785 F.3d 895 (4th Cir. 2015), 13-1779, Brown v. Nucor Corp.

Docket Nº:13-1779
Citation:785 F.3d 895
Opinion Judge:GREGORY, Circuit Judge.
Party Name:QUINTON BROWN; JASON GUY; ALVIN SIMMONS; SHELDON SINGLETARY; GERALD WHITE; RAMON ROANE; JACOB RAVENELL, individually and on behalf of the class they seek to represent, Plaintiffs - Appellants, v. NUCOR CORPORATION; NUCOR STEEL-BERKELEY, Defendants - Appellees
Attorney:Robert L. Wiggins, Jr., WIGGINS, CHILDS, QUINN & PANTAZIS LLC, Birmingham, Alabama, for Appellants. Lisa Schiavo Blatt, ARNOLD & PORTER LLP, Washington, D.C., for Appellees. Armand Derfner, D. Peters Wilborn, Jr., DERFNER, ALTMAN & WILBORN, Charleston, South Carolina; Ann K. Wiggins, WIGGINS, CHI...
Judge Panel:Before GREGORY, AGEE, and KEENAN, Circuit Judges. Judge Gregory wrote the opinion, in which Judge Keenan joined. Judge Agee wrote the dissenting opinion. AGEE, Circuit Judge, dissenting:
Case Date:May 11, 2015
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
SUMMARY

In this putative class action, plaintiffs are a class of black steel workers who allege endemic racial discrimination at a South Carolina plant owned by Nucor. At issue was whether the workers have presented a common question of employment discrimination through evidence of racism in the workplace. In light of the Supreme Court's opinion in Wal-Mart Stores, Inc. v. Dukes, the district court on... (see full summary)

 
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Page 895

785 F.3d 895 (4th Cir. 2015)

QUINTON BROWN; JASON GUY; ALVIN SIMMONS; SHELDON SINGLETARY; GERALD WHITE; RAMON ROANE; JACOB RAVENELL, individually and on behalf of the class they seek to represent, Plaintiffs - Appellants,

v.

NUCOR CORPORATION; NUCOR STEEL-BERKELEY, Defendants - Appellees

No. 13-1779

United States Court of Appeals, Fourth Circuit

May 11, 2015

Argued September 17, 2014

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the District of South Carolina, at Charleston. (2:04-cv-22005-CWH). C. Weston Houck, Senior District Judge.

VACATED IN PART, AND REMANDED WITH INSTRUCTIONS.

ARGUED:

Robert L. Wiggins, Jr., WIGGINS, CHILDS, QUINN & PANTAZIS LLC, Birmingham, Alabama, for Appellants.

Lisa Schiavo Blatt, ARNOLD & PORTER LLP, Washington, D.C., for Appellees.

ON BRIEF:

Armand Derfner, D. Peters Wilborn, Jr., DERFNER, ALTMAN & WILBORN, Charleston, South Carolina; Ann K. Wiggins, WIGGINS, CHILDS, QUINN & PANTAZIS LLC, Birmingham, Alabama, for Appellants.

Cary A. Farris, John K. Linker, J. Shannon Gatlin, ALANIZ SCHRAEDER LINKER FARRIS MAYES, LLP, Houston, Texas; Dirk C. Phillips, Sarah M. Harris, ARNOLD & PORTER LLP, Washington, D.C.; J. Tracy Walker, IV, Robert L. Hodges, Matthew A. Fitzgerald, MCGUIREWOODS, LLP, Richmond, Virginia, for Appellees.

Before GREGORY, AGEE, and KEENAN, Circuit Judges. Judge Gregory wrote the opinion, in which Judge Keenan joined. Judge Agee wrote the dissenting opinion.

OPINION

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GREGORY, Circuit Judge.

This case concerns the certification of a class of black steel workers who allege endemic racial discrimination at a South Carolina plant owned by Nucor Corporation and Nucor Steel Berkeley (collectively, " Nucor" ). Plaintiffs-appellants (" the workers" ) accuse Nucor of both discriminatory job promotion practices and a racially hostile work environment under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. The district court originally denied class certification for both claims, and this Court reversed. See Brown v. Nucor Corp., 576 F.3d 149 (4th Cir. 2009) (" Brown I" ).

The district court has revisited certification and decertified the promotions class in light of the Supreme Court's opinion in Wal-Mart Stores, Inc. v. Dukes, __ U.S. __, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011).1 We thus again confront the question of whether the workers' have presented a common question of employment discrimination through evidence of racism in the workplace. Despite Wal-Mart's reshaping of the class action landscape, we hold that the district court has for a second time erred in refusing to certify the workers' class, where (1) statistics indicate that promotions at Nucor depended in part on whether an individual was black or white; (2) substantial anecdotal evidence suggests discrimination in specific promotions decisions in multiple plant departments; and (3) there is also significant evidence that those promotions decisions were made in the context of a racially hostile work environment.

Against that backdrop, the district court fundamentally misapprehended the reach of Wal-Mart and its application to the workers' promotions class. We thus vacate the district court's decision in part and remand for re-certification of the class.

I.

The Nucor plant encompasses six production departments that work together to melt, form, finish, and ship steel products to customers. See Brown I, 576 F.3d at 151. At the start of this litigation, 611 employees worked at the plant. Seventy-one (11.62%) were black.2 There was, however, at most one black supervisor in the production departments until after the Equal Employment Opportunity Commission (" EEOC" ) initiated charges that preceded the putative class action.

The workers' promotions claim rests on alternative theories of liability under Title VII, which prohibits employment discrimination because of an individual's " race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2. The promotions claim first alleges a pattern or practice of racially disparate treatment in promotions decisions. See Teamsters v. United States, 431 U.S. 324, 336, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). Second, it charges that Nucor's facially neutral promotions policies and procedures had a racially disparate impact. See Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971); Wal-Mart, 131 S.Ct. at 2554.

Both theories are grounded in a statistical analysis of racial disparities in job pro

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motions at the plant combined with anecdotal evidence of discrimination. The workers' statistical evidence spans the four-year period preceding the litigation, between December 1999 and December 2003. Because Nucor destroyed and/or discarded the actual bidding data for the period before 2001, the workers' experts established an alternative benchmark using 'change-of-status' forms filed by the company whenever a promotion took place at the plant. The experts extrapolated comparative statistics for that period using an assumption that the racial composition of the bidding pool for those jobs was the same as for the post-2001 jobs analyzed (when Nucor retained actual bidding records).

The workers also presented abundant direct and circumstantial anecdotal evidence of discrimination in promotions, including:

* Anecdotal evidence provided by the seven named plaintiffs and nine other putative class members, claiming discrimination in specific promotions decisions in the Nucor production departments;

* A description of complaints, contained in affidavits and depositions, made to plant General Manager Ladd Hall, who the workers allege failed to meaningfully respond; * Descriptions of retaliation against those who complained to management; * A written copy of Nucor's promotions policy and testimony that the policy was largely ignored in favor of giving unbridled discretion to supervisors; and * Testimony by a white supervisor that his department manager told him that " I don't think we'll ever have a black supervisor while I'm here."

The facts undergirding the workers' separate hostile work environment claim, not directly at issue in this appeal, also bear on the promotions analysis. Those facts are disquieting in their volume, specificity, and consistency. Supervisors allegedly routinely referred to black workers as " nigger" and " DAN (dumb ass nigger)," with one supervisor reportedly stating " niggers aren't smart enough" to break production records, while others tolerated the routine use of epithets like " bologna lips," " yard ape," and " porch monkey." These epithets and others were broadcast over the plant-wide radio system - comprising a network of walkie-talkies used to communicate - along with monkey noises and the songs " Dixie" and " High Cotton." The workers' declarations and depositions further suggest that departmental supervisors and the plant's general manager consistently ignored racial harassment carried out by white workers, including the circulation of racist emails, the prominent display of a hangman's noose, the commonplace showing of the Confederate flag, and an episode when a white employee draped a white sheet over his head with eyes cut out in the form of a KKK hood.

In 2007, the South Carolina district court denied the workers' motion for class certification for both the promotions and hostile work environment claims. In 2009, a divided panel of this Court reversed, concluding that the workers satisfied the threshold requirements of Federal Rule of Civil Procedure 23. We remanded the case " with instructions to certify the appellants' class action." Brown I, 576 F.3d at 160.

On February 17, 2011, the district court followed our instructions to certify the class, concluding that the workers satisfied Rule 23(b)(3)'s requirements that common questions predominate and that the class action was superior to other litigation devices

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to resolve the dispute. The district court later declined to stay the case pending a ruling in Wal-Mart, and it declined to reconsider its order certifying the class.

The Supreme Court decided Wal-Mart in June 2011, decertifying an unprecedented nationwide class of approximately 1.5 million female employees spread over 3,400 stores. Wal-Mart held that the plaintiffs had failed to present a " common contention" of employment discrimination capable of " classwide resolution," as required by Rule 23(a)(2). Wal-Mart, 131 S.Ct. at 2551. Given the diffuse class and number of employment decisions at issue, the Supreme Court observed that " [w]ithout some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all class members' claims for relief will produce a common answer to the crucial question why was I disfavored." Id. at 2552 (emphasis in original). The plaintiffs, Wal-Mart concluded, failed to meet that standard when they premised liability on a company policy of decentralized subjective decision-making by local managers, combined with statistics showing gender-based employment disparities, limited anecdotal evidence, and expert testimony about a corporate culture that allowed for the transmission of bias. See id. at 2551, 2554-55.

On September 11, 2012, the district court relied on Wal-Mart to decertify the workers' promotions class, invoking the court's authority under Rule 23(c)(1)(C) to amend a certification order at any time before final judgment. Wal-Mart, the court observed, 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"...

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