Brown v. Nucor Corp.

• Decision Date: 07 August 2009
• Docket Number: No. 08-1247.,08-1247.
• Citation: 576 F.3d 149
• Parties: Quinton BROWN; Jason Guy; Ramon Roane; Alvin Simmons; Sheldon Singletary; Gerald White; Jacob Ravenell, individually and on behalf of the class they seek to represent, Plaintiffs-Appellants, v. NUCOR CORPORATION; Nucor Steel Berkeley, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

576 F.3d 149

Quinton BROWN; Jason Guy; Ramon Roane; Alvin Simmons; Sheldon Singletary; Gerald White; Jacob Ravenell, individually and on behalf of the class they seek to represent, Plaintiffs-Appellants, v. NUCOR CORPORATION; Nucor Steel Berkeley, Defendants-Appellees.

No. 08-1247.

United States Court of Appeals, Fourth Circuit.

Argued: January 27, 2009.

Decided: August 7, 2009.

ARGUED:

Robert L. Wiggins, Jr., Wiggins, Childs, Quinn & Pantazis, P.C., Birmingham, Alabama, for Appellants. Earle Duncan Getchell, Jr., McGuirewoods, L.L.P., Richmond, Virginia, for Appellees.

ON BRIEF:

Armand Derfner, D. Peters Wilborn, Jr., Derfner, Altman & Wilborn, Charleston, South Carolina; Ann K. Wiggins, Susan Donahue, Wiggins, Childs, Quinn & Pantazis, P.C, Birmingham, Alabama, for Appellants. Cary A. Farris, Marc Patton, Alaniz & Schraeder, L.L.P., Houston, Texas; Erin M. Sine, McGuirewoods, L.L.P., Richmond, Virginia; John S. Wilkerson, III, Nosizi Ralephata, Turner, Padget, Graham & Laney, P.A., Charleston, South Carolina, for Appellees.

Before MICHAEL, GREGORY, and AGEE, Circuit Judges.

Vacated and remanded with instructions by published opinion. Judge GREGORY wrote the opinion, in which Judge MICHAEL joined. Judge AGEE wrote a separate opinion concurring in part and dissenting in part.

OPINION

GREGORY, Circuit Judge:

This case involves allegations of racial discrimination at a steel manufacturing plant in Huger, South Carolina, owned by Nucor Corporation and Nucor Steel Berkeley (collectively, "Nucor"). We find that the district court abused its discretion and erred as a matter of law in denying class certification to the plaintiffs-appellants. We therefore vacate the order and remand the case to the district court for certification.

I.

The allegations that the appellants present in support of their racial discrimination and hostile work environment claims speak for themselves: white supervisors and employees frequently referred to black employees as "nigger," "bologna lips," "yard ape," and "porch monkey." White employees frequently referred to the black employees as "DAN," which stood for "dumb ass nigger." These racial epithets were broadcast over the plant-wide radio system, along with "Dixie" and "High Cotton." Monkey noises were also broadcast over the radio system in response to the communications of black employees. The display of the Confederate flag was pervasive throughout the plant, and items containing Nucor's logo alongside the Confederate flag were sold in the plant's gift shop. Additionally, several e-mails that depicted black people in racially offensive ways, such as by showing them with nooses around their necks, were circulated by various employees. Once, an employee held up a noose and told a black co-worker that it was for him.

The plant is organized into six production departments: beam mill, hot mill, cold mill, melting, maintenance, and shipping. When a job opening at the plant becomes available, the position is advertised over a plant-wide posting and bidding system controlled by the central personnel department. Employees are allowed to bid on positions in any department. Although, by policy, the plant's general manager approves all promotions and handles discrimination and harassment investigations, the record suggests that each department manager has unbridled discretion to make promotions within his department utilizing whatever objective or subjective factors he wishes. There were no black supervisors until after the institution of the Equal Employment Opportunity Commission charges that preceded this litigation. Indeed, a white supervisor testified that his department manager — who wore a Confederate flag emblem on his hardhat — told him that he would never promote a black employee to supervisor. (J.A. 1066, 1885-86.)

The present litigation arose on August 25, 2004, when seven black employees at the plant, along with employee-plaintiffs at plants owned by Nucor in other states, brought suit under 42 U.S.C. § 1981 (2000) and Title VII of the Civil Rights Act of 1964 in the U.S. District Court for the Western District of Arkansas on behalf of themselves and approximately one-hundred other past and present black employees at the plant. At the time the litigation commenced, there were 611 employees working at Nucor's South Carolina plant, of whom seventy-one were black. The Western District of Arkansas severed the case and transferred the claims brought by the seven plaintiffs in South Carolina to the District of South Carolina. The appellants seek a permanent injunction, back pay, compensatory and punitive damages, and attorney's fees.

On May 7, 2007, the appellants filed a motion for class certification alleging:

(1) A pattern or practice of disparate treatment against African-American employees with respect to promotion opportunities at the plant; (2) Nucor's promotion procedure, which allows white managers and supervisors to use subjective criteria to promote employees, has a disparate impact on African-American employees who apply for promotions, and (3) Nucor requires African-American employees to work in a plant-wide hostile work environment.

(J.A. 8980.) The district court denied class certification, and the would-be class plaintiffs now appeal.

II.

We review the district court's certification decision for abuse of discretion. Doe v. Chao, 306 F.3d 170, 183 (4th Cir.2002), aff'd on other grounds, 540 U.S. 614, 124 S.Ct. 1204, 157 L.Ed.2d 1122 (2004). "[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." Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982).

III.

Rule 23(a) of the Federal Rules of Civil Procedure provides the following:

One or more members of a class may sue or be sued as representative parties on behalf of all members only if:

(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.

In our review of these factors, we bear in mind that

the final three requirements of Rule 23(a) "tend to merge," with commonality and typicality "serving 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."

Broussard v. Meineke Discount Muffler Shops, 155 F.3d 331, 337 (4th Cir.1998) (quoting Falcon, 457 U.S. at 157 n. 13, 102 S.Ct. 2364) (alteration in original). Indeed, "[c]ertification is only concerned with the commonality (not the apparent merit) of the claims and the existence of a sufficiently numerous group of persons who may assert those claims." Lilly v. Harris-Teeter Supermarket, 720 F.2d 326, 332-33 (4th Cir.1983).

The district court below considered each of the Rule 23(a) requirements in turn, and we shall do the same.

A.

First, regarding numerosity, the district court found that the appellants satisfied the requirement because there were ninety-four black employees who worked at the plant from 2001 through 2004. Nucor argued that because only nineteen of these employees bid on positions from 2001 to 2006, the numerosity requirement had not been met. However, the district court held that the other black employees should be counted in the class because "potential applicants are eligible to prove that they would have applied for a promotion but for the discriminatory practice." (J.A. 8994.) Appellees do not challenge this finding, and we therefore presume it to be correct.

B.

Second, on commonality, the district court ruled against the appellants. The court reasoned that subjectivity in decision-making alone was insufficient to establish a disparate impact claim, discredited the statistical evidence presented in support of the disparate impact claim, and rejected the hostile work environment claim. We find that the district court improperly discounted the appellants' direct evidence, which, alone, was sufficient to establish commonality. Moreover, the district court improperly excluded the appellants' alternative benchmark for missing employment data and therefore erred in finding their statistical calculations to be insufficient to establish commonality. Finally, the district court erred in finding an insufficient basis for commonality on the hostile work environment claim.

1.

This Court has noted before that allegations of "a practice of disparate treatment in the exercise of unbridled discretion ... rais[es] questions of law and fact common to all [subject] black employees." Lilly, 720 F.2d at 333. The Fifth Circuit reasoned similarly in Shipes v. Trinity Industries, 987 F.2d 311, 316 (5th Cir.1993):

The threshold requirements of commonality and typicality are not high; Rule 23(a) requires only that resolution of the common questions affect all or a substantial number of the class members. Allegations of similar discriminatory employment practices, such as the use of entirely subjective personnel processes that operate to discriminate, satisfy the commonality and typicality requirements of Rule 23(a).

(internal citation omitted). In Lilly, we further concluded that statistical evidence is unnecessary to establish commonality:

[P]laintiffs need not, at the time of the motion for class certification, demonstrate by statistical evidence that blacks have been terminated [or promoted] at a higher rate than have whites, or any other differential. Certification is only concerned with the commonality (not the apparent merit) of the claims and the existence of a sufficiently...