
132 ORDER by Chief Judge Susan W. Wright directing Sears, w/in 7 days of the date of entry of this Order, to identify for pltfs, all employees who worked in the University Store from 11/4/93 to the end of 1999, by either their social security number or a number based on their social security number; the Court is making no findings at this time with regard to whether pltfs' expert was reasonable in relying on the employee identification numbers as provided by Sears or whether Ms. Spooner's representations regarding said numbers were in good faith; the Court further orders that any pleadings in this matter which include an individual's social security number or altered social security number be filed UNDER SEAL; after redaction of such identifying numbers, the Court will unseal any such pleadings; next telephone conference is scheduled for 2:00 p.m. on Tuesday, June 6, 2000 (cc: all counsel) (vjt) (Entered: 06/01/2000)
133 MOTION by pltfs for hearing on motion for class certification (vjt) (Entered: 06/01/2000)
134 MOTION by deft for summary judgment with respect to pltfs' individual claims of discrimination (vjt) (Entered: 06/02/2000)
135 MEMORANDUM OF LAW by deft in support of motion for summary judgment with respect to pltfs' individual claims of discrimination [134−1] (UNDER SEAL) (REDACTED 6/19/00) (vjt) Modified on 06/21/2000 (Entered: 06/02/2000)
136 RESPONSE by deft to pltfs' motion for class certification [115−1] (UNDER SEAL) (REDACTED 6/19/00) (vjt) Modified on 06/21/2000 (Entered: 06/02/2000)
137 MEMORANDUM OF LAW (with Volumes I, II &III of Exhibits) by deft in opposition to pltfs' motion for class certification [115−1] (UNDER SEAL) (REDACTED 6/19/00) (vjt) Modified on 06/21/2000 (Entered: 06/02/2000)
138 RESPONSE by pltfs to deft's motion to supplement witness list [129−1] (vjt) (Entered: 06/05/2000)
139 OPPOSITION RESPONSE by deft to pltfs' motion for hearing on motion for class certification [133−1] (vjt) (Entered: 06/06/2000)
140 CLERK'S MINUTES: PHONE conference before Chief Judge Susan W. Wright. The Court denies pltfs' mot requesting a hearing on the class action issue. Deft's mot to supplement its witness list is granted, and pltfs may supplement their list by June 15th. Pltfs are allowed until June 20th to respond to mot for summary judgment and response to mot for certification. Protective order will be modified by agreement. Deft is to designate material that can be unsealed. (Lois Lambert, court reporter) (sjc) Modified on 06/07/2000 (Entered: 06/06/2000)
141 ORDER by Chief Judge Susan W. Wright in accordance with the telephone conference held on 6/6/00, it is hereby ordered as follows: pltfs' motion for hearing on motion for class certification [133−1] [115−1] is denied; granting Sears' motion to supplement witness list [129−1] and allowing pltfs until 6/15/00 to supplement their witness list as well; allowing pltfs an extension of until and including 6/20/00 to respond to Sears' motion for summary judgment with respect to pltfs' individual claims of discrimination [134−1]; directing parties, w/in 2 weeks of the date of entry of this Order, to file with the Court a modified Protective Order reflecting

Case: 4:98-cv-739 As of:09/29/2010 03:25 PM CDT 15 of 19

06/13/2000 06/15/2000 06/15/2000 06/15/2000 06/15/2000 06/20/2000
06/20/2000 06/20/2000 06/20/2000 06/22/2000 06/23/2000
06/26/2000
06/26/2000 06/26/2000 06/26/2000 06/30/2000 06/30/2000

that any tests disclosed to pltfs' counsel purs to discovery will not be copied or disseminated by pltfs' counsel to anyone other than their expert, and will only be shown to a named pltf or a putative class member for the purpose of determining whether that named pltf or putative class member has taken any such test; within 2 weeks of the date of entry of this Order, counsel for Sears are to determine what documents currently under seal should be unsealed and shall refile said documents for the public record (cc: all counsel) (vjt) (Entered: 06/07/2000)
142 CLERK'S MINUTES: PHONE conference before Chief Judge Susan W. Wright. Counsel advise Court there is nothing to take up today. (Lois Lambert, court reporter) (sjc) (Entered: 06/13/2000)
143 REPLY BRIEF by plaintiffs regarding Class Certification [115−1] (bsm) (Entered: 06/16/2000)
144 ADDITIONAL EXHIBITS filed by plaintiffs in support of motion for class certification [115−1] (bsm) (Entered: 06/16/2000)
145 MOTION by plaintiffs for leave to file their first amended complt and join additional parties (bsm) (Entered: 06/16/2000)
146 BRIEF by plaintiffs in support of motion for leave to file their first amended complt and join additional parties [145−1] (bsm) (Entered: 06/16/2000)
147 CLERK'S MINUTES: PHONE conference before Chief Judge Susan W. Wright. Counsel have nothing to take up today. Defendant inquires if Court will give a date for ruling on mot for class certification. The Court will not do so. (Lois Lambert, court reporter) (sjc) (Entered: 06/20/2000)
148 RESPONSE by pltfs to Sears' motion for summary judgment [134−1] (Volume of Exhibits 1−36 UNDER SEAL) (vjt) (Entered: 06/21/2000)
149 BRIEF by pltfs in support of response to deft's motion for summary judgment [148−1] (FILED UNDER SEAL) (vjt) (Entered: 06/21/2000)
150 STATEMENT OF FACTS (Local Rule 56.1) by pltfs in support of response to deft's motion for summary judgment [148−1] (FILED UNDER SEAL) (vjt) (Entered: 06/21/2000)
151 MOTION by defendant to strike third version of pltfs' expert's report (bsm) (Entered: 06/22/2000)
152 MODIFIED STIPULATED PROTECTIVE ORDER by Chief Judge Susan W. Wright, upon stipulation of the parties, in order to enhance the efficiency and timely advancement of this action, will protect from disclosure the confidential information of the parties hereto (cc: all counsel) (vjt) (Entered: 06/26/2000)
153 CLERK'S MINUTES: PHONE conference before Chief Judge Susan W. Wright; pltfs state argument with respect to motion to amend complaint that they do not want to lose right to equitable relief; after short discussion, the parties have nothing further to take up today (Lois Lambert, court reporter) (sjc) (Entered: 06/26/2000)
154 STATEMENT OF FACTS (Local Rule 56.1) by deft in support of motion for summary judgment [134−1] (UNDER SEAL) (vjt) Modified on 07/13/2004 (Entered: 06/27/2000)
155 SUPPLEMENTAL MOTION by deft to strike third version of pltfs' expert's report (vjt) (Entered: 06/27/2000)
156 OPPOSITION RESPONSE by deft to pltfs' motion for leave to file first amended complt and join additional parties [145−1] (vjt) (Entered: 06/27/2000)
157 RESPONSE by pltfs to deft's motion to strike third version of pltfs' expert's report [151−1] (vjt) (Entered: 07/03/2000)
158 BRIEF by pltfs in support of response to deft's motion to strike third version of pltfs' expert's report [157−1] (vjt) (Entered: 07/03/2000)

Case: 4:98-cv-739 As of:09/29/2010 03:25 PM CDT 16 of 19

06/30/2000 07/03/2000
07/05/2000
07/05/2000
07/06/2000 07/06/2000 07/10/2000
07/14/2000 07/21/2000 07/25/2000 07/28/2000 07/31/2000

159 COMBINED RESPONSE and Brief by pltfs to deft's submission of statement of material facts [154−1] (vjt) (Entered: 07/03/2000)
160 MEMORANDUM AND ORDER by Chief Judge Susan W. Wright denying Sears' motion for summary judgment with respect to pltfs' individual claims of discrimination [134−1]; finding that pltfs have satisfied the requirements of Fed.R.Civ.P.23(a) and (b)(2) and that their motion for class certification [115−1] is hereby granted as modified by today's Order; the Court hereby certifies a class consisting of current and former non−White hourly employees of Sears' University Store who allegedly have been discriminated against by Sears' employment practices in job assignment or placement, pay and promotion in the manner and time periods set forth above (cc: all counsel) (vjt) (Entered: 07/05/2000)
161 CLERK'S MINUTES: PHONE conference before Chief Judge Susan W. Wright. Counsel are advised that all discovery matters will be referred to Magistrate Judge Jones until the end of the month due to Court's absence. The Court states how it will rule on certain outstanding motions. The parties discuss the issue of a stay pending interlocutory appeal which the Court would be inclined to grant. The parties have nothing further. (Lois Lambert, court reporter) (sjc) (Entered: 07/05/2000)
162 ORDER by Chief Judge Susan W. Wright in accordance with the telephone conference held on 7/5/00, the Court grants in part and denies in part pltfs' motion for leave to file their first amended complt and join additional parties [145−1]; pltfs are allowed to amend the allegations to include discrimination in Sears' evaluation process, but will not allow pltfs to add additional pltfs that are representative of other employees in jobs and pay plans other than those for hourly salespersons; the Court denies deft's motion [151−1] and supplement to its motion to strike the third version of pltfs' expert's report [155−1]; deft is allowed to rebut pltfs' expert latest report, and to redepose pltfs' expert; parties are to confer in good faith on the time and place of any further depositions; should the parties be unable to agree on the time and/or date of any further depositions, the Court will resolve the matter (cc: all counsel) (vjt) (Entered: 07/06/2000)
163 Telephone Conference on 7/5/00 before the Honorable Susan Webber Wright (bsm) (Entered: 07/07/2000)
164 ORDER by Chief Judge Susan W. Wright referring to Magistrate Judge Henry L. Jones for determination of any motions concerning discovery which may be filed between today's date and July 28, 2000 (cc: all counsel) (bsm) (Entered: 07/07/2000)
165 MEMO TO FILE (DOC): pages 28, 40, 45, and 48 of the Memorandum and Order dated and filed July 3, 2000, and entered July 5, 2000 [160−1] are corrected to reflect the proper sequence of letters in the subheadings; specifically, on page 28, "D.Rule 23(a)" is corrected to "E.Rule 23(a)"; page 40, "E.Rule 23(b)(2)" is corrected to "F.Rule 23(b)(2)"; page 45, "F.Burden of Proof" is corrected to "G.Burden of Proof"; and page 48, "G.Appeal pursuant to Rule 23(f)" is corrected to "H.Appeal pursuant to Rule 23(f)" (vjt) (Entered: 07/10/2000)
166 FIRST AMENDED complaint − class action [1−1] by pltfs (vjt) (Entered: 07/17/2000)
167 MOTION by Aida M. Alaka to appear pro hac vice for Sears (vjt) (Entered: 07/24/2000)
DOCKETING LETTER: 8 USCA Number 00−8015; petition for permission to appeal pursuant to FRCvP23 (f) has been filed (2 docket sheets forwarded to Clerk USCA8) (dac) (Entered: 07/25/2000)
168 ANSWER by deft to first amended complt and additional defenses [166−1] (vjt) (Entered: 07/31/2000)
169 ORDER by Chief Judge Susan W. Wright granting motion by Aida M. Alaka to appear pro hac vice for Sears [167−1] (cc: all counsel) (former empl) (Entered: 08/01/2000)

Case: 4:98-cv-739 As of:09/29/2010 03:25 PM CDT 17 of 19

08/02/2000 08/02/2000 08/10/2000 08/10/2000 08/14/2000 08/17/2000
08/21/2000
10/26/2000
11/30/2000 12/06/2000 12/06/2000 12/11/2000
12/18/2000 12/20/2000 01/09/2001
02/05/2001

170 MOTION by pltfs for clarification as to the scope of persons protected by the Court's July 3, 2000 Order (vjt) (Entered: 08/03/2000)
171 MEMORANDUM OF LAW by pltfs in support of motion for clarification as to the scope of persons protected by the Court's July 3, 2000 Order [170−1] (vjt) (Entered: 08/03/2000)
172 MANDATE from 8 USCA motion for stay is denied; petition for permission to take an interlocutory appeal is denied (dac) (Entered: 08/10/2000)
173 MOTION by defendant to continue jury trial lej) (Entered: 08/11/2000)
174 OPPOSITION RESPONSE by deft to pltfs' motion for clarification as to the scope of persons protected by the Court's July 3, 2000 Order [170−1] (vjt) (Entered: 08/15/2000)
175 CLERK'S MINUTES: PHONE conference before Chief Judge Susan W. Wright to take up deft's motion for a continuance of the trial. Plaintiffs concur that a continuance would be beneficial, and the Court will grant the motion. The Court also takes up pltfs' mot for clarification and, after discussion, states that it will withhold ruling at this time. The new trial date will be April 2nd with new pre−trial deadlines. (Lois Lambert, court reporter) (sjc) (Entered: 08/17/2000)
176 AMENDED SCHEDULING ORDER by Chief Judge Susan W. Wright granting deft's motion to continue trial [173−1]; jury trial is reset for 9:30 4/2/01 in Little Rock; pretrial info sheet due 3/2/01; all other deadlines remain as previously scheduled (cc: all counsel) (vjt) (Entered: 08/22/2000)
177 STATUS REPORT by pltfs requesting the Court to lift its abeyance on the ruling for Motion for Clarification; pltfs then will submit to the Court for approval direct notices, notice by publication, and a request to opt out form (vjt) (Entered: 10/26/2000)
178 ORDER by Chief Judge Susan W. Wright denying motion for clarification as to the scope of persons protected by the Court's July 3, 2000 Order [170−1] (cc: all counsel) (bmt) (Entered: 11/30/2000)
179 STATUS REPORT by Sears Roebuck &Co (bsm) (Entered: 12/07/2000)
180 MOTION by plaintiffs for approval of form of notice to Class Members (bsm) (Entered: 12/07/2000)
181 CLERK'S MINUTES: PHONE conference before Chief Judge Susan W. Wright with counsel regarding the status report submitted by deft; deft believes that a date should be set for advising the Court of result of any settlement negotiations; the Court advises deft to address this in response to pltfs' mot for approval of notice to class; pltfs will have 5 days to respond (Lois Lambert, court reporter) (sjc) (Entered: 12/11/2000)
182 RESPONSE by deft to pltfs' motion for approval of form of notice to Class Members [180−1] (vjt) (Entered: 12/19/2000)
183 REPLY by pltfs to deft's response to pltfs' motion for approval of form of notice to Class Members [180−1] (vjt) (Entered: 12/21/2000)
184 ORDER by Chief Judge Susan W. Wright granting pltfs' motion for approval of form of notice to Class Members [180−1] as set forth in this Order; the back−end date that closes class membership shall be 7/14/00, the discovery cut−off date for liability issues as established by the Court's Order entered 4/24/00 (doc.#111); regarding current employee addresses, Sears should furnish pltfs with the addresses in an acceptable format no later than the close of business on Wednesday, January 17, 2001 (cc: all counsel) (vjt) (Entered: 01/10/2001)
185 CLERK'S MINUTES: PHONE conference before Chief Judge Susan W. Wright regarding the parties request for extending the time for publishing notice to the class; after discussions concerning any settlement prospects, counsel are to advise the Court by February 9th if the case has settled (Lois Lambert, court reporter) (sjc) (Entered: 02/05/2001)

Case: 4:98-cv-739 As of:09/29/2010 03:25 PM CDT 18 of 19

02/06/2001
03/12/2001 03/12/2001 03/28/2001 03/29/2001 04/12/2001 04/13/2001 04/19/2001 04/23/2001 05/03/2001 05/17/2001
06/05/2001
08/15/2001 08/15/2001 08/15/2001 08/17/2001
08/17/2001

186 ORDER by Chief Judge Susan W. Wright giving the parties until the close of business on Friday, February 9, 2001, to file a pleading notifying the Court that this case has or has not settled; should this case fail to settle, the parties are notified that trial will proceed as scheduled on 4/2/01; the Court will schedule a telephone conference for the week of 2/12/01 to discuss these and any other issues that may be appropriate for discussion (cc: all counsel) (vjt) (Entered: 02/07/2001)
187 MOTION by pltfs for preliminary approval and enforcement of settlement agreement (vjt) (Entered: 03/13/2001)
188 BRIEF by pltfs in support of motion for preliminary approval and enforcement of settlement agreement [187−1] (vjt) (Entered: 03/13/2001)
189 MOTION by deft to extend time to respond to pltf's motion to enforce settlement agreement (vjt) (Entered: 03/29/2001)
190 ORDER by Chief Judge Susan W. Wright granting deft's motion to extend time until 4/12/01 to respond to pltf's motion to enforce settlement agreement [189−1] [187−1] (cc: all counsel) (vjt) (Entered: 03/29/2001)
191 SECOND MOTION by deft to extend time to respond to pltf's motion to enforce settlement agreement (vjt) (Entered: 04/13/2001)
192 ORDER by Chief Judge Susan W. Wright granting deft's motion to extend time until 4/19/01 to respond to pltf's motion to enforce settlement agreement [191−1] [187−1] (cc: all counsel) (vjt) (Entered: 04/16/2001)
193 THIRD MOTION by deft to extend time to respond to pltfs' motion to enforce settlement agreement (vjt) (Entered: 04/20/2001)
194 ORDER by Chief Judge Susan W. Wright granting deft's motion to extend time until 4/25/01 to respond to pltfs' motion to enforce settlement agreement [193−1] [187−1] (cc: all counsel) (vjt) (Entered: 04/24/2001)
195 JOINT MOTION by pltfs for approval of settlement agreement (vjt) (Entered: 05/03/2001)
196 ORDER by Chief Judge Susan W. Wright that joint motion for approval of settlement agreement is preliminarily approved [195−1] and attached to this Order; Court will in due course consult with the parties regarding a date for a fairness hearing and other matters requiring the Court's attention; finding the motion for preliminary approval and enforcement of settlement agreement moot and need not be addressed [187−1]; Clerk is directed to remove from pending motions report (cc: all counsel) (bsm) Modified on 05/18/2001 (Entered: 05/18/2001)
197 CLERK'S MINUTES: PHONE conference before Chief Judge Susan W. Wright with counsel to discuss issue of fairness hearing with respect to the settlement to which the Court has given preliminary approval; parties have agreed on notice; fairness hearing is scheduled for 8/17/01 at 9:30 a.m. which will be handled by this Court (Lois Lambert, court reporter) (sjc) (Entered: 06/05/2001)
198 NOTICE by plaintiffs of filing of Report of Class Council (bsm) Modified on 08/21/2001 (Entered: 08/17/2001)
199 PROOF OF PUBLICATION of: Notice of Settlement Class Action (bsm) Modified on 08/21/2001 (Entered: 08/17/2001)
200 PROOF OF MAILING AND AFFIDAVIT of Richard H. Redfern by plaintiffs concerning mailed notice of proposed settlement of class action [199−1] (bsm) Modified on 08/21/2001 (Entered: 08/17/2001)
201 CLERK'S MINUTES: FAIRNESS hearing before Chief Judge Susan W. Wright; counsel advise re: returned mailings, etc., pertaining to notice to parties; counsel have prepared an order approving settlement which the Court will review (Lois Lambert, court reporter) (sjc) Modified on 08/21/2001 (Entered: 08/17/2001)
202 ORDER APPROVING SETTLEMENT AGREEMENT by Chief Judge Susan W. Wright, for the reasons stated in this Order, the Settlement Agreement is approved and the Court simultaneously enters a separate Judgment and Order of Dismissal

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08/17/2001

regarding the further disposition of this case (cc: all counsel) (vjt) (Entered: 08/21/2001)
203 JUDGMENT AND ORDER OF DISMISSAL: by Chief Judge Susan W. Wright, the parties are directed to comply with the terms of the Settlement Agreement as part of this Judgment and Order of Dismissal; the case is dismissed w/prej in its entirety; w/o affecting the finality of this Judgment, the Court retains continuing jurisdiction for a period of one year from the Effective Date of the Settlement Agreement over (a) implementation of the Settlement Agreement, (b) the parties hereto for the purposes of enforcing and administering the Settlement Agreement, and (c) the qualified settlement fund; terminating case (cc: all counsel) (vjt) (Entered: 08/21/2001)