Professional Documents
Culture Documents
Published
Published
Published
No. 13-1779
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.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. C. Weston Houck, Senior District
Judge. (2:04-cv-22005-CWH)
Argued:
Decided:
workers
who
allege
endemic
racial
discrimination
at
accuse
Nucor
of
both
Plaintiffs-appellants (the
discriminatory
job
promotion
The
district
court
has
revisited
certification
and
workers
discrimination
have
through
common
evidence
of
question
racism
in
of
employment
the
workplace.
was
black
suggests
or
white;
(2)
discrimination
substantial
anecdotal
specific
promotions
in
that
backdrop,
the
district
court
fundamentally
I.
The Nucor plant encompasses six production departments that
work together to melt, form, finish, and ship steel products to
customers.
litigation,
611
plant.
employees
worked
at
the
Seventy-one
Opportunity
Commission
(EEOC)
initiated
charges
liability
discrimination
under
Title
because
of
VII,
an
which
prohibits
individuals
employment
race,
color,
42 U.S.C. 2000e-2.
The
See Teamsters v.
Second, it charges
December
destroyed
period
and/or
before
alternative
1999
and
discarded
2001,
benchmark
the
using
December
the
2003.
actual
workers
Because
bidding
experts
change-of-status
data
Nucor
for
the
established
an
forms
by
filed
extrapolated
comparative
statistics
for
that
The
period
The
workers
circumstantial
also
presented
anecdotal
evidence
abundant
of
direct
discrimination
and
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 Nucors 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 dont think
well ever have a black supervisor while Im
here.
The facts undergirding the workers separate hostile work
environment claim, not directly at issue in this appeal, also
bear on the promotions analysis.
their
volume,
specificity,
and
consistency.
Supervisors
tolerated
lips,
yard
the
ape,
routine
and
use
porch
6
of
epithets
monkey.
These
like
bologna
epithets
and
others
were
broadcast
over
the
plant-wide
radio
system
with
Cotton.
monkey
The
noises
workers
and
the
songs
declarations
and
Dixie
and
depositions
High
further
2007,
the
South
Carolina
district
court
denied
the
February
17,
2011,
the
district
court
followed
our
Rule
predominate
and
23(b)(3)s
that
the
requirements
class
action
that
was
common
superior
questions
to
other
Supreme
Court
decided
Wal-Mart
in
June
2011,
that
the
plaintiffs
had
failed
to
present
Wal-Mart
a
common
2551.
Given
the
diffuse
class
and
of
employment
crucial
(emphasis
in
question
why
original).
was
The
disfavored.
plaintiffs,
Id.
Wal-Mart
at
2552
concluded,
policy
managers,
of
decentralized
combined
with
subjective
statistics
decision-making
showing
by
gender-based
about
transmission of bias.
corporate
culture
that
allowed
for
the
On September 11, 2012, the district court relied on WalMart to decertify the workers promotions class, invoking the
courts
authority
under
Rule
8
23(c)(1)(C)
to
amend
the
court
observed,
clarified
and
Wal-
heightened
the
present
general
common
significant
policy
injury.
of
proof
that
discrimination
J.A.
10934
Nucor
and
(quoting
that
operated
they
Wal-Mart,
under
suffered
131
S.Ct.
at
2553).
Under
that
standard,
the
district
court
concluded
that
this
Courts
examination
of
the
workers
statistical
it
raised
questions
common
to
the
class
under
Rule
The
district
court
reaffirmed
that
the
workers
had
Up-To-Date Laundry, Inc., 219 F.R.D. 356, 362 (D. Md. 2004)).
Unlike
hostile
the
promotions
environment
company-wide
claim,
the
allegations
adherence
to
court
determined
required
common
policy
that
the
no
showing
of
of
discrimination.
ignored
workers met
their
wide
burden
range
to
of
harassment
present
and
significant
that
proof
the
of
J.A. 10968.
II.
We typically review a district courts certification order
for abuse of discretion.
We
United
review
de
novo
district
court
mandate
has
. . .
whether
contravenes
been
the
post-mandate
mandate
scrupulously
rule,
and
judgment
or
fully
of
whether
carried
the
out.
the
appropriate
standard
of
review
thus
Second, if no such
abused
its
discretion
in
decertifying
the
promotions
class.
As to the first question, an extraordinary exception to
the
mandate
rule
exists
when
there
is
show[ing]
district
court
with
that
Bell, 5
broad
discretion
to
alter
or
provided
court
invoke
to
maintains
class
cases.
that
actions
sufficient
its
powers
Wal-Mart
may
justification
to
revisit
represents
proceed
only
in
for
the
district
certification.
sea
the
change
most
and
Nucor
that
exceptional
of
that
the
precedent.
Supreme
Court
instead
largely
reaffirmed
existing
See Scott v.
Family Dollar Stores, Inc., 733 F.3d 105, 113-14 (4th Cir. 2013)
(discussing
limitations
on
the
scope
of
Wal-Marts
holding);
120,
126
(D.C.
Cir.
2013)
(surveying
how
Wal-Mart
has
which
court
examines
class
certification
decisions
Co. v. Adair, 764 F.3d 347 (4th Cir. 2014); Rodriguez v. Natl
City
Bank,
726
F.3d
372,
376
(3d
Cir.
2013);
M.D.
ex
rel.
Stukenberg v. Perry, 675 F.3d 832, 839, 841-44 (5th Cir. 2012);
Ellis v. Costco Wholesale Corp., 657 F.3d 970, 974 (9th Cir.
2011).
12
violate
our
mandate
in
Brown
I.
Per
this
Courts
Although
this
provided
Court
a
under
then-existing
sufficiently
significant
facts
and
change
in
law,
Wal-Mart
the
governing
treated
analytically
as
single
entity,
and
whether
of
those
determinations
was
not
the
The
compelled
by
met
the
district
court
the
requirement
of
could
reexamine
commonality,
we
whether
review
the
those
Windsor, 521 U.S. 591, 630 (1997) (The law gives broad leeway
to district courts in making class certification decisions, and
their judgments are to be reviewed by the court of appeals only
for abuse of discretion.); Brown I, 576 F.3d at 152; Thorn v.
Jefferson-Pilot
2006).
Life
district
Ins.
Co.,
court
445
abuses
F.3d
311,
317
its
discretion
(4th
when
Cir.
it
See Gunnells
v. Healthplan Servs., Inc., 348 F.3d 417, 424 (4th Cir. 2003);
Thorn, 445 F.3d at 317-18 (A district court per se abuses its
discretion when it makes an error of law or clearly errs in its
factual findings.).
III.
Rule
23(a)(2)
establishes
that
class
action
may
be
class.
required
The
district
decertification
court
of
the
determined
workers
that
Wal-Mart
promotions
class
the
plaintiffs
statistical
certification
provide
analytical
stage,
discrimination
and
evidence
(2)
significant
rigor
of
placed
to
evaluate
commonality
the
proof
common
required
of
burden
a
at
on
and
class
plaintiffs
general
injury,
the
policy
(3)
to
of
relatedly
established that a companys policy of discretionary decisionmaking cannot sustain class certification without a showing that
supervisors exercised their discretion in a common way.
Each of these arguments is considered in turn.
A.
Wal-Mart
reaffirmed
existing
precedent
that
courts
must
at 2551 (citing Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147,
160-61 (1982)).
grants
courts
license
to
engage
in
free-ranging
merits
Plans
&
(2013).
Trust
Funds,
__
U.S.
__,
133
S.
Ct.
1184,
119495
Courts
consistent
with
precedent
Wal-Mart
and
and
its
Id. at 1195. 5
approach
Falcon.
See
in
Brown
Gariety
v.
are
Grant
Thornton, LLP, 368 F.3d 356, 366 (4th Cir. 2004) (observing that
while an evaluation of the merits to determine the strength of
the plaintiffs case is not part of a Rule 23 analysis, the
factors
spelled
out
in
Rule
23
must
be
addressed
through
In
576
such
an
analysis,
providing
detailed
evaluation
of
the
Id. at 153-56.
See
this
stage
statement,
would
however,
be
is
improper.
consistent
Id.
with
at
the
156.
Supreme
Such
Courts
Brown I did
precisely that.
1.
Even
evaluated
workers statistical
in
still
evidence
is
more
painstaking
methodologically
manner,
sound
the
while
concerns the data used to analyze the period from December 1999
to
January
records.
2001,
For
when
that
Nucor
period,
failed
the
to
retain
workers
actual
expert
bidding
developed
an
17
course,
alternative
it
belabors
benchmark
bidding data.
is
obvious
less
precise
the
to
observe
measure
that
than
the
actual
destroyed
discrimination
or
discarded
case.
More
the
than
primary
two
evidence
decades
of
this
in
Courts
773
1985);
F.2d
561
(4th
Cir.
United
States
v.
County
of
Fairfax, 629 F.2d 932, 940 (4th Cir. 1980); see generally Ramona
L.
Paetzold
&
Discrimination:
Cases
actual
4.03
data
Steven
Using
(2014)
is
L.
Willborn,
Statistical
(describing
unavailable
or
The
Evidence
the
use
Statistics
in
of
unreliable).
of
Discrimination
proxy
In
data
Lewis
when
v.
Plaintiffs then
18
Id.
Id.
Id. 7
2.
but
instead
discrimination.
statistical
whether
it
is
reliable
and
probative
of
assumptions
made
in
the
analysis
are
reasonable.
identified
two
assumptions
made
by
the
workers
experts
as
problematic.
The district court first questioned the assumption that the
job changes described on the 27 forms represent promotions.
J.A. 10942.
See
that
promotions.
the
forms
may
represent
job
changes
unrelated
to
The
forms
are
cited
in
Judge
Agees
original
dissent,
however,
promotions
without
the
issue
having
been
raised,
were
and
promotion
thus
relevant
positions
to
the
available
formulation
for
of
employee
statistical
court
expressly
embraced
that
conclusion
examining
whether
the
they
correct
represent
straightforward enterprise.
is
in
J.A. 10942.
change-of-status
promotions
The
forms,
relatively
earned.
Two
classification
of
the
accompanied
forms
by
an
describe
increase
changes
in
pay.
in
job
One
form
decrease
in
pay,
but
there
is
no
indication,
or
the
December
bidding
1999
and
pools
for
January
the
2001
27
had
positions
filled
between
the
average
racial
same
However,
benchmark had to assume that there was at least one black worker
22
But
as
we
already
determined
in
Brown
I,
the
when
to
bidding
same
data
was
certification,
assumptions
regarding
positions
identified
available,
J.A. 1161-62.
the
district
bidding
may
in
the
later
positions
for
which
court
be
observed
that
the
reasonable
and
the
data
does
not
itself
render
statistical
study
and
would
Fairfax,
our
rendering
prior
Indeed, to conclude
precedent
plaintiffs
in
unable
cases
to
like
bring
has
intentionally
data. 11
or
inadvertently
destroyed
actual
applicant
to
further
benchmark.
question
the
reliability
of
the
alternative
workers may not have been qualified for higher paying jobs and
that
they
disciplinary
racial
may
have
records
animus.
been
that
See
denied
were
post
not
at
promotions
themselves
111,
because
the
114-17.
result
As
to
of
of
the
the
minimum
qualifications
required,
and
the
workers
See J.A.
That is not to
substantially
statistical conclusions.
reduced
the
reliability
of
the
constructs
responses
to
the
is
based
workers
on
Again, Nucor
companys
interrogatories
and
self-serving
requests
for
The
More fundamental,
against
them
was
itself
product
of
racial
25
Ravenells
disproportionately
6783
(Michael
disciplinary
statement
singled
Rhodes
action).
that
out
for
workers
disciplinary
description
See
black
generally
of
J.A.
were
action);
J.A.
discrimination
10960-10972
in
(the
hostile
539
U.S.
circumstantial
work
90,
evidence
environment);
101-02
to
(2003)
show
that
Desert
Palace,
(allowing
the
race
was
Inc.
v.
use
of
motivating
Given
26
Post at
of
Finis
Welch,
observing
that
[o]pen
positions
are
motion
by
sending
postings
for
available
promotions
to
postings
original
plantwide.);
order
denying
J.A.
8979
certification,
(the
district
finding
that
12
We disagree.
4.
With
the
alternative
benchmark
evidence
included,
the
neutral
factor.
See
Hazelwood
Sch.
Dist.
v.
United
than
two
or
three
standard
deviations
in
racial
social
scientists
and
federal
courts
in
analyzing
According to the
13
course,
statistical
significance
is
not
always
of Richmond, 698 F.2d 633, 648 (4th Cir. 1983) revd on other
grounds sub nom. Cooper v. Fed. Reserve Bank of Richmond, 467
U.S. 867 (1984).
often
on
depends
circumstances.
surrounding
all
of
Teamsters,
431
circumstances
discrimination,
as
the
U.S.
and
described
in
surrounding
at
340.
anecdotal
greater
facts
and
Here,
evidence
detail
of
below,
the
are
As we
evidence
claims
of
alone
disparate
was
sufficient
treatment
and
to
demonstrate
disparate
impact,
common
their
14
deviations,
the
district
court
abused
its
discretion
in
district
court
further
concluded
that
the
workers
insofar
as
the
evidence
did
not
demonstrate
one
stroke
requirement.
to
satisfy
Rule
23(a)(2)s
commonality
Thus, a class-wide
F.3d 1161, 1165 (9th Cir. 2014) (observing that a class meets
Rule
23(a)(2)s
commonality
requirement
when
the
common
common
disfavored.
answer
to
the
crucial
question
why
was
30
see also Scott v. Family Dollar Stores, Inc., 733 F.3d 105, 113
(4th Cir. 2013).
The workers here most generally present two such common
contentions
capable
of
class-wide
answers
under
Title
VII.
Nucor
engaged
discrimination
in
against
pattern
black
or
workers
in
practice
of
promotions
unlawful
decisions.
401
U.S.
at
dexterity
enough.
429-31.
in
Commonality
demonstrate
that
injury[.]
U.S. at 157).
the
As
Wal-Mart
observed,
common
contention
crafting
instead
requires
class
members
have
the
however,
is
plaintiff
suffered
See
the
not
to
same
Ct. at 2553.
district
court,
however,
failed
to
adequately
Wal-Mart
discounted
the
plaintiffs
statistical
These
subject
differed.
to
variety
of
regional
policies
that
all
603 F.3d 571, 652 (9th Cir. 2010) (Kozinski, J., dissenting)).
The scale and scope of the putative class, combined with the
nature of the evidence offered, was thus essential to Wal-Marts
holding.
contrast
approximately
100
to
Wal-Mart,
class
members
this
in
litigation
single
concerns
steel
plant
in
at
151.
Such
differences
are
not
superficial.
the
which
uniformity
of
managerial
shared
injuries,
discretion
is
the
consistency
exercised,
and
the
that
management
took
few
affirmative
steps
to
meaningfully combat.
Nonetheless, the district court analogized to Wal-Mart in
finding
that
insufficient
department
insufficient
the
workers
because
the
it
Beam
showing
evidence
of
disproportionately
Mill
that
all
and
discrimination
concerned
because
departments
there
operated
J.A. 10949-54.
was
single
was
an
under
As such, a
class-wide
proceeding
would
not
generate
common
answers
as
S. Ct. at 2551.
The
district
court,
however,
inappropriately
discounted,
Nucor
departments.
Although
11
of
the
16
employees
promotions
discrimination
in
other
departments.
See
1103;
1110-11;
1118-19.
Even
the
additional
affidavits
allegations
departments.
of
discrimination
in
non-Beam
Mill
observations
of
promotions
discrimination);
6369-70
additionally
discrimination
allegedly
did
indicates
made
to
the
little
to
nothing
numerous
plants
in
general
response.
The
complaints
of
manager,
who
Such
alleged
34
the
first
place
instead
of
part
of
single
facility,
courts
original
order
own
to
prior
certify
findings.
the
class
The
district
recognized
courts
that
the
context
of
the
9705.
Wal-Mart
provided
no
grounds
for
the
court
to
suggests
that
single,
localized
operations
must
be
Here, all
if
not
required
by
our
prior
and
circumstantial
evidence
ruling,
treating
the
In addition to the
of
discrimination
in
plant
opportunities
including
department
itself
diminished
for
workers
in
those
black
who
wanted
all
promotions
the
the
into
promotional
departments
the
infected
carr[ied]
department
the
and
effects
of
supervisor
racial
to
discrimination
another,
either
by
from
one
systemic
(citing Smith v. Bray, 681 F.3d 888, 897 & n.3 (7th Cir. 2012)).
Such a conclusion is further strengthened by the workers
hostile work environment claim.
atmosphere
of
systemic
tolerance
of
racial
hostility
by
that
opportunities.
infected
black
employees
promotion
We agree.
2.
Second,
relied,
in
the
part,
Wal-Mart
on
plaintiffs
showing
that
the
theory
of
company
commonality
maintained
See
Id. at 2553.
individual
employment
decisions.
Id.
at
2553-54.
however,
of
the
workers
unadulterated,
have
consciously
provided
substantial
articulated,
odious
hangmans
noose
prominently
displayed,
white
posit
an
equitable
promotions
set
against
that
work
environment
may
38
help
establish
claim
for
Post at 124-25.
locker
at
125.
divorced
Such
from
perspective,
reality
discrimination.
and
the
however,
history
is
perplexingly
of
workplace
the
inferiority
of
black
workers,
bears
no
supports
making
connection
between
the
work
to
making
history,
such
and
elementary
we
need
judgments.
not
avert
our
Justice
eyes
is
not
from
the
and
related,
the
anecdotal
evidence
of
17
that in Wal-Mart.
discrimination
from
particular
individuals.
Id.
at
338.
See
[T]he anecdotes
came from individuals spread throughout the company who for the
most
part
worked
at
the
companys
operational
centers
that
See Wal-
18
by the same practices that Ramon Roane and the other named
plaintiffs have raised.
J.A. 1124.
The dissent argues that
the declaration of Walter Cook also fails to mention promotions.
Post at 134. Cooks declaration, however, states that he heard
white employees talking about a black workers application for
an Operator position.
According to Cook, the employees stated
they would do everything that they could to make sure that
nigger didnt get the job.
J.A. 1075.
Further, the dissent
argues that the declaration from Kenneth Hubbard includes a
complaint that Nucor in fact promoted him.
Post at 134.
Hubbards declaration, however, accuses Nucor of placing him in
the position to get [him] out of the mill and the line of
progression that lead to supervisory positions.
J.A. 1097.
Hubbard also observes that his trajectory at the company was
dramatically different from that of a white co-worker who
started at the plant at the same time and later became a
supervisor.
Id.
Indeed, the dissents approach to the
affidavits, consistent with its approach to the anecdotal
evidence throughout, appears to be to cherry pick facts from an
11,000 page record, strip those facts of context, and then argue
that they undermine the substantial, credible evidence of
discrimination that the workers have produced.
19
Balanced
limited
against
weight
employees
to
largely
such
evidence,
approximately
disclaiming
the
80
district
court
affidavits
discrimination
at
from
the
gave
Nucor
plant
of
discrimination
insofar
as
they
were
given
under
(a
fact
that
was
omitted
from
the
Statement
of
of
Evidence,
certification
and
the
including
the
impeachment
opposition
of
witnesses);
to
see
class
also
for
coercion);
Quezada
v.
Schneider
Logistics
that
[f]ailing
to
inform
the
employees
of
the
evidence-
misleading
unaware
that
and
the
deceptive
interview
because
was
the
taking
employees
place
in
an
(N.D.
Cal.
investigate
Nov.
17,
allegations
from employees.
of
2005).
Of
course,
discrimination
and
companies
take
may
statements
of
employees
who
took
the
often
grave
risk
of
Moreover,
affidavits
as
still
previously
contain
observed,
numerous
the
company-
allegations
of
20
360; see also EEOC v. Korn Indus., Inc., 662 F.2d 256, 260 (4th
Cir.
1981).
Instead,
bifurcated
class
action
proceeding
engaged
conduct.
in
pattern
or
practice
of
discriminatory
260.
4.
Here,
treatment
for
claim,
liability
the
determination
workers
in
statistical
disparate
and
anecdotal
or
practice.
discrimination
is
the
of
discrimination
regular
rather
such
than
that
the
the
unusual
The required
See
of
why
any
individual
employee
was
disfavored,
the
to
the
question
of
consistently disfavored. 21
showing
of
why
Nucors
black
workers
were
disparate
does
not
require
the
discrimination.
See
Teamsters,
431
U.S.
at
336
n.16
the
words
pattern
or
practice
should
be
interpreted
A pattern of discrimination,
central
Title
purpose
of
VII
21
is
to
achieve
equality
of
Paper Co. v. Moody, 422 U.S. 405, 417-18 (1975) (stressing Title
VIIs prophylactic goals in addition to its purpose to make
persons
whole
for
injuries
suffered
employment discrimination).
on
account
of
unlawful
impact
and
anecdotes
however,
are
claim.
See
not
suggesting
enough
Wal-Mart,
alone
131
pattern
to
S.
of
sustain
Ct.
at
2555;
Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994 (1988).
Disparate
specific
results.
impact
liability
employment
requires
practice
that
the
identification
caused
racially
of
disparate
disparate
not
impact
theory
does
require
proof
of
improper
46
Instead, liability is
Wal-
discretion
actually
existed
throughout
company.
Id. at 2554; see also Tabor v. Hilti, Inc., 703 F.3d 1206, 1229
(10th Cir. 2013) (observing that after Wal-Mart, federal courts
. . .
have
generally
discriminatory
policies
plaintiffs
not
do
denied
certification
are
point
highly
to
when
allegedly
discretionary
common
mode
of
and
the
exercising
that
unites
the
the
manner
in
failed
which
to
identify
the
various
any
factor
decision
that
makers
J.A.
10955.
Wal-Mart
recognizes
that
in
certain
cases,
giving
by
impermissible
intentional
47
discrimination.
Id.
For
F.3d 476, 488 (6th Cir. 2013) (noting the difficulties Wal-Mart
presents for parties seeking to certify a nationwide class).
But for a localized, circumscribed class of workers at a
single facility, a policy of subjective, discretionary decisionmaking can more easily form the basis of Title VII liability,
particularly
when
racial hostility.
paired
with
clear
showing
of
pervasive
Courts
Inc.
disparate
specific
opinion
specifically
impact
including:
recent
claim
in
provides
may
Scott
several
satisfy
Rule
v.
Family
ways
23
that
after
Dollar
such
Wal-Mart,
employment
practice
that
affected
the
class
in
and
(3)
discretion at issue.
The
first
and
when
comprise
personnel
exercise
the
high-level
of
Scotts
alternatives
are
most
affirmative
acts
or
48
inaction.
Cf.
Ellison
v.
Brady,
924
employers
F.2d
872,
881
responsibility
offensive
work
affirmative
(9th
to
environment
acts,
the
act
under
district
Cir.
1991)
to
rectify
Title
court
(explaining
a
hostile
VII).
has
an
or
Regarding
established
that
the
supervisor,
the
department
manager,
and
the
J.A.
477-78.
For
purposes
of
class
certification,
the
workers
have
exacerbated
racially
disparate
results.
The
promotions
by
one
department
head
harmed
the
promotions
opportunities
upward mobility.
in
that
department
and
generally
impeding
there
were
pronounced
racial
49
disparities
in
department-
of
evidence
inaction
of,
and
by
the
complaints
general
manager
regarding,
who
ignored
the
discrimination
in
Respts
J.A. 997.
Consistent
work
environment
claim
that
despite
policy
of
Appellants Br.
policy
of
managerial
inaction
also
contributed
to
racial
with
Scott,
the
workers
have
further
company-wide
policy
of
50
discrimination
that
was
work
environment
previously
described
in
detail,
one
J.A. 1885-86.
plant
and
promotions
decisions
that
impacted
all
black
Wal-Mart, 131
S. Ct. at 2554-55.
In
the
end,
Wal-Mart
simply
found
it
unlikely
that
703
F.3d
at
1222.
Here,
however,
the
workers
have
through
alleged
incidents
of
specific
The district
IV.
Nucor
contest
further
the
argues
district
that
the
courts
workers
independent
have
finding
failed
to
that
the
As the company
to
seeking
meet
the
rules
individualized
requirements
money
damages,
for
class
action
namely,
that
common
subsequently
common
Fed. R. Civ. P.
issue
concludes
that
that
the
satisfies
plaintiffs
Rule
have
23(a)(2),
identified
this
Court
Wal-Mart,
do
not
predominate
over
individual
issues
with
J.A. 10956.
that
the
argument
section
of
an
appellants
opening
see also Mayfield v. Natl Assn for Stock Car Auto Racing,
Inc., 674 F.3d 369, 376-77 (4th Cir. 2012).
Failure of a party
United
States ex rel. Ubl v. IIF Data Solutions, 650 F.3d 445, 456 (4th
Cir. 2011) (quoting Rodriguez v. Hayes, 591 F.3d 1105, 1118 n.6
(9th Cir. 2010))).
The workers contend first, and we agree, that no waiver
occurred because their arguments in the opening brief extended
to
the
district
commonality.
courts
The
single
discussion
issue
of
both
identified
by
predominance
the
workers
and
on
53
Consistent
with
that
framing,
the
workers
opening
brief
distinguishing
between
commonality
and
predominance.
class
covering
all
six
production
departments.);
inquiries
would
no
doubt
have
been
wise,
the
for
instance,
specifically
cite
cases
The
discussing
Elsewhere,
in
discussing
the
of
the
in
Brown
that
[t]his
evidence
alone
establishes
Br.
42
(citing
Brown
I,
576
F.2d
at
153).
under
Rule
23(a)(2).
More
generally,
without
limiting
its
no
pattern-or-practice
evidence
in
the
non-Beam
Mill
the
question
analysis.
In
of
that
commonality,
regard,
as
however,
Wal-Mart
the
focused
workers
have
its
merely
the
same
arguments
under
Rule
23(b)(3)
as
it
did
see also United States v. Goforth, 465 F.3d 730, 737 (6th Cir.
2006)
(observing
that
where
an
argument
advanced
in
an
appellant
affirmance).
common
does
The
issues
did
not
district
not
because the
workers
Beam
there
Mill,
waive
court
predominate
evidence
is
that
no
alternative
based
on
its
the
basis
for
conclusion
that
observation
that
disproportionately
glue
23
connecting
concerns
the
the
promotions
decisions
in
the
departments.
Beam
Mill
J.A. 10959.
to
the
decisions
in
the
other
[a]lthough
there
are,
to
varying
degrees,
few
J.A.
10959.
context
and
Indeed,
responded
the
district
to
in
detail
court
itself
by
the
workers
acknowledged
there.
that
it
responding
directly
to
the
reasons
given
J.A. 10958-59.
by
the
district
See
Belk, Inc. v. Meyer Corp., 679 F.3d 146, 152 n.4 (4th Cir. 2012)
(finding that an issue was waived after a party mentioned the
issue in a heading but failed to further develop the argument);
see also Williams v. Woodford, 384 F.3d 567, 587 n.5 (9th Cir.
2002) (concluding that an appellant preserved a claim for review
even
though
footnote,
the
argument
where
the
consisted
argument
56
of
eight
identified
sentences
the
basis
in
a
of
underlay
including
several
common ones.
the
dissent
[the
district
individual
Post at 69.
argues
that
courts]
questions
many
different
predominance
that
could
finding,
overwhelm
The only
above,
specifically
the
evidence
merit
workers
establishes
certification,
common
not
argued
claims
merely
of
Yet, as observed
that
the
anecdotal
discrimination
finding
of
that
commonality.
Indeed,
this
Court
has
observed,
the
purpose
of
the
waiver
n.4 (4th Cir. 2006) (citing McBride v. Merrell Dow & Pharm.,
57
presented, the fully developed record below, and the lack of any
showing of unfairness or prejudice, there is simply no reason
why
we
should
exercise
our
discretion
to
discard
years
of
See
A Helping Hand, LLC v. Baltimore Cnty., Md., 515 F.3d 356, 369
(4th Cir. 2008) (observing that even when an argument has been
waived, this Court may nonetheless consider it if a miscarriage
of
justice
would
otherwise
result
(internal
quotation
marks
Cir.
2000)
(observing
that
court
may
refuse
to
find
in
the
first
place
given
this
Courts
remand
whether
insofar
as
common
Wal-Mart
questions
predominate
recalibrated
what
is
only
constitutes
incidental
a
common
Following
our
instructions
in
Brown
for
the
district
J.A. 10930.
The
court then certified the class for those employed in all six
Nucor operations departments.
did
not
prevent
the
district
court
in
any
way
from
to
find
that
predominance requirement.
the
workers
had
not
satisfied
the
the issue and the district court was free to reconsider it.
But
if the court did not have such liberty, then we must ask whether
59
for
the
first
question,
the
district
court
had
no
23(b)(3),
after
we
expressly
told
it
to
certify
the
Bell,
implement
taking
5
both
into
embraces
F.3d
at
66
the
letter
account
[our]
(internal
(requiring
and
spirit
opinion
quotation
that
of
and
marks
a
the
the
and
district
. . .
court
mandate,
circumstances
citation
it
omitted));
United States v. Pileggi, 703 F.3d 675, 679 (4th Cir. 2013)
(observing
that
the
mandate
rule
forecloses
relitigation
of
that
mandate
must
be
scrupulously
and
fully
the
general
outcome
to
be
reached
(class
court
could
have,
60
and
did,
evaluate
Of
whether
But it
that
the
had
failed
to
satisfy
Rule
23(b)
the record when it maintains that our original decision did not
in
any
way
predominance.
prevent
Post
the
at
district
75-76.
court
from
Indeed,
considering
following
our
any
case.
other
method
for
adjudication
of
the
claims
in
this
ever
satisfied.
finding
that
the
Rule
23(b)(3)
requirements
are
Post at 78.
Given the fact that our prior ruling foreclosed the denial
of certification on the basis of Rule 23(b)(3), the district
24
The dissent also maintains that our mandate did not reach
the question of predominance because we amended our original
opinion in Brown I to delete a specific reference to Rule
23(b)(3). Post at 77. Such a deletion, however, did not change
either our mandate to certify a mandate that required the
court to find the workers had met Rule 23(b) or the district
courts express understanding of that mandate.
61
none.
Indeed,
acknowledged,
Wal-Mart
into
common
whether
constitutes
as
only
district
incidentally
questions
common
the
question
narrowed
predominate
in
the
court
by
first
an
itself
inquiry
clarifying
place
under
what
Rule
V.
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.
cohesiveness
of
the
class
all
demonstrate
that
the
action
virtues
of
efficiency
and
flexibility.
The
exercise
its
judgment
in
manner.
62
reasoned
and
expeditious
The
dissent
rightly
observes
that
the
majority
presses
Post at 152.
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 dissent would deny them that chance while leading this Court
down a different road a road that would further weaken the
class action as a tool to realize Title VIIs core promise of
equality.
We
vacate
the
district
courts
decertification
of
the
63
typically
tread
lightly
when
reviewing
class
court,
especially
factual findings.
when
it
provides
well-supported
Id.
We usually trust
that the district court has the better eye for these sorts of
questions.
The
majority
today
declines
to
follow
that
path.
It
decision
to
decertify,
reversing
that
courts
about
the
nature
of
this
case.
In
doing
so,
the
Stores,
Inc.
v.
Dukes,
131
respectfully dissent.
64
S.
Ct.
2541
(2011).
I. Predominance
A.
The
district
court
decertified
had
not
identified
Plaintiffs
promotions
question[]
of
law
or
fact
to
the
class
members
did
not
predominate
over
any
Pilot Life Ins. Co., 445 F.3d 311, 319 (4th Cir. 2006).
Because the district court provided two different bases for
its decision, Plaintiffs were required to contest both.
did not.
They
of predominance.
And even
for
any
submissions.
mention
of
such
balancing
in
Plaintiffs
statement
that
the
district
65
court
erred
as
to
1161, 1165 n.4 (9th Cir. 2014) (holding that cursory statements
that the district courts order also incorrectly applied Rule
23(b)(3)s
[predominance]
requirement
are
not
enough
to
See,
e.g., Metro. Regl Info. Sys., Inc. v. Am. Home Realty Network,
722 F.3d 591, 602 n.13 (4th Cir. 2013); Kensington Volunteer
Fire Dept, Inc. v. Montgomery Cnty., 684 F.3d 462, 472 n.4 (4th
Cir. 2012); Mayfield v. Natl Assn for Stock Car Auto Racing,
Inc., 674 F.3d 369, 376 (4th Cir. 2012); A Helping Hand, LLC v.
Balt.
Cnty.,
515
F.3d
356,
369
(4th
Cir.
2008);
French
v.
Assurance Co. of Am., 448 F.3d 693, 699 n.2 (4th Cir. 2006).
As
Belk, Inc. v. Meyer Corp., 679 F.3d 146, 152 n.4 (4th
Cir. 2012).
they
might
Diagnostics
had
GmbH,
merit.
335
See
F.3d
IGEN
303,
Intl,
308-09
Inc.
(4th
v.
Cir.
Roche
2003);
v. Lee, 283 F.3d 240, 252 n.11 (4th Cir. 2002) (applying the
doctrine in a death penalty case).
Given
that
Plaintiffs
failed
to
challenge
the
district
court
multiple,
judgment
appellant
must
based
on
convince
us
that
independent
every
stated
grounds,
ground
an
for
the
276, 289 (4th Cir. 2014); accord Maher v. City of Chi., 547 F.3d
817, 821 (7th Cir. 2008); Jankovic v. Intl Crisis Grp., 494
F.3d
1080,
repeatedly
1086
(D.C.
affirmed
Cir.
2007).
district
court
Appellate
decisions
courts
denying
have
class
1302, 1306-08 (11th Cir. 2012); Klay v. Humana, Inc., 382 F.3d
1241,
1268
(11th
Cir.
2004),
abrogated
67
on
other
grounds
by
Bridge v. Phoenix Bond & Indemnity Co., 553 U.S. 639 (2008);
Applewhite v. Reichhold Chems., Inc., 67 F.3d 571, 573-74 (5th
Cir. 1995).
now
suggest
that
[p]redominance
and
commonality
one
should
found
be
treated
as
challenge
to
both.
Rule
23(a)(2),
asks
whether
the
EQT Prod.
Predominance,
See Vega v. T-
Mobile USA, Inc., 564 F.3d 1256, 1268-70 (11th Cir. 2009); In re
Ins. Brokerage Litig., 579 F.3d 241, 277 (3d Cir. 2009); accord
Ealy v. Pinkerton Govt Servs., Inc., 514 F. Appx 299, 305 (4th
68
Plaintiffs
followed
the
district
courts
lead
in
The
majoritys
analysis
mischaracterizes
the
district
courts opinion.
The district court did not just repeat back its commonality
findings
in
determining
predominance.
that
Plaintiffs
class
failed
as
to
then
explained
--
over
several
J.A. 10956.
pages
--
that
The
many
(2013).
Because
Plaintiffs
heavily
rely
on
anecdotal
jury
individual
would
promotion
have
to
delve
decision
69
to
into
the
determine
merits
of
whether
each
each
J.A. 10959.
Thus, a trial
Nucor
plant.
The
court
further
acknowledged
that
here,
can
cut
against
class
certification.
J.A.
for
caution
in
making
its
predominance
finding.
See,
e.g., Cooper v. So. Co., 390 F.3d 695, 72223 (11th Cir. 2004),
overruled on other grounds by Ash v. Tyson Foods, Inc., 546 U.S.
454 (2006) (noting that individualized damage issues could swamp
the
advantages
coming
from
determination);
accord
Allison
F.3d
402,
42122
(5th
an
Cir.
initial,
v.
Citgo
1998),
class-wide
Petroleum
cited
with
liability
Corp.,
151
approval
in
Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, 445 n.18 (4th
Cir. 2003); see also Comcast Corp. v. Behrend, 133 S. Ct. 1426,
1433 (2013) (explaining that individual damage-related questions
might destroy predominance); Windham v. Am. Brands, Inc., 565
F.2d 59, 7172 (4th Cir. 1977).
The
district
court
appropriately
resolved
predominance
C.
The
majority
at
least
recognizes
that
Plaintiffs
54;
see
also
id.
at
55
(acknowledging
that
should
Maj. op.
Plaintiffs
Even so, it
They do
not.
Plaintiffs statement of the issue on appeal, for instance,
does not help them.
Here again,
would not have been enough without some further argument on the
matter -- an argument that Plaintiffs wholly failed to provide.
See Belk, Inc., 679 F.3d at 153 n.6; 11126 Balt. Blvd., Inc. v.
Prince
Georges
Cnty.,
Md.,
58
F.3d
988,
993
n.7
(4th
Cir.
1995).
The majority also ignores Plaintiffs waiver because their
brief
contains
courts
some
broadly
decertification
stated
decision
71
--
attacks
attacks
on
the
district
purportedly
not
within
the
broader
one.
Quite
the
opposite:
F.3d 651, 659 (7th Cir. 2011); see also, e.g., Garrett v. Selby
Connor
Maddux
&
Janer,
425
F.3d
836,
841
(10th
Cir.
2005);
Norman v. United States, 429 F.3d 1081, 1091 n.5 (Fed. Cir.
2005).
Preservation
litigants
could
make
would
have
nebulous,
little
broadly
to
recommend
worded
it
arguments
if
and
trust appellate courts to work out the details once the opposing
party points out the default.
In much the same way, Plaintiffs did not preserve their
predominance
challenge
by
citing
few
cases
that
happen
to
The traditional
Pike v.
Guarino, 492 F.3d 61, 78 n.9 (1st Cir. 2007); see also Am.
Wildlands v. Kempthorne, 530 F.3d 991, 1001 (D.C. Cir. 2008) (A
fleeting statement in the parenthetical of a citation is no more
sufficient
to
footnote[.]).
raise
claim
than
cursory
remark
in
marks
and
citations
omitted
here
and
throughout);
accord Johnson v. United States, 734 F.3d 352, 360 (4th Cir.
2013).
The majoritys analysis casts an inappropriate role for an
appellate court.
boards
of
legal
inquiry
and
research.
Natl
Aeronautics & Space Admin. v. Nelson, 562 U.S. 134, 147 n.10
(2011); see also Walker v. Prince Georges Cnty., Md., 575 F.3d
426, 429 n.* (4th Cir. 2009) (Judges are not like pigs, hunting
for
truffles
buried
in
briefs.).
In
addition,
using
the
to
any
part
of
district
courts
certification
This preservation-by-citation
the
end,
the
majority
declares
itself
unwilling
to
That
by
experienced
class
counsel
--
counsel
that
has
ensures
that
the
opposing
has
an
opportunity
The
to
Inc., 680 F.3d 1316, 1319 (11th Cir. 2012); see also United
States v. Leeson, 453 F.3d 631, 638 n.4 (4th Cir. 2006) (noting
that late arguments are unfair to the appellee); Pignons S.A.
74
appealed[.]).
Plaintiffs
Nucor
predominance
never
arguments
had
chance
directly,
their
reply
predominance
brief,
standard
for
applies
example,
after
that
Wal-Mart
as
to
address
Plaintiffs
Plaintiffs argued
no
heightened
Stores,
Inc.
v.
Dukes, 131 S. Ct. 2541, 2551 (2011), and the majority agrees,
see maj. op. at 62.
It must be cold
E.
The majority goes on to hold that the mandate rule barred
the district court from examining Rule 23(b)(3) predominance.
See maj. op. at 58-62.
incorrect.
not
prevent
district
court
75
in
any
way
from
considering
23(a)s
four
requirements.
It
expressly
declined
appeal,
23(a).
the
parties
submissions
focused
to
J.A. 8997.
solely
on
Rule
been
satisfied
for
these
claims.
See
Brown
v.
Nucor
then
petitioned
for
rehearing
en
banc,
arguing,
among
other things, that neither the lower court nor the parties had
previously analyzed the Rule 23(b) issue.
Rehg at 9, Brown I, 576 F.3d 149 (No. 08-1247), ECF No. 53.
In
response, the Brown I panel amended its opinion and excised any
mention of Rule 23(b)(3).
In fact, up to that
class
met
that
provisions
requirements.
The
district court complied with both the letter and the spirit of
Brown I, and it correctly took into account [the] opinion and
the circumstances it embrace[d].
64, 66 (4th Cir. 1993); see also, e.g., Lindy Pen Co. v. Bic Pen
Corp.,
982
F.2d
1400,
1404-05
(9th
Cir.
1993)
(affirming
reach questions which might have been decided but were not.
United States v. Lentz, 524 F.3d 501, 528 (4th Cir. 2008).
And
[w]hile
its
compass,
on
mandate
the
is
remand
controlling
a
lower
77
as
court
to
is
matters
within
free
to
as
other
issues.
(1939).
Sprague
v.
Ticonic
Natl
Bank,
307
U.S.
161,
168
remand
after
Brown
I,
the
district
court
initially
The
at
1202
n.9,
and
district
court
has
considerable
Steiman ex rel. Prado v. Bush, 221 F.3d 1266, 1273 (11th Cir.
2000).
The
district
court
could
revisit
its
interlocutory
Maj. op. at
59.
In effect, the majority today certifies a Rule 23(b)(3)
class
action
23(b)(3)
without
requirements
any
are
court
ever
satisfied.
finding
It
that
cannot
the
Rule
genuinely
contend that Brown I did the work, as the Fourth Circuit has
never allowed the rigorous Rule 23 analysis to be accomplished
implicitly.
The majoritys
decision
mandate,
to
certify
substantially
in
damages
part
Rule
on
this
illusory
23(b)(3)s
vital
then,
prescription.
each
requirement
of
Rule
23,
including
the
Halliburton Co. v.
At
did
not
challenge
the
district
courts
To see why, it
is
that
first
necessary
to
recognize
the
standard
appellate
evaluating
the
evidence
at
the
certification
stage
must
be
considered.
A.
1.
A district courts ultimate class-certification decision -that is, how it applied the Rule 23 factors -- is reviewed for
an abuse of discretion.
579
F.3d
380,
384
(4th
Cir.
2009);
Gregory
v.
Finova
But reciting
abuse-of-discretion
standard
does
establish
some
reverse
only
when
the
courts
exercise
of
discretion, considering the law and the facts, was arbitrary and
capricious.
Cir. 1995).
reached
by
fundamentally
fanciful.
reasonable
wrong,
jurist,
clearly
or
when
we
unreasonable,
may
call
it
arbitrary,
or
F.3d 944, 957 (7th Cir. 2014); accord Am. Copper & Brass, Inc.
80
v. Lake City Indus. Prods., Inc., 757 F.3d 540, 543 (6th Cir.
2014) (characterizing review of a class certification decision
as very limited).
Of course, deference does not equal blind acceptance.
If,
conduct
an
requirements).
factual
matters
appropriately
But
or
when
areas
rigorous
our
review
of
analysis
ventures
practical
of
into
concern,
Rule
23s
intensely
then
our
those
wrong.
circumstances
unless
the
lower
court
was
clearly
Broad & Cassel, 773 F.3d 1076, 1086 (10th Cir. 2014) ([A]s long
as the district court applies the proper Rule 23 standard, we
will
defer
to
its
class
certification
ruling
provided
that
Rather, the
that
reviewing
court
may
always
correct,
and
the
Evans
v. Eaton Corp. Long Term Disability Plan, 514 F.3d 315, 322 (4th
Cir. 2008); see also Cooter & Gell v. Hartmarx Corp., 496 U.S.
384, 405 (1990) (holding that the district court did not abuse
its discretion where it applied the correct legal standard and
offered substantial justification for its finding).
These principles might strike some as truisms, but they
carry
special
Granting
or
force
denying
in
the
class
class-certification
certification
is
context.
highly
fact-
broad
discretion
in
deciding
whether
to
allow
the
1343, 1348 (4th Cir. 1976); see also Lowery v. Circuit City
Stores, Inc., 158 F.3d 742, 757-58 (4th Cir. 1998), vacated 527
U.S. 1031 (1999), reaffd in relevant part, 206 F.3d 431 (4th
Cir. 2000).
773 F.2d 561, 564 (4th Cir. 1985); accord Simmons v. Poe, 47
F.3d 1370, 1382 (4th Cir. 1995).
2.
An appellate court must be even more careful in reviewing
any factual findings underlying the district courts decision,
as we review those only for clear error.
Cir.
2014).
the
district
court
chose
between
two
account
of
that
evidence,
Anderson
v.
City
of
Bessemer City, N.C., 470 U.S. 564, 574 (1985), then its factual
findings are conclusive, Walker, 594 F.3d at 323.
the
abuse-of-discretion
standard,
83
we
cannot
And as with
reverse
merely
because
we
would
have
decided
the
matter
differently.
See
opinion
for
any
of
the
hallmarks
of
deference
--
truth,
the
majority
seems
to
apply
just
about
every
the
the
majority
erred,
offers
apparently
differently
than
bare
statements
because
the
the
majority
that
district
would
court
have.
district
decided
For
court
things
instance,
it
them
enough.
It
makes
credibility
determinations,
25,
or
statements
coercive,
from
id.
Plaintiffs
at
42,
because
84
while
the
embracing
majority
contrary
finds
them
plain,
id.
at
29,
elementary,
id.
at
39,
or
common
for a district court that is far more familiar with each page of
the record than we are.
Contravening our axiomatic rule against factual findings
on appeal, Core Commcns, Inc. v. Verizon Md. LLC, 744 F.3d 310,
324 (4th Cir. 2014), the majority eventually finds in the first
instance that there is only one answer to the question of why
Nucors black workers were consistently disfavored, maj. op. at
45.
371
(remanding
for
further
consideration
of
class
Instead, it engages in a
rather
extended
declares
any
iron[ic].
discussion
attack
on
of
the
the
85
Brown
majoritys
dissent
and
factfinding
then
today
Too
often,
we
fail
to
give
standards
of
review
the
expression
judicial
restraint,
which,
in
their
Evans,
to ignore them.
B.
We must next consider the district courts role in deciding
the
certification
implies
that
motion
the
in
the
district
first
court
place.
too
The
readily
majority
dismissed
just permitted to take a hard look at Plaintiffs submissions -it was required to.
1.
Although
plaintiffs
shoulder
the
burden
of
demonstrating
that a proposed class complies with Rule 23, the district court
has an independent obligation to perform a rigorous analysis to
ensure that all of the prerequisites have been satisfied.
Prod., 764 F.3d at 358.
analysis
legal
or
requires
factual
the
EQT
district
dispute
court
relevant
86
to
to
resolve
genuine
determining
the
requirements.
attention
to
the
requirements
of
[Rule]
23
Gen. Tel.
Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982); see also Desert
Palace,
Inc.
v.
conventional
Costa,
rule[s]
539
of
U.S.
civil
90,
99
(2003)
litigation
(noting
.
the
generally
Co.
v.
Italian
Colors
Rest.,
133
S.
Ct.
2304,
2309
for
the
sake
of
U.S.
560,
578
abstract
notions
of
Title
VIIs
(1979)
([G]eneralized
references
to
the
more
broadly
than
its
language
and
the
statutory
87
basic
terms,
plaintiffs
the
have
presented
relevant
prove it.
rigorous-analysis
standard
substantial
tests
evidence
of
requirements
have
been
met,
but
must
actually
F.3d at 384.
evidentiary
proof,
affirmatively
Comcast,
demonstrate
133
[their]
S.
Ct.
compliance
at
with
1432,
the
and
Rule,
Inc.
Pricing
Litig.,
729
F.3d
See In re U.S.
108,
117
(2d
Cir.
2013); Carrera v. Bayer Corp., 727 F.3d 300, 306 (3d Cir. 2013);
Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 811 (7th
Cir. 2012); Ala. Elec. Pension Fund v. Flowserve Corp., 572 F.3d
221,
228
(5th
Halliburton,
134
Cir.
S.
2008),
Ct.
abrogated
2398;
accord
in
In
other
re
respects
Titanium
by
Dioxide
Antitrust Litig., 284 F.R.D. 328, 336 (D. Md. 2012); In re Mills
Corp. Sec. Litig., 257 F.R.D. 101, 104 (E.D. Va. 2009); In re
88
Certification
Standards
in
Wal-Mart
v.
Dukes
Actually
(2013) (reading
findings,
merits.
even
if
they
overlap
with
issues
on
the
Fuel Surcharge Antitrust Litig., 725 F.3d 244, 249 (D.C. Cir.
2013) (recognizing that certification will sometimes resemble[]
an appraisal on the merits).
something like lets resolve the merits first and worry about
the class later . . . or Im not going to certify a class
unless I think that the plaintiffs will prevail.
Bridgeport
cited
with
Machs.,
Inc.,
approval
in
249
F.3d
Wal-Mart,
672,
131
677
S.
(7th
Ct.
at
Szabo v.
Cir.
2552.
2001),
But
Wal-Mart, 131 S.
v. Carlisle & Jacquelin, 417 U.S. 156, 177 (1974), and refusing
to inquire into Plaintiffs statistics because it would be an
89
131
S.
Ct.
at
2552
&
n.6
(admonishing
courts
not
to
The
Instead,
it
treats
the
evidentiary
standard
for
analysis
Amgen,
considered
on
might
case
class
that
of.
addresses
certification,
Instead,
what
not
it
questions
what
merely
may
evidence
be
will
Having rendered
See, e.g., maj. op. at 25, 33, 34, 39, 43, 45,
90
Maj.
576 F.3d
Brown
required
the
plaintiffs
to
summon
In
an
1999).
at 293).
See In re
See 603 F.3d 571, 595-96 & n.17 (9th Cir. 2010).
established
commonality,
as
Brown[
I]
was
decided
in
all,
despite
assurances
otherwise,
the
majority
It is
the plaintiffs.
Id.
should
dictate
the
process
that
precedes
it.
Oscar
III. Commonality
With the proper standards in mind, it becomes evident that
the district court did not abuse its discretion in finding that
Plaintiffs failed to establish commonality.
In this case, proof of commonality necessarily overlaps
with [Plaintiffs] merits contention that [Nucor] engages in a
pattern or practice of discrimination.
2552.
Plaintiffs
must
establish
unifying
policy
of
disfavored.
Id.
In
other
words,
Plaintiffs
cannot
Id.
981
Cir.
2011);
see
93
also
William
B.
Rubenstein,
explaining
that
Wal-Mart
definition of commonality).
articulated
more
explicit
than
production
decade,
facility,
decisionmakers.
covering
and
Nucors
touching
That
task
entire
upon
can
be
South
dozens
of
decidedly
Carolina
relevant
difficult,
Tel. Co., 628 F.2d 267, 274 n.10 (4th Cir. 1980); see also
Garcia
v.
Johanns,
444
F.3d
625,
633
(D.C.
Cir.
2006)
plaintiff
who
brings
class-wide
charge
of
procedure
employees.
Id.
that
See Wal-
is
used
to
evaluate
applicants
and
policy
of
discrimination
. . .
[that]
manifested
itself
in
of
evidence
separately
or
together,
the
district
the
number
of
black
employees
that
they
assumed
Nucor
should
identify
disparities
that
are
sufficiently
Anderson v.
Westinghouse Savannah River Co., 406 F.3d 248, 281 (4th Cir.
2005).
Without
substantial
disparities,
we
cannot
be
As
to
the
disparate
treatment
claim,
gross
statistical
Hazelwood Sch.
Dist.
(1977);
v.
Ardrey
v.
1986).
753
United
States,
United
433
Parcel
U.S.
Serv.,
299,
798
307-08
F.2d
679,
683
accord
(4th
Cir.
(4th
Cir.
1986)
([S]tatistics
cannot
alone
prove
the
But
not every case will present the truly egregious and unexplained
disparities
that
intentional
leave
no
room
discrimination.
for
any
inference
Moreover,
other
[i]nferring
than
past
majority
observes
that
Plaintiffs
evidence
is
Maj. op. at
sufficient
condition
to
finding
discriminatory
practice
or
legal
Richmond,
significance.
698
F.2d
633,
See
648
EEOC
(4th
96
v.
Cir.
Fed.
1983)
Reserve
Bank
of
([S]tatistical
significance
statistical
as
measured
principles
by
will
the
standards
of
not
necessarily
acceptable
be
legally
High statistical
instance,
misleading
because
artifact
of
high
the
significance
studys
level
design.
may
Kadas
v.
what
is
legally
significant
--
as
be
MCI
Thus,
opposed
to
Inc.,
449
F.
Supp.
2d
1,
706
n.29
(D.D.C.
2006)
crosses
for
Yet
the
two-standard-deviation
statistical
courts
of
significance
law
should
be
at
threshold,
95%
extremely
the
confidence
cautious
in
discrimination,
even
though
statistics
showed
overall
Id. at
1018-19.
Similarly, other courts have rejected statistical evidence
even
though
threshold.
the
evidence
met
the
two-standard-deviation
98
3.
Instead
standard
courts
assuming
deviations
must
basis.
of
evaluate
that
any
establishes
statistical
particular
number
discriminatory
evidence
on
of
policy,
case-by-case
Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 995
defendants
[are]
obliged
to
Neither courts
assume
that
plaintiffs
And we must always keep in mind that we are looking for reliable
indications of gross or substantial disparities that amount
to significant proof.
reliance
on
unverifiable
evidence
is
hardly
better
than
324
(5th
Cir.
2005).
District
courts
must
probe
the
otherwise
become
acceptable
so
long
as
it
c[ould]
be
In
this
case,
the
district
court
evaluated
Plaintiffs
court
clearly
unconvincing
evidence.
Plaintiffs
statistical
erred
by
And
when
refusing
evidence
one
to
takes
truly
is
give
a
weight
closer
to
look,
fundamentally
J.A.
J.A. 403,
J.A. 403-04.
that
analysis.
he
professed
to
need
for
scientifically
valid
impossible,
he
and
another
expert
nevertheless
produced
they
used
For
instance,
even
experts
though
report
the
confirms
experts
drew
that
conclusions
about
positions throughout the Nucor plant, they did not employ any
data from either the shipping or maintenance departments.
1154.
They
used
only
remaining departments.
experts
chose
to
use
limited
J.A. 1153.
bidding
data
amount
of
data
J.A.
for
the
determine
an
expected
analyze
[those]
promotions.
J.A.
1161.
Nucors
expert
experts
included
promotion
101
won
For instance,
by
an
external
filled
promotions.
They
further
overlooked
seven
In
discovery, Nucor produced bidding packets and other promotionrelated applicant data covering certain promotions from January
2001 to February 2006.
data
black
indicated
standard
that
the
deviations
insignificant
from
result.
selection
the
See
mean
J.A.
rate
--
5872.
fell
a
only
0.84
statistically
Fortunately
for
to
the
January
2001
to
December
2003
period.
But
an
data
produced
disparities
falling
only
1.53
standard
Plaintiffs
experts
set
about
creating
forms
plucked
personnel
records
to
The experts
then
essentially
constructed
hypothetical
bidding
pool
by
the
actual
promotions
figures
from
2001
through
Tied
2003,
erroneous
assumptions
that
render
their
model
unreliable.
It begins with the change-of-status forms, which Nucor used
to record any change of employee status.
the
classes,
Plaintiffs
had
never
J.A.
11006
(Reynolds),
11028
(Forsell),
while
just
another
(Proskine),
11025
(Pope).
Most
of
the
forms
fail
to
--
representing
statistical
nearly
half
analysis
--
of
the
were
promotions
suspect
in
and
statistically useless.
The problems with Plaintiffs experts model continue to
mount
when
the
hypothesized
bidding
pools
for
the
purported
at
least
one
black
employee
promotion opportunities.
of
an
all-white
something
Nucors
11%
concluded
to
black
that
on
each
of
the
27
assumed
bidding
likely
bid
pool
randomly
during
happen
workforce.
Plaintiffs
the
from
projected
time
Consequently,
experts
model
to
period,
time
Nucors
given
expert
overstat[ed]
the
calculated
that
J.A. 5912.
black
workers
to
jobs
at
Compare
the
imbalances.
validity
of
statistical
study
to
determine
selection
rate
for
December
1999
to
January
2001
--
when
while
same,
the
then
number
the
of
black
hypothesized
bidder
black
selections
selection
stayed
rate
would
the
be
majority
sound.
nevertheless
unwillingness
to
dubs
the
extrapolated
data
confront
genuine
concerns
over
statistical
validity.
For instance, although admitting that the change-of-status
forms
are
explaining
ambiguous,
the
how
ambiguities
these
statistical accuracy.
Nucors.
majority
blames
would
Nucor
affect
for
not
Plaintiffs
Cf. Cooper v. Smith & Nephew, Inc., 259 F.3d 194, 199
the
Court
affirmed
district
Recently, for
courts
refusal
to
the
evidence
contained
number
of
mistakes
and
there
very
raised
the
same
argument
106
that
the
majority
now
The
mentioned
all
here:
not
change-of-status
forms
used
to
See Brown
Id.
upon
to
guesstimate
their
statistics.
Nor
had
they
informed the Court that the forms in the record were not those
upon which they based their statistical evidence.
I
dissent
available
used
to
the
assess
only
change-of-status
whether
they
could
forms
that
credibly
Id.
were
support
Although the
107
majority
decertification
then
attempts
decision
to
to
the
tie
the
error
district
that
the
courts
majority
According to the
model.
But
heres
the
rub:
the
district
court
forms
apparently relied.
upon
J.A. 10943.
[Plaintiffs]
experts
See
J.A.
the
10942-43.
Brown
dissent
The
majoritys
therefore
protracted
does
nothing
discussion
to
of
rehabilitate
Maj. op.
Plaintiffs
experts
offered
few
explanations
for
their
black bidding rates varied during the years for which data was
available.
then
one
assume
extrapolated years.
that
those
same
rates
blames
to
the
applied
Nucor
for
not
summoning
any
going
to
variation, but that tack once more reverses the burden of proof.
It is the plaintiffs burden to demonstrate compliance with
Rule
23,
majority
assumed
not
Nucors.
further
that
Plaintiffs
finds
every
themselves
unposted positions.
Nucors
stated
EQT
Prod.,
that
position
764
F.3d
at
Plaintiffs
experts
was
for
submitted
posted
testimony
358.
The
reasonably
bidding.
identifying
But
several
policies
also
indicated
that,
at
least
for
J.A. 257.
Maj. op.
at 18-19.
of
the
applicant
pool
and
the
success
rates
majoritys
cited
cases
also
involved
(noting
applicant
(noting
that
records);
that
the
the
defendant
Cnty.
of
defendant
defendants
who
improperly
Fairfax,
629
destroyed
disposed
F.2d
at
applicant
936
data
of
n.4
[i]n
situation
involving
spoliation
of
evidence,
the
Court
But
no
authority
requires
the
district
court
to
Our precedent
737 F.2d 1299, 1306 (4th Cir. 1984), for example, the district
court
relied
exclusion
evidence
of
solely
all
crafted
upon
actual
[other]
from
applicant
statistical
alternative
110
flow
data
evidence,
benchmarks.
We
to
the
including
affirmed,
emphasizing
that
we
could
not
second-guess
fact-bound
the
same
thing
Id.
as
the
district
court
in
Allen,
As in
Allen, we should not say that the district court clearly erred
in doing so.
6.
a.
Plaintiffs
controls
for
statistical
evidence
non-discriminatory
factors
also
does
that
not
could
very
apply
well
at Nucor.
also Coates v. Johnson & Johnson, 756 F.2d 524, 544 n.20 ([A]n
employees prior discipline record seems likely to be a major,
if
not
the
decision.).
most
important,
factor
in
[an
employment]
these
considerations
J.A. 1164.
away,
111
reasoning
Nucor
never
raised them.
characteristics
that
would
selection,
which
would
discipline.
seem
include
to
affect
matters
like
the
chance
seniority
of
and
experts
conceded
that
they
were.
See
J.A.
Even
1165
And,
the
majority
assumes
that
potential
Yet
here
again,
Plaintiffs
experts
explanatory
not
assume
so,
875 F.2d 365, 375 (2d Cir. 1989) (holding that district court
correctly
required
the
plaintiffs
to
account
for
potential
biased,
variable
from
that
the
outcome
would
statistical
not
model
justify
excluding
completely.
the
[T]ainted
failure
variables
is
to
control
sufficiently
for
non-race-related
serious
so
as
to
explanatory
weaken
the
trier
of
fact
must
determine
whether
racial
--
caused
Chaplaincy,
738
controlled
model
F.3d
can
an
425,
alleged
440
provide
disparity.
(D.C.
that
Cir.
answer,
In
2013).
and
Navy
Only
Plaintiffs
re
b.
In most every employment case, a valid statistical model
must
account
for
one
particularly
important
explanatory
[T]he relevant
see also City of Richmond v. J.A. Croson Co., 488 U.S. 469, 50102 (1989); McNairn v. Sullivan, 929 F.2d 974, 979 (4th Cir.
1991).
of
reasons
that
Packaging
Co.
dearth
are
not
v.
of
[the
Atonio,
qualified
nonwhite
employers]
490
U.S.
applicants
fault).
642,
651
Wards
(1989).
(for
Cove
Thus,
minimal
qualifications
probative value.
Willborn,
supra,
discrimination
in
for
the
job
[are]
of
little
4:3
promotions
([W]hen
within
considering
an
potential
organization,
only
So, a truly
case
challenging
facility,
the
promotions
Eighth
practices
Circuit
found
at
that
In a
different
similarly
substandard work from the same expert did not create a triable
question of fact on summary judgment.
812.
experts
that
statistics
all
had
applicants
Other
little
were
available position.
alone.
force
qualified
because
for
they
promotion
assumed
to
each
courts
have
criticized
Plaintiffs
principal
every
person
is
just
as
qualified
and
skilled
and
at
courts
262-63
(agreeing
with
the
district
view
that
the
experts
assumed
that
all
persons
in
each
to
included.
bid
based
J.A. 1162.
on
the
posted
qualifications
were
faulty assumption built into the model: the experts assumed that
only qualified persons applied for each promotion opportunity.
It takes no expertise to comprehend that some people might be
discouraged from applying because of a self-recognized inability
to meet the [openings] standards.
U.S. 321, 330 (1977).
job
applicant
is
so
and
prefers
to
guess
that
even
the
majority
number
of
seems
The
unqualified
irrelevant,
and
it
makes
that
guess
simply
majority
has
read
the
qualified
because
the
job
In practical effect,
applicants
limitation
found in our prior cases out of the law, as most every job
opening provides some minimal description of what skills are
required.
A statistical study that fails to correct for explanatory
variables, or even to make the most elementary comparisons, has
no value as causal explanation[.]
Plaintiffs
presented just such a study here, and the district court did not
clearly err in rejecting it.
7.
Lastly,
Plaintiffs
statistical
evidence
improperly
policy.
While
in
case
alleging
intentional
Love v. Johanns,
level,
then
statistics
showing
policys effects.
implemented
on
plaintiffs
nationwide
might
disparities
use
to
applicable
establish
the
plant-by-plant
or
department-by-department
demonstrates
these
concepts
well.
There,
the
Supreme
Court
Id. at 2547.
held
Wal-
that
plaintiffs
statistics
did
not
and
did
upon
not
establish
which
depend[ed].
Id. at 2555.
own,
cases
earlier
the
plaintiffs
uniform,
theory
store-by-store
of
commonality
indicating
that
118
statistics
should
not
be
locus
of
autonomy),
with
Elizabeth
Tippett,
Robbing
L.J.
433,
447
(2012),
cited
with
approval
by
Scott
v.
Family Dollar Stores, Inc., 733 F.3d 105, 113 (4th Cir. 2013)
(explaining that Wal-Mart requires that plaintiffs statistics
focus on the locus of the subjective decision-making).
In requiring the plaintiffs statistics to be centered at
the
level
of
relevant
decisionmaking,
Wal-Mart
did
not
Rather,
Inc., 737 F.3d 538, 544 (9th Cir. 2013) (200 class members);
Ealy,
514
F.
Appx
at
304-08
(150
class
members).
Even
size
of
the
putative
119
class
or
the
number
of
even
plant,
though
they
Plaintiffs
still
must
here
offer
challenge
statistics
practices
showing
in
one
disparities
focus.
See
Rubenstein,
supra,
24:40
(Courts
have
as
the
Brown
majority
agreed,
the
evidence
departments
has
unbridled
discretion
to
make
factors
he
Department
managers
developing
processes
wishes.
took
Indeed,
these
full
that
Brown
advantage
they
I,
of
recurrently
576
F.3d
that
at
151.
discretion,
characterized
as
processes
were
so
varied
that
one
supervisor
8109.
Even
departments,
such
as
supervisors
and
the
decisions.
the
decisionmakers
the
hot
mill
department
and
varied.
shipping
managers
In
some
departments,
made
promotion
even
lower-level
lead
men.
These
different
In the beam
record,
psychological
interview,
job
skills,
training,
manager
quite
reasonably
described
the
Nucors
promotions
processes when he said that each department ha[d] their own way
of doing [promotions].
J.A. 1723.
numerous
other
idiosyncratic
factors
--
might
Different
different
among
criteria
the
supervisors,
weighting
selection
all
this
Nucors
dissimilarity
selection
inconsistency.
Yet
the
promotions.
explained,
with
and
among
opportunities.
together,
process
was
the
little
J.A.
expert
only
J.A.
utilized
consistency
the
different
1525.
Taking
concluded
consistent
in
that
its
J.A. 1519.
Plaintiffs
exact
schemes
officials
hiring/promotion/transfer
he
or
opposite:
statistical
perfect,
evidence
plant-wide
incorrectly
consistency
assumed
as
to
we
cannot
rightfully
assume
that
plant-wide
of
autonomy
rested
at
the
departmental
level,
not
plant-wide one.
were
lockstep,
made
in
such
that
plant-wide
disparities
See Bolden v.
Walsh Constr. Co., 688 F.3d 893, 896 (7th Cir. 2012) (rejecting
aggregate data because it did not necessarily imply that all 25
superintendents behaved similarly, so it would not demonstrate
commonality).
We have already seen these concepts play out in another
employment
discrimination
facility.
Applying
action
Wal-Mart,
involving
the
Eighth
similar
Circuit
Nucor
rejected
Bennett,
Id. at
between
the
analysis
hiring
and
because
promotion
122
it
did
not
decisions
differentiate
made
in
each
department.
Id.
that
any
disparate
treatment
or
disparate
impact
Id.
at 815-16.
As in Bennett, Nucor here provided its own analysis that
demonstrated how the statistical disparities varied among the
different departments in the plant.
found
that
race
differences
between
departments
words,
disparities
some
in
departments
selection
experienced
rates,
could
J.A. 5894.
decidedly
undermining
any
In
smaller
inference
of
the
facility,
wide
variance
the
district
in
promotions
court
did
practices
not
clearly
at
the
err
in
majority
be
treated
finds,
as
promotions decisions.
however,
a
single
that
Nucors
entity
when
entire
it
plant
comes
to
I did
district
not
decide
court
departments
should
as
issue.
treat
single
Brown
Nucors
facility
held
various
only
for
that
the
production
purposes
of
prove
plant-wide
employees
in
satisfied
the
environment
other
hostile
departments,
commonality
claim.
environment
and
requirement
(emphasis
added));
the
for
that
plaintiffs
their
see
affected
also
hostile
id.
at
have
work
157
Plaintiffs
likewise
Id.
focused
their
single
entity
See Brief
The federal courts treat the two types of cases differently for
good reason.
F.3d 933, 943 (6th Cir. 2000), revd on other grounds, 532 U.S.
843 (2001).
environment
claim,
those
facts
may
matter:
racial
slurs
and
See Burlington
Indus., Inc. v. Ellerth, 524 U.S. 742, 762 (1998) ([A]nyone who
has regular contact with an employee can inflict psychological
injuries by his or her offensive conduct.).
and
radios
bear
no
relationship
to
promotions
decisions;
Only
in
concert
merely
because
their
employees
might
have
groups
of
employees
nevertheless
suffer
physical
proximity
workday.
Though
circumscribed
--
that
the
to
applicants
same
one
the
injury
environments
consistency
in
managerial
merely
another
majority
in
at
will
department
because
some
insists
each
of
point
that
during
maj.
centralized,
generally
decisionmaking,
their
increase
op.
at
33,
Hilti, Inc., 703 F.3d 1206, 1229 (10th Cir. 2013) (affirming
denial of class certification where Plaintiffs challenge[d] a
highly discretionary policy for granting promotions).
The majority also notes that the general manager formally
approved promotions in the plant.
Without
common,
plant-wide
disparities.
Yet
even
the
Brown
and
handles
discrimination
and
harassment
unbridled
discretion
to
126
make
promotions
within
his
general
manager
responsibility,
those
as
decisions.
explained,
he
had
J.A.
were
not
department
8163.
[his]
managers
Nucor
Promotions,
area
that
instead
of
ma[d]e
trained
its
--
resembles
See
131
S.
theory
Ct.
at
that
2553-54
Wal-Mart
(refusing
out-and-out
to
credit
Inaction --
name.
[I]t
employment practices.
is
policy
against
having
uniform
Wal-Mart
reports
Individual
never
acts
of
even
mention
discretion,
him.
not
For
the
good
general
reason.
managers
injuries
that
they
reflect.
Thus,
the
not-very-common
of
potential
cats
paw
wherein
non-
Not even
128
A discriminatory
department head in the beam mill, for instance, would have had
no say when it came to a cold mill employee seeking a higher
position within the cold mill, hot mill, melt shop, maintenance
department,
or
shipping
department.
Perhaps,
then,
the
justify
particularly
class
of
problematic
persons
applying
department.
In
in
and
fact,
out
the
of
district
F.3d
however,
at
983
would
(A
not
disparity
show
in
that
only
25%
of
discrimination
Cf. Ellis,
the
regions,
manifested
in
Faced with
evidence
explanatory
based
on
questionable
data,
129
uncontrolled
variables,
and
poorly
structured
methodologies,
the
district
of
negligible
credence.
The
troubling
effects
of
Mister v. Ill. Cent. Gulf R.R. Co., 832 F.2d 1427, 1437
with its many deficiencies, does not establish the common policy
necessary for class certification.
did
not
abuse
its
discretion
in
The district
refusing
to
certify
their
argued
original
that
class
anecdotal
certification
evidence,
standing
the
anecdotal
statistical evidence.
dissenting).
evidence
only
motion,
to
Plaintiffs
alone,
could
Rather, Plaintiffs
supplement
their
130
Id. at 153.
Plaintiffs now
made
the
better
choice
in
their
initial
at
339,
providing
texture
for
statistical
evidence.
Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 168 (2d
Cir. 2001), abrogated on other grounds by Wal-Mart, 131 S. Ct.
at
2560-62.
[will]
But
rarely,
standing
if
discrimination.
ever,
alone,
anecdotal
show
evidence
systemic
pattern
.
of
963 F.2d 420, 427 (D.C. Cir. 1992); accord Briggs v. Anderson,
796 F.2d 1009, 1019 (8th Cir. 1986) (observing that plaintiffs
punished
themselves
by
choosing
to
rely
on
anecdotal
32
Berkeley
J.
Emp.
&
Lab.
L.
477,
501
(2011)
background
because
Anecdotal
reports
generating
lines
.
of
such
.
evidence
are
inquiry
does
ordinarily
than
131
in
not
more
proving
prove
much.
helpful
in
causation.
be
that
the
stories
reflect
broader
trend
See Wessman
v. Gittens, 160 F.3d 790, 805-06 (1st Cir. 1998); Coral Constr.
Co. v. King Cnty., 941 F.2d 910, 919 (9th Cir. 1991).
Anecdotes
offer
anecdotes
or
when
the
soliciting
party
has
was
meant
to
show
the
reputation
of
particular
provide
no
mechanism
for
assessing
Because
truthfulness,
132
majority
finds
Plaintiffs
anecdotal
evidence
Plaintiffs
experts
determined
that
As of
approximately
J.A. 1154.
150
Given that
or
setting
more.
the
The
present
sixteen
class
size
affidavits
at
that
160
black
Plaintiffs
[A]
at
336,
significant
adverse
133
effects
on
the
relevant
class, Watson, 487 U.S. at 986, or significant proof of classwide discrimination, Wal-Mart, 131 S. Ct. at 2553.
3.
What may matter more than the quantity of a plaintiffs
evidence
is
its
quality.
evidence
is
indirect
and
If,
for
instance,
circumstantial,
the
the
anecdotal
district
court
necessary
district
inference
court
may
anecdotal evidence.
of
discrimination.
properly
consider
the
After
quality
all,
of
a
any
590, 604 (2d Cir. 1986); accord Eastland v. Tenn. Valley Auth.,
704 F.2d 613, 625 (11th Cir. 1983).
At least as to the promotions-related matters at issue in
this
appeal,
evidence.
Plaintiffs
Byron
promotions at all.
do
Turner,
not
present
compelling
for
instance,
does
not
anecdotal
address
In what
v.
Deleon,
S.
Ct.
783,
784
(2015)
(Alito,
J.,
and
want.).
that
And
they
Earl
had
no
Ravenell
reason
testifies
to
believe
about
he
time
did
that
not
he
He also tells us
J.A. 1111.
These and
other examples are not cherry pick[ed], maj. op. at 41, but
merely
offer
some
insight
into
why
the
district
court
could
those
almost
employees
exclusively
who
do
mention
on
their
job
qualifications
rely
subjective,
and
personal,
For instance,
We usually do not
Food Inc., 370 F.3d 423, 433 (4th Cir. 2004); Evans v. Techs.
Applications & Serv. Co., 80 F.3d 954, 960 (4th Cir. 1996).
Other employees assume racism in the process without identifying
an objective fact to support that view.
suddenly
cancelled
because
Nucor
was
not
ready
for
an
J.A. 996.
[a]
are
plaintiffs
insufficient
discrimination.
self-serving
to
opinions,
establish
prima
absent
facie
anything
case
of
Cir. 2004).
135
it
lacks
any
probative
value.
For
example,
Bernard
J.A. 6008.
received the job, what his or her race was, what [the decision]
was based on, or whether it was based on [his] race.
6008.
J.A.
cannot
know
whether
particular
promotions
decisions
raise
See Cline v.
Roadway Express, Inc., 689 F.2d 481, 485 n.4 (4th Cir. 1982);
accord Tex. Dept of Cmty. Affairs v. Burdine, 450 U.S. 248, 253
(1981).
4.
The majority concentrates on one anecdotal comment from one
supervisor in the beam mill: I dont think well ever have a
black supervisor while Im here.
op. at 6, 51.
Brinkley v.
Harbour Recreation Club, 180 F.3d 598, 608 (4th Cir. 1999); see
136
challenging
decisionmakers
decisions
plainly
made
requires
by
something
A class-wide
many
more
different
than
single
1992).
There,
the
Seventh
Circuit
found
that
the
had
not
established
policy
practice
of
does not make the showing that Plaintiffs insist they make here:
a
common,
uniform
policy
of
animus
inflicted
by
55
or
more
did
not
abuse
its
discretion
in
refusing
to
certify
J.A. 10950.
discretion
in
affording
them
some
minimal
value.
employee
Americans
Nucor.
feel
specifically
like
J.A. 6109.
they
remarked
have
been
that
[n]ot
all
discriminated
One
African-
against
at
Id.
138
J.A. 6164.
6215,
well,
see,
6480-81,
e.g.,
6943,
J.A.
explained
6350,
6361,
that
and
they
often
were
treated
reasoned
that
system
J.A.
in
which
supervisors
6258,
6299,
6438,
promoted
6494.
Some
friends.
See,
affidavits
also
In
fact,
Jacob
Ravenell,
Kenneth
Hubbard,
Robyn
Spann, and Byron Turner all expressly denied that they had been
denied promotions because of their race, even though Plaintiffs
cite them as four of their sixteen key witnesses.
6400, 6746, 6933, 6964.
See J.A.
on
[c]ommon
sense
and
prudence,
however,
the
majority finds yet again that the district court clearly erred - this time by finding that potentially coercive affidavits
supported Nucor to some small degree.
The
the
testimony
of
[a
witness
who]
has
told
extrinsic
evidence,
that
finding,
if
not
internally
Anderson,
majority
nevertheless
adopts
self-contradictory
against
the
employer
will
be
given
significant
weight
Maj. op. at
interrogation
of
coercion[.]
employees
by
Company
officials
constitutes
workforce
will
be
unable
140
defend
itself
with
is
further
left
imagined-coercion-based
purportedly
coercive
to
wonder
rule
comes
nature
where
the
from.
of
the
majoritys
Generally,
new
the
employer-employee
interviews
were
improper.
Slavinski
v.
Mar.
30,
2011)
(collecting
cases);
accord
Maddock
v.
KB
Homes, Inc., 248 F.R.D. 229, 237 (C.D. Cal. 2007); McLaughlin v.
Liberty Mut. Ins. Co., 224 F.R.D. 295, 298 (D. Mass. 2004); cf.
Gulf Oil Co. v. Bernard, 452 U.S. 89, 104 (1981) ([T]he mere
possibility of abuses does not justify routine adoption of a
communications ban[.]).
cases
the
majority
cites,
which
all
raised
questions
about
yet.
The
majoritys
cases
also
involved
level
of
those cases were directed at a problem that does not exist here.
See, e.g., Kleiner v. First Natl Bank of Atlanta, 751 F.2d
1193,
1197-98
(11th
Cir.
1985)
(finding
unilateral
contacts
and
concluding
that
they
depict[ed]
communications
so
circumstances
employees
claimed
into
that
make
making
the
plain
that
positive
affidavits
Nucor
did
statements.
were
coercive.
not
coerce
its
No
employee
has
No
employee
has
affidavits
actually
bolstered
the
employees
made
plaintiffs
claims
142
handwritten
of
corrections
to
And still
their
typed
to
participate,
and
that
they
would
not
face
any
In other
contexts, the Court has said that disclosures like these prevent
coercion.
417,
434
(4th
Cir.
2002).
Each
employee
who
chose
to
See,
rule -- seems an odd one given that litigation had not been
filed.
Instead,
interviewees
were
accurately
informed
that
employees
at
Nucor,
and
the
interview
was
J.A. 6003.
143
6.
In
addition
Plaintiffs
companys
the
to
the
affidavits
announced
Supreme
affidavits
must
be
anti-discrimination
Court
found
was
harder
discrimination
also
supporting
that
to
Nucors
weighed
against
policy.
In
general
find
given
view,
the
Wal-Mart,
policy
the
of
companys
Id. at
Nucor is an equal-opportunity
Nucor
conclusion
that,
as
whole,
the
anecdotal
evidence
part
because
[m]ore
than
half
144
of
the[]
reports
[we]re
As a
presents
itself
here.
Eleven
of
the
sixteen
melt
shop
recognized,
employee
when
one
appear.
And
examines
the
as
the
district
individual
court
instances
of
J.A. 6109.
b.
The
majority
somehow
finds
clear
error
in
the
district
found
did:
what
evidence
it
from
Plaintiffs
outside
the
do
beam
not
mill.
cite
useful,
Some
relevant
anecdotes
fall
Others involve
J.A.
See, e.g.,
1063.
Still
others
trace
back
to
beam
See,
mill
See, e.g.,
Br.
9-10.
And
some
of
the
cited
See
instances
of
--
as
one
incredibly,
appears
to
instance
of
Plaintiffs
adopt
--
promotion
argument
assumes
that
--
one
discrimination).
which
can
the
find
majority
evidence
of
That concept
Indeed, it
turns
absurdity.
the
Teamsters
Plaintiffs
presume
discriminatory
framework
that
policy
each
or
into
denied
practice,
circular
promotion
even
evidences
though
--
under
practice
particular
existed
denied
before
promotion
the
was
court
may
presume
discriminatorily
that
made.
a
See
single
department.
See,
e.g.,
Bennett,
656
F.3d
at
816
work
environment
class
where
anecdotal
evidence
was
anecdotes
in
each
department.
Thats
not
enough.
might
it
very
evidence.
well
have
clearly
erred
had
accepted
such
much
of
promotions.
underlying
claim.
other
facts
that
do
not
relate
directly
to
The
already-certified
majority
agrees
that
147
hostile
such
work
evidence
environment
provides
cultural
backdrop
that
renders
an
equitable
promotions
Notably, that
work
environment
claims
now
appear
at
least
dozen
supervisor
[t]he
mere
before
absence
the
of
EEOC
investigation,
minority
employees
even
in
though
upper-level
2553;
Davis,
717
F.3d
at
487-88.
The
majority
would
though
that
is
precisely
the
sort
of
class
that
the
Jamie S. v.
Milwaukee Pub. Schs., 668 F.3d 481, 504 (7th Cir. 2012) (Rovner,
J.,
concurring
company
has
in
a
part).
cultural
Furthermore,
problem
148
simply
does
not
saying
that
identify
any
particular
employment
policy
or
practice,
McClain
v.
Lufkin
Indus., Inc., 519 F.3d 264, 274 (5th Cir. 2008), let alone a
common, uniform policy spanning the class.
We have also never held that facts establishing a hostile
work
environment
unavoidably
relate
to
all
other
employment
hard
rise
to
justify,
as
acts
giving
to
hostile
work
The probative
Engine Div., 797 F.2d 1417, 1424 (7th Cir. 1986), abrogated on
other grounds by Patterson v. McLean Credit Union, 491 U.S. 164
(1989).
economic
harm.
Burlington
Indus.,
524
U.S.
at
762.
probativeness
of
items
Id.
like
comments,
jokes,
and
or
if
they
were
not
149
related
to
the
employment
decision[s]
in
question
or
were
made
by
nondecisionmakers.
For
conduct
occurred,
temporal proximity.
specifically
to
so
we
have
no
way
of
assessing
promotions.
hostile-work-environment
And
conduct
most
came
all
from
of
the
relevant
non-decisionmakers,
Whitefish
Bay,
304
([S]tatements
are
only
decisionmaker,
someone
decision[s].).
did
involve
F.3d
618,
relevant
involved
623
if
in
the
(7th
they
Cir.
come
adverse
2002)
from
employment
themselves
in
the
incidents
that
Plaintiffs
described, those supervisors chiefly worked in the beam mill -undermining any inference of a common, plant-wide policy.
At bottom, the majority concludes that we should permit
Plaintiffs to pursue two class claims pertaining to promotions
because they have successfully established their right to pursue
a
separate,
Title
VII
distinguishable
does
not
work
hostile-work-environment
that
way,
150
and,
rhetoric
claim.
aside,
the
no recommendation.
Moreover, to
right
as
to
hostile-work-environment
class
is
to
at
153,
complaining
represent
157-59
of
one
another
(rejecting
the
employment
idea
practice
complaining
of
another
that
an
may
automatically
practice
employee
merely
weight
work-environment
to
evidence
claim
when
going
to
deciding
Plaintiffs
whether
to
hostilecertify
closely
examined,
Plaintiffs
anecdotal
evidence
[Plaintiffs]
provide
no
convincing
proof
of
have
not
established
the
existence
of
any
common
question.
IV.
On the road to its desired result, the majority undermines
well-established judicial processes, causes a rift between this
Court
and
co-equal
circuit
court
without
explanation,
and
respect
for
the
standard of review.
role
of
the
district
court
and
the
matter for several years now, and it best understands how the
case has developed.
from
Nucor,
and
continually
endeavored
for
this
Courts
152
respect
well-established
to
waiver
rule,
which
case
involving
the
same
claims,
the
same
The majority
These
are only some of the questions that the majority opinion leaves
unresolved.
We should hardly take this troubled road in the name of
simple
justice.
Maj.
op.
at
63.
Simple
justice
is
Cnty.
545
of
San
Fran.,
Cal.,
U.S.
323,
345
(2005).
153
it
dissent.
will
do
so
soon.
In
the
meantime,
respectfully
154