The opinion of the court was delivered by: Susan Webber Wright United States District Judge
Six plaintiffs--Cornelius Bennett, Clifton Lee, Sr., Sylvester Rogers, Ozzie Green, Larry McBride, and Rodney Washington--bring this employment discrimination case against Nucor Corporation and Nucor-Yamato Steel Company (collectively "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. Previously, the Court denied plaintiffs' motion for class certification (docket entry #123). Now before the Court is Nucor's motion for summary judgment on plaintiffs' individual claims (docket entries #127, #128, #129, #130), plaintiffs' response (docket entries #144, #145, 146, #147, #148), and Nucor's reply (docket entry #149). Also before the Court is Nucor's motion to strike plaintiffs' declarations submitted in opposition to summary judgment (docket entries #150, #151) and plaintiffs' response (docket entry #154). After careful consideration, and for the reasons that follow, Nucor's motion for summary judgment will be granted in part and denied in part, and the motion to strike will be denied.
Nucor moves to strike from the record declarations submitted by plaintiffs in resistance to Nucor's motion for summary judgment. Nucor objects to the declarations on grounds that they contain hearsay statements, contradict prior deposition testimony, and contain testimony not based on the declarant's personal knowledge. Further, Nucor asserts that plaintiffs' declarations contain new allegations that are not included in the third amended complaint. Nucor states: "Once the Court strikes the contradictory and inadmissible statements . . . only a shell is left. Defendants therefore ask this Court to strike those declarations in their entirety." Docket entry #150, at 3. Alternatively, Nucor requests that the Court strike only the "numerous inadmissible and contradictory statements" contained in the declarations. Id.
The Court has reviewed Nucor's supporting brief and motion exhibits and finds that most of the challenged declaration testimony has no relevance to any issue that is pivotal to the Court's decision regarding summary judgment. No purpose would be served by assessing the admissibility of testimony that has no bearing on the dispositive issues before the Court. However, the Court will consider Nucor's arguments in determining whether relevant declaration testimony meets the requirements set forth in Federal Rule of Civil Procedure 56(e) and whether such testimony is consistent with earlier deposition testimony. With this qualification, Nucor's motion to strike will be denied.
II. Motion for Summary Judgment
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party "bears the initial responsibility of informing the district court of the basis for its motion," and must identify "those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party satisfies its burden, the nonmoving party must submit evidentiary materials that designate "specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In determining whether summary judgment is appropriate, a court must look at the record and any inferences to be drawn from it in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Plaintiffs are black, current and former employees of Nucor's steel production plant in Blytheville, Arkansas. Each plaintiff claims that Nucor denied him promotions based on race, and each seeks damages for failure to promote under disparate impact and disparate treatment theories of discrimination. Additionally, each plaintiff claims that Nucor subjected him to a racially hostile work environment and an assortment of adverse employment actions based on race, and separate plaintiffs Rogers, Washington, and Lee claim that Nucor retaliated against them for opposing racial discrimination. Because plaintiffs present similar evidence in support of their disparate impact and hostile environment claims, the Court will consider those claims together.
"Disparate impact claims under Title VII challenge 'employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity.'" Mems v. City of St. Paul, Dept. of Fire and Safety Services, 224 F.3d 735, 740 (8th Cir. 2000)(quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, 609 (1993)). To establish a prima facie case of discrimination under a disparate impact theory, a plaintiff must show: "(1) an identifiable, facially-neutral personnel policy or practice; (2) a disparate effect on members of a protected class; and (3) a causal connection between the two." Id. (quoting Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994 (1988)).
In support of their disparate impact claims, plaintiffs charge that Nucor's overall selection process for promotions has a disparate impact on black applicants. Nucor asserts that plaintiffs cannot meet their prima facie burden by attacking Nucor's overall selection process. Normally, a plaintiff must show that each particular challenged employment practice causes a disparate impact, "except that if the complaining party can demonstrate to the court that the elements of [the employer's] decision making process are not capable of separation for analysis, the decision making process may be analyzed as one employment practice." 42 U.S.C. § 2000e-2(k)(1)(B)(I). Plaintiffs contend that the elements of Nucor's selection process cannot be separated for the purpose of disparate impact analysis. But the undisputed evidence shows otherwise. Nucor's production activities at the Blytheville plant are divided among five departments--the melt shop, the roll mill department, quality assurance, maintenance, and shipping--and plaintiffs claim that they applied for promotions in the various departments. Although Nucor maintains written general policies governing hiring decisions, production department managers have developed their own departmental hiring procedures with discrete components. The manager of the maintenance department has developed departmental procedures for applicant testing and interviews, see docket entry #78, Ex. 1, ¶¶ 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 (factors that affect hiring decisions in all departments) also vary across production departments. See docket entry #78, Ex.##1-3, 23-24.
Under these circumstances, plaintiffs must identify the specific employment practices that cause an alleged adverse impact. See Watson v. Fort Worth Bank & Trust, 108 S.Ct. 2777, 2785 (1988)("Especially in cases where an employer combines subjective criteria with the use of more rigid standardized rules or tests, the plaintiff is . . . responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities.")
Nucor asserts that even if plaintiffs were permitted to attack Nucor's overall selection process, they have failed to show causation. To prove causation in a disparate impact case, "the plaintiff must offer statistical evidence of a kind and degree sufficient to show that the practice in question has cause the exclusion of jobs or promotions because of their membership in a protected group." Id. at 2789.
Plaintiffs present expert reports by Dr. Edwin L. Bradley, a professional statistician. Bradley compared the racial composition of the Blytheville plant's workforce with the racial composition of "employment selections" to determine whether Nucor's overall selection process had an adverse impact on black applicants, or was otherwise related to race, during the period from December 1, 1999 through October 2005. See docket entry #71, Ex. 12A, at 2.
Bradley reports that his statistical analysis lead him to conclude that (1) Nucor underutilized black employees in supervisory positions,*fn1 indicating that the process for selecting supervisors was related to race and adversely impacts black employees, and (2) Nucor's process for filling non-supervisory positions in production departments is related to race and adversely impacts black employees. See id. at 3.
Nucor asserts, and the Court agrees, that Bradley's statistical analysis fails to create a genuine issue for trial with respect to plaintiffs' disparate impact claims. Bradley failed to identify a specific employment practice that has a disparate effect on black employees. Additionally, in performing his analysis, Bradley assumed that the workforce population he considered consisted of individuals possessing minimal qualifications for promotion. Because this is not a case in which it can be assumed that all Nucor employees are equally qualified for promotion to all positions, Dr. Bradley's simplistic percentage comparisons lack real meaning.
Nucor's expert, Dr. Finis Welch, performed a separate analysis for each department, and he included controls for characteristics that affect selection decisions such as applicants' disciplinary history, training, and work experience. Dr. Welch's results showed no statistically significant differences in selection rates between black and white applicants. See docket entry #78, Ex. 4, at 11-12.
Plaintiffs argue that the controls considered by Dr. Welch are "racially tainted" and should not be considered.*fn2 In his rebuttal expert report, Dr. Bradley opines that it is inappropriate to adjust for factors such as training and discipline because they have an adverse impact on black employees. See docket entry #88, at 3. But like Dr. Bradley's bottom-line percentage comparisons that take in Nucor's overall selection process, his analysis of discipline and training data ignores common non-discriminatory reasons for alleged disparities.
In addition to statistical evidence, plaintiffs present anecdotal evidence in support of their claims. Plaintiffs have worked exclusively in the roll mill department. In separate declarations, each plaintiff states that the roll mill department is segregated by race in that almost all black employees work in the roll shop and finishing areas, 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 more laborious than the rolling mill and mechanic crew jobs performed by white employees. Id. Plaintiffs also testify that Nucor applies discipline, attendance, and safety polices inconsistently and uses the policies as an excuse to deny promotions to black employees.
Plaintiffs' allegations that Nucor denied them opportunities for career advancement by segregating them from white employees and by subjecting them to disparate treatment in the areas of training and discipline are, definitively, allegations of disparate treatment, which cannot be forced into a disparate impact model. In sum, the Court finds that plaintiffs have failed to come forward with evidence to sustain disparate impact claims.
To establish a prima facie case of racial discrimination based on a hostile work environment, a plaintiff must establish that (1) he is a member of a protected group, (2) unwelcome harassment occurred, (3) a causal nexus existed between the harassment and his protected-group status, and (4) the harassment affected a term, condition, or privilege of his employment. See Carter v. Chrysler Corp., 173 F.3d 693, 700 (8th Cir.1999). Additionally, with regard to claims of co-worker harassment, a plaintiff must show that his employer knew or should have known of the harassment and failed to take appropriate remedial action. See Joens v. John Morrell & Co. 354 F.3d 938, 940 (8th Cir. 2004). Such proof is not necessary with regard to claims that supervisors committed harassment. An employer may be vicariously for an actionable hostile environment created by a supervisor with immediate, or successively higher, authority over the plaintiff. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 764-65(1998).
Nucor asserts that no plaintiff has established the fourth element of a prima facie case--that he endured harassment so severe or pervasive as to affect a term, condition, or privilege of his employment. "For harassment to affect a condition of employment the conduct must be severe 'as it would be viewed objectively by a reasonable person and as it was actually viewed subjectively by the victim.'" Elmahdi v. Marriott Hotel Services, Inc., 339 F.3d 645, 652 (8th Cir. 2003)(quoting Howard v. Burns Bros., Inc., 149 F.3d 835, 840 (8th Cir.1998)). In determining whether sufficient evidence of a hostile work environment has been presented, the totality of the circumstances must be considered, including the frequency and severity of the discriminatory conduct, whether such conduct was physically threatening or humiliating, as opposed to a mere offensive utterance, and whether the conduct unreasonably interfered with the employee's work performance. See Vajdl v. Mesabi Academy of KidsPeace, Inc., 2007 WL 1201867, *3 (8th Cir. April 25, 2007)(citing Duncan v. General Motors Corp., 300 F.3d 928, 884 (8th Cir. 2002)). Whether conditions in the workplace establish an actionable hostile environment is a function of both the severity and the pervasiveness of racially hostile conduct, "with a high level of severity compensating for a low level of pervasiveness and vice versa." Jackson v. Flint Ink North American Corp. 370 F.3d 791, 794 (8th Cir. 2004), mod. on reh'g on other grounds, 382 F.2d 869 (8th Cir. 2004).
Plaintiffs' initial declarations include similar testimony that Nucor sold racially offensive merchandise in the company store including "do-rags" and bandanas that featured the confederate flag together with the Nucor company logo. See docket entry #71, Ex. #2, ¶18; Ex. #3, ¶13; Ex. #4, ¶19; Ex. #5, ¶16; Ex. #6, ¶12; Ex. #7, ¶9. Additionally, each plaintiff includes the following statement in his second declaration:
The racial hostility and harassment that I experienced, witnessed and knew about adversely affected the performance of my job by making me self-conscious about my race and how I was perceived, anxious and full of self doubt about my safety and capabilities, nervous about operating machinery, upset at the lack of support I was receiving from co-workers and supervisors, and doubtful of my ability to continue to do my job effectively in such an intimidating environment. I took all of this worry home with me and it adversely affected my relationship with friends and family. This in turn made things even worse at work and adversely [affected] my performance and willingness to continue seeking promotions and training in an environment that made such efforts seem futile.
Docket entry #148, Ex. #40, ¶33; Ex. #41, ¶44; Ex. #42, ¶52; Ex. #43, ¶27; Ex. #44, ¶28; Ex. #45, ¶18.
In addition to the foregoing testimony repeated by each plaintiff, plaintiffs' initial declarations include testimony regarding their separate experiences,*fn3 summarized below.
* He heard the comment "I like my women like I like my coffee: black and strong" broadcast over Nucor's walkie-talkie radio system.
* He heard the word "nigger" and the term "DAN" (which he states stands for "dumb-ass nigger") broadcast over the plant radio system.
* He saw the words "lazy nigger" written on bathroom walls.
* He saw confederate flag decals displayed on bathroom walls and on lockers and helmets, and he saw a large confederate flag hanging from a crane in the shipping department.
* He overheard a white leadman use the term "nigger-rigged."
* White employees purchased confederate flag items in the company store through payroll deductions and wore them throughout the plant.
* He learned that other black employees had been called "lazy-ass nigger."*fn4
* He learned that someone hung a chicken by the neck in a black employee's work area with a note warning him to "be careful."
* He learned that a white employee wearing a white hood came through the roll mill department with burning cross.
* His co-worker, James May, told him that he "needed a noose around his neck."
* His supervisor, Durrell Warren, hung a rubber chicken with a noose five feet from his work area.*fn5
* His co-worker, Allan Thomas, told him over the plant radio that he "could get a hanging."
* He saw a noose hanging from a beam in the finishing department.
* He saw a dummy hung by the neck in the repair bed area.
* He "repeatedly" saw white workers wearing bandanas, hard hats, and tee-shirts with the confederate flag, and he was "repeatedly" exposed to racist graffiti in restrooms, including the letters KKK.
* He reported "many" incidents of harassment to managers and supervisors, but they did little or nothing to stop them from recurring.
* He saw the confederate flag displayed throughout the plant, and his supervisor, Doug Stacey, wore a "do-rag" decorated with a confederate flag and Nucor's logo.
* He saw racial graffiti on bathroom walls.
* He heard racial slurs, such as "nigger."
* His leadman, Robert Despain, repeatedly referred to him and his co-workers as "lazy-ass niggers" ...