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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
QUINTON BROWN, ALVIN SIMMONS,
SHELDON SINGLETARY, GERALD WHITE,
JASON GUY, and JACOB RAVENELL, individually
and on behalf of the class they seek to represent,

)
)
)
)
)
)
Plaintiffs,
)
)
vs.
)
)
NUCOR CORPORATION and NUCOR
)
STEEL-BERKELEY,
)
)
Defendants.
)
________________________________________________)

Case No. 2:04-cv-22005-CWH

MEMORANDUM OF LAW IN SUPPORT OF
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Cary A. Farris
Federal ID # 25150
ALANIZ SCHRAEDER LINKER FARRIS MAYES, L.L.P.
2500 City West Blvd., Suite 1000
Houston, Texas 77042
(281) 833-2200 (Telephone)
(281) 833-2240 (Facsimile)
John S. Wilkerson, III
Federal ID # 4657
TURNER, PADGET, GRAHAM & LANEY, P.A.
P.O. Box 22129 (29413)
40 Calhoun Street, Suite 200
Charleston, South Carolina 29401
(843) 576-2801 (Telephone)
(843) 577-3369 (Facsimile)
James F. Bennett, Jr.
DOWD BENNETT LLP
7733 Forsyth Blvd., Suite 1900
St. Louis, Missouri 63105
ATTORNEYS FOR DEFENDANTS

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TABLE OF CONTENTS
PRELIMINARY STATEMENT .................................................................................................... 1
SUMMARY JUDGMENT STANDARD ...................................................................................... 3
I. PLAINTIFFS’ EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT A DISPARATE
IMPACT PROMOTIONS CLAIM. .......................................................................................... 4
A. PLAINTIFFS FAIL TO IDENTIFY A SPECIFIC POLICY OR PRACTICE CHALLENGED. ................. 6
B. PLAINTIFFS FAIL TO PROVIDE STATISTICALLY SIGNIFICANT EVIDENCE OF CAUSATION. ..... 8
1. Plaintiffs Failed to Analyze Nucor’s Actual Job Bid Data Which Shows No
Statistically Significant Disparities. .............................................................................. 9
2. Plaintiffs’ “Statistically Significant” Findings Only Result From Their Improper
Introduction of Unreliable, Manufactured Data.......................................................... 11
3. Plaintiffs’ Experts Falsely Assume That an African American Bids on Every Job at
the Plant. ..................................................................................................................... 14
4. Once Plaintiffs’ Experts’ Flawed Assumptions and Errors Are Corrected, There Is No
Statistically Significant Evidence of Discrimination. ................................................. 16
5. Plaintiffs’ Experts Make Numerous Additional Errors That Render Their Analyses
Unreliable. ................................................................................................................... 18
II. PLAINTIFFS’ EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT A PATTERNOR-PRACTICE PROMOTIONS CLAIM. ............................................................................. 23
A. PLAINTIFFS FAIL TO PROVIDE STATISTICALLY SIGNIFICANT EVIDENCE OF A PATTERN OR
PRACTICE OF DISCRIMINATION IN PROMOTIONS. ............................................................... 24
B. PLAINTIFFS’ ANECDOTAL EVIDENCE IS SIMILARLY INSUFFICIENT TO SUPPORT A PATTERNOR-PRACTICE CLAIM OF DISCRIMINATION IN PROMOTIONS. .............................................. 25
III. PLAINTIFFS’ EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT A PATTERNOR-PRACTICE HOSTILE WORK ENVIRONMENT CLAIM. ........................................... 27
A. PLAINTIFFS CANNOT MEET THE SEVERE OR PERVASIVE STANDARD OF A HOSTILE WORK
ENVIRONMENT PATTERN-OR-PRACTICE CLAIM. ................................................................ 28
B. EVEN ASSUMING PLAINTIFFS MET THE SEVERE OR PERVASIVE STANDARD, PLAINTIFFS
CANNOT MAKE THE REQUISITE SHOWING THAT DEFENDANTS ARE RESPONSIBLE FOR THE
ALLEGED HOSTILE WORK ENVIRONMENT. ........................................................................ 32
CONCLUSION ............................................................................................................................. 33
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PRELIMINARY STATEMENT
Pending before this Court are Plaintiffs’ class claims based on disparate impact in
promotions, a pattern or practice of disparate treatment in promotions, and hostile work
environment, under Title VII and 42 U.S.C. § 1981. (Pls. Third Am. Compl., ECF No. 35). For the
reasons set out below, the undisputed facts developed over the course of years of litigation and
discovery demonstrate that summary judgment is proper as to all three claims.
Plaintiffs have two promotions claims in this case — one for disparate impact and another
for pattern-or-practice — which both require reliable proof of statistical discrimination. This Court
has once before found Plaintiffs’ methodology and statistical evidence in this case insufficient.
Despite now having ten years of hard, statistical data at their disposal that has never been reviewed
by the Court, Plaintiffs continue to make significant and fatal errors in their analyses. Indeed, the
undisputed facts show that Plaintiffs have failed to satisfy their high burden of proving that Nucor’s
practices had the effect of statistically discriminating against African-Americans and that
discriminating against African-Americans was the “standard operating procedure” at Nucor.
Plaintiffs presumably rely upon their experts to satisfy their high burden of proof and avoid
summary judgment. However, Plaintiffs’ statistical expert witnesses have submitted a report that
contains numerous errors, flawed assumptions, and findings that do not match the reality of how
promotions are conducted at Nucor (“Pl. Report”). As will be shown below, this is a common
practice for these experts, and their methods have been repeatedly questioned and criticized by
courts across the country. 1

The following are just a few of the material errors and

misrepresentations in Plaintiffs’ experts’ report that render their findings of absolutely no value:
•

1

Plaintiffs’ experts chose not to consider or analyze the actual job posting data in
this case. Nucor produced to Plaintiffs over 900 actual job posting records, which

See infra note 33.
1

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showed who bid on the promotion, who received the promotion, and the race of all
involved. A statistical analysis of this extensive data over a 10-year period shows
unequivocally that there is no evidence of discrimination.
•

The only way that Plaintiffs’ experts found statistical “evidence” of discrimination
was by manufacturing additional data that relied upon a multitude of flawed
assumptions. They looked at hundreds of job changes including transfers, general
wage increases, crew changes, demotions, and pay increases based on completed
training. Plaintiffs’ experts then assumed that all of these job changes also
constituted “promotions” that should have been posted for bidding. It is a matter of
common sense that a general, annual wage increase given to everyone would not
be a job that would be posted for bidding, nor would a demotion be considered a
promotion. Indeed, even Plaintiffs’ experts testified that they should not have
included these actions in their analyses. But, they did. In fact, they analyzed over
250 of these non-promotion events, which serve to wholly undermine their
findings.

•

Plaintiffs’ experts also manufactured evidence of who would have bid on 578
different job changes if they had been posted for bidding, and improperly assumed
that at least one African-American would have put in a bid for every single one of
the job changes. This flawed assumption underlies the entire basis of their
statistical finding of discrimination.
Plaintiffs’ experts’ own admissions
demonstrate these flaws. They admitted that African Americans do not bid on
every job at the plant. They also admitted that African Americans are only 13% of
the population of the plant, making it improper to assume an African-American
would bid on every job opening. Plaintiffs’ experts’ reliance on these unsupported
assumptions is particularly troubling given that they had 10 years of actual jobposting data available to them as hard evidence of how frequently AfricanAmericans bid on jobs at the plant. Yet, Plaintiffs’ experts ignored this data in
favor of the flawed and self-serving assumption that an African-American bids for
every job change. Notably, once Plaintiffs’ analyses are corrected with a realistic
percentage of how often African-Americans bid on jobs at the plant, there is
absolutely no evidence of discrimination.

•

Plaintiffs’ experts made numerous other errors, including the use of external hiring
data in this promotions case, the assumption that every candidate shares the same
qualifications for every position, and the failure to consider all of the relevant jobs
for the class members.

All of these errors and flawed assumptions diminish the value of Plaintiffs’ statistical findings.
And, without statistical proof of discrimination, both of the Plaintiffs’ promotions claims fail,
rendering summary judgment appropriate. Previously in this case, this Court rejected Plaintiffs’
manufactured statistical findings and held that actual data based on reality is more reliable —Nucor
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simply asks this Court to apply that same sound logic to Plaintiffs’ latest reliance upon a flawed
statistical analysis, and grant summary judgment on their promotions claims.
Further, as shown below, Plaintiffs cannot establish that the standard operating procedure
at Nucor Berkeley was to subject its employees to a hostile work environment. Thus, summary
judgment is also proper for Plaintiffs’ pattern-or-practice hostile work environment claim.
SUMMARY JUDGMENT STANDARD
Summary judgment should be granted “against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party’s case.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). “While this court must take the evidence in the light most
favorable to plaintiff for purposes of defendants’ summary judgment motion, the court need not
‘accept unreasonable inferences based on conjecture or speculation.’” Wright v. N.C. State Univ.,
169 F.Supp. 2d 485, 488 (E.D.N.C. 2000) (quoting Yerardi’s Moody St. Rest. & Lounge, Inc. v.
Bd. of Selectmen of Randolph, 932 F.2d 89, 92 (1st Cir. 1991)). “Only disputes over facts that
might affect the outcome of the suit under the governing law will properly preclude the entry of
summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Plaintiffs’ Statistical Discrimination Claims Are Legally in the Court’s Purview.
Not only does this Court have the discretion to grant summary judgment on all of Plaintiffs’
claims in this case, but it is well settled under Title VII that the Court—not a jury—has the specific
responsibility to decide Plaintiffs’ statistical disparate impact claim. 42 U.S.C. § 1981a(b)(2), (c);
Capone v. City of Columbia, 2015 WL 127987, at *13 (D.S.C. Jan. 8, 2015). Specifically, in
regard to Plaintiffs’ promotions claims, under Title VII and the case law interpreting it, Plaintiffs
must satisfy a high burden when proving a statistical disparate impact claim. Id. (“As the Supreme

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Court has noted, ‘the inevitable focus on statistics in disparate impact cases’ results in a very ‘high
standard[ ] of proof” that can be difficult for plaintiffs to meet”) (quoting Watson v. Fort Worth
Bank & Trust, 487 U.S. 977, 992, 999 (1988)). Merely pointing to “statistical disparities in the
employer’s work force” is not sufficient; the plaintiff must provide “statistical evidence of a kind
and degree sufficient to show that the practice in question has caused the exclusion of applicants
for jobs or promotions because of their membership in a protected group.” Watson, 487 U.S. at
994; EEOC v. Freeman, 961 F.Supp. 2d 783, 786 (D.Md. 2013), aff’d in part, 778 F.3d 463 (4th
Cir. 2015). Similarly, to avoid summary judgment, Plaintiffs must produce strong statistical
evidence that racial discrimination was Defendants’ “standard operating procedure” to prove their
pattern-or-practice promotions claims. See King v. Virginia Emp’t Comm’n, 33 F.3d 51 (4th Cir.
1994); Coker v. Charleston Cty. Sch. Dist., 2 F.3d 1149 (4th Cir. 1993). Here, the undisputed
facts demonstrate that Plaintiffs have failed to provide sufficient statistical evidence that could
satisfy their burden of proof.
ARGUMENT
I.

PLAINTIFFS’ EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT A
DISPARATE IMPACT PROMOTIONS CLAIM.
To establish a prima facie case for their disparate impact promotions claim, Plaintiffs must

(1) “begin by identifying the specific employment practice that is challenged” and then (2) produce
statistical proof of causation “of a kind and degree sufficient to show that the practice in question
has caused the exclusion of applicants for … promotions because of their membership in a
protected group.” Watson, 487 U.S. at 994; see also Lott v. Westinghouse Savannah River Co.,
200 F.R.D. 539, 553 (D.S.C. 2000); Ardrey v. UPS, 798 F.2d 679, 682 (4th Cir. 1986). The
Supreme Court has held that, “[i]t is not enough to simply allege that there is a disparate impact
on workers, or point to a generalized policy that leads to such an impact. Rather, the employee is
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‘responsible for isolating and identifying the specific employment practices that are allegedly
responsible for any observed statistical disparities.’” Smith v. City of Jackson, 544 U.S. 228, 241
(2005) (quoting Wards Cove Packing Co. v. Antonio, 490 U.S. 642, 656 (1989)).
Once plaintiffs have identified the particular employment practice at issue, they must meet
a “high standard[] of proof” by showing substantial statistical evidence that the practice in question
has resulted in a disparate impact. Watson, 487 U.S. at 979. The defendant is then “free to attack
the probative weight of that evidence, to point out fallacies or deficiencies in [p]laintiffs’ data or
statistical techniques, and to adduce countervailing evidence of its own.” Id. In determining
whether plaintiffs’ statistics are reliable, courts consider “the rate of error of the methods employed
by the expert, the existence and maintenance of standards used in the expert’s methods, and
whether the expert’s methods have been generally accepted by his or her respective community.”
Freeman, 961 F.Supp. 2d at 792-93 (quoting Anderson v. Westinghouse Savannah River Co., 406
F.3d 248 (4th Cir. 2005)).
Courts regularly grant summary judgment or judgment as a matter of law for the defendant
on disparate impact claims due to legally insufficient statistical evidence. See, e.g., Anderson v.
Westinghouse, 406 F.3d at 275 (affirming summary judgment where insufficient statistical
evidence was fatal to disparate impact claim); Bennett v. Nucor Corp., 656 F.3d 802 (8th Cir.
2011)(same); Foxworth v. Pennsylvania State Police, 228 Fed. App’x. 151, 156 (3d Cir. 2007)
(“[I]t is not enough for a plaintiff to show ‘that there are statistical disparities in the employer’s
workforce;’ rather a plaintiff must also prove causation.”); Burke–Fowler v. Orange Cnty, 447
F.3d 1319, 1325 (11th Cir. 2006) (“[H]olding employers liable for statistical imbalances per se is

5

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inconsistent with Title VII’s plain language and statutory purpose.”)). 2 In the present case, the
substantial number of errors and erroneous assumptions made by Plaintiffs’ experts cause their
statistical evidence to be wholly unreliable and legally insufficient. Further, once those errors and
assumptions are corrected, there is simply no material or statistically significant evidence of
racially adverse disparities in promotion rates as to African-American employees.
Here, Plaintiffs have failed to satisfy the two fundamental elements of a prima facie case
of disparate impact. Plaintiffs have not identified the particular policy or procedure which they
claim caused a disparate impact, and they failed to present statistical evidence from which a
reasonable jury could find that race—and not chance—was the reason for the disparity. For those
reasons alone, Plaintiffs’ disparate impact claim cannot survive summary judgment.
A.

PLAINTIFFS FAIL TO IDENTIFY A SPECIFIC POLICY OR PRACTICE CHALLENGED.

Plaintiffs’ disparate impact claim fails the threshold prima facie hurdle—identification of
a specific employment practice or policy responsible for alleged statistical disparities in
promotions.

Instead, Plaintiffs vaguely assert that the “selection process used by Nucor

Berkeley…has had an adverse impact against African-Americans” without further elaboration as
to which component part of the selection process forms the basis of their claim. 3 Ex. 1, Plaintiffs’
Expert Report of Drs. Fox and Bradley, Feb. 15, 2017, at 3 [hereinafter Pl. Report]. Under Title
VII, it is not enough for the plaintiff to show that “in general” the collective results of a promotions
process cause disparate impact. Wards Cove, 490 U.S. at 656; Freeman, 961 F.Supp. 2d at 799.

2

See also Smith v. Xerox Corp., 196 F.3d 358 (2d Cir. 1999) (affirming summary judgment for
employer where plaintiffs’ statistical methodology was flawed and not sufficient to support a
disparate impact claim); Maidenbaum v. Bally’s Park Place, Inc., 870 F. Supp. 1254 (D.N.J. 1994),
aff’d, 67 F.3d 291 (3d Cir. 1995) (same); Abbott v. Fed. Forge, Inc., 912 F.2d 867 (6th Cir. 1990)
(same); Thomas v. First Nat’l Bank of Wynne, 111 F.3d 64 (8th Cir. 1997) (same); Turner v. Pub.
Serv. Co., 563 F.3d 1136, 1147 (10th Cir. 2009).
3
See also Ex. 2, Deposition Transcript of Dr. Edwin Bradley, April 6, 2017, 30:11–16.
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Where, as here, a promotions process has multiple elements, the plaintiff must identify the
element(s) that it is challenging and “demonstrate that each particular challenged employment
practice causes a disparate impact,” unless it can demonstrate that “the elements” are not capable
of separation for purposes of analysis. 42 U.S.C. § 2000e–2(k); Freeman, 961 F.Supp. 2d at 799.
Here, Plaintiffs’ experts effectively admit that Nucor’s selection process is capable of
separation by distinguishing the component parts of the selection process in their Report. The
Report identifies “plant-wide [job] posting,” “[job] bidding procedure,” candidate evaluations,
interviews of candidates, and a “combination of opinions and recommendations” from supervisors
and managers. Pl. Report, at 9. At no time, however, do Plaintiffs’ experts cross the necessary
prima facie threshold and provide evidence “isolating and identifying the specific employment
practices that are allegedly responsible for any observed statistical disparities.” Watson, 487 U.S.
at 994; Wards Cove, 490 U.S. at 656; Smith, 544 U.S. at 241. Indeed, Plaintiffs’ experts’ report is
silent on this point. In a nearly identical case involving the same attorneys, issues, and expert
witnesses as the current case, the Eighth Circuit found that plaintiffs’ experts’ similar failure to
identify the specific practice causing the alleged adverse impact was fatal to their claim at summary
judgment. There, the court rejected the experts’ claim that the promotions procedure was “not
capable of separation for analysis of individual components of the process,” where the promotion
process combined discernible objective and subjective components. Bennett, 656 F.3d at 818.
Such is the case here. As a result, the undisputed facts demonstrate that Plaintiffs’ disparate impact
claim fails the first prima facie element as a matter of law. 4

4

Freeman, 961 F. Supp. 2d at 799; Sherman v. Westinghouse Savannah River Co., 2004 WL
5578724, at *5 (D.S.C. Sept. 29, 2004), aff’d. 263 F.App’x 357 (4th Cir. 2008) (granting summary
judgment where “generic identification of subjectivity” failed to “identify a specific employment
practice”); Johnson v. Uncle Ben’s, Inc., 965 F.2d 1363, 1367 (5th Cir. 1992).
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PLAINTIFFS FAIL
CAUSATION.

TO

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PROVIDE STATISTICALLY SIGNIFICANT EVIDENCE

OF

As outlined in the Preliminary Statement above, even if Plaintiffs could (which they
cannot) satisfy the first prong of their prima facie case, their claim would nevertheless fail on the
second prong because Plaintiffs have not provided any reliable evidence of a statistically
significant disparate impact on African-American employees. Rather, Plaintiffs’ statistical experts
rely upon numerous flawed assumptions and erroneous data that render their statistical findings
unreliable in their entirety. For example:
•

Plaintiffs’ experts ignore the actual job posting data at the plant. Despite the
fact that they were provided with over 900 actual job-posting records—including
the names of individuals who bid on the job, those who received the job, and the
race of everyone involved, Plaintiffs’ experts chose not to analyze these records
standing alone. An analysis of these actual job-posting records affirmatively shows
no statistically significant evidence of discrimination.

•

Plaintiffs’ experts attempt to create statistical discrimination by artificially
manufacturing additional promotions. For each of their analyses, Plaintiffs’
experts assumed that 578 Change of Status (COS) forms found in produced
personnel files represented promotions that should have been posted for bidding.
In reality, and as Plaintiffs’ experts admitted at their depositions, these COS forms
simply represent any change to any aspect of an individual’s employment,
including general, annual pay increases, upgrades due to training, schedule
changes, crew changes, demotions, etc., none of which constitute “promotions.”

•

Plaintiffs’ experts erroneously included 254 job movements that they admitted
should not have been analyzed. By their own admission, at least 44% of the COS
forms Plaintiffs’ experts analyzed were erroneously included because they did not
constitute a promotion. Such an extreme error rate renders all of their opinions
unreliable.

•

Plaintiffs’ experts falsely assumed an African-American bids on every job at
the plant. Plaintiffs’ experts further assumed that an African American would have
bid on each of the over 500 jobs from COS forms they falsely assumed were
promotions, despite their experts’ admissions that African Americans only make
up 13% of the population of the plant and do not bid on every job. It would strain
the bounds of logic and common sense to accept Plaintiffs’ experts’ fictional
premise that each and every one of these manufactured promotional opportunities
would have had an African-American bidder.

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Given these significant and material errors, Plaintiffs cannot meet their high burden to show
statistical significance.
It is well-settled law in disparate impact cases that courts at the summary judgment stage
may inquire into the reliability and foundation of any expert opinion. Miller v. Mandrin Homes,
Ltd., 305 F.App’x 976, 978–79 (4th Cir. 2009) (where “the trial court concludes that the scintilla
of [expert] evidence presented supporting a position is insufficient to allow a reasonable juror to
conclude that the position more likely than not is true, the court remains free to ... grant summary
judgment.” (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 596 (1993))). Indeed,
at no time are courts “obliged to assume that plaintiffs’ statistical evidence is reliable.” Watson,
487 U.S. at 996-97; Dothard v. Rawlinson, 433 U.S. 321 (1977). If the Court finds the opinions
of Plaintiffs’ expert to be clearly unreliable, it may disregard those opinions in deciding at the
summary judgment stage whether Plaintiffs have created a genuine issue of material fact. 5 The
following sections expand on the numerous dispositive errors made by Plaintiffs’ experts listed
above, and show that the Court should disregard Plaintiffs’ experts’ report here.
1. Plaintiffs Failed to Analyze Nucor’s Actual Job Bid Data Which Shows No
Statistically Significant Disparities.
Nucor produced nearly 10 years of actual job posting records to Plaintiffs early last year.
Specifically, Nucor provided Plaintiffs with both electronic and paper job posting information
relating to more than 900 jobs from the 6 class departments through April 27, 2011. 6 The job

5

Miller, 305 F.App’x at 978–79; Daubert, 509 U.S. at 596; McReynolds v. Sodexho Marriott
Servs., Inc., 349 F. Supp. 2d 30 (D.D.C. 2004); Berry v. Armstrong Rubber Co., 989 F.2d 822, 824
(5th Cir. 1993), cert. denied, 510 U.S. 1117 (1994).
6
Ex. 3, March 4, 2016 Production (Electronic Job Posting Data, 2003–4/27/11); Ex. 4, April 2016
Production (Pre- and Post- Electronic Posting Data 2000–2003 (Bates Nos. 1BKY083741–
1BKY092248, 1BKY234941–1BKY23446); Ex. 5, Jan. 2017 Production (Supplements); Ex. 6,
Feb. 6, 2017 Production (Updated Electronic Job Posting Data Supplement). Job posting records
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posting information included those who bid on the job, those who got the job, and the race of those
who bid. Id. Despite having nearly 10 years of complete, actual job-posting data, Plaintiffs’ experts
chose not to analyze the actual job data alone (presumably because it shows no statistically
significant disparities). Instead, Plaintiffs chose to add manufactured data that they created from
the erroneous inclusion of many COS forms which do not represent promotions. 7
In contrast, Nucor’s statistical expert, Dr. Robert Topel, used the actual job data from 2001
until 2011—the period for which actual job-posting data is complete and available—and
conducted a standard deviation analysis of the job posting records, which has been held by this
Court and others in the circuit to be the most reliable method to measure statistical significant
disparities in disparate impact cases. 8 See Dr. Topel Report, at 11; see also Hazelwood Sch. Dist.
v. United States, 433 U.S. 299 (1977); EEOC v. Fed. Reserve Bank of Richmond, 698 F.22d 633,
647 (4th Cir. 1983), rev’d on other grounds, 467 U.S. 867 (1984); Moultrie v. Martin, 690 F.2d
1078, 1082 (4th Cir. 1982). Examining the actual job postings, Dr. Topel found a difference
between white and African-American selections of only -0.87 standard deviations—a difference
well below 2 standard deviations and not statistically significant by any applicable standard.
Dr. Topel Report, at 11; see also Hazelwood, 433 U.S. at 309 n.14; Brown v. Nucor Corp., 785
F.3d 895, 934 (4th Cir. 2015) [hereinafter Brown II] (citing Wal-Mart Stores, Inc. v. Dukes, 131
S.Ct. 2541, 2551-53 (2011)); Lilly v. Harris-Teeter Supermkt., 720 F.2d 326, 337 (4th Cir. 1983)
(recognizing that standard deviations of more than two or three conclusively rules out chance as
the cause of the disparity). Therefore, an analysis of the actual job-posting data shows that there

from Dec. 2, 1999 to Dec. 31, 2000 were not provided to Plaintiffs, as such records were limited
and/or not maintained at that time.
7
Ex. 7, Defendants’ Expert Report of Dr. Robert Topel, April 14, 2017, at 9-12 [hereinafter
Dr. Topel Report]; Ex. 8, Deposition Transcript of Dr. Liesl Fox, Mar. 21, 2017, 60:23–62:8.
8
Dr. Robert Topel utilized the same standard-deviation methodology used by Plaintiffs’ experts.
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is “no material or statistically significant adverse differences in promotion rates between African
Americans and other Nucor employees.” Dr. Topel Report 1, 11.
It is well established that Plaintiffs must demonstrate that Nucor’s promotions process
caused a sufficiently substantial statistical disparity between African Americans and other
similarly situated Nucor employees. Wards Cove, 490 U.S. at 650; Watson, 487 U.S. at 994-95
(“[We] have consistently stressed that statistical disparities must be sufficiently substantial that
they raise such an inference of causation”). Here, the analysis of Nucor’s actual job posting data
shows that there is no statistically significant evidence of discrimination. The fact that Plaintiffs
did not analyze the actual posting data is especially suspect given that Plaintiffs have insisted on
the discovery of this posting data for years. 9 Had Plaintiffs’ experts performed an analysis of the
actual job bid data, they would have arrived at this race-neutral result. This Court has previously
held that “[s]tatistics based on actual data is more probative than statistics based on assumptions.”
(ECF No. 224, at 9). Despite this guidance, Drs. Fox and Bradley, who were provided with
Nucor’s actual data for almost a 10-year period, elected not to analyze it. 10 Given that the statistical
results of Nucor’s actual job-posting data do not demonstrate a legally significant disparity in
African-American promotion rates, Plaintiffs cannot meet the element of causation. Therefore,
Plaintiffs’ disparate impact claim must fail as a matter of law.
2. Plaintiffs’ “Statistically Significant” Findings Only Result From Their
Improper Introduction of Unreliable, Manufactured Data.
Presumably because a reliable analysis of Nucor’s actual job bid data shows there is no
statistically significant disparity, Plaintiffs’ experts manufactured their own additional data to
9

See, e.g., Pls.’ Mot. to Compel ¶ 4, Feb. 25, 2005, ECF No. 40 (seeking to compel “data on
employees necessary to compile the requisite statistics—employees’ race, job and pay history,
promotions,” etc.); see also Pls.’ Mot. to Compel, Dec. 2015, ECF No. 469 (seeking again to
compel all documents containing information on promotions since January 2000 to present).
10
See Dr. Topel Report, at 9-12; Fox Dep., 60:23–62:3.
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skew the results and create statistical significance. 11 Notably, Plaintiffs’ experts’ manufactured
job data is included in every analysis presented, rendering every statistical model presented to this
Court unreliable. 12
For the entire class period, Plaintiffs identify a total of 578 job moves that they claim should
be included in all statistical analyses, because they assume each job move was a promotion that
should have been posted for bidding. 13 However, at least 254 of those 578 job moves were not
promotions and should never have been analyzed. 14 Dr. Topel Report, at 16-19. In other words,
44% of Plaintiffs’ analyzed promotions were not, in fact, promotions. Id.
To construct their manufactured job data, Dr. Fox testified that she reviewed COS forms
contained in employee personnel files in an attempt to identify job changes (moves) that she
assumed were promotions or jobs that, in her opinion, should have been posted for open bidding. 15
Significantly, COS forms are created any time there is a change in any aspect of the individual’s
employment. 16 In fact, the majority of COS forms in employee personnel files are non-promotion
events such as pay grade increases, lateral moves, upgrades based on completed training, annual

11

When seeking class certification years ago, Plaintiffs constructed posting data for the pre-2001
class period since posting data was not available for that time period. The Fourth Circuit held that
Plaintiffs creation of this proxy data for the pre-2001 period was acceptable because Nucor’s actual
job posting information during that time was unavailable. Brown v. Nucor Corp., 576 F.3d 149
(4th Cir. 2009) [hereinafter Brown I]. Here, Plaintiffs’ experts construct posting data for the post2001 time period despite having Nucor’s actual posting data for that period. Plaintiffs cannot rely
on the Fourth Circuit’s previous opinion to justify creation of post-2001 posting data when actual
data exists. There is no credible reason or legal authority validating this approach.
12
Fox Dep., 62:4–63:7; Pl. Report, at 7-9.
13
Fox Dep., 62:4–63:7, 77:5–19; Bradley Dep., 75:22–76:6.
14
Dr. Topel Report, at 15-18; Dr. Rick Jacobs Report, April 14, 2017, at 13-14 [hereinafter “Dr.
Jacobs Report”].
15
Bradley Dep., 24:14–25:24; Fox Dep., 59:18–60:9.
16
Dr. Topel Report, at 8; Bradley Dep., 33:20–34:15; Fox Dep., 45:3–9..
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wage increases, crew changes, schedule changes, demotions, and temporary moves. 17 Drs. Fox
and Bradley testified and agreed that these types of events were not “promotions” and that they, in
fact, meant to exclude them from their analyses. 18 Despite this admission, 254 non-promotion
events were improperly included in their analyses: 19
Summary of COS Moves that Should Have Been Excluded
Basis for Removal:
Crew Change

No. of COS Forms:
12

Crew Reorganization

19

Demotion

18

Department Number Change Only

2

New Job Title Change

1

Not in Relevant Department

10

Outside of Class Period

2

Rate Change Only

23

Temporary

36

Title Change Only

23

Upgrade

16

Department Reorganization

3

Job Reassignment Due to Position Elimination

9

Lateral Move to Different Department

2

Lateral Move Within Department

57

Not a Promotion

6

Supervisor Rotation

13

Total: 254

These material errors cast irrevocable doubt on the reliability of Plaintiffs’ experts’ report
and are, standing alone, sufficient for the Court to disregard their findings. Freeman, 961 F.Supp.
2d at 792-3; Anderson v. Westinghouse, 406 F.3d at 261; Watson, 487 U.S. at 996-7. In Freeman,
the Fourth Circuit recently affirmed a district court’s refusal to consider statistical evidence offered
17

Dr. Topel Report, at 8; Fox Dep., 45:3–9; Bradley Dep., 24:22–25:4; Dr. Jacobs Report, at 1314 (Dr. Jacobs interviewed department representatives at Nucor and confirmed that many job
change of status forms are not examples of open and competitive promotions but instead are lateral
moves, reassignments, cross-training moves, accommodations, among other things).
18
Fox Dep., 45:3-53:10, 116:3-120:2, 51:13-17, 53:11-54:19, 118:9-20; Bradley Dep., 34:16–25.
19
See also Ex. 8, Fox Dep. Ex. 5 (COS moves relied on by Dr. Fox as “assumed promotions”).
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to show disparate impact because the evidence contained a number of “mistakes and omissions”
far less egregious than those here. 778 F. 3d at 467; Cooper v. Smith & Nephew, Inc., 259 F.3d
194, 199 (4th Cir. 2001) (noting that the “proponent of the testimony” bears the burden of proving
that it is reliable). Plaintiffs’ statistical evidence should suffer a similar fate, especially given that
an analysis of actual job-posting data without inclusion of non-promotions does not demonstrate
statistically significant evidence of disparate impact as a matter of law.
3. Plaintiffs’ Experts Falsely Assume That an African American Bids on Every
Job at the Plant.
Plaintiffs obtain their flawed results by further assuming that every one of the 578
manufactured promotions would have had an African-American bidder, instead of creating a more
realistic model that would have taken into account the historical rate at which African Americans
bid on jobs at the plant. 20 Because the 578 job moves Plaintiffs’ experts improperly analyzed had
no bidders, they manufactured “proxy pools” based on selected job postings data (i.e., excluding
all postings with no African-American bidders) to create an unrealistic benchmark—the expected
rate at which African Americans would bid on and receive these “jobs”. 21 Given that Plaintiffs’
experts only considered selected job postings data rather than all of Nucor’s job postings data to
construct the benchmark, they improperly assumed 24% of all bidders would have been AfricanAmerican. 22 However, African-American employees represent 13% of bidders in all job postings,
as well as 13% of relevant employees at Nucor. 23 By excluding more than half of the postings,
Plaintiffs’ experts artificially inflate the purported rate at which African Americans would have

20

Dr. Topel Report, at 2, 8-9; Fox Dep., 63:19–64:7.
Dr. Topel Report, at 24-35; Fox Dep., 63:19–64:7.
22
Dr. Topel Report, at 8-10; Fox Dep., 38:22–39:12; 63:3–64:7.
23
Dr. Topel Report, at 11 n.4, 9.
21

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bid on the 578 assumed positions. 24 In other words, Plaintiffs’ experts ignored the actual job
postings that had only white bidders when averaging the number of likely African-American
bidders to all jobs, purposefully skewing their benchmark in a way that does not accurately
represent actual bidding rates of African-Americans at Nucor.
Here is a basic example that illustrates why Plaintiffs’ experts’ method for calculating their
benchmark is clearly erroneous and unreliable. Hypothetically, assume there were 100 job
postings at the plant, and of those 100 postings, only one of them had African-American bidders.
For that one posting, 9 of the 10 bidders were African-American. Using Plaintiffs’ methodology,
only one job with African-American bidders would be counted toward the benchmark and the
remaining 99 jobs excluded. Therefore, their calculated rate at which they assume African
Americans bid on all jobs at the plant would be 90%. Here, the actual rate at which African
Americans bid on all jobs at the plant, assuming 10 non-African-American bidders to each of the
remaining 99 job postings, would be only 0.9% (9 African-American bidders divided by 1,000
bidders total). Like in Plaintiffs’ expert analyses, ignoring all of the jobs that had no AfricanAmerican bidders creates an incredibly unrealistic view of who actually bids on jobs at the plant.
Further compounding the gravity of Plaintiffs experts’ error, a review of nearly 10 years of
Nucor’s actual posting data clearly shows that African-American employees only bid on less than
half of the posted jobs. See Dr. Topel Report, at 33. As Dr. Robert Topel states in his report,
“Plaintiffs have created phantom African-American applicants when none exist,” thus
exaggerating the alleged racial disparities in promotion rates and statistical significance. Dr. Topel
Report, at 9.

24

Fox Dep., 37:5–38:5; Dr. Topel Report, at 33-35.
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Alternative Methods Were Available To Control For The Fact That African-Americans
Do Not Bid On Every Job.
In an attempt to excuse this significant error, Dr. Fox testified that it was not possible to
control for the fact that African Americans do not bid on every job at Nucor. Fox Dep., 64:16–
67:1. To the contrary, there are at least two methods Plaintiffs’ experts ignored in their analyses
of the 578 COS contrived positions to control for the fact that not every job at the plant has an
African-American bidder. Dr. Topel Report, at 26-28. Indeed, Defendants’ expert Dr. Topel
conducted two separate analyses utilizing more appropriate data processing techniques to calculate
a more realistic African-American bidder rate (or benchmark) that more accurately reflects the
realities of what occurs at the plant. Id. at 26-28, 33-35.
4. Once Plaintiffs’ Experts’ Flawed Assumptions and Errors Are Corrected,
There Is No Statistically Significant Evidence of Discrimination.
When taking into account the entire scope of actual job posting data (including those jobs
that did not have African-American bidders), the corrected benchmark shows there are no
statistical significant results. Id. at 26-28. Below, Table 7 illustrates the application of the
corrected benchmark and shows the statistical results for each analysis presented by Plaintiffs,
none of which are above 2 standard deviations: 25

25

Dr. Topel Report, at 28. For comparison purposes, Dr. Topel reported in parentheses the total
selections, benchmark and Adverse Impact Ratio when postings with no African American
candidates are included. As Dr. Bradley noted, the inclusion of these postings do not impact the
“Posting Only” analysis and they remain -.087 number of standard deviations.
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Because Plaintiffs’ experts did not apply a reliable statistical approach and excluded
postings to artificially inflate their benchmark, such manufactured statistical results cannot
withstand scrutiny on summary judgment. 26 EEOC v. Western Elec. Co., 713 F.2d 1011, 1019 (4th
Cir. 1983) (“Courts should guard against the use of data which may have been segmented and
particularized and fashioned to obtain a desired result.”).
Further, removing Plaintiffs’ 254 misidentified promotions, while applying a corrected
benchmark, reveals even smaller differences. As shown in Table 12 below, when the 254 nonpromotion events generated by Dr. Fox are removed, all statistical differences based on race are,
again, well under 2 standard deviations and not statistically significant: 27

26

Dr. Topel Report, at 42-43; Fox Dep., 65:18–67:1. Dr. Topel presents another common statistical
approach that could have applied when calculating the benchmark which also shows insignificant
results, Dr. Topel Report, at 33-35.
27
Dr. Topel Report, at 41.
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Plaintiffs’ experts’ fundamental errors in modeling and data processing render their
statistical evidence flawed, misleading, and unreliable. Dr. Topel Report, at 42-43. Nonetheless,
even if Plaintiffs’ manufactured evidence was accepted, once the benchmark is corrected there is
no significant racial disparity for any analysis presented by Plaintiffs. Dr. Topel Report, at 26-28,
33-35. This finding of no discrimination is consistent with the analysis of Nucor’s actual job
posting data for a nearly 10-year period which also shows there are no statistically significant
disparities. For these reasons, Plaintiffs’ statistical proof must be disregarded and summary
judgment is appropriate.
5. Plaintiffs’ Experts Make Numerous Additional Errors That Render Their
Analyses Unreliable.
Plaintiffs’ experts make numerous additional false assumptions and errors by failing to
consider the proper categories of jobs in the promotions class, by failing to control for bidders’
qualifications, and by inexplicably including inapposite hiring statistics. Plaintiffs’ experts’

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analyses are predicated upon a fundamental misunderstanding of the class definition and how
promotions are conducted at Nucor. To her credit, Dr. Fox testified candidly about this major error:
Q. Let’s talk about the craft and operative category that you used.
All the analyses in your report are limited just to craft and operative
positions; is that correct?
A. And the supervisors of those positions.
Q. Why did you decide to put that limitation in your analysis?
A. I think that was our understating of the class when we did it
ten years ago.
Q. Have you looked at the class definition in this case in the last
ten years?
A. No.
***
Q. Are you aware that there are class members that are outside of
those craft and operative positions?
A. I didn’t look up anybody specifically, so I guess not.
Q. And you were provided with bidding records for jobs that
included things outside the craft and operative positions; is that
correct?
A. I don’t recall. I would have to go back and look at that. It’s
possible. Maybe. I don’t recall. 28
The current class definition makes no mention of a “Craft” or “Operative” limitation at all,
and this Court’s prior rulings make clear that “the class shall include ‘all African Americans’ in
the six departments listed in the class definition, not only those ‘in production jobs.’” (ECF No.
485). Nevertheless, a review of the bidding records provided to Plaintiffs reveal jobs within the
class period and bid upon by class members which were incorrectly excluded from Plaintiffs’
experts’ analyses. For example, class member Natasha Cobb successfully bid upon the “CM
Scheduler” position in the Cold Mill on June 20, 2010. 29 Likewise, class member Fetima Snider
(Shaw) successfully bid for a promotion to the position of Hot Mill Lab Tech on July 20, 2006.30
These competitively bid-for positions are within the class definition, but classified as

28

Fox Dep., 102:6–18, 103:11–22 (emphasis added).
Ex. 10, CM Scheduler Job Bid Packet.
30
Ex. 11, Hot Mill Lab Tech. Job Bid Packet.
29

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“Professional” and “Technical” respectively, rather than “Craft” or “Operative,” so Plaintiffs’
experts ignored them. Expert statistics such as these are consistently held to be unreliable when
based on “incomplete data sets and inadequate statistical techniques.” Watson, 487 U.S. at 99697; Freeman, 778 F.3d at 466.
Plaintiffs’ statistical evidence is further unreliable because it assumes everyone who bids
for a promotion is equally qualified by virtue of the fact that they applied for the position. In
disparate impact cases, the Supreme Court has long held that “statistics based on an applicant pool
containing individuals lacking minimal qualifications for the job would be of little probative
value.” Watson, 487 U.S. at 996-97; McNairn v. Sullivan, 929 F.2d 974, 979 (4th Cir. 1991)
(“[P]laintiff did not present evidence indicating which of the black and Hispanic GS–3s were
qualified to be promoted”). Dr. Fox explained this assumption as follows:
Q. Is it your assumption that [jobs] all require the same basic
qualifications?
A. Well, it’s my assumption that someone who is signed up to bid
on that position and has not withdrawn their application, that they at
least meet whatever minimum qualifications there may be.
Q. So your analyses are based in part on the idea that if someone
bids on a job, they are qualified for it?
A. And if their bid is not withdrawn for some reason, yes.
Q. Okay. Is it possible that someone could put in a bid for a job for
which they’re not actually qualified?
A. It’s possible. 31
Plaintiffs’ experts do not just assume that all bidders are minimally qualified, they also assume all
bidders are equally qualified. 32 In practice, these assumptions render critical factors such as
education, prior work experience, and minimum job qualifications meaningless. Watson, 487 U.S.
at 96-7; Wards Cove, 490 U.S. at 651; City of Richmond v. J.A. Croson Co., 488 U.S. 469, 501-02

31
32

Fox Dep, 25:3–18.
Dr. Topel Report, at 22; Fox Dep., 44:2–17; 91:22–92:9.
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(1989) (“But where special qualifications are necessary, the relevant statistical pool for purposes
of demonstrating discriminatory exclusion must be the number of minorities qualified to undertake
the particular task.”). Courts have previously criticized this very assumption when used by
Plaintiffs’ expert Dr. Bradley in the past as a “warm body hypothesis,” i.e. one warm body is just
as good as another, “which assumes that every person is just as qualified and skilled and
experienced as everyone else.” Davis v. Alabama Dep’t of Educ., 768 F. Supp. 1471, 1477 (N.D.
Ala. 1991). Indeed, Dr. Bradley is personally responsible for a body of case law rejecting his
unwavering failure to control for these factors in disparate impact cases. 33
Plaintiffs’ experts also attempt to manufacture statistical significance by including external
hiring applicants in their analysis of the internal promotions process. Dr. Topel Report, at 15. Drs.

33

See, e.g., Anderson v. Westinghouse, 406 F.3d at 262-63 (affirming exclusion where expert
ignored “actual job performance or job requirements” even though he “conceded” that he could
have “use[d] a control factor that would control for the actual job title or the job duties”); Bennett,
656 F.3d at 818 (“Because the plaintiffs failed to show that their statistical ‘applicant pools’
contained only individuals who were at least minimally qualified for the promotions in question,
their statistical evidence of a bottom-line disparity in promotions has little force.”); Rollins v.
Alabama Cmty. Coll. Sys., 2010 WL 4269133, at *8-9 (M.D. Ala. 2010) (“Bradley stated that in
his analysis, all new employees at an institution would be assigned to step zero, even if they had
different years of prior experience.”); Davis, 768 F. Supp. at 1477-8 (“the statistical computations
prepared by and presented to the court through Dr. Bradley are based on a model which cannot be
accepted…The inaccurate assertion of plaintiffs that 154 people are qualified to perform the job
tasks of a Supervisor III, when only three people are qualified, is based on fungibility. The
assumption is wholly inappropriate.”); Rhodes v. Cracker Barrel Old Country Store, Inc, 213
F.R.D. 619, 654 (N.D. Ga. 2003) (“Unfortunately, several problems exist with Plaintiffs’ experts’
analyses. Plaintiffs’ experts fail to account for the many variables that properly may affect job
assignments, such as the job preference or experience of the employee or applicant, available job
openings, and labor-market availability.”); Yapp v. Union Pac. R.R. Co., 229 F.R.D. 608, 620 (E.D.
Mo. 2005) (“Bradley made no distinction between departments, did not conduct a thorough inquiry
into minimal qualifications, did not account for corporate personnel decision-making, and
ultimately conceded that he may not have used a valid scientific reason for selecting his underlying
data.”); Adams v. Austal, LLC, 2011 WL 1558790 at *8 (S.D. Ala. 2011)(“[T]his improper
aggregation of data ignores the most basic criteria of job similarity, as well as the specific
differences in the jobs themselves, the requirements for employees to obtain such jobs, the
differences in pay rates associated with each of the different jobs, etc.”).
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Fox and Bradley testified that external applicants are relevant because those jobs “could have been
posted and could have been filled internally.” 34 This flawed assumption overlooks two critical
facts: (1) the overwhelming majority of jobs involving an external candidate were entry-level
positions; and (2) Nucor’s Policy considers external applicants only when there are no qualified
internal candidates available. First, “70 percent of the external hires” analyzed by Plaintiffs’
experts “were into entry level positions,” which are not typically bid upon by internal employees.
Dr. Topel Report at 37. Because the relevant class consists of “African Americans who are…or
were employed by Nucor” (i.e. existing employees), an entry-level position would, in most cases,
be a demotion. (Order, ECF 359); Dr. Topel Report at 35-37. Therefore, an analysis of the rate at
which existing employees bid upon and are selected for entry-level positions is of little to no value.
Dr. Topel Report, at 37-39; Watson, 487 U.S. at 996-97. Second, Plaintiffs’ experts’ inclusion of
external applicants is contrary to Nucor’s stated policy on internal promotions, as noted by
Plaintiffs: “[i]n the event that the posted vacancy is not filled internally, then the process continues
by reviewing resumes of hiring candidates.” Pl. Report at 9; Bradley Dep., 23:20–24:7. In other
words, Nucor considers external hires only when there are no qualified internal candidates. 35 Thus,
contrary to Plaintiffs’ experts’ assumption, these positions would not have been filled internally,
revealing yet another significant error in Plaintiffs’ experts’ analyses.
The evidence and authority cited above make clear that Plaintiffs cannot establish a prima
facie case of disparate impact. Accordingly, summary judgment is proper.

34

Fox Dep., 82:20-22; see also Bradley Dep., 90:10-20.
Plaintiffs assume all applicants are qualified for all positions they apply for, supra Note 29, yet
if that were true, then every applicant pool with at least one bidder should always have at least one
qualified internal candidate, thereby eliminating the need to ever consider external candidates.
35

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PLAINTIFFS’ EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT A
PATTERN-OR-PRACTICE PROMOTIONS CLAIM.
For the same basic reasons Plaintiffs’ disparate impact claim fails, their pattern-or-practice

claim is similarly doomed—they cannot show any reliable, statistical proof of discrimination. 36
To succeed on a pattern-or-practice claim, Plaintiffs must prove more than sporadic acts of
discrimination; rather, they must establish that intentional racial discrimination was Nucor’s
“standard operating procedure.” Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 336 (1977).
Under the Teamsters standard, Plaintiffs must prove that Nucor intentionally discriminated
“regularly and purposefully” in a “repeated” and “routine” fashion, such that Nucor “practiced
racial discrimination throughout all or a significant part of its system[.]” Id. at 335-36, n.16. To
satisfy this burden, Plaintiffs must produce strong statistical evidence, coupled with specific
anecdotal evidence of Nucor’s intent to treat the protected class unequally to discriminate against
the class. EEOC v. Joe’s Stone Crab, 220 F.3d 1263, 1276 (11th Cir. 2000). Anecdotal proof
must ultimately do more than state the mere occurrence of isolated or sporadic discriminatory acts.
Teamsters, 431 U.S. at 335-36. Nucor may defeat a pattern-or-practice claim “by demonstrating
that the [Plaintiffs’] proof is either inaccurate or insignificant,” or by providing a
“nondiscriminatory explanation for the apparently discriminatory result.” Id. at 360, n.46. Here,
Plaintiffs’ skewed statistical evidence and minimal anecdotal evidence falls far short of meeting
the standard to establish a pattern or practice of race discrimination in promotions.

36

Because the criteria used to evaluate pattern-or-practice disparate treatment claims under Title
VII are generally applicable to claims under 42 U.S.C. § 1981, courts typically discuss the claims
together. See, e.g., Caston v. Duke Univ., 1983 WL 30342, at *21 n.2 (M.D.N.C. Oct. 3, 1983)
(citing Lewis v. Cent. Piedmont Cmty. Coll., 689 F.2d 1207 (4th Cir. 1982), cert. denied, 460 U.S.
1040 (1983)); Boykin v. Georgia-Pac. Corp., 706 F.2d 1384, 1393 (5th Cir. 1983).
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The controlling authority weighs heavily in favor of defendants in pattern-or-practice cases
where plaintiffs present only minimal anecdotal evidence and no reliable statistical evidence.
Indeed, courts regularly grant summary judgment or judgment as a matter of law for the defendant
on pattern-or-practice claims due to legally insufficient statistical evidence. For example, in Fed.
Reserve Bank of Richmond, the Fourth Circuit exhaustively reviewed the statistical evidence to
conclude that “the District Court was in clear error in accepting the opinion of plaintiffs’ expert on
statistical significance when that opinion rested on such skewed analyses and which disregarded
the far more reliable tables,…which demonstrated no basis for a finding of statistical significance,
much less legal significance.” 698 F.2d at 661-62.
Additionally, in Coker, where the only anecdotal evidence presented to the district court
was the deposition testimony of three witnesses, the Fourth Circuit held that:
[Such] evidence, coupled with limited—and fatally flawed—
statistical evidence presented by [plaintiff’s expert], is insufficient
to establish a pattern or practice of discrimination, i.e. that racial
discrimination was the [defendant]’s standard operating procedure.
Stated differently, the evidence before the district court, taken in a
light most favorable to [plaintiff], was closely akin to cases
involving isolated or sporadic instances of discrimination as
opposed to cases involving a pattern or practice of discrimination.37
A.

PLAINTIFFS FAIL TO PROVIDE STATISTICALLY SIGNIFICANT EVIDENCE
PATTERN OR PRACTICE OF DISCRIMINATION IN PROMOTIONS.

OF A

As shown above, Plaintiffs have proffered no reliable statistical evidence to show that
intentional racial discrimination in promotion decisions was Nucor-Berkeley’s standard operating

37

2 F.3d 1149; see also King, 33 F.3d 51 (affirming summary judgment where “‘isolated ... or
sporadic discriminatory acts,’ [were] insufficient to support a pattern or practice claim”); EEOC
v. Bloomberg L.P., 778 F. Supp. 2d 458, 471-72 (S.D.N.Y. 2011) (same); EEOC v. Rep. Servs.,
Inc., 640 F.Supp. 2d 1267, 1317-19 (D. Nev. 2009) (same); EEOC v. CRST Van Expedited, Inc.,
611 F.Supp. 2d 918, 952–54 (N.D. Iowa 2009) (granting summary judgment for defendants where
plaintiff presented no statistical evidence); Ste. Marie v. E. R.R. Ass’n, 650 F.2d 395, 405 (2d Cir.
1981).
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procedure. In the present case, Nucor has thoroughly rebutted those statistics and shown they are
defective. 38 Indeed, Nucor has presented credible evidence to the Court showing that Plaintiffs’
statistics rely on faulty data and improper methodologies, and explained how those flaws
improperly bias the results in order to manufacture an artificial statistical significance. Supra Part
I.B. 39 Accordingly, Plaintiffs’ statistical showing does not meet their burden to prove a pattern and
practice of discrimination, and their claim is ripe for summary judgment.
B.

PLAINTIFFS’ ANECDOTAL EVIDENCE IS SIMILARLY INSUFFICIENT TO SUPPORT A
PATTERN-OR-PRACTICE CLAIM OF DISCRIMINATION IN PROMOTIONS.

Without evidence of statistically significant disparities, Plaintiffs must depend on
anecdotal evidence to support their pattern-or-practice claim. When relying solely on anecdotal
evidence to make out a pattern-or-practice claim, Plaintiffs’ evidence must be “correspondingly
stronger” to meet their burden, especially where a decentralized promotion procedure allows
decision makers to consider subjective factors. 40

Like their statistics, however, Plaintiffs’

anecdotal evidence is weak and substantially inadequate to support a promotions pattern-orpractice claim.

38

Ottaviani v. State Univ. of N.Y., 875 F.2d 365, 370 (2d Cir. 1989) (recognizing that defendants
may undermine the plaintiffs’ prima facie case by attacking the validity of that statistical evidence,
or by introducing statistical evidence of their own showing that the challenged practice did not
result in disparate treatment).
39
Specifically, Nucor has introduced statistical evidence showing that Drs. Fox and Bradley’s
statistics were flawed in that (1) they assumed an African-American employee bid on every single
job posting in the plant when calculating their benchmark even though they knew that African
Americans bid on less than half of the jobs, and (2) they also did not take into account preferences
of bidders and assumed all were equally qualified. See supra Part I.B.
40
Bloomberg, 778 F. Supp. 2d at 471, 477 (S.D.N.Y. 2011); see also Ellis v. Elgin Riverboat
Resort, 217 F.R.D. 415, 424 (N.D. Ill. 2003) (“[A] decentralized hiring procedure, which allows
decision makers to consider subjective factors,… cuts against the assertion that an employer
engages in a pattern or practice of discriminat[ion].”)
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The record evidence shows that only 21 out of 157 class members (or 13.3%) have made
an allegation of discrimination in promotions based on race, which is legally insufficient to avoid
summary judgment on Plaintiffs’ pattern-or-practice claim. 41 See Bloomberg, 778 F.Supp. 2d at
479 (rejecting anecdotal evidence of a pattern or practice where “[o]nly 12.9% of the relevant
employee population” alleged discrimination); see also Western Elec., 713 F.2d at 1019 (finding
evidence did not establish pattern-or-practice claim where EEOC was “unable to bolster its
marginal statistical case” with testimony from 16 individual witnesses). Moreover, 68 of 77
African-American employees testified to no personal discriminatory promotion incidents in their
affidavits. 42 The remaining nine employees who stated they felt personally affected in promotions
because of their race were dispersed across four different departments under six different
supervisors, which shows, at most, that these are isolated incidents rather than Nucor’s “standard
operating procedure.” See EEOC v. McDonnell Douglas Corp., 191 F.3d 948, 952-53 (8th Cir.
1999); Coker, 1993 WL 309580 at *6; Dr. Jacobs Report, at 9-10.
In fact, the affidavits in this case consistently reject the idea of a standard operating
procedure of discrimination in Nucor’s promotions process. Rather, the affidavits repeatedly
suggest that the promotions process was fair. See, e.g., Ex._9 (Black Aff., 7; Blackwell Aff., 5;
Blanco Aff., 3; Bowman Aff., 4; Brockington Aff., 3.). For example, one employee specifically
remarked that “[n]ot all African–Americans feel like they have been discriminated against at

41

Even these 21 class members’ individual allegations are unproven and cannot overcome Nucor’s
proffered legitimate, non-discriminatory reason for the challenged promotion decision. See e.g.,
Def.’s Mot. Summ. J. on Singletary’s Claims 7–9, ECF No. 263; Def.’s Mot. Summ. J. on Brown’s
Claims 6–11, ECF No. 264; Def.’s Mot. Summ. J. on Ravenell’s Claims 6–9, ECF No. 265; Def.’s
Mot. Summ. J. on Simmons’ Claims 5–15, ECF No. 266; Def.’s Mot. Summ. J. on Roane’s Claims
7–13, ECF No. 267; Def.’s Mot. Summ. J. on White’s Claims 6–9, ECF No. 268; Def.’s Mot.
Summ. J. on Guy’s Claims 8–17, ECF Nos. 269-270.
42
See Ex. 9, Employee Affidavits.
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Nucor,” and that he was “upset by this racial discrimination issue because it is not something that
has happened to me or is happening across the board here at Nucor.” Carson Aff. ¶ 15. Another
explained “the way things are done here at Nucor are not influenced by race.” Crummey Aff. ¶ 15.
More African-American employees approved of management’s handling of race-related issues in
the plant (see, e.g., Carson Aff. ¶ 15; D. Denmark Aff. ¶ 15; Jenkins Aff., 5–6; Spann Aff. ¶ 15),
explained that they were treated well (see Grundy Aff., 9; D. Hamilton Aff., 8), and often reasoned
that complaints of racism from other employees were unjustified. See Major Aff., 6. Even those
who felt that promotion decisions were not made fairly often blamed factors other than race, such
as a “buddy” system in which supervisors promoted friends. See Dunn Aff., 3; Gethers Aff., 4;
Hunigan Aff., 5; Kiger Aff., 4. This consistent evidence makes it impossible to conclude that
discrimination in promotions is so wide-spread that it is Nucor’s standard operating procedure.
Plaintiffs’ limited anecdotal evidence here, coupled with the fatally flawed statistical
evidence presented by their experts, is insufficient to establish a pattern or practice of
discrimination. According to Fourth Circuit precedent, the evidence before this Court, taken in a
light most favorable to Plaintiffs, is closely akin to cases involving isolated or sporadic instances
of discrimination as opposed to cases involving a pattern or practice of discrimination. Because
there is legally insufficient evidence to support Plaintiffs’ claim that Nucor engaged in a pattern
or practice of discrimination in promotions, summary judgment is proper.
III.

PLAINTIFFS’ EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT A
PATTERN-OR-PRACTICE HOSTILE WORK ENVIRONMENT CLAIM.
To establish a hostile work environment claim, Plaintiffs must demonstrate that the alleged

conduct: (1) was unwelcome; (2) resulted because of their race; (3) was sufficiently severe or
pervasive to alter the conditions of their employment; and (4) was imputable to Nucor. Pueschel
v. Peters, 577 F.3d 558, 564–65 (4th Cir. 2009) (citing Ocheltree v. Scollon Prods., Inc., 335 F.3d
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325, 338 (4th Cir. 2003) (en banc)). The uncontroverted facts in this case refute the third and
fourth element of Plaintiffs’ claim.
The facts also defeat Plaintiffs’ allegations that Nucor engaged in a pattern or practice of
allowing or encouraging a hostile work environment. “Class actions alleging a pattern or practice
of discrimination [] are governed by the analytical framework established by the Supreme Court
in Teamsters.” Muhammad v. Giant Food Inc., 108 F. App’x 757, 761 (4th Cir. 2004). According
to Teamsters, to prove a pattern-or-practice claim, Plaintiffs must establish by a preponderance of
the evidence that Nucor had a policy of knowingly encouraging a hostile work environment as its
standard operating procedure, rather than an unusual practice. Teamsters, 431 U.S. at 336; see
also EEOC v. Am. Nat'l Bank, 652 F.2d 1176, 1188 (4th Cir. 1981). Pattern or practice evidence
typically consists of expert statistical evidence and employee anecdotes examining a large number
of employment actions reflecting that illegal discrimination is an employer’s “standard operating
procedure[—]the regular rather than unusual practice.” Teamsters, 431 U.S. at 336. Here, there
is no expert statistical evidence addressing hostile work environment, so the Plaintiffs must present
anecdotal evidence sufficient to not only meet the significantly difficult individual hostile work
environment elements, but also show that the alleged conduct occurred on a pattern or practice/
company-wide basis. As is shown below, they can do neither.
A.

PLAINTIFFS CANNOT MEET THE SEVERE OR PERVASIVE STANDARD
HOSTILE WORK ENVIRONMENT PATTERN-OR-PRACTICE CLAIM.

OF A

“[P]laintiffs must clear a high bar in order to satisfy the severe or pervasive test.” Sunbelt,
521 F. 3d at 315. “This standard is designed to filter out complaints attacking the ordinary
tribulations of the workplace, such as the sporadic use of abusive language, [] jokes, and occasional
teasing.” Ocheltree, 335 F.3d at 333. A hostile work environment is one “permeated with
discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the
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conditions of the victim'’ employment and create an abusive working environment.” Harris v.
Forklift Sys., Inc., 510 U.S. 17, 21 (1993); see also Nat’l R.R. Passenger Corp. v. Morgan, 536
U.S. 101, 116 (2002). The “environment must be both objectively and subjectively offensive, one
that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive
to be so.” Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998).
To determine whether the conduct was objectively severe or pervasive, courts consider
“the frequency of the discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an
employee's work performance.” Harris, 510 U.S. at 23; see also Faragher, 524 U.S. at 788. No
single factor is dispositive, but “isolated incidents of hostile or abusive language are typically
insufficient to support a hostile work environment claim.” Faragher, 524 U.S. at 788.
Plaintiffs present no statistical evidence in support of their hostile work environment
claims, and, as discussed throughout this memorandum, the statistical data presented on the
promotions claims is flawed. The actual data establishes no discrimination in promotions took
place. The lack of statistical evidence relating to hostile work environment is not surprising, as
most of the class members attest that they have not experienced racial hostility at the plant. Just
like in promotions, the evidence in this case consistently rejects the idea of a standard operating
procedure of discrimination or harassment in Nucor’s work environment.
Indeed, Plaintiffs’ proof consists entirely of incidents allegedly experienced by 16
employees. These employees’ allegations, many of which involve one-time incidents experienced
individually, do not meet the severe or pervasive standard and are the architype of sporadic or
isolated incidents. For example, Named Plaintiff Jacob Ravenell makes no allegation that he heard
a single racial slur during his 13 years of employment at Nucor Berkeley. (J. Ravenell Decl., ECF

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No. 185-5). Jacob Ravenell’s hostile work environment allegations consist of one offensive email
and the display of the confederate flag, which he admitted does not bother him. J. Ravenell Aff.,
10. Aaron Butts’ and Jerry Nick’s declarations do not contain a single allegation of harassment or
offensive conduct. Butts Decl., ECF No. 185-11; Nick Dec., ECF No. 185-12. Kenneth Hubbard
only points to the display of the confederate flag, which he also admitted did not offend him.
Hubbard Aff., 10.

In fact, although 14 of the 16 witnesses referenced the display of the

confederate flag, five stated that it did not bother them. Hubbard Aff., 10; E. Ravenell Aff., 7; J.
Ravenell Aff., 11; Spann Aff., 11; Turner Aff., 13. Just six of Plaintiffs’ 16 witnesses alleged
viewing a racially offensive email, and five of the six admit this was a one-time occurrence. Brown
Decl., ECF No. 185-3; Guy Decl., ECF No. 185-8; J. Ravenell Decl., ECF No. 185-5; Spann Aff.,
10; White Decl., ECF No. 185-6. The remaining declarations submitted by Plaintiffs point to no
more than one or two examples of offensive language or things they overheard or were not directed
to the particular class member.
As discussed in Section II.B. above, the affidavits Nucor collected further demonstrate that
many African-American employees believe they were treated well and fairly. In fact, at least 25
of the affiants testified to no personal instances of harassment or hostile work environment, 43 at
least 36 testified to never personally hearing a racial slur at Nucor Berkeley, 44 and 16 testified that

43

Blackwell Aff., 6-7; Grant Aff., 6-7; Bowman Aff., 5-7; Jamison Aff., 6-7; Clinton Aff., 4-6;
C. Davis Aff. 5-7; I. Denmark Aff., 5-7; Gerena Aff., 4-6; Grundy Aff., 6-7; D. Hamilton Aff., 57; Harleston Aff., 8-10; W. Hudson Aff., 4-6; Lee Aff., 7-8; Litchfield Aff., 4-6; Lowe Aff., 5-6;
B. McCutchen Aff., 8-9; Phillips Aff., 5-7; Robinson Aff., 5-7; G. Roper Aff., 5-7; T. Roper Aff.,
5-6; Williams Aff., 6-8; Barnes Aff., 9-10; Hunigan Aff., 6-8; Alex Simmons Aff., 5-7; Webster
Aff., 7-9.
44
Grant Aff., 6; Bowman Aff., 5; Brockington Aff., 5-7; Jamison Aff., 6; B. Middleton Aff., 5-6;
Clinton Aff., 4; C. Davis Aff., 5; I. Denmark Aff., 5; Grundy Aff., 6; D. Hamilton Aff., 5; Harleston
Aff., 8-9; W. Hudson Aff., 4; Lee Aff., 7; Litchfield Aff., 4; Lowe Aff., 5; B. McCutchen Aff., 8;
Phillips Aff., 5; Robinson Aff., 5; G. Roper Aff., 5; T. Roper Aff., 5; Williams Aff., 6; Jenkins
Aff., 6-7; Barnes Aff., 9; Sheppard Aff., 5; Hunigan Aff., 6-7; M. Hamilton Aff., 9; Irving Aff., 7;
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the confederate flag was the only potentially racial symbol they witnessed (many of whom did not
take personal offense to its display). 45
Ultimately, Plaintiffs’ allegations of racially offensive comments and images over the
course of a 10-year period are isolated and sporadic. Circuit courts across the country have
affirmed grants of summary judgment where, as here, the conduct alleged fails to meet the severe
or pervasive standard. Mosby-Grant v. City of Hagerstown, 630 F.3d 326 (4th Cir. 2010) (held
that when African-American police academy recruit overheard racially derogatory comments
made twice in five months which were not directed toward her was not sufficiently severe or
pervasive); Gibson v. Fluor Daniel Services Corp., 281 Fed. Appx. 177 (4th Cir. 2008) (racist
graffiti and use of racially offensive derogatory remarks was not sufficiently severe or pervasive
to alter the conditions of employment or create an abusive atmosphere); Fuentes v. Borough of
Watchung, 286 Fed. Appx. 781 (3d Cir. 2008) (a derogatory joke told more than once and
pejorative comment about Puerto Ricans, when viewed in context of fifteen years of employment,
did not rise to type of extreme harassment that changed the terms and conditions of employment);
Willis v. Henderson, 262 F.3d 801 (8th Cir. 2001) (African–American employee's receipt of a
racist cartoon at his workstation and unpleasant conduct and rude comments by coworkers, were
not severe or pervasive enough to create an objectively hostile or abusive work environment);
Bolden v. PRC Inc., 43 F.3d 545 (10th Cir. 1994) (held that plaintiff failed to present the requisite

Dasgupta Aff., 7; Roberson Aff., 7-8; Alex Simmons Aff., 5-6; Carson Aff., 5; Webster Aff., 7-8;
Gerena Aff., 4; Runnels Aff., 7; Blackwell Aff., 6; P. Hudson Aff., 6.
45
Grant Aff., 7 (noting he does not care who has the flag on their car); Brockington Aff., 6 (noting
he has only seen the flag on cars, not within the plant, and he is not offended by it); B. Middleton
Aff., 6 (same); I. Denmark Aff., 6 (same); Grundy Aff., 7 (same); Phillips Aff., 6 (same); Harleston
Aff., 9-10 (stating that Nucor addressed the problem and took employee concerns seriously);
Jenkins Aff., 8; Sheppard Aff., 6 (not bothered by it); Carson Aff., 6 (same); M. Hamilton Aff.,
10-11; Irving Aff., 7-10; Dasgupta Aff., 7-10; Roberson Aff., 8-9; Runnels Aff., 9; P. Hudson Aff.,
6-8.
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evidence of a “a steady barrage of opprobrious racial comments” where over the course of eight
years, he complained of only two overtly racial remarks in that the n-word was used and he was
told to “be careful because we know people in the Ku Klux Klan”).
No class member, even on an individual basis, has proffered evidence of a work
environment so severe, pervasive, and abusive that it altered working conditions. It follows that
Plaintiffs cannot establish a class-wide pattern-or-practice harassment claim across multiple
departments of the plant.
B.

EVEN ASSUMING PLAINTIFFS MET THE SEVERE OR PERVASIVE STANDARD,
PLAINTIFFS CANNOT MAKE THE REQUISITE SHOWING THAT DEFENDANTS ARE
RESPONSIBLE FOR THE ALLEGED HOSTILE WORK ENVIRONMENT.

Under a hostile environment claim, an employer may avoid vicarious liability for violations
by its employees by demonstrating reasonable preventative and corrective/remedial efforts.
Faragher, 524 U.S. at 807. The Faragher-Ellerth defense is ostensibly available to an employer
for an actionable hostile environment created by a supervisor with immediate or successively
higher authority over the employee in the absence of a tangible employment action. Id.; Burlington
Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998). “The defense comprises two necessary elements:
(a) that the employer exercised reasonable care to prevent and correct promptly any [] harassing
behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the employer or to avoid harm otherwise.”
Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at 765.
Throughout the class period, Nucor maintained policies that prohibited discrimination and
harassment along with a mechanism for reporting alleged mistreatment. Employment Policies,
Ex. 12; Harassment Policies, Ex. 13; Complaint Procedure, Ex. 14. A review of the affidavits
demonstrates that just 18 of the 77 affiants ever allege making a complaint to any member of

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management at Nucor Berkeley. 46 Of those who have reported an incident to management, nearly
half admit that Nucor took prompt remedial action to correct the alleged wrongdoing and felt they
were treated fairly thereafter. 47 Another 10 employees admit that despite a failure to complain,
Nucor took action. 48 Craig Dennard actually testified that he did not have time to complain about
graffiti he saw in 2001 because Nucor Berkeley had painted over the graffiti the very next day.
Dennard Aff., 7. In sum, Plaintiffs cannot show that the standard operating procedure at Nucor
Berkeley was to subject its employees to a hostile work environment. The opposite is true. Nucor
Berkeley had a pattern and practice of taking reasonable care to prevent and correct promptly any
harassing behavior. Accordingly, summary judgment is appropriate.
CONCLUSION
For the reasons stated above, Nucor respectfully requests that the Court enter an Order
granting summary judgment in its favor on all claims asserted by Plaintiffs in the Third
Amended Complaint under Federal Rule of Civil Procedure 56.

46

See Ex. 9, Employee Affidavits.
See e.g., Blackwell Aff., 3; W. Brown Aff., 6.; Davis Aff., 4; D. Denmark Aff., 8-9; T. Denmark
Aff., 9; Lawrence Aff., 7; Scott Aff., 3-4; Gethers Aff., 10.
48
Major Aff., 7 (stating that an employee who used racial slur was suspended, Ladd Hall sent a
memo condemning an offensive email, and “[a]nytime management at Nucor hears about anything
that [is] racially insensitive or discriminatory, they act immediately to remedy the situation); Dunn
Aff., 10 (stating that Nucor sent out an email banning the confederate flag); Gethers Aff., 7-8
(stating that Ladd Hall handled an offensive email effectively); M Hamilton Aff., 10-11; (stating
that Nucor sent out an email banning the confederate flag); P. Hudson Aff., 7 (stating that Paul
Ferguson made employees remove the confederate flag); Irving Aff., 9 (stating that supervisor
Forsell asked an employee to remove a confederate flag sticker from a locker); Lawrence Aff., 7
(stating that Supervisor Hamblin addressed a racial comment and the alleged wrongdoer
apologized as a result); Porcher Aff., 11 (stating that an employee who used the n-word was
suspended and Ladd Hall sent out a plant-wide email regarding the proper use of the email system
in response to a “questionable” email); Snider Aff., 9 (stating that Brian Kurtz sent out an email
regarding the proper use of the email system and Nucor’s non-discrimination policy in response
to an offensive email and Nucor banned the confederate flag); Harleston Aff., 9-10.
47

33