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Labor & Employment — Court Reverses Post-Wal-Mart Class Decertification

Deborah Elkins//May 13, 2015//

Labor & Employment — Court Reverses Post-Wal-Mart Class Decertification

Deborah Elkins//May 13, 2015//

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Brown v. Nucor Corp. (Lawyers Weekly No. 15-01-0434, 154 pp.) (Gregory, J.) No. 13-1779, May 11, 2015; USDC at Charleston, S.C. (Houck, J.) 4th Cir.

Holding: In this case concerning the certification of a class of black steel workers who allege endemic racial discrimination at a South Carolina plant owned by Nucor Corporation, a split panel of the 4th Circuit reverses the district court’s decertification of both discriminatory job promotion practices and a racially hostile work environment classes under Title VII and 42 U.S.C. § 1981, in the wake of Wal-Mart Stores Inc. v. Dukes, 131 S. Ct. 2541 (2011).

The district court originally denied class certification for both claims, and this court reversed.

The district court has revisited certification and decertified the promotions class in light of the Supreme Court’s opinion in Wal-Mart Stores Inc. 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.

The district court failed to adequately appreciate three significant differences from Wal-Mart that make the case largely inapposite to the facts at hand. First, Wal-Mart discounted the plaintiffs’ statistical evidence in large part because the statistics failed to show discrimination on a store-by-store basis. As such, the plaintiffs could not establish that a store greeter in Northern California, for instance, was subject to the same discrimination as a cashier in New Hampshire. These dissimilarities between class members were exacerbated by the sheer size of the Wal-Mart class – 1.5 million members working at 3,400 stores. The scale and scope of the putative class, combined with the nature of the evidence offered, was thus essential to Wal-Mart’s holding. Had the class been limited to a single Wal-Mart store spanning multiple departments, or had the plaintiffs’ evidence captured discrimination at a store level, a very different Rule 23(a)(2) analysis would have been required.

Second, the Wal-Mart plaintiffs’ theory of commonality relied, in part, on showing that the company maintained a corporate culture that facilitated the uniform transmission of implicit, or subconscious, bias into the hiring process. To that end, the plaintiffs’ expert testified the company was “vulnerable” to “gender bias.” The court, however, concluded that the expert could not with specificity determine how the culture concretely influenced individual employment decisions. The testimony was therefore insufficient to show a common policy that produced a common injury. Here, however, the workers have provided substantial evidence of unadulterated, consciously articulated, odious racism throughout the Nucor plant, including affirmative actions by supervisors and a widespread attitude of permissiveness of racial hostility. The examples in the record are ubiquitous: bigoted epithets and monkey noises broadcast across the plant radio system, emails with highly offensive images sent to black workers, a hangman’s noose prominently displayed, a white supervisor stating that “niggers aren’t smart enough” to break production records, and abundant racist graffiti in locker rooms and shared spaces. Moreover, no more than one black supervisor worked in the Nucor production departments until after the EEOC charge that preceded this litigation. It strains the intellect to posit an equitable promotions system set against that cultural backdrop, particularly in light of the other evidence presented. The dissent rejects the idea that evidence of a racially hostile work environment may help establish a claim for disparate treatment in promotions decisions. Such a perspective, however, is perplexingly divorced from reality and the history of workplace discrimination.

Third, and related, the anecdotal evidence of discrimination in this case is substantially more probative than that in Wal-Mart. The Wal-Mart plaintiffs presented affidavits from about 120 female employees, representing approximately one affidavit for every 12,500 class members. The affidavits captured only 235 of Wal-Mart’s 3,400 stores, and there were no affidavits from workers in 14 states. The evidence thus fell far short of the benchmark for a showing of company-wide discrimination established by prior case law.

We vacate the district court’s decertification of the workers’ promotions class and remand the case to the district court with instructions to certify the class.


Agee, J.:  The majority takes issue with almost every aspect of the district court’s decision to decertify, reversing that court’s determination because of newfound facts on appeal and different notions about the nature of this case. In doing so, the majority creates a split between this court and another, see Bennett v. Nucor Corp., 656 F.3d 802 (8th Cir. 2011), overlooks a plain and decisive waiver from the appellants, and drains a critical Supreme Court decision, Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), of much of its meaning. I respectfully dissent.

The district court has lived with this matter for several years now, and it best understands how the case has developed. Its actions bespeak a court striving to scrupulously apply Rule 23’s requirements. The majority shows no concern for that effort. And it shows just as little concern for this court’s well-established waiver rule, which should plainly apply here.

As to our sister circuits, the majority opinion begets a circuit split. The 8th Circuit affirmed the denial of class certification in a case involving the same claims, the same experts, and the same defendant. That decision cannot be reconciled with this one. The majority never even tries to do so.

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