Eighth Circuit Denies Class Certification Based on Dukes and Admits Third-Party Evidence to Prove Plaintiffs’ Claims

Six African American employees who worked in their employer’s steel plant in Blytheville, Arkansas, sued the employer. They alleged that the employer had violated Title VII of the Civil Rights Act of 1964, as amended, by systematically refusing to promote black employees and by allowing for a racially hostile work environment. In addition to their own claims, the employees sought to represent a class of approximately 100 other employees and job applicants representing the plant’s five different departments. The district court denied the request for class certification but allowed the employees’ six hostile work environment claims to proceed to jury trial. Each plaintiff was awarded $200,000 in damages. The employer appealed, contending that the court erred during the trial by allowing admission of evidence of alleged discrimination against employees other than plaintiffs. Plaintiffs cross-appealed, objecting to the court’s denial of class certification. The U.S Court of Appeals for the Eighth Circuit affirmed the district court on both grounds. First, in addressing plaintiffs’ argument regarding the denial of class certification, the court looked to the U.S. Supreme Court’s recent determinations on class action matters in this context and determined that although all of the claims involved the Blytheville plant, the class was improper under Wal-Mart v. Dukes, 564 U. S. ____ (2011), because “employment practices varied substantially across the plant’s various production departments.” Second, regarding the employer’s evidentiary objections, the court found that the nonparty evidence was admissible because such evidence “can be relevant to a plaintiff’s hostile work environment claim,” and because, in this case, the district court had conducted a fact-based analysis to determine whether each piece of evidence involved “the same place, the same time, [or] the same decision-makers” as the plaintiffs’ claims. This case demonstrates the compromise that some courts have begun striking in the wake of Dukes: where class actions are denied, parties are permitted to more broadly use evidence of discrimination or other wrongs against nonparties to prove their cases. Employers should be aware of this when managing employees’ complaints or preparing to defend a lawsuit.

Bennett, et al. v. Nucor Corporation, Nos. 09-3831/3834 (8th Cir. Sept. 22, 2011)

Wal-Mart v. Dukes, 564 U. S. ____ (2011)