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Brown v. Nucor Redux

For the second time, the Fourth Circuit has reversed the District Court’s decertification of a putative class in Brown v. Nucor, No. 13-1779, (May 11, 2015).  The Nucor Plaintiffs  sought certification for their Title VII and Section 1981 claims of failure to promote based on race.  After the Fourth Circuit reversed the District Court’s decertification Order in 2009 (Brown v. Nucor, 576 F.3d 149), the case went back to the District Court for further discovery.  The 2009 Nucor case is a significant precedent in the Fourth Circuit, because it provides a Plaintiff favorable interpretation of the Supreme Court’s decision in Walmart v. Dukes (131 S.Ct. 2541).  In fact, the 2009 Nucor decision represents one of the few precedent where the Fourth Circuit’s caselaw can be considered more employee favorable as compared to its sister circuits.

The 2015 Nucor decision (rendered by the same appellate Panel) does nothing to undermine the effect of the 2009 Nucor decision.  In reversing the District Court’s decertification Order, the Fourth Circuit held that while Dukes “recalibrated and sharpened the lens through which a court examines class certification decisions under Rule 23(a)(2),” the District Court “unnecessarily revisited other discrete determinations made by this Court in Brown I, such as whether the Nucor plant should be treated analytically as a single entity, and whether the class independently met the requirements of Rule 23(b)(3).”

Reading between the lines of the decision, it seems clear that the majority’s analysis of the relevant class factor tests was informed by its view of the realities of the Nucor plant.  The majority found that “plaintiffs presented a record of ‘unadulterated, consciously articulated, odious racism throughout the Nucor plant and further that “[i]t is difficult to fathom how widespread racial animus of the type alleged here, an animus that consistently emphasized the inferiority of black workers, bears no relationship to decisions whether or not to promote an employee of that race …. Justice is not blind to history, and we need not avert our eyes from the broader circumstances surrounding employment decisions, and the inferences that naturally follow.”

In sum, the majority was unwilling to allow the Defendant’s arguments concerning the technical elements of the class certification rules to defeat what it saw as a meritorious class claim that should be presented, and determined, as a class.  The Court’s pragmatism in this regard led to an excellent result for employees in the Fourth Circuit.