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Bennett v. Nucor Corp.

August 25, 2006

CORNELIUS BENNETT, ET AL. PLAINTIFFS
v.
NUCOR CORPORATION, ET AL. DEFENDANTS



The opinion of the court was delivered by: Susan Webber Wright United States District Judge

ORDER

Six plaintiffs bring this employment discrimination case, a putative class action, against Nucor Corporation, Nucor-Yamato Steel Company, and Nucor Steel-Arkansas ("Nucor"), pursuant to Title VII of the 1964 Civil Rights Act, as amended by the Civil Rights Act of 1991, and 42 U.S.C. § 1981. Plaintiffs are current and former employees of Nucor's plant in Blytheville, Arkansas. They claim that Nucor discriminated against them because they are black by way of discriminatory selection, training, and discipline practices and a racially hostile work environment. Before the Court is Plaintiffs' motion for class certification (docket entry #72), Nucor's response (docket entry #78), and Plaintiffs' reply (docket entry #89). Also before the Court is Nucor's motion to exclude Plaintiffs' proposed expert testimony (docket entry #93), Plaintiffs' response (docket entry #107), and Nucor's reply (docket entry #113). After careful consideration, and for the reasons that follow, Plaintiffs' motion for class certification will be denied, and Nucor's motion to exclude expert testimony will be denied, without prejudice.

I. Background

A. Nucor's Blytheville Plant

Nucor produces steel beams and other steel structures from scrap. At Nucor's Blytheville plant, production activities are divided among five departments: the melt shop, the roll mill department, quality assurance, maintenance, and shipping. In the melt shop, scrap metal is melted and cast into semi-finished products, which proceed to the roll mill department.*fn1 In the roll mill department, semi-finished products are heated and rolled into finished products. The quality control department exists to ensure the integrity of Nucor's products by performing tests throughout the production process and resolving customer concerns; the maintenance department is charged with keeping the plant's mechanical and electrical equipment in working order, and employees in the shipping department maintain the finished steel product and load it for shipment by rail, truck, and barge.

Most job openings in the plant's production departments are posted plant-wide, and employees from all departments are eligible to bid on open jobs. However, vacancies for supervisor positions are not posted but are announced during department meetings by department managers.

Nucor maintains the following written policies for hiring, promotions, and transfers:

* Nucor promotes from within when possible, rather than fill jobs from outside sources.

* Department managers making hiring, promotion, and transfer decisions give considerable weight to the opinions and recommendations of the supervisor to whom the successful applicant will report.

* Each employee has the opportunity to participate in a yearly performance evaluation with their supervisor.

* Management will select the most qualified applicant for the position based on, but not limited to: skills possessed for the job, opening, education, experience, attitude, dependability, growth potential, judgment, relations with others, ability to direct others, stability, and length of service.

* Promotions must be approved in writing by the supervisor to whom the employee currently reports and the supervisor "at the next higher level."

* If two or more employees are equally qualified for a position, the applicant with the most seniority is preferred.

* If a position cannot be filled from within the organization for lack of qualified applicants, the company will search the labor market for suitable candidates.

* There is no waiting period to bid for a position from one department to another.

* Vacant supervisory positions will not be posted.

* Every vacancy will be posted a minimum of five days on plant bulletin boards, and interested individuals may apply by completing a bid sheet at the personnel office. After the posting period, the department manager and supervisors will select the most qualified individuals and interview them personally. Applicants who receive interviews but are not selected will be informed by the department manager of the reasons for the selection. Applicants who do not receive interviews "are encouraged to ask the department manager for his reasons for not doing so."

* Vacancies created by an individual's move will be posted and filled from within. Any outside hiring will be done at the lowest level position possible. The only exceptions will be special talents or crafts not readily available from within the Company.

See docket entry #71, Ex. 1.

Nucor's written policy for cross training states: "All on-the-job cross training must be approved in advance by all department managers [and] supervisors involved." Docket entry #71, Ex. 24. According to the written policy, employees must submit a cross training application to his or her department manager. The policy for cross training further states:

Consideration will be given to individuals who have a positive work record, including but not limited to the following items: current job performance, work experience, prior training, and attendance and safety record. Consideration will also be given to your potential to acquire this position.

Id. The cross training policy provides that an employee who receives approval for cross training must schedule the training on his or her own time whenever possible, and all supervisors and managers involved must approve cross training schedules. Id. Nucor's policy for compensated training states that an employee's department manager must approve all compensated training in advance, and all compensated training should be scheduled during the employee's own time whenever possible. Id.

Each production department at the Blytheville plant has unique job categories that require various levels of skill and training. See docket entry #78, Exs. 1-3, 23-24. For example, the maintenance department employs 156 workers in 13 diverse job categories ranging from electricians, mechanics, lubricators, and engineers to custodial workers. See docket entry #78, Ex. #3, ¶9 (Ramsdell Aff.). Although some maintenance positions, such as custodial positions, require general training that can be obtained on the job; electricians, mechanics, and lubricators must pass special tests and have specialized training to ensure they meet required levels of technical knowledge and proficiency. Id., ¶10. In contrast to the highly specialized division of labor in the maintenance department, the shipping department needs versatile workers that can perform multiple jobs. See docket entry #78, Ex. 1, ¶19.

Although Nucor maintains written policies governing hiring decisions, production department managers develop their own departmental hiring procedures. For example, the manager of the maintenance department has developed departmental procedures for applicant testing and interviews, id., ¶¶ 12-15; the shipping department has a two-tiered interview structure between the department manager and supervisors; and the melt shop has several positions that require specific training and examinations. See docket entry #78, Ex. #1, ¶14; Ex. #25, at 185. Policies and practices regarding attendance, safety, and discipline also vary across production departments. See docket entry #78, Exs. 1-3, 23-24.

B. Plaintiffs' Individual Claims

Each Named Plaintiff has worked exclusively in the roll mill department and charges that Nucor has discriminated against him in the areas of promotions, training, and discipline. In separate declarations, each Plaintiff claims that the roll mill department is segregated by race in that almost all black employees work in the roll shop and finishing areas of the department; and almost all white employees work in the rolling mill or mechanic crew areas. See docket entry #71, Exs. 2-7. Plaintiffs claim that the roll shop and finishing jobs performed by black employees are "dirtier" and require more physical labor than the rolling mill and mechanic crew jobs performed by white employees. A summary of Plaintiffs' allegations concerning promotions, training, and discipline follows.

Plaintiff Cornelius Bennett

Plaintiff Bennett, a current Nucor employee, began working for Nucor in 1993 and has never applied for a promotion. See docket entry #71, Ex. 7(Bennett Aff.) He claims that he "could see that it was a waste of . . . time to try to bid on jobs that had always been passed down from one white employee to another." Id., ¶7. Bennett states that his chances of promotion were hurt by the "way the Company applies factors like work-area experience, informal training on crews, time-in-job or length of service, formal training, and discipline." Id., ¶10.

Bennett claims that race affects "how [employees] are treated and viewed for discipline, promotions, and training" and that "[d]iscipline, attendance, and safety . . . are factors that are not equally applied and that have been used as an excuse to deny promotions to [black] persons." Id. According to Bennett, black employees "are watched closer and disciplined quicker and more often than white employees . . . in similar circumstances." Id. Bennett states that he has received harsher discipline that white employees on several occasions. For example, in 2003, he was disciplined for sleeping on the job, and he received harsher discipline than white employees guilty of the same conduct. Id.

Plaintiff Rodney Washington

Plaintiff Washington worked at the Blytheville plant from 1993 until his discharge in 2003. Washington testifies that he bid on several jobs during his employment at Nucor, but each time his bid was rejected in favor of a white applicant. Docket entry #71, Ex. 2, ¶¶ 5-6. He states that he was especially interested in being promoted to a supervisory position, but he had no means to learn about openings for supervisors. Id., ¶ 11. Washington states that "large areas" of the Blytheville plant are segregated by race and that "it is well known that there were certain areas . . . where a black person would not be allowed to work . . . referred to as the 'white house.'" Id., ¶22.

Washington states that black employees at the Blytheville plant receive unfavorable treatment compared to similarly-situated white employees in the areas of discipline, training, and promotions. He states, "Discipline, attendance, and safety . . . are factors that are not equally applied and . . . have been used as an excuse to deny promotions to me and other persons of my race." Id., ¶ 10. Washington recounts the following instances where Nucor denied his bids for promotions to non-supervisory positions:

* In May 2001, Washington bid on an opening for a mill operator in the roll mill department. Washington states that before the job was posted, white supervisors and managers selected a white employee, Jeffrey Stobaugh, to fill the opening.

* In July 2002, Washington bid on an opening for a lubricator job in the maintenance department. Qualifications for this position include passing a written test. Washington states that, out of all the bidders for the job, he earned the highest test score. Washington states that despite his score, a white employee received the job after Washington's supervisor placed false information about his attendance in his personnel file. Washington claims that he has received harsher discipline regarding his attendance and safety issues than white employees and that Nucor used his disciplinary record as an excuse to deny him promotions.

* In February 2003, Washington bid on an leadman position in the roll mill department. Washington claims he was qualified for the job, but Nucor selected Robert Despain, a white employee. Washington claims that Despain uttered racial epithets on a daily basis and used the company's computer system to send racially offensive email messages to other employees throughout the plant.

* In March 2003, Washington bid for a rotary straightener operator job in the finishing area of the roll mill department. A white supervisor, Glen Ellis, awarded the job to Jim Gilmer, a white employee. Washington claims that Ellis provided Gilmer on-the-job cross training that helped him qualify for the job. Washington claims that he was denied similar cross training because he is black.

Plaintiff Larry McBride

Plaintiff McBride has worked for Nucor since 1999, and he currently works in the finishing area of the roll mill department. McBride states that he has applied for several jobs at the Blytheville plant, including jobs in the shipping and melting department and other areas of the roll mill. Docket entry #71, Ex. 3, ¶ 5. McBride states that each time he has placed a job bid, the job was awarded to a white applicant. Id. McBride believes that his supervisors discipline him "every so often" to ensure that negative entries in his personnel file will provide an excuse to deny his bids for promotion. Id., ¶8(e). He claims that his chances of promotion were hurt because of the way ...


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