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Bert v. AK Steel Corp.

January 19, 2007

VIVIAN BERT, ET AL, PLAINTIFFS,
v.
AK STEEL CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Sandra S. Beckwith, Chief Judge United States District Court

ORDER

Before the Court is Plaintiffs' Supplemental Memorandum in support of class certification. (Doc. 81) Defendant has responded (Doc. 94), and Plaintiffs have replied. (Doc. 95)

BACKGROUND

Plaintiffs are sixteen African-American unsuccessful applicants for employment with AK Steel, and one African-American employee. They allege that AK Steel engages in systemic racial discrimination in its hiring and promotion practices at its plants located in Middletown, Ohio and Ashland, Kentucky.

After filing a Second Amended Complaint (Doc. 45), nine of the sixteen original Applicant Plaintiffs sought certification of a narrower class, of African-American applicants who failed AK Steel's written pre-employment screening test. (Docs. 70, 71) This Court's April 24, 2006 Order (Doc. 79) concluded that Rule 23(a)'s requirements of numerosity and commonality were initially satisfied. As to typicality and adequacy issues, the Court held that if the named plaintiff Edwards took and failed the challenged employment test in the 300-day period preceding his July 9, 2002 EEOC charge, his claim is timely. Given AK Steel's lack of any record that Edwards actually took the AK Steel test in that time frame, the Court granted Plaintiffs 45 days in which to name a new representative for the Middletown applicants, if they chose to do so. The Court also ordered Plaintiffs' counsel to submit information required under Rule 23(g) addressing counsel's ability to represent the proposed class.

The Court also noted a concern about potential conflicts between the Applicant Class Plaintiffs (those nine named plaintiffs who allege they took and failed the AK Steel test) and other plaintiffs who did not take the test, but who more broadly allege discrimination in AK Steel's hiring practices. In addition, after the class certification motion was filed, the Sixth Circuit decided Reeb v. Ohio Dept. Of Rehab. & Corr., 435 F.3d 639 (6th Cir. 2006), which essentially gives Title VII plaintiffs a choice of proceeding under Rule 23(b)(2) OR 23(b)(3).

Therefore, the Court ordered Plaintiffs to file a supplemental brief addressing the issues of adequacy of representation, equitable back pay calculation, and the manageability of proceeding in this case with variously situated plaintiffs and different class and non-class discrimination claims.

ANALYSIS

1. Counsel's Adequacy Under Rule 23(g)

Plaintiffs have filed an affidavit of their counsel Robert Childs, and statements from attorneys David Sanford and Grant Morris, outlining their significant experience with employment class action litigation. Counsel assert they have expended over $98,000 in hard costs on this case to date, on a contingent fee basis to the named plaintiffs. They plan to move for attorneys fees and costs, if appropriate, after the liability phase of the case.

Defendant does not challenge the professional ability and experience of Plaintiffs' counsel. The Court concludes that the lawyers are experienced in employment litigation and can fairly and ably represent the proposed class.

2. Adequacy of Middletown Representatives

Plaintiffs have not withdrawn Donald Edwards as a proposed representative of the Middletown Applicants, despite the significant questions raised by AK Steel concerning his standing to prosecute a testing claim. Plaintiffs have proposed adding a second representative, James Greenwood, whose declaration (Doc. 81, Exhibit 6) states he took the AK Steel test on November 8, 2001.

AK Steel argues that Greenwood cannot serve as a class representative because he has not filed an EEOC charge. It is clear that at least one named plaintiff must have Article III standing and satisfy the requirements of Rule 23(a) in order to serve as an adequate class representative. Plaintiffs cannot "bootstrap" Edwards (who filed an EEOC charge but may not have taken the test) with Greenwood (who took the test but did not file a charge) to satisfy Rule 23(a). Greenwood is certainly a member of the putative class, and the Court has already ruled that ...


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