In an appeal after a jury awarded six employees damages on their hostile work environment claims, the Eighth Circuit affirmed the district court’s ruling, rejecting appeals from both plaintiffs and defendants. The Circuit Court upheld the lower court’s evidentiary rulings, the denial of class certification and the dismissal of several of the Plaintiffs’ other claims. Bennett v. Nucor Corp., No. 09-3831, 2011 WL 4389194 (8th Cir. Sept. 22, 2011). Judge Steven Colloton wrote the opinion, joined by Judges Gruender and Shepherd, all nominees of George W. Bush.
The Plaintiffs, a group of six black individuals, were all employed at Nucor’s steel mill in Blytheville, Arkansas. In 2003, they brought a lawsuit in federal court against Nucor, alleging discrimination in violation of 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964. In their lawsuit, the Plaintiffs asserted disparate treatment discrimination, alleging that Nucor denied them promotions and that Nucor tolerated a racially hostile work environment. To support these claims, the Plaintiffs presented evidence designed to show that Nucor’s white employees were awarded promotions that Nucor had denied to the Plaintiffs. They also presented evidence that the work environment was racially hostile, including evidence that the bathrooms often displayed racial graffiti, and evidence suggesting that black employees were ridiculed by other employees over the workplace radio system.
The Plaintiffs alleged in the alternative that Nucor was liable for disparate impact discrimination. To support this claim, the Plaintiffs presented statistical evidence of racial disparities in Nucor’s promotions and hiring decisions at its Blytheville steel mill.
After the district court denied the certification of a class consisting of more than one hundred black individuals who were employed, sought employment, or were discouraged from seeking employment at the Blytheville steel mill, the court addressed the individual claims. The district court granted summary judgment in favor of Nucor on the Plaintiffs’ disparate impact claims and on several of the Plaintiffs’ disparate treatment claims. The hostile work environment claims of all six Plaintiffs then proceeded to trial, where a jury awarded each Plaintiff $200,000 in damages. Nucor appealed the decision, contesting various evidentiary rulings and the award of punitive damages. The Plaintiffs also appealed, challenging the district court’s denial of their motion for class certification and its dismissal of several of their claims.
After upholding the contested evidentiary rulings and declining to disturb the district court’s entry of punitive damages, the court turned to the Plaintiffs’ contentions in their cross-appeal. The court first addressed the district court’s denial of their motion for class certification. The district court denied the motion after finding that Nucor had “presented overwhelming evidence” of “[d]ecentralized decision making,” and that the varied employment practices across the Blytheville plant precluded the commonality and typicality requirements of Rule 23(a) from being met.
Reviewing the district court’s decision for abuse of discretion, the court concluded that the district court did not err in concluding that the varied employment practices precluded the commonality requirement from being met. In doing so, the court rejected the Plaintiffs’ argument that a common element to each class members’ claim was Nucor’s “subjective promotion practices.” Citing to a Supreme Court case, the court dismissed Plaintiffs’ argument because they failed to establish that Nucor’s promotion practices were “entirely subjective.” See Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 159 n. 15 (1982).
After upholding the district court’s denial of class certification, the court addressed the Plaintiffs’ contentions that the district court erred in granting summary judgment on several of the Plaintiffs’ disparate impact claims, and their failure-to-train and failure-to-promote disparate treatment claims.
Reviewing de novo the district court’s holdings, the court first addressed the Plaintiffs’ disparate impact claims. The court agreed with the district court that the disparate impact claims brought under § 1981 must be dismissed because that statute “can be violated only by purposeful discrimination.” See Gen. Bldg. Contractors Ass’n v. Pennsylvania, 458 U.S. 375, 391 (1982).
The court also agreed with the district court that the Plaintiffs’ disparate impact claims under Title VII were properly dismissed through summary judgment because the Plaintiffs failed to present sufficient evidence to establish that a facially-neutral policy of Nucor had a disparate impact on Nucor’s black employees. The court found the statistical evidence presented by the Plaintiffs to be insufficient because: (1) the Plaintiffs’ expert failed to identify specific employment practices that caused the alleged disparate impact; and (2) the statistical evidence merely assumed, instead of demonstrating, that all of the applicants were qualified for promotion to the available positions.
Moving to the Plaintiffs’ claims that Nucor failed to provide them with the same training as white employees, the court again found that summary judgment was appropriate. The court dismissed as insufficient Plaintiffs’ allegations that white employees received training during a time period when the Plaintiffs sought but were denied training. The court stated that to create a genuine issue of material fact on this point, the Plaintiffs needed to establish that the white employees who received the training were similarly situated to the Plaintiffs, and that the same supervisors made the decisions.
Finally, the court addressed the Plaintiffs’ failure-to-promote claims. To establish a prima facie failure-to-promote case, the court noted that a plaintiff needs to establish that he is at least “minimally qualified” for the promotion. See Turner v. Honeywell Mfg. & Techs., LLC, 336 F.3d 716, 720-21 (8th Cir. 2003). In an attempt to meet this burden, the Plaintiffs submitted affidavits describing the various promotions for which they applied, including the qualifications for the positions. The affidavits also asserted that the Plaintiffs possessed the necessary qualifications because the qualifications were similar to the ones necessary for the positions that the Plaintiffs already held. The court, however, found the affidavits to be lacking because they were “not backed by solid evidence.” According to the court, the affidavits were insufficient to establish that the Plaintiffs were minimally qualified for the positions because: (1) the qualifications for the positions the employees sought were not always the same as the ones for the positions that they already held; (2) the affidavits did not state that the qualifications are comprehensive; (3) the Plaintiffs did not submit all of the relevant job postings; and, most importantly, (4) the affidavits did not contain “specific factual evidence” showing that the skills required to perform the positions the Plaintiffs held are similar to the skills required for the positions they sought.
–Scott Herrig, University of California, Berkeley-School of Law 2012
