UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Transcription

1 UNTED STATES COURT OF APPEALS FOR THE FOURTH CRCUT QUNTON BROWN, JASON GUY, RAMON ROANE, ALVN SMMONS, SHELDON SNGLETARY, GERALD WHTE, and JACOB RAVENELL, ndvdually and on behalf of the class they seek to represent, ;. ' Plantffs-Appellants,,, V,, NUCOR CORPORATON and NUCOR STEEL-BERKELEY, Defendants-Appellees. ON APPEAL FROM THE UNTED STATES DSTRCT COURT FOR THE DSTRCT OF SOUTH CAROLNA CHARLESTON DVSON '_, Armand Defner D. Peters Wlbom, Jr. Derfner, Altman & Wlbom 40 Calhoun Street, Sute 410 Charleston, S.C (843) BREF FOR PLANTFFS-APPELLANTS Robert L. Wggns, Jr. Ann K. Wggns Susan Donahue Wggns, Chlds, Qunn & Pantazs, The Kress Buldng th Street North Brmngham, Alabama ATTORNEYS FOR PLANTFFS-APPELLANTS

2 APPEAL NO UNTED STATES COURT OF APPEALS QUNTON BROWN, JASON GUY, RAMON ROANE, ALVN SMMONS, SHELDON SNGLETARY, GERALD WHTE, and JACOB RAVENELL, ndvdually and on behalf of the class they seek to represent, V_ Plantffs-Appellants, NUCOR CORPORATON and NUCOR STEEL-BERKELEY, Defendants-Appellees. FOR THE FOURTH CRCUT CERTFCATE OF NTERESTED PERSONS AND CORPORATE DSCLOSURE STATEMENT Counsel for Appellants certfes that the followng s a complete lst of the tral judges; attorneys nvolved n the case; and all persons, assocatons of persons, frms, partnershps, and corporatons havng an nterest n the outcome of ths case: 1. Plantff-Appellants: Qunton Brown, Jason Guy, Ramon Roane, Alvn Smmons, Sheldon Sngletary, Gerald Whte, and Jacob Ravenell, ndvdually and on behalf of the class they seek to represent; C-1 of C-2

3 l Brown, et al. v. Nucor Corp., et al. Appeal No Rchard D. Alanz, Cary A. Farrs, Terry E. Schraeder; Davd M. Mnces, Marcus Roland Patton, and the attorneys workng for or wth the frm of Alanz & Schraeder, LLP attorneys for the defendants-appellees; 3. Armand Defner, D, Peters Wlbom, Jr., Aaron Tobas Polkey, and the attorneys workng for or wth the frm of Derfner, Altman & Wlborn, attorneys for the plantffs-appellants; 4. E. Duncan Getchell, Jr., and the attorneys workng for or wth the frm of McGure Woods LLP, Attorneys for Defendant-Appelllee;, Honorable C. Weston Houck, Unted States Dstrct Judge; 6. Honorable George C. Kosko, Unted States Magstrate Judge;, Nucor Corporaton, Defendant-Appellee; Nucor Steel Berkeley, Defendant-Appellee; Robert L. Wggns, Jr., Ann K. Wggns, Susan G. Donahue, and the attorneys workng for or wth the frm of Wggns, Chlds, Qunn and Pantazs, LLC, Attorneys for Plantff-Appellant; C-2 of C-3

4 Brown, et al. v. Nueor Corp., et al. Appeal No John S. Wlkerson,, Nosz Ralephata, and the attorneys workng for or wth the frm of Turner, Padget, Graham & Laney, P.A. attorneys for the defendants-appellees. Of Counsel C-3 of C-3

5 TABLE OF CONTENTS PAGES: CERTFCATE OF NTERESTED PERSONS AND CORPORATE DSCLOSURE STATEMENT... C-1 - C-3 TABLE OF CONTENTS... TABLE... OF AUTHORTES... STATEMENT OF JURSDCTON... 1 STATEMENT OF SSUES... 1 STATEMENT OF CASE... 2 V. STATEMENT OF FACTS... 4 Ao B. Sze And Organzaton Of The Berkeley Plant... 4 The Court Found That A Subjectve Promoton Procedure Was Used Throughout The Plant Co Department Managers And Supervsors Fostered A Racally Hostle Work Envronment Throughout The Plant Wo SUMMARY OF ARGUMENT ARGUMENT STANDARD OF REVEW DSCUSSON OF SSUES A. Racally Hostle Envronment Presents Common Questons Of Fact And Law That Are Approprate For Certfcaton As A Class

6 gt TABLE OF CONTENTS PAGES: The Dstrct Court Erred n Denyng Class Certfcaton Once t Found A Dscrmnatory Subjectve Promoton Procedure That Was Common Throughout the Plant o Racally Subjectve Promoton Procedures Satsfy The Standards For Class Certfcaton o The Promotons At ssue Should Not Have Been Segmented nto Numbers Too Small To Detect A Statstcal Pattern Even When t Exsts a b. Applcant-Based Statstcs Should Not Have Been Requred Once Nucor Destroyed ts Applcatons For Promoton Excludng Promotons Made By The Same Department Managers Who Refused To Promote The Named Plantffs Was An Error And An Abuse of Dscreton. 46 o The Court Erroneously Precluded Use Of The 80% Standard For Dsparate mpact The Dstrct Court Went Too Far nto The Merts C, Plantffs Were Adequate Class Representatves Because They Sought Promoton To The Same Jobs, But Not The Same Vacances n Such Jobs, As Other Class Members CONCLUSON STATEMENT REGARDNG ORAL ARGUMENT CERTFCATE OF COMPLANCE CERTFCATE OF SERVCE

7 TABLE OF AUTHORTES PAGES: A Helpng HandLLC v. Baltmore County, Maryland, 515 F.3d 356 (4 th Cr. 2008) Adams v. Donnelley & Sons, 2001 WL (N.D. ll. 2001) * Allen v. nternatonal Truck & Engne Corp., 358 F.3d 469 (7thCr. 2004)... 26, Anderson v. The Boeng Co., 222 F.R.D. 521 (N.D. Ok. 2004) Ardrey v. Unted Parcel Servce, 798 F.2d 679 (4thCr, 1986) Barrett v. Appled Radant Energy Corp., 240 F.3d 262 (4thCr. 2001) Bazemore v. Frday, 478 U.S. 385 (1986) Beckmann v. CBS, nc., 192 F.R.D. 608 (D. Mnn. 2000) Berry v. Delta Arlnes, nc., 260 F.3d 803 (Tth Cr.2001) * BreMller v. Cleveland Psychatrc nst., 195 F.R.D. 1 (N.D.Oho 2000)... 25, 31 Broussard v. Meneke Dscount Muffler Shops, nc., 155 F. 3rd331 (4th Cr. 1998) * Brown v. Eckerd Drugs, lnc., 663 F.2d 1268 (4thCr. 1981)... 24, 32, 55, 58 --

8 TABLE OF AUTHORTES PAGES: Burlngton ndustres, nc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) Capac v. Katz & Besthoff, nc., 711 F.2d 647 (5 th Cr. 1983)... 42, 49 * Cardad v. Metro-North Commuter R.R., 191 F.3d 283 (2d Cr.1999) Chsolm v. U. S. Postal Servces, 665 F.2d 482 (4th Cr. 1981) College Loan Corp. v. SLM, Corp., 396 F.2d 588 (4th Cr. 2005) * Cooper v. Federal Reserve Bank, 467 U.S. 867 (1984)... 33, 37, 39, 54 * Cox v. Amercan Cast ron Ppe Co., 784 F.2d 1546 (llth Cr.1986)... 36, 39 Dean v. nternatonal Truck, 220 F.R.D. 319 (N.D. ll. 2004) Dothard v. Rawlnson, 433 U.S. 321 (1977) * Dukes v. Wal-Mart, 509 F.3d 1168 (9 _ Cr. 2007) , 51 Dukes v. Wal-Mart Stores, nc., 222 F.R.D. 137, (N.D. Calf. 2004) * Eddy v. Waffle House, 482 F.3d 674 (4 _ Cr. 2007) v-

9 TABLE * EEOC v. Amercan Natonal Bank, OF AUTHORTES PAGES: 652 F. 2d 1176 (4 th Cr. 1981)... 41, 42 * EEOC v. Burlngton Medcal Supples, nc., 536 F. Supp. 2d 647 (E.D. Va. 2008)..,... 21, 27, 28, 30, 31 * EEOC v. Mtsubsh Motor Manufacturng of Amerca, nc., 990 F.Supp (C.D )... 25, 31 EEOC v. Sunbelt Rentals, nc., 521 F.3d 306 (4 _ Cr. 2008)... 27, 34 Employees Commttee v. Eastman Kodak Co., 407 F. Supp 423 (W.D.N.Y. 2005) Faragher v. Cty of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) General Telephone Co. v. Falcon, 457 U.S. 147 (1982) General Telephone Co. of the Northeast v. EEOC, 446 U.S. 318 (1980) Graffam v. Scott Paper Co., 870 F. Supp. 389 (D. Mane 1994) * Gunnells v. Healthplan Servces, nc., Hartman 348 F.3d 417 (4 _ Cr. 2003)... 30, 54 v. Duffy, 158 F.R.D. 525 (D.D.C. 1994) * Hll v. Western Electrc Co., nc., 596 F.2d 99 (4 th Cr. 1979) V-

10 TABLE OF AUTHORTES PAGES: * Holsey v. Armour & Co., 743 F.2d 199 (4 th Cr. 1984) , 32, 45 Hopkns v. Baltmore Gas and Electrc Co., 77 F.3d 745 (4 th Cr. 1996) Howard v. Wnter, 446 F.3d 559 (4th Cr.2006) Hunter v. Amercan Gen. Lfe & Accdent ns. Co., 2004 WL (D.S.C. 2004) n Re Polypropylene Carpet, 178 F.R.D. 603 (N.D. Ga. 1997) nternatonal Brotherhood of Teamsters v. Unted States, 431 U.S. 324 (1977)... 33, 37, 39, 40, 45, 54 nternatonal Woodworkers of Amerca v. Chesapeake Bay Plywood Corp., 659 F.2d 1259 (4 _ Cr. 1981) ,32, 40 Jarvase v. Rand Corp., 212 F.R.D. 1 (D.D.C. 2002) Jenson v. Eveleth Taeonte Co., 130 F. 3d 1287 (8 _Cr. 1999) Jones v. Ford Motor Credt Co., 2005 WL * 8 (S.D.N.Y. 2005) Koon v. Unted States, 518 U.S. 81 (1996) v-

11 m TABLE OF AUTHORTES Latno Offcers Assocaton v. The Cty of New York, PAGES: 209 F.R.D. 79 (S./D. N.Y. 2002) Ledbetter v. Goodyear Tre & Rubber Co., 127 S. Ct (2007) Lews v. Bloomsburg Mlls, nc., 773 F. 2d 561 (4 thcr. 1985) Lenhart v. Dryvt Systems, nc., 255 F.3d 138 (4th Cr. 2001) * Llly v. Harrs-Teeter Supermarket, 720 F2d 326 (4 th Cr. 1983)... 32, 35, 41, 42, 46, 49, 52 Lowery v. Crcut Cty, nc., Markham 158 F.3d 742 (4 _ Cr. 1998)... 22, 33, 40 v. Whte, 171 F.R.D XT.D )... 26, 31 Mathers v. Northshore Mnng Co., 217 F.R.D. 474 (D. Mnn. 2003) Matyasovsky v. Housng Authorty of The Cty of Brdgeport, McClan 226 F.R.D. 35 (D. Conn. 2005) v. Luflcn nd., nc., 187 F.R.D. 267 (E.D. Tex. 1999) *McClan v. Lufl_n nd., nc., 519 F.3d 264 (5 _ Cr. 2008)... 37, 41, 44, 57 -v-

12 TABLE OF AUTHORTES PAGES: McKnght v. Crcut Cty Stores, 1996 WL , **3-4 (E.D. Va. 1996) * McReynolds v. Sodexho Marrott Servces, nc., 208 F.R.D. 428 (D.C. 2002) Meresonne v. Marrott Corp., 124 F.R.D. 619 (N.D. ll. 1989) Morgan v. Unted Parcel Servce, nc., 169 F.R.D. 349 (E.D. Mo. 1996) Mullgan v. South Carolna Dept. of Transp., 446 F.Supp.2d 446 (D.S.C. 2006)... 51, 53 * Natonal Ralroad Passenger Corp. v. Morgan, 536 U.S. 101,115 (2002)... : , 27 Newsome v. Up-To-Date Laundry, nc., 219 F.R.D. 356 (D. Md. 2004)... 25, 27, 30-31, 39-40, 40 Pettway v. Amercan Cast ron Ppe Co., 494 F.2d 211 (5 th Cr. 1974) Raczak v. Amertech Corp., 03 F.3d 1257, (62 Cr. 1997) Segar v. Smth, 738 F.2d 1249 (D.C.Cr.1984) * Shpes v. Trnty ndus., 987 F.2d 311 (5th Cr.1993) Shores v. Publx Super Markets, nc., 1996 WL (M.D. Fla. 1996) v-

13 TABLE OF AUTHORTES PAGES: Sledge v. J. P. Stevens & Co., nc., 585 F.2d 625 (4 thcr. 1978) Smth v. Nke Retal Servces, nc., 2006 WL (N.D. ll. 2006)... 26, 31 Smth v. Unversty of Washngton Law School, 2 F. Supp. 2d 1324 (W.D. Wa. 1998) Sprggs v. Damond Auto Glass, 242 F.3d 179 (4 th Cr. 2001)... 28, 34, Staton v. Boeng Co., 327 F.3d 938 (9th Cr.2003) l Thorn v. Jefferson Plot Lfe ns. Co., 445 F.3d 311 (4 th Cr. 2006) , 52 Toney v. Rosewood Care Center, nc. of Jolet, Underwood 1999 WL (N.D. ll. 1999) v. Lehman, 530 F. Supp. 139 (D.S.C. 1982) U.S. v. County of Farfax, 629 F. 2d 932 (4 th Cr. 1980) Wasome v. The Port Authorty of New York and New Jersey, 948 F.2d 1370 (2 ndcr. 1991) Ward's Cover Packng Co. v. Atono, 490 U.S. 642 (1989) Warnell v. Ford Motor Co., 189 F.R.D. 383 (N.D. ll. 1999) x-

14 TABLE OF AUTHORTES PAGES: Warren v. Xerox Corp., 2004 WL (E.D.N.Y. 2004) Watson v. Fort Worth Bank and Trust, 487 U.S. 977 (1988)... 37, 40-41, Whte v. BF Waste Servces, nc., 375 F.3d 288 (4 th Cr. 2004) Wseman v. Frst Ctzens Bank & Trust Co., 212 F.R.D. 482 (N.C. 2003) STATUTES: Federal Rule of Cvl Procedure , 25, 29, 30, 32, 33, 36, 39, 53, 57 Federal Rule of Cvl Procedure 23(a)... 30, 31, 35 Federal Rule of Cvl Procedure 23 (a)(2) OTHER AUTHORTES: 8 Newberg on Class Actons (4 th ed.) Paetzold's and Wlbom's text on The Statstcs of Dscrmnaton... 44, 51 Unform Gudelnes On Employee Selecton Procedures, 29 C.F.R D. 29 C.F.R D... 13, 51 -X-

15 . STATEMENT OF JURSDCTON Jursdcton rests on ths Court's order grantng permsson to appeal.. STATEMENT OF SSUES 1. Was t error or an abuse of dscreton to deny certfcaton of a class of approxmately 100 Afrcan-Amercan employees who were: (a) found to be subject to "plant-wde racst acts potentally experenced by every Afrcan-Amercan employee workng at the plant" (JA8998); and (b) found to be subject to a"plant-wde promoton procedure allowng prmarly whte managers and supervsors to rely on subjectve crtera to select canddates [that] s probatve of a plant-wde employment practce dscrmnatng aganst Afrcan-Amercan employees" (JA9102)? 2. Was t error or an abuse of dscreton to reduce the statstcal sgnfcance of the dsparate mpact and pattern-or-practce evdence by: (a) refusng to consder promotons for whch Nucor had destroyed ts applcaton records; and (b) refusng to consder alternatve applcant benchmarks that ths Court has prevously held to be proper and that the dstrct court found "may be reasonable and the statstcs based thereon may be relevant to prove dscrmnaton at the plant" (JA8985)? 3. Was t error or an abuse of dscreton to requre producton of only 45 of the several hundred promotons that were subject to the challenged subjectve promoton procedure?

16 4. Was t error or an abuse of dscreton to requre the plantffs to prove the merts of a dsparate mpact or pattern-or-practce clam at the class certfcaton stage of the case? 5. Was t error or an abuse of dscreton to hold that plantffs seekng to enjon a pattern-or-practce of racal dscrmnaton or dsparate mpact are not adequate class representatves f they also seek nstatement nto the promoton that they were dened because of such pattern or mpact?. STATEMENT OF CASE Ths case nvolves a sngle steel manufacturng plant n Huger, South Carolna, near Charleston. Seven Afrcan-Amercan employees brought sut seekng to redress dsparate mpact and a pattern-or-practce of racal dscrmnaton on behalf of themselves and a putatve class of approxmately 100 other black employees. JA43. Sxteen wtnesses' declaratons descrbed a racally hostle work envronment and subjectve promoton procedure throughout the entre plant. JA , ; JA The dstrct court found that "plantffs have presented plant-wde racst acts potentally experenced by every Afrcan-Amercan employee.., whch nclude: (1) racst e-mals; (2) dsplay of the confederate flag; and (3) racst remarks over the plant rado." JA The court also found that "Nucor's plant-wde promoton

17 procedure allowng prmarly whte managers and supervsors to rely on subjectve crtera to select canddates for promotons s evdence probatve of a plant-wde employment practce dscrmnatng aganst Afrcan-Amercan employees." JA9102. These twn fndngs of a "plant-wde" hostle envronment and promoton procedure were held not to be enough to support certfcaton of a class because: (1) there was addtonal racal hostlty that created a second hostle envronment at the department level (JA , ); and (2) although the court found that plantffs' experts had shown sgnfcant racal dspartes n promotons that "may be reasonable and the statstcs based thereon may be relevant to prove dscrmnaton at the plant" (JA8985), the court preferred to consder only those promotons for whch Nucor had not destroyed ts applcaton records rather than consder all the promotons at ssue by usng an alternatve applcant benchmark for the mssng applcatons. JA8985. The court found that statstcal sgnfcance fell from standard devatons to devatons when t elmnated the promotons for whch Nucor had destroyed ts applcaton records. J JA8985. After elmnatng promotons and statstcal l The test of statstcal sgnfcance was further hampered when the court lmted dscovery to just 45 of the several hundred promotons that were subject to the subjectve promoton procedure that was found to exst. JA , , ,1161,1171. Nucor was allowed to handpck those 45 promotons, and to exclude producton of promotons n the very same jobs made by the same Department Managers who refused to promote the named plantffs. JA , ,1161,1171.

18 sgnfcance n ths manner, the court dened class certfcaton because, n ts opnon, plantffs' statstcal evdence had not proven a conclusve case of dsparate mpact or pattern-or-practce dscrmnaton on the merts. JA ,9103. V. STATEMENT OF FACTS A. Sze And Organzaton Of The Berkeley Plant Nucor Steel Berkeley s a small plant wth sx Department Managers who report to the plant's General Manager, Ladd Hall. JA , The sx departments are meltng, hot mll, cold mll, beam mll, shppng and mantenance. JA8539. The meltng, shppng and mantenance departments work n tandem wth the employees of the other three departments to melt, form, fnsh and shp steel products to customers. JA A plant-wde centralzed postng and bddng procedure for promotons s controlled by a central personnel department at the plant; and employees are allowed to bd for promotons n any of the sx departments, not just ther own. JA8977. The plant's General Manager must approve and sgn all Change of Status forms that effectuate promotons (JA ) and s n charge of any race dscrmnaton or harassment nvestgatons or ntatves. JA The plant was constructed and went nto operaton ten to twelve years ago n the md-to-late 1990's. JA334. There are 611 employees, of whom 71 (11.6%) are Afrcan-Amercan. JA8539. Afrcan-Amercans were hred through local poltcal

19 m_ efforts when the plant frst opened, but have been unable to advance snce then. JA8539, , , m B. The Court Found That A Subjectve Promoton Procedure Was Used Throughout The Plant Nucor utlzes the same subjectve promoton procedure throughout the Berkeley plant. JA9102, The dstrct court specfcally found "a plant-wde promoton procedure allowng prmarly whte managers and supervsors to rely on subjectve crtera to select canddates for promotons." JA9102. t also found that ths was "evdence probatve of a plant-wde employment practce dscrmnatng aganst Afrcan-Amercan employees." JA9102. The court determned that Nucor "allows department managers to create ther own promoton procedures" and that "[t] estmony from four department managers and one supervsor reveal the followng smlartes n each department's promoton procedures:.., decson makers rely on subjectve crtera, such as atttude, teamwork, and wllngness to learn, to select applcants [and] an objectve system to evaluate applcants for jobs s lackng." JA8978. The court also found that n order to promote someone "the supervsor, the department manager, and the general manager must approve a wrtten change of status and then submt the change of status form to the personnel offce." JA (emphass added). The evdence supports the fndng of a "plant-wde practce dscrmnatng aganst Afrcan-Amercan employees." JA9102. The evdence showed relance on

20 subjectve opnons of who to promote throughout the plant (JA , ) expert testmony that such subjectvty unnecessarly "facltates njectng ndvdual bas nto the process" (JA1523), drect and anecdotal evdence of openly expressed racal bas by department managers and supervsors who were allowed to rely on nothng more than ther subjectve opnons n makng promotons (see pp nfra), a pervasve culture of racal hostlty that exsted plant-wde (see pp. 9-12, nfra), and statstcs that showed black promoton applcants were selected only 36.2% as often as would be expected n the absence of subjectve racal bas (JA1162). The dstrct court found there are at least "23 smlar postons throughout the sx producton departments n addton to the jobs bd on by the plantffs." JA ; JA Plant-Wde Subjectvty: Nucor has a plant-wde promoton polcy n ts Employee Handbook, but the plant's General Manager and Department Managers testfed that they were not requred to follow that polcy or any other defned crtera n makng promotons. JA , ; see also JA The plant's General Manager submtted an affdavt statng that "each department manager s gven the opporttmty to choose ther own methods of determnng hrng, promotons and tranng." JA1129. Department managers and supervsors testfed that they dd not follow the crtera lsted on the job postngs for promoton (JA ,1739-

21 , 1740,1787), that they cannot really say what crtera were followed (JA ,1734,1753,1760), and that what they consdered was all just "n ther heads" or "gut feelngs" of whom to promote. JA1736,1742,1758; JA1516,1520. The dstrct court found that the Department Manager decdes who to promote wth nput from hs supervsors. JA477; see also JA 1781, Employees were allowed to bd for promotons n any department throughout the plant, as the court found below. JA8977,1785,1790. Expert Evdence: An expert n ndustral promoton procedures, Dr. Mchael Buckley, examned Nucor's promoton procedure and found that Department Managers "repeatedly ndcated that they do not adhere to the wrtten polcy" on promotons, were "unable to provde detaled descrpton of the.., procedures they used and the procedures used by ther subordnate managers", and admtted that they reled upon "'gut feelngs'... n a number of dfferent selecton contexts." JA1516,1520,1736,1742, Dr. Buckley testfed that Nucor makes promotons through "the subjectve combnaton of factors that are themselves often subjectve n nature." JA1515. He found that "[t]hs s not a competent selecton system" and that the "[1]ack of structure 2 Dr. Buckley s an ndustral and Organzatonal Psychologst and the J. C. Penney Char n Busness Management at the Unversty of Oklahoma. JA1527.

22 n an ntervew facltates njectng ndvdual bas nto the process." JA1515,1523. He also determned that such a subjectve promoton process was unnecessary because "[t]here are a number of tradtonal alternatves that could have been consdered by Nucor", ncludng "development of a structured ntervew" that asks "the same set of questons" and "ensures more of a unform, consstent, and far approach" to makng promotons. JA1523. Plantffs' experts also determned from Nucor's records, polces and depostons that "the selecton procedure for hrng and promoton have these same basc features throughout the Company regardless of department." JA 1157; see also JA Ffteen declaratons were submtted from class members descrbng how Nucor's subjectve promoton procedure was used to deny them promotons and to generally preclude black employees from beng promoted throughout the plant. JA The dstrct court found that the named plantffs were dened promotons n four of the sx departments of the plant. JA , Addtonal evdence from eght other class members descrbed ther smlar experences n all sx producton departments. 3 3 Jacob Ravenell worked both n the melt shop and beam mll (JA ); Ramon Roane worked n both the hot mll and the beam mll (JA ); Sheldon Sngletary worked n the hot mll (JA ); Gerald Whte worked n the roll shop (JA ); Qunton Brown worked n meltng and the beam mll (JA1009); Jason Guy worked n the cold mll and beam mll (JA1061); Gerald Whte worked n the

23 Drect And Anecdotal Evdence Of Actual Racal Bas: Plantffs proved not just a subjectve promoton process, but actual subjectve racal bas that was openly expressed by department managers and supervsors. JA , , , ; see also JA , , The evdence showed that the same department managers and supervsors who were not requred to follow any set crtera n makng promotons had also been allowed to foster a culture of racal hostlty throughout the plant. JA The dstrct court's fndng of a "plantwde subjectve promoton procedure" was supplemented by a second fndng of "plant-wde racst acts potentally experenced by every Afrcan-Amercan employee." JA8988. For example, a Caucasan employee, Walter Cook, testfed that both whte supervsors and co-workers "frequently" called black employees "ngger", "bologna lps", "yard ape", "porch monkey" and smlar racal nsults. JA , bloom yard and the roll shop (JA ); Alvn Smmons worked n the beam mll (JA1021). Aaron Butts worked n meltng and sought promotons n that department and the beam mll (JA ); Earl Ravenall worked n meltng and sought promotons n the hot mll, cold mll and meltng (JA ); Jerry Nck worked and sought promotons n the hot mll (JA ); Bernard Beaufort worked n shppng and sought promotons there and n the beam mll (JA ); Byron Turner worked n mantenance (JA ); Robyn Spann was an employee of both the admnstratve department and the beam mll and sought promotons n the cold mll and the beam mll (JA ); John Sngletary was a cold mll employee (JA ); and Ken Hubbard worked and sought promotons n the beam mll (JA ).

24 Cook testfed that such racal slurs occurred "every day" by "multple whte supervsors and co-workers" and were so volumnous that they "could fll half of ths room up wth paperwork." JA , Cook "heard multple whte supervsors and whte co-workers use racal slurs." JA A whte supervsor, Scott Clark, testfed that hs Department Manager, Paul Ferguson, sad he would never have a black supervsor. JA ,996. Ferguson also sad "You know, that black bastard wll never move up as long as 'm manager", referrng to one of the named plantffs, Ray Roane, who was a canddate for promoton to supervsor. JA996, There had never been a black supervsor at the Berkeley plant at ths pont, and that remaned true untl after the EEOC Charges that led to ths lawsut were fled. JA998. Ferguson also wore a Confederate Flag emblem on hs hardhat (JA1070). Gary Henderson wore a shrt "wth a large Confederate flag" throughout the plant as a supervsor. JA 1097,1013, , ,1075. The evdence showed that Henderson "used racal slurs on many occasons" as a supervsor, such as n 2003 when he sad, "The damn nggers have been n here messng wth my computer and coper machne, can't keep paper n here because the damn nggers", that there "wasn't any way that ngger could have run that many bars out of the furnace" and that he was "glad the damn ngger got fred." JA1075, ,1001. Henderson's co- 10

25 supervsor, Scott Clark, testfed that Henderson also called black employees "DAN", whch meant "dumb ass ngger." JA , Henderson's use of the acronym "DAN" as a supervsor led to subordnates also usng that term and even broadcastng t over the plant rado, ld. JA Qunton Brown testfed that for several months he ddn't know why he was beng greeted as Dan when hs name was Qunton, and that ths contnued untl someone fnally told hm that t was an acronym for "dumb ass ngger." JA Henderson also called other black employees a "ngger" or a "damn ngger", along wth other racally derogatory terms. JA ,1001, Other whte employees have also confrmed that whte supervsors openly expressed racal bas aganst black employees. See JA1074, , Water Cook "heard multple whte supervsors and whte co-workers use racal slurs," ncludng supervsor Paul Nowln who "used the word ngger so frequently [that] t was part of hs everyday language." JA 1074, , ,1088. Supervsor Lou Wtzleb "used racal slurs on many occasons", such as when he sad, ""Damn nggers thnk that they come out here and brng ther relgous belefs wth them", and also, " tell you what,.we're fxng to have less blacks, we're gong to do some thnnng out n here." JA1075, Aaron LaCompete, who had supervsory dutes as a Leadman, referred to Gerald Whte "as a ngger on more than one occason." JA

26 1076. Other Leadmen wth supervsory dutes, lke Steve Morrs, also routnely used racal slurs lke "ngger, damn ngger, yard ape, and bologna lps", as dd numerous whte co-workers who followed ther example, lke Jm Mutspaugh, Erc Pleasant, Bob Reeves, Roger Rogers, Bran Relly, Steve Morrs, Wllam Jackson, Chad Funderburk, Dole Hopper, and Jame Johns. JA , For example, when whte employee, Chad Funderburk, was repeatedly late for work or would not show up at all, hs Leadman, Steve Morrs, sad he "was worse than a damn ngger." JA1076. Another supervsor, Scan Hudson, called black employees "boy." JA1010. Jm Mutspaugh sad n reference to Ray Roane's promoton applcaton that they would "do everythng that they could to make sure that ngger ddn't get the job." JA Another whte employee, Thomas Prm, confrmed that racal slurs frequently occurred, but dd not want to name who had used them. JA Statstcal Evdence: Plantffs' experts showed that black employees were 19.24% of the persons who appled for promoton to the jobs Nucor deemed "smlarly stuated", but were only 7.94% of the persons promoted to such jobs -- a dfference that "s statstcally sgnfcant at standard devatons from what would be expected f race were neutral n the selecton process." JA The evdence also 4 Plantffs' statstcal analyss elmnated all non-racal factors that were capable of separaton for analyss, lke tranng, dscplne and bddng frequency, as possble causes or explanatons through a logstc regresson. JA See e.g. Bazemore 12

27 showed that black applcants for promoton to such jobs were selected only 36.2% as often as whte applcants for the same job postngs, far less than the 80% dsparty necessary to establsh dsparate mpact. JA1162; 29 C.F.R D The dfference between black employees promoted to those jobs (7.9%) and ther avalablty n the qualfed workforce (38.2%) was shown to be standard devatons, correspondng to greater than a 99% confdence level. JA ; JA 1154, , Plantffs' experts further showed that Afrcan-Amercans comprsed more than 38% of the ndustral craft and operatve employees n the surroundng workforce, but only 13% at Nucor- a dfference of "more than standard devatons., fewer.., than one would expect." JA The dstrct court found that plantffs' experts' calculatons "may have been reasonable and the statstcs based thereon may be relevant to prove dscrmnaton at the plant", but t preferred to lmt the analyss to just because Nucor had not mantaned "actual data" on applcant rates for the part of the lablty perod before JA8985. Ths artfcally reduced the promoton dsparty from to standard devatons and s one of the ssues n ths appeal. JA8985. v. Frday, 478 U.S. 385, (1986) (usng and explanng regresson analyss). Nucor's statstcal expert, Dr. Welch, was unable to come forward wth any other regresson factors or qualfcatons that mght cause or explan the dsparty n Afrcan- Amercans' rate of promoton or explan t on non-racal grounds for the pre-lawsut tme perod ( ). 13

28 Co Department Managers And Supervsors Fostered A Racally Hostle Work Envronment Throughout The Plant Although the dstrct court found that "plantffs have presented plant-wde racst acts potentally experenced by every Afrcan-Amercan employee workng at the plant" (JA8988), t dened class certfcaton because addtonal racal hostlty also occurred at the department level. JA n the court's vew, ths combnaton ofa"plant-wde" hostle envronment supplemented by addtonal racal hostlty at the department level created "separate 'envronments.'" JA8989. The evdence dd not support that belef. Fourteen wtnesses attested n ther declaratons that the confederate flag "was allowed to be dsplayed throughout the plant n a racally offensve manner", and that "racst e-mals also occurred throughout the plant", as dd the comments on the "plant rado." JA1001,1013, , , , , , ,1081,1097,1103, , , Plantffs also submtted substantal other evdence showng that class members smultaneously experenced both the racal hostlty found to exst plant-wde and addtonal hostlty of a smlar nature that occurred n each department. JA , , Such racal hostlty was not experenced as separate plant-wde and department-wde components, but as part of a sngle work envronment. d. 14

29 Plantffs' declaratons went nto great detal n showng that the departments are not ndependent from one other and are part of the same contnuous "envronment" n many respects, both physcally and n the producton process. JA , Plantffs' declaratons attest that "[t]he Beam Mll Department does not have ts own physcal facltes separate from other producton departments, but works n the same area of the plant as employees from the Mantenance and Shppng Departments, and adjacent to the employees n the Meltng Department, Hot Mll Department and Cold Mll Department." JA8545,8557. Just as racal slurs or nsults occurrng n one department were communcated plant-wde va the plant rado and e-mal system, and by dsplay of the confederate flag, the same type of racal slurs or nsults were shown to have been communcated from one department or another by word of mouth. JA , The evdence showed that racal slurs and nsults were commonplace throughout the plant floor, ncludng ngger, DAN (dumb ass ngger), ngger rgged, black gorlla, monkey, black bastard, Sambo, boy, blacke, grease monkey, "you people" and "wgger" (acronym for whte ngger). JA , , , , Walter Cook testfed that the use of the word "ngger" or epthets such as "bologna lps", "yard ape", "porch monkey" n reference to black employees were commonplace at Nucor Berkeley. JA Gorlla or monkey 15

30 t noses were also broadcast on the plant rado n response to black employees' communcatons. JA1002. The ltany ofracal hostlty across the plant s summarzed n eghteen declaratons and several depostons. JA , , An example of such plant-wde envronment s the testmony of one wtness who descrbed racal hostlty that had been reported to Nucor by more than 50 Afrcan-Amercan employees spread across all sx departments of the plant. JA , JA ,8546; see also JA * * * Afrcan Amercans reported offensve comments and actons referencng the Ku Klux Klan, ncludng a comment made n reference to an Afrcan Amercan employee that t was tme to "break out the cross and hood," an Afrcan Amercan employee beng confronted by a whte employee wth a whte sheet over hs head wth eyes cut out n the form of a KKK hood, and another Afrcan Amercan employee reportng that a whte co-worker put a whte hood over hs head and lfted a burnng rag n the ar then called out the employee's name on the rado, and a large hangman noose was hung promnently n the furnace area. Whte employees, ncludng whte supervsors, have called Afrcan Amercans racally offensve names, ncludng references to Afrcan Amercans as "nggers," "boy," "DAN" (meanng "dumb ass ngger"), "you people," "blacke," "dumb black person," and "grease monkey." Racally offensve comments have been wdely heard n the plant, ncludng a comment by a whte supervsor upon seeng Afrcan Amercans standng outsde hs offce, "'ve got three monkeys sttng outsde my offce;" a whte supervsor sayng to another whte employee, "Qut playng that ngger musc;" a comment by a whte employee, "Send all of the blacks back" and " an't got no use for them;" and a whte employee yellng at Afrcan Amercan employees, "Y'all fuckng people are lazy asses." Afrcan Amercans reported racally offensve grafft beng dsplayed on the walls of the plant, ncludng the bathroom walls, ncludng the word "ngger" and "Nucor Steel-Nggers go home." Offense was taken to Confederate flags seen on vehcles and bumper 16

31 stckers, on clothes, on hard hats, on T-shrts, on lockers. E-mals wth racally offensve content was send to Afrcan Amercans at Nucor- Berkeley, ncludng an e-mal askng for votes aganst poltcans who have done thngs for "nggers, spcs, and jews," an e-mal depctng a robotc golf caddy wth the joke that t wasn't panted black or t would show up for work late andsteal the golf clubs; an e-mal showng a black man wth a rope around hs neck; swastkas and Dxe flags depcted on e-mals, an e-mal wth a black woman wth the word "stupd" wrtten on her; and an e-mal depctng a cross burnng and a black man beng dragged. JA ; see also JA8546. The evdence also showed that confederate flags, whch Nucor admts t knew to be racally offensve, were sold n.the company store wth Nucor's logo, worn by supervsors, and otherwse dsplayed throughout the plant. JA1013, ,1066,1070. Supervsors and department managers wore the confederate flag emblem at work. d. and JA1097. Nucor's offcals, ncludng the Plant Manager, admtted that they knew the confederate flag was racally offensve to Afrcan- Amercans. JA ; JA ("some people see t as a reference to slavery"); JA1804a-1804b. The General Manager, Ladd Hall, testfed that there s no polcy aganst use of Confederate flag n the plant. JA1801. Confederate flags appeared on hard hats, belt buckles, tool boxes, on lcense'plates, as well as on T-shrts and bandanas sold by'nucor n ts company store, some wth "Nucor-Berkeley" embrodered on the Confederate flag." d. Supervsors, lke Scan Hudson, Chrs Anderson, Gary Henderson and Paul "Sarge" Flowers, and supervsng Leadmen, lke 17

32 Steve Morrs, also wore the Confederate flag on ther hardhats whle supervsng black employees, or promnently dsplayed the flag n ther offces. JA1013, ,1066. Another Leadman, Jame Johns, was seen wavng a Confederate flag on Nucor's premses, laughng at plantff Qunton Brown as he dd t. JA1013. Whte co-workers followed the lead of ther supervsors and leadmen by wearng Confederate flag emblems on ther hardhats and lunch boxes n the plant, and on ther vehcles n the plant parkng lot. d. Other racal emblems prolferated throughout the plant, such as a hangman's noose held up to a black employee who was told "Ths s for you." JA1002. Such racal hostlty was partcularly threatenng and offensve because black employees are a small percentage of the workforce and often have to work as the only Afrcan-Amercan on a crew n solated areas of the plant at nght when there s lttle management or supervson on duty. JA The evdence also shows that black employees at Nucor-Berkeley have been contnuously exposed to racally offensve statements throughout the plant, such as supervsors sayng "nggers aren't smart enough" to break producton records; hearng work referred to as "ngger rgged"; beng told that the term "wgger" means "whte ngger"; beng told there s nothng wrong wth the word "ngger," that "nggers" and whte women shouldn't mx, and that there were "nggers" everywhere at Myrtle 18

33 Beach; havng the dalect used by Afrcan Amercans rdculed; hearng jokes that racally stereotype Afrcan-Amercans, such as assocatng black people wth chcken, collard greens and watermelon; hearng the restaurant "Red Lobster" called "Black Lobster" because too many black people eat there; beng told that whte co-workers do not lke to go to the moves f there wll be Afrcan Amercans n the audence; hearng shovels used by black employees called "coon spoon"; hearng that black kds breakdance because the spnnng trans them for stealng hubcaps; hearng whte employees refer to usng the restroom as "droppng some of these ugly brown kds off at the pool"; beng told that the four grls klled n the church bombng n Brmngham, Alabama, shouldn't have been n the church n the frst place. JA , Plantffs and class members testfy that supervsors' and co-workers' statements lke these were not solated nstances, and that they have heard smlar statements broadcast across the plant rado, whch s a walke-talke everyone uses to communcate n the plant, ncludng all levels of management. d. Statements were broadcast over the plant rado referrng to black employees as "DAN" ("dumb ass ngger"); broadcastng "Dxe" and "Hgh Cotton"; broadcastng gorlla or monkey sounds whenever an Afrcan Amercan used the rado; broadcastng the sound of a tolet flushng wth the words "Good-bye, Gerald," referrng to hs feces as Gerald Whte, a named plantff n ths case; broadcastng "Look down there, do you see 19

34 those monkeys crossng over down there?" n reference to two black employees. d. Racal grafft was also plastered across Nucor's walls and on equpment and other surfaces, ncludng "ngger go home," "whte power," "ngger," "nggers go back to Afrca," "KKK," "Sambo," "Blacks lke to eat chcken all the tme," and a defaced magazne cover wth Tger Woods' pcture on t wth the words "ngger" and "suck ths" on the cover wth drawng of a pens supermposed near Woods' head. d. A whte employee, Walter Cook also confrmed that "racst grafft was frequent, open, and obvous to those who used the bathroom", ncludng words such as "ng," "ngger," "nggers,'"'blacke" and "KKK" on the breakroom and bathroom walls. JA1841. V. SUMMARY OF ARGUMENT Hostle Envronment: Numerous courts have held that class certfcaton of racal hostle envronment clams s approprate because they nvolve a common queston of whether there s a "severe or pervasve" pattern of conduct that would be "objectvely hostle or abusve" to a "reasonable person." Nucor's prncpal defense also nvolves common ssues of fact and law: (1) whether t has a polcy aganst racal hostlty or harassment; (2) whether such polcy was "effectvely enforced" or dsfunctonal; and (3) whether Nucor promptly took remedal acton once t knew or should have known of such hostlty. 20

35 The dstrct court erred n denyng certfcaton of such a class once t found that "plantffs have presented plant-wde racst acts potentally experenced by every Afrcan-Amercan employee workng at the plant. " JA Merely because class members may have also experenced addtonal racal hostlty n ther department dd not create two dfferent work envronments, one plant-wde and the other departmental. Well-establshed precedent prohbts segmentng a hostle envronment nto ndvdual components or ncdents. "The total work envronment" s requred to be treated as a sngle clam. Ths Court has held that a common core of racal harassment satsfes Rule 23 "despte the presence of ndvdual fact questons." Holsey v. Armour & Co., 743 F.2d 199, (4thCr. 1984). Both plant-wde and department racal hostlty were part of a common "systemc polcy of tolerance by the company." EEOC v. Burlngton Medcal Supples, nc., 536 F. Supp. 2d 647, 660 (E.D. Va. 2008). Requrng that every manfestaton of a hostle envronment be experenced n the same way by every class member would be tantamount to holdng that such clams can never be certfed on a classwde bass. Class certfcaton s necessary n order for the Court to be able to enjon or otherwse redress a plant-wde pattern-or-practce of racal hostlty. Promotons: The dstrct court also erred n denyng class certfcaton once t found that "Nucor's plant-wde promoton procedure allowng prmarly whte 21

36 managers and supervsors to rely on subjectve crtera to select canddates for promotons s evdence probatve of a plant-wde practce dscrmnatng aganst Afrcan-Amercan employees." JA9102. Numerous courts have held that such subjectve crtera present a common queston of law and fact that may be challenged on classwde dsparate mpact grounds or as a pattern-or-practce of dsparate treatment. A subjectve promoton procedure s not too ndvdualzed for class certfcaton. The Supreme Court has held that a pattern-or-practce clam looks to the practce or the pattern tself, not ndvdualzed promoton decsons. Plantffs dd not rely on the mere exstence of a subjectve promoton procedure, but presented a combnaton of statstcal, anecdotal and drect evdence showng that Nucor's subjectve promoton procedure s racally dscrmnatory throughout the plant. The denal of class certfcaton would leave the plantffs wth no means of changng the pattern-or-practce of racal bas n whch they work. Lower)/v. Crcut Cty, nc.,158 F.3d 742, 759 (4thCr. 1998)(Class certfcaton requred n order to challenge patternor-practce). The dstrct court found that black applcants were promoted only 36.2% as often as would be expected n the absence of subjectve racal bas, but erroneously reduced the statstcal sgnfcance of such dsparty from standard devatons to 22

37 -1.48 devatons by elmnatng all promotons for whch Nucor had destroyed ts applcaton records rather than applyng the alternatve applcant benchmarks approved _ 1 by ths Court and the Supreme Court when applcaton records are not avalable. The dstrct court found that these alternatve applcant benchmarks "may be reasonable and the statstcs based thereon may be relevant to prove dscrmnaton at the plant", but t stll elected to elmnate all promotons for whch Nucor destroyed ts applcatons because "[s]tatstcs based on actual data s more probatve than statstcs based on assumptons." JA8981. Ths created an mpossble standard to meet because the "actual data" on applcants had been destroyed. The error n elmnatng promotons that had mssng applcaton records compounded a related error that allowed Nucor to handpck 45 promotons and to wthhold several hundred smlar promotons that were subject to the same department managers and subjectve promoton procedure. JA , ,1161,1171. Many of the promotons allowed to be wthheld were n the very same jobs that Nucor produced as "smlarly stuated" to the named plantffs. d. Plantffs' statstcan showed that there was no coherent bass for dstngushng the promotons Nucor produced from those t wthheld. d. Ths two-step elmnaton of relevant promotons le.ft too small a number to permt any true test of statstcal sgnfcance. The dstrct court went too far nto the merts n fndng that the "assumptons" 23

38 , necessary for the statstcans to estmate the mssng applcant rates "dmnshes the probatve value" of the statstcs. JA 8981,9102. "Dmnshes" does not mean "elmnates," and these were the best statstcs avalable n lght of Nucor's destructon of ts applcaton records. Rejectng the clear statstcal evdence of a dsparty shown by the best avalable means was, n fact, to decde the merts of who s lkely to preval at tral, whch s mproper. The dstrct court's role s lmted to decdng whether there s a common trable ssue of fact, not to decde the merts of such ssue or who should preval at tral. The dstrct court also erred n concludng that the named plantffs' nterests mght become "antagonstc" f they request nstatement nto jobs that other class members mght seek. JA8992. Most courts have recognzed that such potental competton among employees s a normal feature of employment dscrmnaton suts of all types and exsts n ndvdual suts. Ths Crcut has held that the named plantffs' nterest n provng and enjonng a pattern-or-practce of promoton dscrmnaton assures adequate representaton. Brown v. EckerdDrugs, nc., 663 F.2d 1268, (4t_ Cr. 1981). Moreover, each named plantff bd only on promoton vacances that were not sought by other class members. JA There were a suffcent number of vacances to allow each class member makng a clam at Stage to be awarded one of the multple vacances that occurred n the job 24

39 , they sought. ARGUMENT to STANDARD OF REVEW Denal of class certfcaton s revewed for abuse of dscreton. "An error of law consttutes an abuse of dscreton." A Helpng Hand LLC v. Baltmore County, Maryland, 515 F.3d 356, 370 (4thCr. 2008); College Loan Corp. v. SLM,, Corp., 396 F.2d 588, 595 (4 _ Cr. 2005); Koon v. Unted States, 518 U.S. 81, 100 (1996). Dscreton to deny class certfcaton "must be exercsed wthn the framework of Rule 23." Lenhart v. DryvtSystems, nc., 255 F.3d 138, 146 (4 th Cr. 2001).. DSCUSSON OF SSUES A. A Racally Hostle Envronment Presents Common Questons Of Fact And Law That Are Approprate For Certfcaton As A Class Class certfcaton of racal hostle envronment clams s approprate because they nvolve a common queston of whether there s a "severe or pervasve" pattern of conduct that would be "objectvely hostle or abusve" to a "reasonable person." Newsome v. Up-To-DateLaundry, nc., 219 F.R.D. 356, 361 n.2, 362 (D. Md. 2004); Burlngton Medcal, 536 F. Supp. 2d at ; EEOC v. Mtsubsh Motor Manufacturng of Amerca, nc., 990 F.Supp. 1059, 1070, 1074 (C.D ); BreMller v. Cleveland Psychatrc nst., 195 F.R.D. 1, 21, 33 (N.D. Oho 2000); 25

40 m' Warnell v. Ford Motor Co., 189 F.R.D. 383 (N.D. ll. 1999); Smth v. Nke Retal Servces, nc., 2006 WL *5 (N.D. ll. 2006); Markham v. Whte, 171 F.R.D. 217, 222 (N.D ); Employees Commttee v. Eastman Kodak Co., 407 F. Supp. 423, 431 (W.D.N.Y. 2005); see also Allen v. nternatonal Truck & Engne Corp., 358 F.3d 469, (74 Cr. 2004); Jenson v. Eveleth Taconte Co., 130 F.3d 1287, (84 Cr. 1999) (applyng pattern or practce standards to certfcaton of class hostle envronment clams). The dstrct court found that such a common hostle envronment exsts throughout the plant at ssue n ths case: "plantffs have presentedplant-wde racst acts potentally experenced by every Afrcan-Amercan employee workng at the plant when the acts occurred." JA (emphass added). The "plant-wde racst acts" found to be common to all class members "nclude: (1) racst e-mals, (2) dsplay of the confederate flag, and (3) racst remarks over the plant rado." d. at JA Class certfcaton was dened, however, because some class members may have also experenced addtonal racal hostlty n ther department. d. The dstrct court erred as a matter of law n subdvdngplantffs' work envronment nto separate "plant-wde" and "department" components. "The statute does not separate ndvdual acts that are part of the hostle envronment clam from the whole for the purposes of... lablty." Natonal Ralroad Passenger Corp. v. Morgan, 536 U.S. 26

41 101, 115, 116, 118 (2002). A hostle envronment class acton strkes at the pattem or practce tself, not ndvdual or solated nstances of racal hostlty. d. The Supreme Court has recently reterated that "the actonable wrong s the envronment, not the ndvdual acts that, taken together, create the envronment." Ledbetter v. Goodyear Tre & Rubber Co., 127 S. Ct. 2162, 2175 (2007). "Under the totalty of the crcumstances analyss the dstrct court should not carve the envronment nto a seres of dscrete ncdents and then measure the harm occurrng n each epsode. nstead, the trer of fact must keep n mnd that each successve epsode has ts predecessors, that the mpact of the separate ncdents may accumulate, and that the work envronment thereby created may exceed the sum of the ndvdual epsodes." Mtsubsh, 990 F.Supp. at 1074; see also Morgan, 536 U.S. at , 120 ("Such clams are based on the cumulatve effect of ndvdual acts. * * * n determnng whether an actonable hostle work envronment clam exsts, we look to 'all the crcumstances'... "); Hopkns v. Baltmore Gas and Electrc Co., 77 F.3d 745, 753 (4t_Cr. 1996) ("we must examne the totalty of the crcumstances"); Newsome, 219 F.R.D. at 362. Courts must "vew the conduct wth[ ] an eye for ts cumulatve effect." EEOC v. Sunbelt Rentals, nc., 521 F.3d 306, 318 (4thCr. 2008); Burlngton Medcal, 536 F. Supp. 2d at 660; Berry v. Delta Arlnes, nc., 260 F.3d 803, (7th Cr.2001). Both plant-wde and department racal hostlty were part of a common 27