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By Lisa Nagele-Piazza
May 12 — Black employees at a South Carolina steel plant may proceed as a class with their claim that the company engaged in discriminatory job promotion practices in violation of Title VII of the 1964 Civil Rights Act, the U.S. Court of Appeals for the Fourth Circuit ruled May 11.
In a 2-1 decision, the Fourth Circuit vacated a district court's decertification of a class of Nucor Corp. workers asserting disparate treatment and disparate impact discrimination in promotion decisions. “More than seven years have now elapsed since the workers first filed their class certification motion, and the district court twice has refused to certify the class,” the appeals court noted.
In 2007, the U.S. District Court for the District of South Carolina denied class certification for the workers on their promotions claims and on their separate claim asserting that Nucor had a racially hostile work environment. A divided Fourth Circuit panel in 2009 found that the district court erred in denying class certification and remanded the case for certification.
Although the district court certified both the “promotion class” and the “hostile work environment class” in accordance with the Fourth Circuit's ruling, it decertified the promotion class following the U.S. Supreme Court's decision in Wal-Mart Stores Inc. v. Dukes, 131 S. Ct. 2541, 112 FEP Cases 769 (2011), reasoning that the workers' claims didn't meet Wal-Mart's heightened commonality requirement under Rule 23(a)(2) of the Federal Rules of Civil Procedure.
But “the district court fundamentally misapprehended the reach of Wal-Mart and its application to the workers’ promotions class,” Judge Roger L. Gregory wrote for the appeals court majority. “The nature of the allegations, the evidentiary support buttressing them, and the inherent cohesiveness of the class all demonstrate that the court’s failure to certify was an error.”
In dissent, Judge G. Steven Agee said the district court didn't abuse its discretion in finding the workers' claims insufficient. “In short, the majority opinion shows little respect for a district court that is far more familiar with each page of the record than we are,” he said. Agee found that the workers' statistical and anecdotal evidence was unconvincing.
According to case documents, black workers at a Nucor steel plant in Huger, S.C., filed a lawsuit on behalf of themselves and approximately 100 other past and present employees asserting “endemic racial discrimination” at the plant. They claimed disparate treatment and disparate impact discrimination in promotions as well as a plantwide hostile work environment.
In their hostile work environment claim, the employees contended that supervisors “routinely referred to black workers as ‘nigger' and ‘DAN (dumb ass nigger),' and one supervisor allegedly said “ ‘niggers aren’t smart enough' to break production records.”
For their promotion claims, the workers presented statistical evidence of racial disparities in job promotions at the plant along with anecdotal evidence of discrimination.
Although the district court certified the class on its hostile work environment claim, it decertified the “promotions class” in light of the Supreme Court's Wal-Mart decision. Wal-Mart “clarified and heightened the commonality requirement of Rule 23(a)(2), requiring the workers to present ‘significant proof' that Nucor ‘operated under a general policy of discrimination' and that they suffered a common injury,” the district court said. It found that the workers failed to present a common question of employment discrimination through evidence of plantwide racism.
But the Fourth Circuit disagreed. “Despite Wal-Mart’s reshaping of the class action landscape,” the appeals court said, the statistics presented by the workers “indicate that promotions at Nucor depended in part on whether an individual was black or white.”
Furthermore, the “substantial anecdotal evidence suggests discrimination in specific promotions decisions in multiple plant departments,” it said. The workers also presented significant evidence that promotion decisions “were made in the context of a racially hostile work environment,” the court found.
The district court “failed to adequately appreciate” several factors that distinguish Wal-Mart from the present case, the appeals court said.
In Wal-Mart, the justices discounted the workers' statistical evidence because the statistics didn't show store-by-store discrimination, the appeals court said. The dissimilarities between proposed class members who held various jobs at different locations “were exacerbated by the sheer size of the Wal-Mart class—1.5 million members working at 3,400 stores” with different supervisors and varying regional policies, the appeals court said.
The class in the present case includes about 100 workers at a single plant who shared common spaces and were subject to plantwide policies and practices, the court said.
Additionally, the anecdotal evidence is “substantially more probative than in Wal-Mart,” the court said.
The employees in Wal-Mart supplied affidavits from 120 female employees, which represented one in 12,500 class members and 235 of the retail chain's 3,400 stores, the court said.
“The evidence thus fell far short of the benchmark for a showing of company-wide discrimination” established by Teamsters v. United States, 431 U.S. 324, 14 FEP Cases 1514 (1977), in which the claimants provided one anecdote for every eight class members from various parts of the company, the court said.
Similar to the claimants in Teamsters, the workers in the present case submitted anecdotal evidence from over 16 individuals in a class of 100 workers, or one anecdote for about every six class members, the court said.
Furthermore, it said the Nucor workers produced “substantial evidence of unadulterated, consciously articulated, odious racism” throughout the plant.
“At bottom, the workers seek nothing more than the chance to speak with one voice about the promotions discrimination they allegedly suffered as one class on account of one uniting feature: the color of their skin,” the court said.
Judge Barbara Milano Keenan joined the majority opinion.
Wiggins, Childs, Quinn & Pantazis and Derfner, Altman & Wilborn LLC represented the proposed class. McGuireWoods LLP, Alaniz & Schraeder LLP, Arnold & Porter LLP and Turner, Padget, Graham & Laney PA represented Nucor.
To contact the reporter on this story: Lisa Nagele-Piazza in Washington at firstname.lastname@example.org
To contact the editor responsible for this story: Susan J. McGolrick at email@example.com
Text of the opinion is available at http://www.bloomberglaw.com/public/document/Quinton_Brown_v_Nucor_Corporation_Docket_No_1301779_4th_Cir_Jun_1.
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