On December 8, 2003, thirteen African Americans filed a class action lawsuit in the U.S. District Court for the Western District of Arkansas against Nucor Corporation. Represented by private counsel, the plaintiffs alleged that Nucor discriminated against them on the basis of race, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and Section One of the Civil Rights Act of 1866, 42 U.S.C. 1981a. The plaintiffs sought injunctive relief, equitable remedies, back pay, compensatory and punitive damages, and attorney's fees.

On August 24, 2004, the District Court (Judge Harry F. Barnes) severed the plaintiffs' claims into four cases and transferred each to the judicial district in which the unlawful employment practices allegedly occurred. Accordingly, this case was transferred to the District of South Carolina.

For the next nine years, the parties engaged in a protracted legal battle concerning class certification. Initially, on August 7, 2007, the District Court (Judge C. Weston Houck) denied plaintiffs' motion for class certification. But exactly two years later, this ruling was overturned by the Fourth Circuit Court (before Judge M. Blane Michael, Judge Roger L. Gregory, and Judge G. Steven Agee). Brown v. Nucor Corp., 576 F.3d 149 (4th Cir. 2009). The District Court subsequently granted certification on February 16, 2011, although it modified the class composition on April 27, 2011, upon the defendants' request. The Court defined the class as "All African-Americans who are . . . or were employed by Nucor Corporation . . . at any time between December 2, 1999 . . . in the beam mill, hot mill, cold mill, melting, maintenance, and shipping departments, and who may have been discriminated against because of Nucor's challenged practices."

The battle continued. After the Supreme Court's decision in Wal-Mart Stores v. Dukes in June 2011, the defendants' filed a motion to decertify the class. On September 11, 2012, the Court granted the motion with respect to what it termed plaintiffs' disparate treatment and disparate impact claims, but denied the motion with respect to the plaintiffs' hostile work environment claim.

Both parties appealed the district court's decision in different ways. Below is a brief summary of how both issues progressed following the September 2012 order. The "Discriminatory Job Promotion Practices" section of this summary refers to the plaintiffs' disparate treatment and disparate impact claims, and is so titled because of the way that the Fourth Circuit later labeled these claims.

Hostile Work Environment Claim
The defendants again sought to decertify the class based on the hostile work environment claim, this time based on the United States Supreme Court's decision in Comcast Corp v. Behrend, 569 U.S. 27 (2013), but the District Court again denied to do so on September 27, 2013. The defendants moved for reconsideration but the court denied that on February 14, 2014.

The defendants eventually sought permission to appeal under Rule 23(f), but on July 25, 2014, the Fourth Circuit denied the request as untimely, explaining that Rule 23(f) permits review only when an appeal from a certification order is filed within fourteen days of the order. The Circuit Court treated the September 11, 2012 order as the order at issue, and explained that the four motions for decertification of the hostile work environment class did not affect the time component here. These four motions by the defendant did not reset the time for appeal because none of the District Court rulings in response to them altered the original ruling of the District Court on this issue. It explained that holding otherwise would render 23(f)'s deadline "toothless" by allowing parties to circumvent it by filing motions to amend or decertify at any time after the district court's original order on the issue. On August 25, 2014, the Fourth Circuit denied to rehear the issue en banc.

Discriminatory Job Promotion Practices Claim
The plaintiffs originally responded to the September 11, 2012, order that granted decertification of the class with regard to the disparate treatment and disparate impact claims by filing a motion to amend the order on September 25, 2012. The District Court denied this motion to amend on April 5, 2013, finding that the plaintiffs had failed to show that the Court had committed a clear error of law. The plaintiffs then sought permission to appeal the District Court's order decertifying the class in this respect, and the Fourth Circuit granted permission to appeal on June 18, 2013.

On May 11, 2015, the Fourth Circuit agreed with the plaintiffs and vacated the portion of the District Court's September 11, 2012 order that had decertified the class with regard to the disparate treatment and disparate impact claims. The Fourth Circuit opinion referred to these claims as "discriminatory job promotion practices" claims. In answering the question of whether the workers had presented a common question of employment discrimination through evidence of racism in the workplace, the Fourth Circuit explained that "the critical question is thus not whether the data used is perfect but instead whether it is reliable and probative of discrimination." It reasoned that the plaintiffs' statistical evidence was methodologically sound and yielded results that satisfied Wal-Mart's heightened requirement of commonality. It also explained that the surrounding circumstances and anecdotal evidence of discrimination in this case helped animate the statistical findings in a way that made them legally significant.

In light of the Fourth Circuit's holding, the District Court certified the promotions class on December 22, 2015. With both the promotions class and the hostile work environment class certified, the litigation proceeding through discovery and other motions practice for years. On July 26, 2017, the case was reassigned to Judge David C. Norton.

On December 26, 2017 the parties filed a joint motion for preliminary approval of a settlement agreement. The Court granted preliminary approval the following day. Under the agreement, the settlement class would be comprised of: "all African-Americans who are, or were employed by Nucor Corporation or Nucor Steel Berkeley at the Nucor Berkeley manufacturing plant in Huger, South Carolina at any time between December 2, 1999 and April 27, 2011, in the beam mill, hot mill, cold mill, melting, maintenance, and shipping departments, and who may have been discriminated against because of Nucor's challenged practices, and who did not opt out of the class."

The settlement awarded an aggregate amount of $22,500,000, which defendants would put into a fund that would be distributed to individual members and that would also be used to pay class counsels' attorneys' fees and expenses, class representatives' expenses, notice and administration costs, and other applicable taxes and fees. The amount of each individual settlement payment would be based on information provided through claim forms that would assess the relative strength of the alleged merits of the settlement class member's claim(s) based on various factors outlined in the agreement. In addition to reimbursement of reasonable expenses, the settlement included an agreement by defendants not to object to attorneys' fees of up to $10,000,000.

The settlement also contained provisions awarding injunctive relief in which Nucor agreed to take certain actions with regard to Nucor Steel Berkeley. Among other things, these provisions included Nucor providing training on non-discrimination/harassment, and Nucor incorporating various provisions into the appropriate company policies to deal with any complaints of discrimination and/or harassment.

On February 22, 2018, the Court granted final approval of the settlement, finding it fair, reasonable, and adequate as required by F.R.C.P. Rule 23. The final agreement provided monetary relief totaling $22,500,000. Of this, $10,000,000 would go to class counsel for attorneys fees, and another $975,699.22 would go to counsel for reimbursement of costs. The Court also approved $40,000 service payments to each of the class representatives. The remaining money would go into the fund so that it could be distributed to individual members of the class under the terms of the agreement. Final judgment on the class litigation was entered on April 13, 2018.

The only remaining issue at that point was one individual class member's request to opt out of the class. The Court resolved this on December 7, 2018, finding that this individual plaintiff was bound by the January 2017 opt-out deadlines included in the class notice and was therefore unable to opt out of the class.

Any remaining litigation between these parties was officially ended on December 27, 2018, when the Court granted a joint stipulation for dismissal with prejudice.

Jordan Rossen - 01/30/2014
Chris Pollack - 04/20/2019


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