                                PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 13-1779


QUINTON    BROWN; JASON   GUY;   ALVIN  SIMMONS;  SHELDON
SINGLETARY; GERALD WHITE;    RAMON ROANE; JACOB RAVENELL,
individually and on behalf of the class they seek to
represent,

                Plaintiffs - Appellants,

           v.

NUCOR CORPORATION; NUCOR STEEL-BERKELEY,

                Defendants - Appellees.


Appeal from the United States District Court for the District of
South Carolina, at Charleston. C. Weston Houck, Senior District
Judge. (2:04-cv-22005-CWH)


Argued:   September 17, 2014                 Decided:   May 11, 2015


Before GREGORY, AGEE, and KEENAN, Circuit Judges.


Vacated in part, and remanded with instructions by published
opinion. Judge Gregory wrote the opinion, in which Judge Keenan
joined. Judge Agee wrote the dissenting opinion.


ARGUED: Robert L. Wiggins, Jr., WIGGINS, CHILDS, QUINN &
PANTAZIS LLC, Birmingham, Alabama, for Appellants. Lisa Schiavo
Blatt, ARNOLD & PORTER LLP, Washington, D.C., for Appellees. ON
BRIEF: Armand Derfner, D. Peters Wilborn, Jr., DERFNER, ALTMAN &
WILBORN, Charleston, South Carolina; Ann K. Wiggins, WIGGINS,
CHILDS,   QUINN  &  PANTAZIS   LLC,  Birmingham,   Alabama,  for
Appellants. Cary A. Farris, John K. Linker, J. Shannon Gatlin,
ALANIZ SCHRAEDER LINKER FARRIS MAYES, LLP, Houston, Texas;
Dirk C. Phillips, Sarah M. Harris, ARNOLD & PORTER LLP,
Washington, D.C.; J. Tracy Walker, IV, Robert L. Hodges,
Matthew A. Fitzgerald, MCGUIREWOODS, LLP, Richmond, Virginia,
for Appellees.




                              2
GREGORY, Circuit Judge:

      This case concerns the certification of a class of black

steel     workers    who    allege      endemic         racial    discrimination   at   a

South Carolina plant owned by Nucor Corporation and Nucor Steel

Berkeley (collectively, “Nucor”).                       Plaintiffs-appellants (“the

workers”)     accuse       Nucor   of    both       discriminatory      job   promotion

practices and a racially hostile work environment under Title

VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981.                            The

district court originally denied class certification for both

claims, and this Court reversed.                    See Brown v. Nucor Corp., 576

F.3d 149 (4th Cir. 2009) (“Brown I”).

      The    district        court       has       revisited       certification    and

decertified the promotions class in light of the Supreme Court’s

opinion in Wal-Mart Stores, Inc. v. Dukes, __ U.S. __, 131 S.

Ct. 2541 (2011). 1         We thus again confront the question of whether

the   workers’      have    presented      a       common   question     of   employment

discrimination       through       evidence        of    racism    in   the   workplace.

Despite Wal-Mart’s reshaping of the class action landscape, we

hold that the district court has for a second time erred in

refusing to certify the workers’ class, where (1) statistics


      1
       The district court refused to decertify the workers’
hostile work environment claim.  We have previously denied as
untimely Nucor’s petition for interlocutory review of that
decision.  Nucor Corp. v. Brown, 760 F.3d 341, 342 (4th Cir.
2014).


                                               3
indicate that promotions at Nucor depended in part on whether an

individual     was   black   or     white;     (2)     substantial    anecdotal

evidence     suggests     discrimination          in    specific     promotions

decisions in multiple plant departments; and (3) there is also

significant evidence that those promotions decisions were made

in the context of a racially hostile work environment.

     Against    that    backdrop,    the     district    court     fundamentally

misapprehended the reach of Wal-Mart and its application to the

workers’ promotions class.          We thus vacate the district court’s

decision in part and remand for re-certification of the class.



                                      I.

     The Nucor plant encompasses six production departments that

work together to melt, form, finish, and ship steel products to

customers.     See Brown I, 576 F.3d at 151.            At the start of this

litigation,    611   employees    worked     at   the   plant.       Seventy-one

(11.62%) were black. 2       There was, however, at most one black

supervisor in the production departments until after the Equal

Employment    Opportunity    Commission       (“EEOC”)     initiated     charges

that preceded the putative class action.




     2
       By comparison, more than 38% of the available local labor
market is black, according to Census data provided by the
workers’ experts.


                                       4
     The workers’ promotions claim rests on alternative theories

of   liability     under    Title    VII,    which     prohibits        employment

discrimination      because     of    an     individual’s       “race,      color,

religion, sex, or national origin.”             42 U.S.C. § 2000e-2.              The

promotions claim first alleges a pattern or practice of racially

disparate treatment in promotions decisions.                 See Teamsters v.

United States, 431 U.S. 324, 336 (1977).                  Second, it charges

that Nucor’s facially neutral promotions policies and procedures

had a racially disparate impact. See Griggs v. Duke Power Co.,

401 U.S. 424, 431 (1971); Wal-Mart, 131 S. Ct. at 2554.

     Both theories are grounded in a statistical analysis of

racial disparities in job promotions at the plant combined with

anecdotal evidence of discrimination.            The workers’ statistical

evidence spans the four-year period preceding the litigation,

between     December   1999    and    December       2003.       Because     Nucor

destroyed    and/or    discarded     the    actual    bidding      data    for    the

period    before    2001,     the    workers’    experts        established        an

alternative    benchmark    using    ‘change-of-status’         forms     filed    by

the company whenever a promotion took place at the plant.                         The

experts     extrapolated    comparative      statistics      for    that    period

using an assumption that the racial composition of the bidding

pool for those jobs was the same as for the post-2001 jobs

analyzed (when Nucor retained actual bidding records).



                                       5
     The    workers        also     presented         abundant      direct     and

circumstantial       anecdotal       evidence         of   discrimination      in

promotions, including:

           * Anecdotal evidence provided by the seven named
             plaintiffs   and  nine  other  putative  class
             members, claiming discrimination in specific
             promotions decisions in the Nucor production
             departments;

           * A description of complaints, contained in
             affidavits and depositions, made to plant
             General Manager Ladd Hall, who the workers
             allege failed to meaningfully respond;

           * Descriptions of retaliation against those who
             complained to management;

           * A written copy of Nucor’s promotions policy and
             testimony that the policy was largely ignored in
             favor   of   giving  unbridled   discretion   to
             supervisors; and

           * Testimony by a white supervisor that his
             department manager told him that “I don’t think
             we’ll ever have a black supervisor while I’m
             here.”

     The facts undergirding the workers’ separate hostile work

environment claim, not directly at issue in this appeal, also

bear on the promotions analysis.             Those facts are disquieting in

their    volume,     specificity,      and       consistency.        Supervisors

allegedly routinely referred to black workers as “nigger” and

“DAN (dumb ass nigger),” with one supervisor reportedly stating

“niggers aren’t smart enough” to break production records, while

others   tolerated     the   routine       use   of   epithets     like   “bologna

lips,”   “yard     ape,”   and    “porch    monkey.”       These    epithets   and


                                       6
others      were    broadcast       over     the      plant-wide       radio    system     -

comprising a network of walkie-talkies used to communicate -

along      with    monkey      noises     and       the    songs     “Dixie”    and    “High

Cotton.”          The    workers’       declarations        and     depositions       further

suggest that departmental supervisors and the plant’s general

manager consistently ignored racial harassment carried out by

white workers, including the circulation of racist emails, the

prominent display of a hangman’s noose, the commonplace showing

of the Confederate flag, and an episode when a white employee

draped a white sheet over his head with eyes cut out in the form

of a KKK hood.

      In    2007,        the   South     Carolina         district    court    denied    the

workers’ motion for class certification for both the promotions

and hostile work environment claims.                        In 2009, a divided panel

of this Court reversed, concluding that the workers satisfied

the threshold requirements of Federal Rule of Civil Procedure

23.      We remanded the case “with instructions to certify the

appellants’ class action.”               Brown I, 576 F.3d at 160.

      On    February        17,   2011,     the      district       court   followed     our

instructions to certify the class, concluding that the workers

satisfied     Rule       23(b)(3)’s       requirements        that     common   questions

predominate        and    that    the    class      action    was    superior     to   other

litigation devices to resolve the dispute.                           The district court



                                                7
later declined to stay the case pending a ruling in Wal-Mart,

and it declined to reconsider its order certifying the class.

       The     Supreme        Court        decided           Wal-Mart        in        June       2011,

decertifying an unprecedented nationwide class of approximately

1.5 million female employees spread over 3,400 stores.                                      Wal-Mart

held    that     the    plaintiffs          had       failed        to    present       a     “common

contention” of employment discrimination capable of “classwide

resolution,” as required by Rule 23(a)(2).                                Wal-Mart, 131 S.Ct.

at    2551.      Given       the    diffuse       class       and    number       of    employment

decisions at issue, the Supreme Court observed that “[w]ithout

some glue holding the alleged reasons for all those decisions

together, it will be impossible to say that examination of all

class members’ claims for relief will produce a common answer to

the    crucial      question        why    was        I    disfavored.”            Id.      at    2552

(emphasis      in   original).             The    plaintiffs,            Wal-Mart       concluded,

failed to meet that standard when they premised liability on a

company      policy     of    decentralized               subjective       decision-making          by

local   managers,        combined         with    statistics             showing    gender-based

employment disparities, limited anecdotal evidence, and expert

testimony       about    a     corporate          culture       that        allowed         for    the

transmission of bias.              See id. at 2551, 2554-55.

       On September 11, 2012, the district court relied on Wal-

Mart to decertify the workers’ promotions class, invoking the

court’s        authority           under     Rule           23(c)(1)(C)           to     amend       a

                                                  8
certification order at any time before final judgment.                            Wal-

Mart,     the    court      observed,      clarified        and     heightened        the

commonality requirement of Rule 23(a)(2), requiring the workers

to    present   “significant      proof”      that    Nucor       “operated    under   a

general    policy      of   discrimination”        and     that    they   suffered     a

common    injury.        J.A.   10934   (quoting         Wal-Mart,    131     S.Ct.    at

2553).

       Under    that   standard,    the       district     court     concluded    that

decertification of the promotions class was required because:

(1)     this    Court’s     examination       of     the    workers’      statistical

analysis in Brown I was not sufficiently “rigorous” to assess

whether    it    raised     questions   common       to    the    class   under   Rule

23(a)(2); (2) the workers’ statistical and anecdotal evidence

failed to establish such commonality because it did not provide

“significant proof” that there existed both a “general policy of

discrimination” and a “common injury”; (3) the delegation of

subjective decision-making to Nucor supervisors was not, without

more, a sufficiently uniform policy to present “‘common’ issues

appropriate for resolution on a class-wide basis”; and (4) even

if the workers had identified a common question of law or fact

satisfying Rule 23(a)(2), they failed to independently satisfy

Rule 23(b)(3)’s requirements that common issues predominate and

that the class action is a superior litigation device.



                                          9
     Although the court decertified the class for the promotions

claim, it refused to do so for the hostile work environment

claim.     The    district     court      reaffirmed          that    the    workers       had

demonstrated that the “landscape of the total work environment

was hostile towards the class.”                 J.A. 10964 (quoting Newsome v.

Up-To-Date Laundry, Inc., 219 F.R.D. 356, 362 (D. Md. 2004)).

Unlike    the    promotions     claim,     the        court    determined         that     the

hostile    environment        allegations        required        no    showing        of      a

company-wide      adherence    to    a    common       policy    of    discrimination.

Still, the court found that “there is significant evidence that

management      ignored   a   wide   range       of    harassment”          and   that     the

workers “met      their   burden     to    present       significant          proof      of   a

general policy of discrimination.”               J.A. 10968.

     On September 30, 2013, the workers appealed the district

court’s decertification of the promotions class.



                                          II.

     We typically review a district court’s certification order

for abuse of discretion.             Doe v. Chao, 306 F.3d 170, 183 (4th

Cir. 2002), aff’d on other grounds, 540 U.S. 614 (2004).                                      We

review de novo, however, whether a district court contravenes a

prior express or implicit mandate issued by this Court.                               United

States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993); S. Atl. Ltd.

P’ship of Tenn. v. Riese, 356 F.3d 576, 583 (4th Cir. 2004) (“We

                                          10
review    de      novo     . . .        whether       a    post-mandate                judgment      of    a

district      court       contravenes          the     mandate            rule,    or     whether      the

mandate       has        been        ‘scrupulously          and       fully        carried        out.’”

(quoting 2A Fed. Proc., L. Ed. § 3:1016)).

        Determining            the     appropriate          standard              of     review      thus

requires a two step approach.                     First, we examine de novo whether

the district court’s decertification order violated our mandate

in Brown I to certify the workers’ class.                                    Second, if no such

violation occurred, we must determine anew whether the district

court    abused          its    discretion        in       decertifying            the        promotions

class.

        As to the first question, an “extraordinary” exception to

the     mandate      rule        exists        when       there       is     “a    show[ing]         that

controlling legal authority has changed dramatically.”                                          Bell, 5

F.3d at 67 (alteration in original).                            Moreover, Rule 23(c)(1)(C)

provides      a    district          court     with    broad         discretion          to    alter      or

amend a prior class certification decision at any time before

final judgment.

        Against that backdrop, the parties disagree about whether

Wal-Mart       provided          sufficient       justification               for       the     district

court    to    invoke          its    powers    to     revisit            certification.             Nucor

maintains         that    Wal-Mart        represents            a    “sea     change”          and   that

“class    actions         may        proceed    only       in       the    most        exceptional        of

cases.”        Resp’ts’ Br. 15, 20.                       The workers suggest, however,

                                                  11
that     the   Supreme     Court       instead    largely      reaffirmed     existing

precedent.     Appellants’ Br. 34.

       The truth has settled somewhere in between.                     See Scott v.

Family Dollar Stores, Inc., 733 F.3d 105, 113-14 (4th Cir. 2013)

(discussing     limitations        on    the    scope    of   Wal-Mart’s      holding);

McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 672

F.3d 482, 487-88 (7th Cir. 2012), cert. denied, 133 S. Ct. 338

(2012) (finding that Wal-Mart provided the basis for a renewed

class certification motion); DL v. District of Columbia, 713

F.3d   120,    126    (D.C.     Cir.    2013)     (surveying     how   Wal-Mart     has

changed the class action landscape); Elizabeth Tippett, Robbing

A Barren Vault:          The Implications of Dukes v. Wal-Mart for Cases

Challenging Subjective Employment Practices, 29 Hofstra Lab. &

Emp. L.J. 433 (2012) (using an empirical analysis to predict

Wal-Mart’s likely impact on class certifications in the future).

At the very least, Wal-Mart recalibrated and sharpened the lens

through    which     a   court   examines        class   certification        decisions

under Rule 23(a)(2), an impact plainly manifested by the number

of certifications overturned in its wake.                     See, e.g., EQT Prod.

Co. v. Adair, 764 F.3d 347 (4th Cir. 2014); Rodriguez v. Nat’l

City   Bank,    726      F.3d   372,    376    (3d   Cir.     2013);   M.D.    ex   rel.

Stukenberg v. Perry, 675 F.3d 832, 839, 841-44 (5th Cir. 2012);

Ellis v. Costco Wholesale Corp., 657 F.3d 970, 974 (9th Cir.

2011).

                                           12
      In that light, we find that the district court’s decision

to reconsider the certification of the workers’ class did not

itself    violate        our    mandate       in      Brown    I.       Per    this    Court’s

original remand instructions, the district court certified both

the promotions and hostile work environment classes.                                  Although

the court had no discretion to then reconsider questions decided

by   this    Court       under    then-existing            facts      and     law,    Wal-Mart

provided     a    sufficiently         significant         change       in    the    governing

legal standard to permit a limited reexamination of whether the

class satisfied the commonality requirement of Rule 23(a)(2). 3

There are, however, instances described below when 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).                                 The

reconsideration          of    those    determinations          was     not    compelled    by

Wal-Mart and contravened our mandate in Brown I.

      Because      the    district          court     could     reexamine       whether    the

workers     met    the    requirement            of   commonality,       we    review    those

      3
        Furthermore, this Court’s original mandate did not
entirely divest the district court of its ongoing authority
under Rule 23(c)(1)(C) to monitor the class and make changes
when appropriate.    See Prado-Steiman v. Bush, 221 F.3d 1266,
1273 (11th Cir. 2000) (“Class certification orders . . . are not
final   judgments   impervious  to   lower   court  review   and
revision.”); Gene & Gene, L.L.C. v. BioPay, L.L.C., 624 F.3d
698, 702-03 (5th Cir. 2010).


                                                 13
findings under the abuse of discretion standard that typically

applies to certification orders.          See Amchem Prods., Inc. v.

Windsor, 521 U.S. 591, 630 (1997) (“The law gives broad leeway

to district courts in making class certification decisions, and

their judgments are to be reviewed by the court of appeals only

for abuse of discretion.”); Brown I, 576 F.3d at 152; Thorn v.

Jefferson-Pilot   Life   Ins.   Co.,    445   F.3d   311,   317   (4th    Cir.

2006).    A   district    court   abuses      its    discretion    when    it

materially misapplies the requirements of Rule 23.            See Gunnells

v. Healthplan Servs., Inc., 348 F.3d 417, 424 (4th Cir. 2003);

Thorn, 445 F.3d at 317-18 (“A district court per se abuses its

discretion when it makes an error of law or clearly errs in its

factual findings.”).     The decisive question here is whether the

district court materially misapplied Rule 23(a)(2) to the facts

at hand in light of Wal-Mart. 4




     4
       The dissent is skeptical that an appellate court can
articulate a deferential standard of review while then finding
reversible error in many of the factual and legal determinations
made by a district court. See post at 84. Deference, however,
clearly does not excuse us from conducting a detailed review of
the record.   Nor does it blind us from factual findings that
were not supported and legal determinations that represent a
fundamental misunderstanding of Wal-Mart’s scope.    Indeed, we
recently applied similar scrutiny when overturning a district
court’s class certification order. See EQT Production, 764 F.3d
at 357-58.


                                   14
                                           III.

      Rule   23(a)(2)        establishes          that       a    class       action    may     be

maintained only if “there are questions of law or fact common to

the   class.”         The     district       court       determined            that    Wal-Mart

required     decertification          of     the        workers’         promotions          class

insofar as the Supreme Court’s interpretation of the rule (1)

emphasized      the        analytical      rigor         required         to        evaluate     a

plaintiff’s     statistical       evidence         of    commonality           at     the    class

certification      stage,      (2)    placed       the    burden         on    plaintiffs       to

provide      “significant        proof”           of     a        “general          policy      of

discrimination”        and      “common        injury,”            and        (3)      relatedly

established that a company’s policy of discretionary decision-

making cannot sustain class certification without a showing that

supervisors exercised their discretion in a common way.

      Each of these arguments is considered in turn.

                                             A.

      Wal-Mart     reaffirmed        existing          precedent      that       courts       must

rigorously examine whether plaintiffs have met the prerequisites

of Rule 23(a) at the certification stage, an analysis that will

often overlap with the merits of a claim.                          Wal-Mart, 131 S. Ct.

at 2551 (citing Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147,

160-61 (1982)).            But as the Court later clarified, “Rule 23

grants    courts      no    license     to    engage         in    free-ranging             merits

inquiries at the certification stage.”                       Amgen Inc. v. Conn. Ret.

                                             15
Plans    &   Trust     Funds,   __   U.S.     __,      133   S.    Ct.    1184,    1194–95

(2013).      Instead, the merits of a claim may be considered only

when “relevant to determining whether the Rule 23 prerequisites

for class certification are satisfied.”                  Id. at 1195. 5

     This     Court’s     precedent     and      its    approach     in    Brown    I   are

consistent     with     Wal-Mart     and    Falcon.          See   Gariety     v.    Grant

Thornton, LLP, 368 F.3d 356, 366 (4th Cir. 2004) (observing that

“while an evaluation of the merits to determine the strength of

the plaintiffs’ case is not part of a Rule 23 analysis, the

factors      spelled    out     in   Rule    23     must     be    addressed       through

findings, even if they overlap with issues on the merits”).                              In

Brown I, this Court expressly invoked Falcon’s requirement of a

rigorous analysis to determine compliance with Rule 23.                                 576

F.3d at 152.         More important, of course, we actually conducted

     5
       The Wal-Mart majority confronted a split among courts
regarding the depth of review necessary to sustain class
certification under Rule 23.     See Dukes v. Wal-Mart Stores,
Inc., 603 F.3d 571, 582-84 (9th Cir. 2010), rev’d, 131 S. Ct.
2541 (2011) (describing the split between circuits); Wal-Mart,
131 S. Ct. at 2551-52. On one end of the spectrum, a number of
courts liberally construed the Supreme Court’s language in Eisen
v. Carlisle & Jacquelin, 417 U.S. 156 (1974), stating that
“nothing in either the language or history of Rule 23 . . .
gives a court any authority to conduct a preliminary inquiry
into the merits of a suit in order to determine whether it may
be maintained as a class action.”     417 U.S. at 177.    On the
other end, many courts, including this Circuit, heeded the
Supreme Court’s later call for a “rigorous analysis,” as
announced in Falcon.    See 457 U.S. at 160.    As Falcon held,
“sometimes it may be necessary for the court to probe behind the
pleadings before coming to rest on the certification question.”
Id.


                                            16
such    an    analysis,      providing        a    detailed           evaluation     of    the

workers’ anecdotal and statistical evidence to ensure that it

presented a common question under Rule 23(a)(2).                           Id. at 153-56.

       Contrary to the dissent’s assertion, we do not (and Brown I

did not) suggest that Rule 23 is a mere pleading standard.                                 See

post at 92.          Far from it.           It is true that Brown I cautioned

that “an in–depth assessment of the merits of appellants’ claim

at   this     stage    would      be    improper.”             Id.    at    156.     Such     a

statement,      however,       is      consistent     with       the       Supreme   Court’s

dictate in Amgen that a court should engage the merits of a

claim only to the extent necessary to verify that Rule 23 has

been satisfied.         Amgen, 133 S. Ct. at 1194-95.                          Brown I did

precisely that.

                                             1.

       Even    evaluated     in     a    still     more    painstaking         manner,      the

workers’ statistical           evidence       is   methodologically            sound      while

yielding results that satisfy Wal-Mart’s heightened requirement

of commonality discussed below.                    The parties’ central dispute

concerns the data used to analyze the period from December 1999

to   January    2001,    when       Nucor    failed       to    retain      actual   bidding

records.       For    that   period,        the    workers’          expert   developed     an

alternative benchmark that uses 27 relevant ‘change-of-status’

forms – filled out when an employee changes positions at the



                                             17
plant – to extrapolate promotions data because actual bidding

information was unavailable.

      Of   course,       it    belabors       the   obvious      to     observe       that      the

alternative       benchmark       is   a    less     precise      measure          than    actual

bidding data.        It is also clear, however, that plaintiffs may

rely on other reliable data sources and estimates when a company

has     destroyed        or     discarded          the    primary        evidence          in    a

discrimination       case.        More      than    two    decades       of    this       Court’s

precedent affirm as much.              See Lewis v. Bloomsburg Mills, Inc.,

773   F.2d    561    (4th       Cir.   1985);       United       States       v.    County       of

Fairfax, 629 F.2d 932, 940 (4th Cir. 1980); see generally Ramona

L.    Paetzold       &        Steven     L.     Willborn,         The       Statistics           of

Discrimination:           Using    Statistical           Evidence      in     Discrimination

Cases     § 4.03    (2014)       (describing        the    use    of    proxy       data     when

actual     data     is    unavailable         or     unreliable).             In     Lewis       v.

Bloomsburg Mills, Inc., this Court approved the use of Census

data to establish a hypothetical available pool of black female

job applicants after a company discarded employment applications

for the relevant period.                   773 F.2d at 568. 6               Plaintiffs then

compared the “observed” annual rate of hires of black women with


      6
       In Lewis, the company had “improperly disposed” of the
relevant employment applications, unlike the present case where
there is no direct evidence of any impropriety.     773 F.2d at
768.   That fact, however, does not affect our analysis of the
workers’ alternative benchmark.


                                              18
the “expected” rates based upon the proportional availability of

black females in the labor pool.          Id.    We endorsed a similar use

of proxy data in United States v. County of Fairfax, involving a

county government that had destroyed three years of employment

applications.     629 F.2d at 940.        To analyze hiring during that

time, plaintiffs assumed that the proportion of black and women

applicants for those years was the same as in the first year for

which the county retained records.              Id.     This Court approved,

concluding the alternative benchmark was “the most salient proof

of the County’s labor market.”        Id. 7

                                     2.

     The critical question is thus not whether the data used is

perfect   but   instead   whether    it   is    reliable    and    probative   of

discrimination.     To that end, a court must examine whether any

statistical     assumptions   made   in   the    analysis    are    reasonable.

See Paetzold & Willborn, supra, § 4.16.               The district court here


     7
       The dissent cites Allen v. Prince George’s County, 737
F.2d 1299, 1306 (4th Cir. 1984), to support its argument that a
court has wide discretion to reject alternative benchmarks.
Post at 110-11.    In Allen, however, the defendants produced
actual “applicant flow data” that contradicted the conclusions
of the plaintiffs’ statistics that were based on more general
workforce/labor market comparisons.   Allen, 737 F.2d at 1306.
Here, like in Lewis, such actual applicant data is unavailable.
See Lewis, 773 F.2d at 568 (noting that “applicant flow data”
was not available).   Furthermore, Nucor has not presented any
alternative statistical study, or shown that data exists that
may be more reliable than the alternative benchmark used by the
workers.


                                     19
identified          two   assumptions    made    by    the    workers’    experts     as

problematic.

        The district court first questioned the assumption that the

job changes described on the 27 forms represent promotions.                          See

J.A. 10942.          As an example of clear factual error committed by

the court, it quoted at length from the dissent in Brown I to

argue       that    the   forms   may   represent      job    changes    unrelated    to

promotions.           J.A. 10942 (quoting Brown I, 576 F.3d at 167-68

(Agee, J., concurring in part and dissenting in part)).                              The

forms       cited    in   Judge   Agee’s    original         dissent,   however,     are

plainly not among the 27 relied upon by the workers’ experts in

constructing the alternative benchmark.                  Compare J.A. 10942 (the

district court’s decertification order quoting the dissent in

Brown I), with J.A. 11005-11032 (copies of the actual change-of-

status forms used in the expert analysis).                        Worse still, the

dissent in Brown I reached the question of whether the 27 forms

represented         promotions    without    the      issue    having    been   raised,

much less analyzed, by the district court in its original order

denying certification, see J.A. 8979, or by Nucor itself in its

briefing before this Court in Brown I. 8                     The dissent in Brown I


        8
       Nucor instead argued that the change of status forms
failed to capture whether black employees bid on the positions,
and whether the positions were open for bidding in the first
place. Given the lack of controversy surrounding whether the 27
forms described promotions, the forms themselves were not
(Continued)
                                            20
thus both engaged in sua sponte fact-finding to divine which

forms were used, and then got the facts wrong. 9                Using the flawed

data, the dissent concluded in Brown I that “[o]n this record,

it is difficult, if not impossible to discern whether the 2000

data based on the nebulous change-of-status forms proves those

positions    were        promotion    positions       available      for     employee

bidding    and    thus    relevant    to    the   formulation     of       statistical

evidence for the appellants’ claims.”                 Brown I, 576 F.3d at 168

(Agee, J., concurring in part and dissenting in part).                             The

district     court        expressly        embraced     that      conclusion       in

decertifying the promotions class after Wal-Mart.                    J.A. 10942.

     Upon        examining     the     correct        change-of-status          forms,

discerning   whether       they   represent       promotions    is     a    relatively

straightforward enterprise.           Nineteen of the 27 forms expressly

state they are for a promotion, for a “successful bidder” on a

“higher position,” or for a new position that was “awarded” or


introduced into the record until 2012, after the district
embraced the fact-finding conducted by the dissent in Brown I
and observed that “the Court has never seen the 27 change-of-
status forms. . . .” J.A. 10943. The workers then appended all
the   forms   to  their  motion  to   “alter  and amend”   the
decertification order – a motion that was denied.  J.A. 11005,
11083.    Notably, it also appears that in 2006 the workers’
expert provided Nucor with a list of the 27 employees used in
the benchmark analysis. See J.A. 1409, 1438.
     9
       Given that history, we would be remiss not to acknowledge
the irony inherent in the dissent’s insistence that we are now
impermissibly   making   factual   determinations  without   due
deference to the district court.


                                           21
“earned.”           Two    of        the    forms       describe            changes     in   job

classification       accompanied           by    an   increase         in    pay.      One   form

notes that an inspector was a “successful bidder” on a mill

adjuster job – a move referred to on another change form as a

promotion.       Two forms are for a “successful bidder” on a new

position where no new pay grade is noted.                              The remaining three

forms appear to involve changes in positions or training that

involved     a   decrease       in    pay,      but    there      is    no    indication,     or

argument by Nucor or the district court, that the exclusion of

those forms would substantially undermine the probativeness of

the expert analysis.

       The second assumption criticized by the district court was

that   the   bidding       pools      for       the   27    positions         filled    between

December     1999    and    January        2001       had   the    same       average    racial

composition as the pools for similar jobs analyzed from 2001 to

December 2003, when the company retained actual bidding data.

Because of discovery limitations imposed by the district court,

the information available regarding the 2001-2003 promotions was

restricted to positions similar to ones bid on by the named

plaintiffs, where there was at least one black bidder.                                 However,

because Nucor failed to retain bidding records for 1999-2000,

the data from that period could not be limited to positions

where there was a known black bidder.                        Instead, the alternative

benchmark had to assume that there was at least one black worker

                                                22
applying for each promotion analyzed – an assumption that the

district court concluded helped render the statistical analysis

unreliable.           But   as    we     already      determined       in     Brown     I,     the

assumption does not fatally undermine the probativeness of the

experts’ findings.               The workers’ experts limited the records

they analyzed         to    the    same    positions        identified        in      the    later

period    when    bidding         data    was    available,         positions         for    which

there was a black bidder.                 J.A. 1161-62.          In its original order

denying    certification,           the    district         court     observed        that     the

assumptions       regarding         bidding          “may   be   reasonable            and    the

statistics based thereon may be relevant to prove discrimination

at the plant,” but “the necessity of the assumptions diminishes

their probative value.” 10               J.A. 8987; see also Brown I, 576 F.3d

at 156.     As we previously concluded, an incremental reduction in

probative value – which is a natural consequence of the use of

proxy     data    –     does      not    itself       render     a    statistical            study

unreliable in establishing a question of discrimination common

to the class.           Brown I, 576 F.3d at 156.                    Indeed, to conclude

otherwise       would      undermine      our    prior      precedent       in     cases     like

Lewis     and    Fairfax,        rendering       plaintiffs          unable      to    bring    a

statistics-based employment discrimination claim after a company

     10
        After we pointed to this language in Brown I, the
district court did an about-face and changed its conclusion to
state that the statistics were “fundamentally unreliable.” J.A.
10941.


                                                23
has    intentionally       or      inadvertently       destroyed   actual        applicant

data. 11     See Lewis, 773 F.2d at 568; Fairfax, 629 F.2d at 940.

                                            3.

       The dissent points to still more statistical assumptions –

assumptions not discussed by either the district court or Nucor

–     to    further      question     the   reliability       of     the    alternative

benchmark.         Specifically, the dissent suggests that the black

workers may not have been qualified for higher paying jobs and

that        they   may     have      been   denied        promotions        because     of

disciplinary        records     that    were     not    themselves    the    result     of

racial       animus.         See     post   at    111,     114-17.          As    to   the

qualifications of the workers, Nucor identifies nothing in the

record – or in any factual findings by the district court - to

suggest that black workers regularly applied for jobs for which

they were not qualified, such that the reliability of the study

would be compromised.              Indeed, the Nucor job postings explicitly

listed       the   minimum    qualifications       required,       and     the    workers’

experts reasonably assumed that individuals would normally apply

       11
        The workers’ experts acknowledged that the incomplete
data “undermined” their “ability to use posting and bidding
records to analyze [those] promotions.” J.A. 1161. In context,
however, the experts were lamenting the failure of Nucor to
“produce all such records.”       J.A. 1161.    As the experts
concluded, they were able to “calculate reliable statistics” for
the limited universe of positions they analyzed, even though
greater discovery would have allowed them to make a more
“powerful” study of plantwide disparities.    J.A. 1253-54; see
also J.A. 1340-41.


                                            24
only if they believe they met such qualifications.                           See J.A.

7763 (an example of a job posting); J.A. 1162.                       That is not to

say that patently unqualified workers did not apply in isolated

cases.     But there is no reason to believe that such incidents

would     have    substantially       reduced    the        reliability       of   the

statistical conclusions.          It also bears repeating that it was

Nucor that failed to retain or produce records that would have

allowed the experts to take other variables like qualifications

more precisely into account.          See J.A. 1165.

     The dissent, however, goes a step further in speculating

that black workers may have been denied promotions because of

their disciplinary records.             See post at 111.              Again, Nucor

itself does not make this argument.               Instead, the argument the

dissent     constructs     is   based    on     the       company’s    self-serving

responses    to    the    workers’    interrogatories          and    requests     for

production – where Nucor asserts that some of the black workers

were not chosen for promotions due to disciplinary issues.                         The

record, however, does not include disciplinary records for the

named plaintiffs or putative class members.                    More fundamental,

the workers allege that any disproportionate disciplinary action

levied     against       them   was     itself        a     product     of     racial

discrimination, with the disciplinary records then used as a

pretext in hiring decisions.          As worker Ramon Roane has stated:



                                        25
       Discipline, attendance, and safety allegations are
       similar factors that are not equally applied and that
       have been used as an excuse to deny promotions to me
       and other persons of my race.     The attitudes I have
       experienced with white supervisors lead me to believe
       that my race and that of other black employees makes a
       difference in how we are treated and viewed for
       discipline[,] promotions[,] and training.

J.A. 1000; see also J.A. 1024 (Alvin Simmons’s statement that a

white employee was promoted over him despite the fact that the

white employee “had been disciplined less than a year earlier

for ‘not paying attention’ when operating equipment”); J.A. 1111

(Earl      Ravenell’s       statement             that     black          workers         were

disproportionately        singled      out    for    disciplinary         action);        J.A.

6783     (Michael       Rhode’s     description            of      discrimination          in

disciplinary     action).          See     generally        J.A.    10960-10972           (the

district court’s factual findings regarding the existence of a

racially    hostile      work     environment);           Desert    Palace,       Inc.      v.

Costa,     539   U.S.     90,     101-02      (2003)       (allowing        the     use    of

circumstantial      evidence      to     show      that    race     was    a   motivating

factor in a “mixed-motive” case involving both legitimate and

illegitimate reasons for an employment decision); Rowland v. Am.

Gen. Fin., Inc., 340 F.3d 187, 193-94 (4th Cir. 2003) (allowing

the use of circumstantial evidence to show that gender was “a

motivating factor” in a failure to promote an employee).                              Given

that background, it is easy to see why the district court chose

not to advance the arguments that the dissent makes today.


                                             26
       Finally, the dissent criticizes the assumption that the 27

positions identified were actually open for bidding. 12                 Post at

109.        That assumption, however, derives directly from Nucor’s

stated policy that every job vacancy is posted on plant bulletin

boards and is open to bidding plant-wide – a policy cited by

Nucor’s own expert and the district court.                See J.A. 5887 (the

Report      of   Finis   Welch,   observing    that    “[o]pen   positions    are

posted on bulletin boards and through email,” and that “[a]ll

employees in the plant are eligible to bid on a posted job”);

see also         Resp’ts’ Br. 9 (“Department managers set the process

in   motion       by   sending    postings    for   available    promotions   to

Personnel employees, who performed a purely clerical role and

advertised        postings   plantwide.”);      J.A.    8979     (the   district

court’s       original    order    denying    certification,      finding    that

“[w]hen a position in a department becomes available, the job is

posted on the plant’s e-mail system, which is accessible to all




       12
        At times, the dissent seems to suggest that statistical
assumptions themselves are to be viewed with great suspicion.
What matters, however, is not whether an analysis makes
assumptions   based  on   imperfect    data, but  whether  those
assumptions are reasonable.         Indeed, statistics are not
certainties but are merely “a body of methods for making wise
decisions in the face of uncertainty.” W. Allen Wallis & Harry
V. Roberts, The Nature of Statistics 11 (4th ed. 2014); see also
M.J. Moroney, Facts from Figures 3 (1951) (“A statistical
analysis, properly conducted, is a delicate dissection of
uncertainties, a surgery of suppositions.”).


                                        27
employees in the plant”).             The dissent nonetheless argues that

the statistical assumption was unreasonable. 13                We disagree.

                                           4.

       With    the     alternative     benchmark      evidence    included,     the

statistical disparity in promotions is statistically significant

at 2.54 standard deviations from what would be expected if race

were    a   neutral    factor.       See   Hazelwood    Sch.    Dist.   v.   United

States, 433 U.S. 299, 308 n. 14 (1977) (indicating that anything

greater       than    two   or    three    standard    deviations       in   racial

discrimination cases is suspicious, at least for large sample

sizes); Brown I, 576 F.3d at 156 n.9 (applying the Hazelwood

standard to the workers’ statistical evidence); Jones v. City of

Boston, 752 F.3d 38, 46-47 (1st Cir. 2014) (observing that two

standard deviations has become the commonly accepted threshold

for    social        scientists    and     federal     courts     “in    analyzing

statistical showings of disparate impact”).                     According to the

experts’ analysis, black employees constitute 19.24% of those


       13
       The record does indicate that “supervisory positions” are
not typically posted for bidding under the Nucor hiring policy.
J.A. 257.   Neither Nucor nor the district court, however, has
provided any reason to believe that any of the 27 records at
issue describe open supervisory jobs, as Nucor defined the term,
and were thus not posted.     Furthermore, the dissent suggests
that there may have been isolated instances when Nucor did not
follow its posting policy for non-supervisory jobs.     The fact
that a company does not follow its policy to a tee, however,
does not fatally undermine a statistical assumption based upon
such a policy.


                                           28
who applied for relevant promotions.                      Yet such employees were

only 7.94% percent of those promoted.

     Of    course,        statistical        significance          is     not     always

synonymous with legal significance.                    EEOC v. Fed. Reserve Bank

of Richmond, 698 F.2d 633, 648 (4th Cir. 1983) rev’d on other

grounds sub nom. Cooper v. Fed. Reserve Bank of Richmond, 467

U.S. 867 (1984).      Indeed, the usefulness of statistical evidence

often     “depends    on      all      of        the    surrounding        facts     and

circumstances.”           Teamsters,    431        U.S.    at   340.        Here,    the

surrounding      circumstances              and        anecdotal        evidence      of

discrimination,      as     described       in     greater      detail     below,    are

precisely what help animate the statistical findings. 14                           As we

held in Brown I and reaffirm today, “because the appellants’

direct    evidence   alone     was     sufficient          to   demonstrate       common

claims    of   disparate      treatment          and    disparate       impact,     their

statistical data did not need to meet a two-standard-deviation

threshold.”    Brown I, 576 F.3d at 156-57.                  Thus it is plain that

when the statistical disparity actually exceeded two standard



     14
        Indeed, the workers’ statistical analysis may actually
underestimate the impact of race on promotions at Nucor.     As
worker Eric Conyers stated in his declaration:   “If I believed
that a truly level playing field existed at the company I would
have bid on numerous other positions such as Roll Guide Builder
in the Beam Mill.” J.A. 1079. But the expert analysis at issue
could not capture the impact of discrimination on depressed
bidding rates.


                                            29
deviations,          the     district        court    abused      its     discretion      in

decertifying the class.

                                               B.

       The        district   court      further      concluded     that    the    workers’

statistical and anecdotal evidence was insufficient for class

certification         insofar      as   the    evidence     did    not    demonstrate      a

uniform class-wide injury that spanned the entire Nucor plant.

As the court observed, Wal-Mart instructs that plaintiffs must

present a common contention capable of being proven or disproven

in     “one        stroke”    to     satisfy         Rule   23(a)(2)’s       commonality

requirement.          Wal-Mart, 131 S. Ct. at 2551.                Thus, a class-wide

proceeding must be able to generate common answers that drive

the litigation.            Id.; see also Jimenez v. Allstate Ins. Co., 765

F.3d 1161, 1165 (9th Cir. 2014) (observing that “a class meets

Rule     23(a)(2)’s          commonality        requirement        when     the    common

questions it has raised are apt to drive the resolution of the

litigation, no matter their number” (internal quotation marks

omitted)).           For a claim based on discrimination in employment

decisions, “[w]ithout some glue holding the alleged reasons for

all those decisions together, it will be impossible to say that

examination of all the class members’ claims for relief will

produce       a    common    answer     to    the    crucial     question    why    was    I

disfavored.”          Wal-Mart, 131 S. Ct. at 2552 (emphasis omitted);



                                               30
see also Scott v. Family Dollar Stores, Inc., 733 F.3d 105, 113

(4th Cir. 2013).

       The workers here most generally present two such common

contentions       capable      of    class-wide        answers    under    Title       VII.

Under a disparate treatment theory, the common contention is

that    Nucor     engaged      in     a     pattern    or    practice     of     unlawful

discrimination      against         black    workers    in   promotions        decisions.

See Teamsters, 431 U.S. at 336.                     Under the workers’ disparate

impact theory, the common contention is that a facially neutral

promotions policy resulted in a disparate racial impact.                                See

Griggs,    401    U.S.   at    429-31.         As     Wal-Mart   observed,       however,

semantic    dexterity       in      crafting      a    common    contention       is    not

enough.          Commonality        instead       “requires      the    plaintiff        to

demonstrate       that   the     class      members     ‘have    suffered       the    same

injury[.]’”       Wal-Mart, 131 S. Ct. at 2551 (quoting Falcon, 457

U.S. at 157).       As such, a court must examine whether differences

between class members impede the discovery of common answers.

Id. at 2551.

       In the absence of a common job evaluation procedure, Wal-

Mart held that statistical proof of employment discrimination at

the regional and national level, coupled with limited anecdotal

evidence from some states, was insufficient to show that the

company maintained a “general policy of discrimination” present

in each store where class members worked.                       See Wal-Mart, 131 S.

                                             31
Ct. at 2553.     Similarly, the district court here found that the

workers’ statistical and anecdotal evidence was insufficient to

show a general policy in all Nucor departments that caused the

class injury.

     The     district      court,     however,       failed   to      adequately

appreciate three significant differences from Wal-Mart that make

the case largely inapposite to the facts at hand.

                                       1.

     First,     Wal-Mart       discounted      the   plaintiffs’   statistical

evidence in large part because the statistics failed to show

discrimination on a store-by-store basis.               See Wal-Mart, 131 S.

Ct. at 2555.     As such, the plaintiffs could not establish that a

store greeter in Northern California, for instance, was subject

to the same discrimination as a cashier in New Hampshire.                 These

dissimilarities between class members were exacerbated by the

sheer size of the Wal-Mart class - 1.5 million members working

at 3,400 stores under “a kaleidoscope of supervisors (male and

female),   subject   to    a    variety   of    regional   policies    that   all

differed.”     Id. at 2557 (quoting Dukes v. Wal-Mart Stores, Inc.,

603 F.3d 571, 652 (9th Cir. 2010) (Kozinski, J., dissenting)).

The scale and scope of the putative class, combined with the

nature of the evidence offered, was thus essential to Wal-Mart’s

holding.     Had the class been limited to a single Wal-Mart store

spanning multiple departments, or had the plaintiffs’ evidence

                                       32
captured discrimination at a store level, a very different Rule

23(a)(2) analysis would have been required.

       In   contrast          to     Wal-Mart,              this        litigation     concerns

approximately        100   class      members          in    a     single    steel     plant      in

Huger, South Carolina.              The class members shared common spaces,

were in regular physical contact with other departments, could

apply for promotions in other departments, and were subject to

hostile plant-wide policies and practices.                                 See Brown I, 576

F.3d   at   151.       Such        differences         are       not     merely    superficial.

Instead, a more centralized, circumscribed environment generally

increases    the     uniformity           of    shared       injuries,       the     consistency

with    which       managerial        discretion              is        exercised,     and       the

likelihood that one manager’s promotions decisions will impact

employees in other departments.                       That is particularly the case

where, as discussed further below, the entire Nucor plant was

allegedly infected by express racial bias and stereotypes – a

culture     that      management               took    few         affirmative        steps       to

meaningfully combat.

       Nonetheless, the district court analogized to Wal-Mart in

finding     that     the      workers’          evidence           of    discrimination          was

insufficient        because    it     disproportionately                 concerned     a    single

department      –    the    Beam      Mill        –     and        because    there        was    an

insufficient        showing        that    all        departments          operated    under       a

common policy of discrimination.                        J.A. 10949-54.               As such, a

                                                 33
class-wide     proceeding      would    not     generate      “common      answers”    as

Wal-Mart required, the district court found.                       See Wal-Mart, 131

S. Ct. at 2551.

      The     district    court,     however,      inappropriately          discounted,

and often ignored, evidence that establishes discrimination in

other    Nucor   departments.          Although       11     of    the    16   employees

submitting declarations on behalf of the plaintiffs worked in

the Beam Mill, the declarants describe frequent instances of

alleged     promotions      discrimination       in    other      departments.        See

J.A. 1021-24; 1032-35; 1049-51; 1055-56; 1061-63; 1085-86; 1091-

92;   1103;    1110-11;     1118-19.        Even      the    additional        affidavits

obtained by Nucor, discussed in further detail below, present

numerous      allegations      of      discrimination             in     non-Beam    Mill

departments.        See J.A. 5992-95 (discrimination in the Hot Mill

and Melt Shop); 6143-45 (discrimination in the Hot Mill); 6174

(general      observations     of    promotions        discrimination);          6369-70

(discrimination in the Melt Shop); 6505-07 (discrimination in

the Hot Mill); 7036 (discrimination in the Melt Shop).                                The

record      additionally           indicates       numerous            complaints     of

discrimination       made     to     the    plant’s         general       manager,    who

allegedly     did   little    to    nothing      in    response.          Such   alleged

tolerance of discrimination from top management at the plant




                                           34
supports the workers’ contention of a class-wide injury that

affected them all. 15

      The district court made a still more fundamental error by

choosing to treat the Nucor departments as autonomous operations

in   the   first    place    instead    of    part   of   a     single   facility,

contravening both this Court’s instructions in Brown I and the

district    court’s    own    prior    findings.        The     district   court’s

original    order     to     certify    the     class     recognized       that    a

department-by-department approach had been foreclosed, writing:

      Since   the  Fourth Circuit   rejected  this  Court’s
      characterization of the production departments as
      separate environments, the Court must proceed under
      the assumption that the production departments were
      permeable, if not unitary.       This assumption is
      buttressed by the fact that Nucor’s bidding is plant-
      wide, and this Court already has held that “potential

      15
        As the district court found in                    the    context   of     the
workers’ hostile work environment claim:

      These affidavits support the Court’s conclusion that
      although allegations of a hostile work environment
      were most prevalent and severe in the Beam Mill,
      employees from all of the production departments were
      subjected   to   abusive  behavior.      Specifically,
      employees from every department reported seeing the
      Confederate flag, employees from every department
      reported seeing racist graffiti; and employees from
      every department reported receiving racially offensive
      e-mails. Furthermore, in several instances, employees
      who worked in one department indicated they were
      harassed by employees from other departments, and many
      employees reported observing what they considered to
      be racist symbols and racist graffiti in common areas
      of the plant.

J.A. 10968.


                                        35
        applicants are eligible            to prove they would have
        applied for a promotion            but for the discriminatory
        practice.”

J.A.    9705.       Wal-Mart     provided       no    grounds     for     the   court    to

reconsider that finding because nothing in the Supreme Court’s

opinion       suggests    that   single,        localized        operations      must   be

analytically dissected into component departments. 16                           Here, all

of the workers’ evidence concerns a single connected facility.

       Even    if   not   required    by    our      prior      ruling,    treating     the

plant as a single entity remains sound.                          In addition to the

direct       and    circumstantial         evidence        of     discrimination        in

promotions decisions in multiple departments, racial bias in one

Nucor       plant   department       itself          diminished     the      promotional

opportunities       for    black     workers         in   all     the     departments    –

including       those     who    wanted     promotions           into     the    infected

department and those who sought promotions to other departments

and needed their supervisors’ recommendations.                      To that end, the

workers cogently observe that requirements for dual approvals

       16
       The dissent insists that Brown I’s determination that the
Nucor plant should be treated as a single facility only extended
to the hostile work environment claim. Post at 123-24. Yet the
discussion of the issue in Brown I was specifically premised on
the district court’s findings regarding both the “pattern or
practice” and the work environment claims. Brown I, 576 F.3d at
157.   A district court may not typically relitigate “issues
expressly or impliedly decided by the appellate court.” Bell, 5
F.3d at 66.   Here, even the district court has recognized that
Brown I prevented a finding that the plant was not a unitary
environment in the context of the promotions claim.    J.A. 9705
(Certification Order).


                                           36
for promotions – by originating and destination department heads

–    “carr[ied]    the      effects    of    racial    discrimination         from   one

department       and     supervisor     to       another,    either      by   systemic

tolerance, acquiescence or design.”                   Appellants’ Reply Br. 24

(citing Smith v. Bray, 681 F.3d 888, 897 & n.3 (7th Cir. 2012)).

       Such a conclusion is further strengthened by the workers’

hostile work environment claim.                   As the district court itself

found, “the plaintiffs have submitted significant proof that the

landscape of the total work environment at the Berkeley plant

was hostile towards African-Americans and that the defendants

failed to take ‘remedial action reasonably calculated to end the

harassment.’”       J.A. 10966; see also Brown I, 576 F.3d at 157-58.

That environment, the workers argue, supports their showing of

an    atmosphere       of   systemic    tolerance      of    racial      hostility    by

managers and supervisors, forming part of the overall pattern or

practice        that        “infected        black         employees’         promotion

opportunities.”         We agree.

                                            2.

       Second,     the      Wal-Mart    plaintiffs’        theory   of    commonality

relied,    in    part,      on   showing     that    the    company      maintained    a

corporate culture that facilitated the uniform transmission of

implicit, or subconscious, bias into the hiring process.                             See

Wal-Mart, 131 S. Ct. at 2548.                    To that end, the plaintiffs’

expert testified the company was “vulnerable” to “gender bias.”

                                            37
Id. at 2553.             The Court, however, concluded that the expert

could not with specificity determine how the culture concretely

influenced       individual       employment       decisions.        Id.      at   2553-54.

The testimony was therefore insufficient to show a common policy

that produced a common injury.

     Here,        however,        the    workers     have     provided        substantial

evidence      of       unadulterated,       consciously       articulated,             odious

racism throughout the Nucor plant, including affirmative actions

by supervisors and a widespread attitude of permissiveness of

racial hostility.            The examples in the record are ubiquitous:

bigoted epithets and monkey noises broadcast across the plant

radio system, emails with highly offensive images sent to black

workers,     a        hangman’s     noose    prominently          displayed,       a    white

supervisor stating that “niggers aren’t smart enough” to break

production records, and abundant racist graffiti in locker rooms

and shared spaces.           Moreover, no more than one black supervisor

worked in the Nucor production departments until after the EEOC

charge that preceded this litigation.                     It strains the intellect

to   posit       an     equitable       promotions       system     set    against      that

cultural backdrop, particularly in light of the other evidence

presented.

     The dissent rejects the idea that evidence of a racially

hostile      work       environment       may     help    establish       a    claim     for



                                             38
disparate treatment in promotions decisions. 17                            Post at 124-25.

Indeed, the dissent goes so far as to observe that                                    “locker

rooms and radios bear no relationship to promotions decisions.”

Id.   at        125.      Such    a    perspective,         however,       is    perplexingly

divorced          from       reality       and        the    history        of      workplace

discrimination.           It 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.            Although the dissent asserts that “nothing in the

record      supports”          making       a     connection         between       the        work

environment and promotions practices, we are not limited to the

record in         making     such     elementary       judgments.          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.

                                                 3.

      Third,           and       related,        the        anecdotal           evidence       of

discrimination in this case is substantially more probative than


      17
       We do not suggest, of course, that evidence of a hostile
work environment is sufficient by itself to support a disparate
treatment or disparate impact claim. Rather, we merely observe
that the substantial showing of endemic prejudice at the plant –
a prejudice that was allegedly tolerated and/or encouraged by
management - heightens the probativeness of the workers’ other
evidence.


                                                 39
that in Wal-Mart.       The Wal-Mart plaintiffs presented affidavits

from about 120 female employees, representing approximately one

affidavit for every 12,500 class members.           Wal-Mart, 131 S. Ct.

at 2556.       The affidavits captured only 235 of Wal-Mart’s 3,400

stores, and there were no affidavits from workers in 14 states.

Id.     The evidence thus fell far short of the benchmark for a

showing of company-wide discrimination established by Teamsters,

431 U.S. 324.      In Teamsters, the plaintiffs produced statistical

evidence of racial bias combined with approximately 40 accounts

of    discrimination    from   particular   individuals.     Id.   at   338.

Given the class size of approximately 334 persons, there was

roughly one anecdote for every eight members of the class.               See

id. at 331, 338; Wal-Mart, 131 S. Ct. at 2556.          “[T]he anecdotes

came from individuals spread throughout the company who for the

most    part   worked   at   the   company’s   operational   centers    that

employed the largest numbers of the class members.”                See Wal-

Mart, 131 S. Ct. at 2556 (internal quotation marks omitted).

Similarly, this litigation includes anecdotal evidence from more

than 16 individuals 18 in a class that numbered approximately one-


       18
        This number includes both the 16 declarations introduced
by the workers and other accounts of discrimination included in
affidavits obtained by Nucor after the EEOC charge was filed.
See, e.g., J.A. 5992-95, 6143-45, 6174, 6369-70, 6505-07, 7036.
Of the 16 worker-filed declarations, Byron Turner’s statement
fails    to    mention   specific   instances    of   promotions
discrimination, but instead affirms that that he was “affected
(Continued)
                                      40
hundred “past and present black employees at the plant” at the

time litigation commenced – an approximate ratio of one anecdote

for every 6.25 class members. 19    See Brown I, 576 F.3d at 151

(describing the class size).




by the same practices that Ramon Roane and the other named
plaintiffs” have raised.    J.A. 1124.   The dissent argues that
the declaration of Walter Cook also fails to mention promotions.
Post at 134. Cook’s declaration, however, states that he heard
white employees talking about a black worker’s application for
an Operator position.   According to Cook, the employees stated
they would “do everything that they could to make sure that
nigger didn’t get the job.”     J.A. 1075.  Further, the dissent
argues that the declaration from Kenneth Hubbard includes a
complaint that Nucor in fact promoted him.         Post at 134.
Hubbard’s declaration, however, accuses Nucor of placing him “in
the position to get [him] out of the mill and the line of
progression that lead to supervisory positions.”      J.A. 1097.
Hubbard also observes that his trajectory at the company was
dramatically different from that of a white co-worker who
started at the plant at the same time and later became a
supervisor.    Id.    Indeed, the dissent’s approach to the
affidavits, consistent with its approach to the anecdotal
evidence throughout, appears to be to cherry pick facts from an
11,000 page record, strip those facts of context, and then argue
that they undermine the substantial, credible evidence of
discrimination that the workers have produced.
     19
        There is some uncertainty about the precise size of the
class. At the time the litigation began, seventy-one workers at
the Nucor plant were black. Brown I, 576 F.3d at 151. As the
district court found, there was a total of “ninety-four black
employees who worked at the plant from 2001 through 2004.” Id.
at 152. The workers’ experts estimated that there may have been
about 150 black workers in total who “were potentially affected
by the selection decisions regarding promotion at Nucor-
Berkeley.” J.A. 1154. Even assuming a class size of 150, there
would   be   more  than   one   anecdotal  account   of   racial
discrimination for every 9.38 class members, a ratio that
remains in line with the evidence in Teamsters.     Furthermore,
that number does not take into account the descriptions of
(Continued)
                               41
        Balanced       against      such    evidence,       the    district    court      gave

“limited       weight”       to   approximately        80     affidavits       from      Nucor

employees       largely      disclaiming       discrimination         at     the    plant    -

affidavits taken by company lawyers after the EEOC charges had

been filed.            See J.A. 10950-51.             Common sense and prudence,

however, instruct that the affidavits do little to rebut the

evidence       of    discrimination         insofar    as    they     were    given      under

potentially coercive circumstances, where the company reserved

its ability to use them against other employees in any future

lawsuit     (a       fact    that     was    omitted        from     the     Statement      of

Participation given to affiants).                  See J.A. 6003 (the Statement

of Participation), 9379 (Nucor’s statement that it intended “to

use the affidavits for every purpose permitted under the Federal

Rules     of        Evidence,”       including        the        opposition     to       class

certification          and    the     impeachment       of       witnesses);       see    also

Kleiner v. First Nat’l Bank of Atlanta, 751 F.2d 1193, 1202

(11th Cir. 1985) (observing that after a class action has been

filed, “[a] unilateral communications scheme . . . is rife with

potential        for     coercion”);         Quezada        v.     Schneider       Logistics

Transloading & Distrib., No. CV 12-2188 CAS, 2013 WL 1296761, at

*5 (C.D. Cal. Mar. 25, 2013) (finding in a class action context




discrimination in promotions decisions in the affidavits that
Nucor itself obtained, as previously described.


                                              42
that    “[f]ailing        to    inform       the      employees     of     the     evidence-

gathering purpose of the interviews rendered the communications

fundamentally      misleading          and       deceptive     because     the     employees

were    unaware        that     the    interview         was    taking      place    in    an

adversarial context, and that the employees’ statements could be

used to limit their right to relief”); Longcrier v. HL-A Co.,

595 F. Supp. 2d 1218, 1228 (S.D. Ala. 2008); Mevorah v. Wells

Fargo Home Mort., Inc., No. C 05-1175 MHP, 2005 WL 4813532, at

*4   (N.D.      Cal.     Nov.    17,       2005).        Of    course,     companies       may

investigate      allegations          of   discrimination         and    take    statements

from employees.           But when it comes to assessing the probative

value of those statements – when weighed against the numerous

declarations      of     employees         who    took   the     often     grave    risk    of

accusing an employer of a workplace violation - courts should

proceed with eyes open to the imbalance of power and competing

interests. 20          Moreover,      as    previously         observed,    the     company-

obtained       affidavits        still       contain      numerous       allegations       of

discrimination in promotions decisions - allegations that carry

significant weight given the circumstances in which they were

made.       See J.A. 5992-95, 6143-46, 6174, 6370, 6506, 7036.

       20
        The dissent is thus mistaken when it asserts that we are
articulating a new rule that courts categorically may not
consider the affidavits obtained by companies as part of an
investigation into allegations of discrimination.    See post at
141.   Instead, our analysis concerns the weight that should be
given to such affidavits in these circumstances.


                                                 43
       Of course, a plaintiff need not “offer evidence that each

person for whom it will ultimately seek relief was a victim of

the employer’s discriminatory policy.”                       Teamsters, 431 U.S. at

360; see also EEOC v. Korn Indus., Inc., 662 F.2d 256, 260 (4th

Cir.   1981).          Instead,      a    bifurcated       class    action       proceeding

allows for a “liability” stage to first determine whether an

employer    engaged      in    a   pattern         or   practice    of     discriminatory

conduct.       Teamsters, 431 U.S. at 360; Korn, 662 F.2d at 260.

Upon a finding of liability, a second damages stage allows for

the consideration of which individuals were specifically harmed

by the policy.          Teamsters, 431 U.S. at 361; Korn, 662 F.2d at

260.

                                              4.

       Here,     for     a    liability        determination          in     a     disparate

treatment      claim,        the     workers’           statistical        and     anecdotal

evidence, especially when combined, thus provide precisely the

‘glue’ of commonality that Wal-Mart demands.                          See Brown I, 576

F.3d at 156.           Such a claim requires proof of a “systemwide

pattern     or     practice”             of   discrimination          such       that   the

discrimination         is     “the        regular       rather     than      the    unusual

practice.”       Teamsters, 431 U.S. at 336; Cooper, 467 U.S. at 875-

76; see also Wal-Mart, 131 S. Ct. at 2552 n.7.                               The required

discriminatory intent may be inferred upon such a showing.                               See

Teamsters, 431 U.S. at 339-40; Hazelwood, 433 U.S. at 308-09

                                              44
(observing that “[w]here gross statistical disparities can be

shown, they alone may in a proper case constitute prima facie

proof of a pattern or practice of discrimination”).

       Whereas there may have been many answers in Wal–Mart to the

question      of      why    any   individual         employee       was    disfavored,       the

workers here have sufficiently alleged that there is only one

answer      to     the      question   of       why    Nucor’s       black    workers        were

consistently disfavored. 21                 Unlike a disparate impact claim, a

showing          of      disparate     treatment             does     not     require         the

identification of a specific employment policy responsible for

the    discrimination.              See     Teamsters,         431    U.S.    at     336     n.16

(discussing the legislative history of Title VII and concluding

that    the      words      “pattern       or   practice”         should     be    interpreted

according to their plain meaning).                         A pattern of discrimination,

revealed through statistics and anecdotal evidence, can alone

support a disparate treatment claim, even where the pattern is

the result of discretionary decision-making.

       To hold otherwise would dramatically undermine Title VII’s

prophylactic powers.               As the Supreme Court observed in Griggs, a

central       purpose        of    Title    VII       is    “to     achieve       equality     of


       21
        Contrary to the dissent’s assertion, we do not find “in
the first instance” that the worker’s allegation is correct.
Instead, we conclude that the district court clearly erred in
finding that the allegation was not sufficiently supported by
the record.


                                                45
employment opportunities and remove barriers that have operated

in the past to favor an identifiable group of white employees

over other employees.”           401 U.S. at 429-30; see also Albemarle

Paper Co. v. Moody, 422 U.S. 405, 417-18 (1975) (stressing Title

VII’s prophylactic goals in addition to its purpose “to make

persons    whole   for   injuries       suffered    on    account       of    unlawful

employment discrimination”).             Here, where substantial evidence

suggests a pattern of engrained discriminatory decision-making

that consistently disadvantaged black workers at Nucor, to deny

class certification would significantly weaken Title VII as a

bulwark against discrimination.

                                         C.

     Statistics        and    anecdotes         suggesting       a      pattern         of

discrimination,       however,    are    not    enough    alone      to      sustain    a

disparate   impact     claim.      See    Wal-Mart,      131    S.     Ct.    at   2555;

Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994 (1988).

Disparate   impact     liability     requires      the    identification           of   a

specific    employment       practice    that    caused     racially         disparate

results.    See 42 U.S.C. § 2000e-2(k); Watson, 487 U.S. at 986-

87; Griggs, 401 U.S. at 431.              Unlike disparate treatment, the

disparate    impact    theory     does    not    require       proof    of    improper

intent to sustain a Title VII violation.                 Teamsters, 431 U.S. at

349; Griggs, 401 U.S. at 429-31 (finding the use of standardized



                                         46
tests resulted in a disparate impact).                      Instead, liability is

premised on facially neutral policies.                  Griggs, 401 U.S. at 431.

     Under Wal-Mart, a mere showing that a “policy of discretion

has produced an overall . . . disparity does not suffice.”                            Wal-

Mart, 131 S. Ct. at 2556.            Instead, plaintiffs who allege such a

policy of discretion must demonstrate that a “common mode of

exercising       discretion”      actually       existed    throughout      a    company.

Id. at 2554; see also Tabor v. Hilti, Inc., 703 F.3d 1206, 1229

(10th Cir. 2013) (observing that “after Wal-Mart, federal courts

. . .    have      generally       denied        certification      when        allegedly

discriminatory         policies      are     highly      discretionary          and    the

plaintiffs       do    not   point    to      a    common    mode     of    exercising

discretion that pervades the entire company” (internal quotation

marks omitted)).          Given that standard, the district court here

found    that    the    workers     “failed       to   identify   any      factor     that

unites     the     manner    in     which        the   various      decision      makers

throughout the Berkeley plant exercised their discretion.”                            J.A.

10955.

     Wal-Mart          recognizes     that        in    certain     cases,       “giving

discretion to lower-level supervisors can be the basis of Title

VII liability under a disparate-impact theory,” 131 S. Ct. at

2554, because “an employer’s undisciplined system of subjective

decisionmaking [can have] precisely the same effects as a system

pervaded    by     impermissible       intentional         discrimination.”            Id.

                                            47
(alteration in original) (quoting Watson, 487 U.S. at 990).                                  For

a nationwide class, Wal-Mart found that proving a consistent

exercise of discretion will be difficult, if not impossible in

some circumstances.          Id.; see also Davis v. Cintas Corp., 717

F.3d 476, 488 (6th Cir. 2013) (noting the difficulties Wal-Mart

presents for parties seeking to certify a nationwide class).

      But for a localized, circumscribed class of workers at a

single facility, a policy of subjective, discretionary decision-

making can more easily form the basis of Title VII liability,

particularly       when    paired    with          a   clear   showing        of    pervasive

racial hostility.         In such cases, the underlying animus may help

establish a consistently discriminatory exercise of discretion.

      This    Court’s      recent    opinion           in   Scott   v.     Family      Dollar

Stores,     Inc.   specifically      provides           several     ways       that    such    a

disparate     impact      claim    may   satisfy            Rule   23   after       Wal-Mart,

including:     (1) when the exercise of discretion is “tied to a

specific     employment     practice”         that      “affected       the    class      in   a

uniform manner”; (2) when there is “also an allegation of a

company-wide policy of discrimination” that affected employment

decisions;     and   (3)    “when    high-level             personnel      exercise”         the

discretion at issue.         Scott, 733 F.3d at 113-14.

      The    first   and    second       of    Scott’s         alternatives         are   most

relevant to this case.            A specific employment practice or policy

can   comprise     affirmative      acts       or      inaction.         Cf.       Ellison     v.

                                              48
Brady,       924    F.2d     872,        881      (9th     Cir.    1991)     (explaining         an

employer’s         responsibility            to    act     to     rectify       a    hostile     or

offensive          work     environment           under      Title       VII).          Regarding

affirmative         acts,        the     district         court    has     established         that

Nucor’s promotions practice provides that “[e]mployees in each

of the production departments may bid on positions available in

other departments,” and that in order to promote one of the

bidders,       “the       supervisor,          the       department      manager,       and     the

general manager must approve a written change of status and then

submit the change of status form to the personnel office.”                                     J.A.

477-78.

       For    purposes           of    class      certification,          the       workers    have

provided sufficient evidence that such a policy, paired with the

exercise of discretion by supervisors acting within it, created

or   exacerbated           racially       disparate         results.         The      promotions

system, requiring approvals from different levels of management,

created an environment in which the discriminatory exercise of

discretion          by     one        department         head     harmed    the       promotions

opportunities for all black workers at the plant by foreclosing

on   opportunities           in       that     department         and    generally       impeding

upward mobility.             Moreover, the disproportionate promotions of

white workers had to be ratified by the general manager, Ladd

Hall, who was thus on notice, or should have been on notice,

that   there        were    pronounced         racial       disparities         in    department-

                                                  49
level promotion practices, as indicated by the statistical and

anecdotal evidence presented.

      The workers have also presented sufficient evidence of a

practice    of    inaction      by    the     general      manager    who   ignored    the

evidence        of,    and   complaints            regarding,    discrimination        in

promotions at the plant.               See, e.g., J.A. 996-97, 1016, 1056,

1087, 1104.           Such managerial inaction occurred despite Nucor’s

status as an “Equal Opportunity Employer” and its claim to have

a “plantwide policy barring racial discrimination.”                               Resp’ts’

Br. 6.      One black worker, Ray Roane, has testified that he

complained directly to Hall about discrimination in promotions.

J.A. 996-97.          Hall threatened his job.                J.A. 997.        Consistent

with that evidence, the workers observe in the context of their

hostile    work        environment      claim       that     despite    a    policy    of

investigating complaints of racial harassment, “[n]ot even one

of the five department managers has been shown to have lifted a

finger to redress the racially hostile work environment found to

exist both plant-wide and in each department.”                         Appellants’ Br.

25.   The workers have sufficiently alleged that such a uniform

policy     of     managerial     inaction           also    contributed      to    racial

disparities in promotions decisions.

      Consistent         with        Scott,        the      workers     have      further

demonstrated that the exercise of discretion at Nucor was joined

by    “a    company-wide         policy        of        discrimination”       that    was

                                              50
encouraged, or at least tolerated, by supervisors and managers.

See Scott, 733 F.3d at 114.               In addition to the evidence of a

hostile    work    environment        previously    described      in     detail,    one

white supervisor has expressly stated in a deposition that he

heard the head of the Beam Mill declare, “I don’t think we’ll

ever have a black supervisor while I’m here.”                        J.A. 1885-86.

Such facts provide a critical nexus between the racial animus at

the   plant      and     promotions    decisions    that    impacted       all    black

workers by foreclosing opportunities for them.                     Or, using Wal-

Mart’s language, the evidence of pervasive racial hostility in

the working environment provides a “common mode of exercising

discretion that pervade[d] the entire company.”                         Wal-Mart, 131

S. Ct. at 2554-55.

      In    the    end,     Wal-Mart     simply    “found     it   unlikely”        that

thousands of managers across different regions “would exercise

their discretion in a common way without some common direction.”

Tabor,     703    F.3d    at   1222.     Here,     however,    the      workers     have

provided ample evidence supporting their allegation of a common,

racially-biased exercise of discretion throughout the plant –

demonstrated           through        alleged      incidents         of      specific

discrimination in promotions decisions, statistical disparities,

and facts suggesting pervasive plant-wide racism.                        The district

court abused its discretion in finding that such evidence was

insufficient to meet the burden that Wal-Mart imposes.

                                          51
                                          IV.

      Nucor     further       argues    that     the     workers   have    failed    to

contest     the    district      court’s        independent    finding      that     the

putative class failed to satisfy Rule 23(b)(3).                        As the company

observes, the district court specifically held that the class

failed     to   meet    the    rule’s    requirements        for   a    class    action

seeking     individualized        money        damages,     namely,      that    common

questions predominate over individualized inquiries and that the

class action is “superior to other available methods for fairly

and efficiently adjudicating the controversy.”                     Fed. R. Civ. P.

23(b)(3).       The court remarked that “even if the Fourth Circuit

subsequently       concludes     that    the     plaintiffs    have     identified     a

common     issue       that     satisfies        Rule     23(a)(2),       this     Court

nonetheless finds that ‘common issues,’ as that term is defined

by   Wal-Mart,     do   not     predominate       over    individual      issues    with

regard to the plaintiffs’ promotions claims.” 22                   J.A. 10956.

      Nucor contends that nowhere in the workers’ opening brief

is the Rule 23(b)(3) ruling addressed, and that any challenge to

      22
        This Court has previously observed that “[i]n a class
action   brought   under   Rule  23(b)(3),   the  ‘commonality’
requirement of Rule 23(a)(2) is ‘subsumed under, or superseded
by, the more stringent Rule 23(b)(3) requirement that questions
common to the class predominate over’ other questions.”
Lienhart v. Dryvit Sys., Inc., 255 F.3d 138, 146 n.4 (4th Cir.
2001) (quoting Amchem, 521 U.S. at 609).   But as Wal-Mart made
clear, the Rule 23(a) commonality requirement and the Rule
23(b)(3) predominance requirement remain separate inquiries.
Wal–Mart, 131 S. Ct. at 2556.


                                           52
that decision has thus been waived.                  The doctrine of waiver

derives from the Federal Rules of Appellate Procedure, which

require    that   the    argument    section    of   an   appellant’s    opening

brief contain the “appellant’s contentions and the reasons for

them, with citations to the authorities and parts of the record

on which the appellant relies.”              Fed. R. App. P. 28(a)(8)(A);

see also Mayfield v. Nat’l Ass’n for Stock Car Auto Racing,

Inc., 674 F.3d 369, 376-77 (4th Cir. 2012).               “Failure of a party

in its opening brief to challenge an alternate ground for a

district court’s ruling . . . waives that challenge.”                     United

States ex rel. Ubl v. IIF Data Solutions, 650 F.3d 445, 456 (4th

Cir. 2011) (quoting Rodriguez v. Hayes, 591 F.3d 1105, 1118 n.6

(9th Cir. 2010))).

      The workers contend first, and we agree, that no waiver

occurred because their arguments in the opening brief extended

to   the   district     court’s    discussion   of    both     predominance     and

commonality.      The     single    issue   identified    by    the   workers    on

appeal did not differentiate between the court’s findings on

either question.        The issue, as presented, was this:

      Was it error or an abuse of discretion for the
      district court not to follow this Circuit’s mandate
      holding   that     sufficient   statistical    and     non-
      statistical evidence has been presented to certify a
      pattern-or-practice     and   disparate    impact     class
      covering   all   six production     departments    of   the
      defendants’    manufacturing   plant   in   Huger,    South
      Carolina?


                                       53
Consistent      with     that        framing,       the    workers’          opening        brief

describes the district court’s decision in equally broad terms

without    distinguishing            between       commonality         and    predominance.

See Appellants’ Br. 28-29 (“The district court erred as a matter

of law by declining to follow this Court’s mandate that held

there is sufficient statistical and non-statistical evidence to

certify    a    class    covering       all     six    production            departments.”);

Appellants’ Br. 3 (citing to the portion of the district court

opinion where predominance is discussed).

     Although more explicit separation of the predominance and

commonality      inquiries       would     no       doubt       have    been     wise,        the

workers’ arguments throughout their brief directly respond to

the issues the district court raised in both contexts (issues

that, as discussed below, were intertwined by the court).                                     The

workers,       for   instance,         specifically         cite       cases      discussing

predominance when arguing about the extent to which a court may

look to merits in deciding certification.                          See Appellants’ Br.

34-35.         Elsewhere,       in     discussing         the    sufficiency           of     the

anecdotal evidence presented, the workers argued in favor of our

holding    in    Brown    I   that      “[t]his       evidence         alone     establishes

common claims of discrimination worthy of class certification.”

Appellants’       Br.    42     (citing        Brown      I,     576     F.2d     at        153).

Certification of the workers’ class required a finding that Rule

23(b) was satisfied, in addition to a finding of commonality

                                              54
under       Rule   23(a)(2).          More     generally,          without    limiting         its

analysis to the question of commonality, the workers’ opening

brief observes that “[t]he district court’s finding that there

is     no     pattern-or-practice            evidence         in     the     non-Beam         Mill

departments is directly contrary to the evidence and [the Fourth

Circuit’s] mandate.”               Appellants’ Br. 42-43.

       It is true that the workers arguments often focus expressly

on     the     question       of     commonality,        as     Wal-Mart       focused         its

analysis.          In   that    regard,      however,       the     workers       have    merely

followed the district court’s lead insofar as the court itself

raised       the   same       arguments      under       Rule      23(b)(3)       as     it    did

regarding commonality under Rule 23(a)(2). 23                            See J.A. 10958-59;

see also United States v. Goforth, 465 F.3d 730, 737 (6th Cir.

2006)        (observing       that       “where     an   argument          advanced      in     an

appellant’s opening brief applies to and essentially subsumes an

alternative basis for affirmance not separately argued therein,

the     appellant       does       not     waive     that      alternative         basis      for

affirmance”).           The    district       court      based      its    conclusion         that

common       issues     did    not       predominate      on       the    observation         that

because the        workers’         evidence      disproportionately          concerns         the

Beam     Mill,     “there       is    no     ‘glue’      connecting         the    promotions

       23
        Even superficially, the district court includes its
predominance analysis under the heading of “Subjectivity as a
Policy,” dovetailing a discussion of commonality, instead of as
a separate section of analysis. See J.A. 10954, 10956.


                                               55
decisions    in     the    Beam    Mill        to    the    decisions          in   the       other

departments.”        J.A. 10959.          That is exactly the same argument

raised, and responded to by the workers, in the context of Rule

23(a)(2) commonality.          See J.A. 10950-54; Appellants’ Br. 42-47.

Elsewhere in its Rule 23(b)(3) discussion, the court observes

that     “[a]lthough       there        are,        to     varying        degrees,        a    few

allegations of discrimination in promotions in departments other

than the Beam Mill, there is nothing to link these allegations

to the pattern of behavior alleged in the Beam Mill.”                                          J.A.

10959.     Again, this argument is also made in the Rule 23(a)(2)

context    and     responded       to    in     detail         by   the    workers        there.

Indeed,     the     district       court        itself         acknowledged           that         it

“employ[ed] the language of Wal-Mart” regarding Rule 23(a)(2) in

discussing the requirements of Rule 23(b)(3).                               J.A. 10958-59.

In   responding     directly      to     the    reasons         given     by    the   district

court for its predominance determination, the workers have thus

done far more than take a mere “passing shot at the issue.”                                     See

Belk, Inc. v. Meyer Corp., 679 F.3d 146, 152 n.4 (4th Cir. 2012)

(finding that an issue was waived after a party mentioned the

issue in a heading but failed to further develop the argument);

see also Williams v. Woodford, 384 F.3d 567, 587 n.5 (9th Cir.

2002) (concluding that an appellant preserved a claim for review

even   though     the     argument      consisted         of    “eight     sentences          in   a

footnote,”        where     the      argument            identified        the      basis          of

                                               56
disagreement with the district court, the requested relief, and

relevant citations to case law and the record).

     Nonetheless,       the       dissent     argues       that    “many         different

reasons    underlay    [the    district      court’s]       predominance         finding,

including    several    individual      questions      that       could        ‘overwhelm’

common ones.”       Post at 69.       But a plain reading of the district

court’s opinion belies the idea that it made any predominance

arguments that were not responded to by the workers.                             The only

specific argument cited by the dissent as unaddressed contends

that because of the workers’ reliance on anecdotal evidence, a

jury “would have to delve into the merits of each individual

promotion decision.”          J.A. 10959; post at 69.              Yet, as observed

above,     the    workers     specifically      argued       that        the     anecdotal

evidence    establishes       “common       claims    of    discrimination”            that

merit     certification,      not    merely     a    finding        of     commonality.

Appellants’ Br. 42 (quoting Brown I, 576 F.2d at 153).                               Indeed,

such an argument is consistent with the workers’ fundamental

contention throughout their brief that plant-wide discrimination

existed.

     As    this    Court    has    observed,    the    purpose       of        the   waiver

doctrine is to avoid unfairness to an appellee and minimize the

“risk of an improvident or ill-advised opinion being issued on

an unbriefed issue.”          United States v. Leeson, 453 F.3d 631, 638

n.4 (4th Cir. 2006) (citing McBride v. Merrell Dow & Pharm.,

                                        57
Inc., 800 F.2d 1208, 1211 (D.C. Cir. 1986)).                        Given the briefing

presented, the fully developed record below, and the lack of any

showing of unfairness or prejudice, there is simply no reason

why    we   should       exercise   our    discretion          to    discard    years      of

litigation on appeal because of an inartful opening brief.                                See

A Helping Hand, LLC v. Baltimore Cnty., Md., 515 F.3d 356, 369

(4th Cir. 2008) (observing that even when an argument has been

waived, this Court may nonetheless consider it if a “miscarriage

of    justice     would    otherwise      result”      (internal       quotation         marks

omitted)); cf. In re Am. W. Airlines, Inc., 217 F.3d 1161, 1165

(9th   Cir.      2000)    (observing      that    a    court    may    refuse       to   find

waiver and consider an argument raised for the first time on

appeal when the issue “is one of law and either does not depend

on the factual record, or the record has been fully developed”).

       Independent of the adequacy of the workers’ opening brief,

the district court had no grounds to revisit the question of

predominance       in     the   first     place       given    this    Court’s       remand

instructions and mandate in Brown I.                    Unlike the requirement of

commonality under Rule 23(a)(2) discussed above, Wal-Mart did

not change, nor purport to change, the Rule 23(b)(3) analysis.

Indeed, any impact of the Supreme Court’s ruling on the question

of    whether     common     questions      predominate         is    only     incidental

insofar     as    Wal-Mart      recalibrated          what    constitutes       a    common

question in the first place.                    The majority in Wal-Mart only

                                           58
invoked Rule 23(b)(3) to argue that the rule’s well-established

procedural protections should apply to the plaintiffs’ claims

for backpay.       See Wal-Mart, 131 S. Ct. at 2559.

     Following       our    instructions         in   Brown    I    for    the    district

court to “certify the appellants’ class action,” the court found

that “the putative class satisfied both the predominance and

superiority requirements of Rule 23(b)(3).”                         J.A. 10930.         The

court then certified the class for those employed in all six

Nucor operations departments.               The district court cites no new

facts or legal precedent after Brown I to justify revisiting

that determination once the underlying question of commonality

has been resolved.

     Nonetheless, the dissent insists that our decision in Brown

I   “did    not    prevent        the    district      court       in     any    way   from

considering predominance because our prior decision did not say

anything about predominance.”                Post at 75-76 (emphasis added).

Such a conclusion misconstrues both the plain language of our

original mandate and ignores the district court’s equally plain

understanding of it.              The pivotal question in determining the

scope of the mandate is whether the district court was free on

remand     to     find     that    the     workers      had    not        satisfied    the

predominance requirement.               If so, then our mandate did not reach

the issue and the district court was free to reconsider it.                            But

if the court did not have such liberty, then we must ask whether

                                            59
“controlling legal authority has changed dramatically” regarding

Rule 23(b)(3) such that the court could reconsider the question.

See Bell, 5 F.3d at 67.                      If no such change has occurred, then

the district court could not revisit it.

       As    for    the       first      question,       the    district            court      had    no

discretion to find that the workers’ class failed to satisfy

Rule   23(b)(3),          after         we    expressly       told       it       “to   certify      the

appellants’ class action and to engage in further proceedings

consistent with this opinion.”                        Brown I, 576 F.3d at 160; see

also   Bell,       5    F.3d       at    66    (requiring       that          a    district     court

“implement     both          the   letter       and    spirit       of     the      . . .   mandate,

taking      into    account         [our]      opinion        and    the      circumstances           it

embraces”      (internal           quotation          marks    and       citation        omitted));

United States v. Pileggi, 703 F.3d 675, 679 (4th Cir. 2013)

(observing     that          the    mandate      rule     “forecloses              relitigation       of

issues expressly or impliedly decided by the appellate court”

(quoting Bell, 5 F.3d at 66)); S. Atl. Ltd., 356 F.3d at 583

(observing         that      a     mandate      must     be    “scrupulously             and    fully

carried out” (internal quotation marks and citation omitted)).

       Indeed, the district court itself recognized that we had

“dictate[d]            the       general        outcome        to        be       reached      (class

certification) while leaving [the district court] to fill in the

details.”      J.A. 9886 (Order Den. Mot. for Recons. 8 n.2).                                         Of

course,      the       court       could       have,     and        did,      evaluate      whether

                                                 60
certification was best under Rule 23(b)(2) or (b)(3).                              But it

had no discretion to then find that the prerequisites of either

rule were not met.              As the court observed, Nucor’s argument on

remand       that     the   workers       had     failed   to    satisfy    Rule      23(b)

“overlook[ed] the Fourth Circuit’s prior holding in this case.”

J.A. 9704 (Certification Order). 24                     Thus, the dissent misstates

the record when it maintains that our original decision did not

“in     any    way”     prevent      the        district   court     from   considering

predominance.               Post     at     75-76.         Indeed,       following      our

instructions and findings in Brown I, the court proceeded to

make the only finding it could under Rule 23(b)(3), namely, that

“common issues predominate and that a class action is superior

to    any     other    method      for    adjudication      of   the    claims   in    this

case.”        The dissent is thus also misinformed when it states we

are now certifying “a Rule 23(b)(3) class action without any

court       ever    finding     that      the    Rule    23(b)(3)      requirements     are

satisfied.”         Post at 78.

       Given the fact that our prior ruling foreclosed the denial

of certification on the basis of Rule 23(b)(3), the district


       24
       The dissent also maintains that our mandate did not reach
the question of predominance because we amended our original
opinion in Brown I to delete a specific reference to Rule
23(b)(3). Post at 77. Such a deletion, however, did not change
either our mandate to certify – a mandate that required the
court to find the workers had met Rule 23(b) – or the district
court’s express understanding of that mandate.


                                                61
court needed some compelling reason to reconsider the question.

Bell, F.3d at 67 (describing the “extraordinary” exception to

the mandate rule when there is “a show[ing] that controlling

legal authority has changed dramatically”).                       But the court cited

no such reason and, unlike the question of commonality, Wal-Mart

provided     none.          Indeed,       as        the    district       court       itself

acknowledged,      Wal-Mart    only       incidentally           narrowed      an    inquiry

into    whether    common    questions         predominate        by    clarifying         what

constitutes    a    common    question         in    the    first      place   under       Rule

23(a)(2). J.A. 10971-72.



                                           V.

       More than seven years have now elapsed since the workers

first filed their class certification motion, and the district

court twice has refused to certify the class.                          The nature of the

allegations, the evidentiary support buttressing them, and the

inherent    cohesiveness      of    the    class          all   demonstrate         that    the

court’s failure to certify was an error.                        Rule 23 provides wide

discretion to district courts, in part, to promote the systemic

class     action    virtues    of     efficiency           and    flexibility.             The

realization of such benefits, however, requires that a district

court    exercise    its     judgment      in       a     reasoned      and    expeditious

manner.



                                           62
     The    dissent    rightly   observes    that   the   majority   presses

forward “[o]n the road to its desired result.”               Post at 152.

And that result is simple justice.           At bottom, the workers seek

nothing more than the chance to speak with one voice about the

promotions discrimination they allegedly suffered as one class

on account of one uniting feature:               the color of their skin.

The dissent would deny them that chance while leading this Court

down a different road – a road that would further weaken the

class action as a tool to realize Title VII’s core promise of

equality.

     We     vacate    the   district   court’s    decertification    of   the

workers’ promotions class and remand the case to the district

court with instructions to certify the class.



                                            VACATED IN PART, AND REMANDED
                                                       WITH INSTRUCTIONS.




                                       63
AGEE, Circuit Judge, dissenting:

       We    typically       tread     lightly         when     reviewing          a    class

certification decision, affording “substantial deference” to the

district      court,     especially     when      it     provides          “well-supported

factual findings.”          Ward v. Dixie Nat’l Life Ins. Co., 595 F.3d

164, 179 (4th Cir. 2010).             Class certification proceedings often

call for fact-intensive choices requiring intimate knowledge of

the peculiarities of complex litigation.                      Id.         We usually trust

that the district court has the better eye for these sorts of

questions.

       The    majority      today    declines       to      follow    that     path.       It

instead takes issue with almost every aspect of the district

court’s       decision       to      decertify,          reversing          that       court’s

determination because of newfound facts on appeal and different

notions      about   the    nature     of    this    case.           In    doing   so,    the

majority creates a split between this Court and another, see

Bennett v. Nucor Corp., 656 F.3d 802 (8th Cir. 2011), overlooks

a plain and decisive waiver from the appellants, and drains a

critical Supreme Court decision of much of its meaning, see Wal-

Mart    Stores,      Inc.    v.     Dukes,    131      S.    Ct.     2541     (2011).       I

respectfully dissent.




                                             64
                                   I. Predominance

                                              A.

       The    district      court        decertified           Plaintiffs’       promotions

classes for two distinct reasons.                       First, the court found that

Plaintiffs      had   not    identified         a       “question[]     of    law     or    fact

common to the class,” as Rule 23(a)(2) of the Federal Rules of

Civil Procedure requires.                Second, it held that any questions

common   to     the    class    members       did        not   “predominate          over    any

questions affecting only individual members,” so the class could

not be certified under Rule 23(b)(3).                          Each of these separate

reasons -- commonality or predominance -- provide an independent

ground to decertify the class.                     See, e.g., Thorn v. Jefferson-

Pilot Life Ins. Co., 445 F.3d 311, 319 (4th Cir. 2006).

       Because the district court provided two different bases for

its decision, Plaintiffs were required to contest both.                                     They

did not.       Plaintiffs’ opening brief nowhere mentions the topic

of predominance.         Neither does it refer to Rule 23(b).                        And even

though “the main concern in the predominance inquiry” is “the

balance between individual and common issues,” Myers v. Hertz

Corp., 624 F.3d 537, 549 (2d Cir. 2010), a reader searches in

vain   for     any    mention      of    such       a    “balancing”     in     Plaintiffs’

submissions.         Instead, Plaintiffs’ opening brief focuses solely

on Rule 23(a) commonality.                The brief does not even contain a

simple       statement      that        the     district        court        erred     as     to

                                              65
predominance for the same reasons that it purportedly erred as

to commonality -- not to say that such a statement would be

sufficient, either.      See Jimenez v. Allstate Ins. Co., 765 F.3d

1161, 1165 n.4 (9th Cir. 2014) (holding that “cursory statements

that the district court’s order also incorrectly applied Rule

23(b)(3)’s   [predominance]      requirement”      are   “not     enough     to

preserve the issue for appeal”).

     An appellant must raise every issue that he wishes to press

in his opening brief.         If the appellant fails to address an

issue there, then we will deem the issue waived or abandoned.

We have repeated this rule so often that it might rightfully be

termed the best-established rule in appellate procedure.                   See,

e.g., Metro. Reg’l Info. Sys., Inc. v. Am. Home Realty Network,

722 F.3d 591, 602 n.13 (4th Cir. 2013); Kensington Volunteer

Fire Dep’t, Inc. v. Montgomery Cnty., 684 F.3d 462, 472 n.4 (4th

Cir. 2012); Mayfield v. Nat’l Ass’n for Stock Car Auto Racing,

Inc., 674 F.3d 369, 376 (4th Cir. 2012); A Helping Hand, LLC v.

Balt.   Cnty.,   515   F.3d   356,   369   (4th   Cir.   2008);   French     v.

Assurance Co. of Am., 448 F.3d 693, 699 n.2 (4th Cir. 2006).                 As

a rule that “all the federal courts of appeals employ,” waiver

“makes excellent sense.”        Joseph v. United States, 135 S. Ct.

705, 705 (2014) (Kagan, J., respecting denial of certiorari).

     In past cases, we have endeavored to apply our waiver rule

consistently, finding waiver whenever a party fails to “develop

                                     66
[his] argument” -- even if his brief takes a passing shot at the

issue.     Belk, Inc. v. Meyer Corp., 679 F.3d 146, 152 n.4 (4th

Cir. 2012).       We have further found arguments waived even though

they    might    have    had    merit.      See   IGEN    Int’l,       Inc.   v.    Roche

Diagnostics      GmbH,     335     F.3d    303,     308-09      (4th     Cir.      2003);

Pleasurecraft Marine Engine Co. v. Thermo Power Corp., 272 F.3d

654, 657 (4th Cir. 2001).                 And we have applied the doctrine

despite its potentially significant impact.                     See, e.g., Carter

v. Lee, 283 F.3d 240, 252 n.11 (4th Cir. 2002) (applying the

doctrine in a death penalty case).

       Given    that     Plaintiffs      failed   to     challenge      the     district

court’s ruling on predominance, the plain and consistent waiver

rule defeats their appeal.               “[T]o obtain reversal of a district

court    judgment       based     on    multiple,      independent       grounds,       an

appellant      must    convince    us    that   every    stated    ground       for    the

judgment against him is incorrect.”                 In re Under Seal, 749 F.3d

276, 289 (4th Cir. 2014); accord Maher v. City of Chi., 547 F.3d

817, 821 (7th Cir. 2008); Jankovic v. Int’l Crisis Grp., 494

F.3d    1080,    1086     (D.C.    Cir.    2007).        Appellate       courts       have

repeatedly      affirmed        district    court      decisions       denying      class

certification where plaintiffs failed to contest a predominance

finding.        See, e.g., Little v. T-Mobile USA, Inc., 691 F.3d

1302, 1306-08 (11th Cir. 2012); Klay v. Humana, Inc., 382 F.3d

1241,    1268    (11th    Cir.    2004),    abrogated      on   other     grounds       by

                                           67
Bridge v. Phoenix Bond & Indemnity Co., 553 U.S. 639 (2008);

Applewhite v. Reichhold Chems., Inc., 67 F.3d 571, 573-74 (5th

Cir. 1995).   Nothing calls for a different result here.

                                      B.

     In view of their failure to raise the predominance issue,

Plaintiffs    now   suggest    that   “[p]redominance      and    commonality

. . . are [both] part of Rule 23(b)(3),” such that a challenge

concerning    one   should    be   treated   as   a    challenge    to     both.

Appellant’s Reply Br. 2.      They are mistaken.

     Commonality,    found    in   Rule    23(a)(2),    asks     whether    the

proposed class will “resolve an issue that is central to the

validity of each of one of the claims in one stroke.”               EQT Prod.

Co. v. Adair, 764 F.3d 347, 360 (4th Cir. 2014).                 Predominance,

found in Rule 23(b)(3), presents a “far more demanding” inquiry,

Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 624 (1997), namely

whether any common questions “pre-dominate over any questions

affecting only individual members,” Fed. R. Civ. P. 23(b)(3).

Thus, while a “common issue” will establish commonality, that

common issue only goes to one part of the predominance inquiry.

Consequently, courts and parties must address these requirements

separately, rather than muddle them together.              See Vega v. T-

Mobile USA, Inc., 564 F.3d 1256, 1268-70 (11th Cir. 2009); In re

Ins. Brokerage Litig., 579 F.3d 241, 277 (3d Cir. 2009); accord

Ealy v. Pinkerton Gov’t Servs., Inc., 514 F. App’x 299, 305 (4th

                                      68
Cir. 2013) (“[T]he Rule 23(a) commonality requirement[] and the

Rule 23(b)(3) predominance requirement remain separate inquiries

and the inquiries should not be ‘blended.’”).

        The majority excuses Plaintiffs’ waiver because it believes

that     Plaintiffs      “followed          the    district     court’s        lead”      in

combining the two issues.              Maj. op. at 55.           Thus, even though

commonality and predominance are legally distinct, the majority

speculates that the district court did not treat them as such

here.        The    majority’s    analysis        mischaracterizes      the     district

court’s opinion.

       The district court did not just repeat back its commonality

findings      in    determining    that      Plaintiffs’       class    failed       as   to

predominance.         To the contrary, the court expressly held that it

could not find the required predominance “even if the Fourth

Circuit subsequently conclude[d] that plaintiffs have identified

a common issue that satisfies Rule 23(a)(2).”                        J.A. 10956.          The

court       then    explained     --   over       several     pages    --    that      many

different reasons underlay its predominance finding, including

several individual questions that could “overwhelm” common ones.

Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 133 S. Ct. 1184,

1196    (2013).        Because     Plaintiffs        heavily    rely    on     anecdotal

evidence, for instance, the district court correctly concluded

that    a    jury    “would     have   to    delve     into    the    merits    of     each

individual         promotion     decision”        to    determine       whether        each

                                             69
decision evidenced discrimination.                     J.A. 10959.        Thus, a trial

meant to resolve class-wide issues would likely devolve into a

series of mini-trials examining each promotion decision made in

the     Nucor     plant.            The    court       further     acknowledged        that

“individual damages determinations,” like those that would be

required       here,   can    “cut    against         class    certification.”         J.A.

10956.       Although it concluded that such damages determinations

did not, standing alone, compel decertification in this case,

J.A. 10958, they did provide the district court an additional

basis    for    caution      in   making     its      predominance    finding.         See,

e.g., Cooper v. So. Co., 390 F.3d 695, 722—23 (11th Cir. 2004),

overruled on other grounds by Ash v. Tyson Foods, Inc., 546 U.S.

454 (2006) (noting that individualized damage issues could swamp

the    advantages      coming       from    an     initial,      class-wide    liability

determination);        accord       Allison      v.    Citgo    Petroleum     Corp.,    151

F.3d    402,     421—22      (5th    Cir.     1998),      cited    with     approval    in

Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, 445 n.18 (4th

Cir. 2003); see also Comcast Corp. v. Behrend, 133 S. Ct. 1426,

1433 (2013) (explaining that individual damage-related questions

might destroy predominance); Windham v. Am. Brands, Inc., 565

F.2d 59, 71—72 (4th Cir. 1977).

       The     district      court        appropriately        resolved     predominance

separately from commonality.                Plaintiffs’ failure to address the

predominance finding in any way ends their appeal.

                                              70
                                             C.

       The   majority     at    least     recognizes       that    Plaintiffs       should

have been “more explicit” in addressing predominance.                             Maj. op.

at   54;     see   also   id.    at     55    (acknowledging        that       Plaintiffs’

“express[]” arguments largely concern commonality).                            Even so, it

concludes that certain oblique references in Plaintiffs’ briefs

preserved a predominance-related challenge on appeal.                              They do

not.

       Plaintiffs’ statement of the issue on appeal, for instance,

does not help them.             See maj. op. at 53.               The statement asks

only whether “it [was] error or an abuse of discretion for the

district court not to follow this Circuit’s mandate” when it

decertified the class.             See Appellant’s Br. 1.                   Here again,

Plaintiffs never mention predominance, and the statement does

not otherwise indicate any specific complaint with the district

court’s predominance holding.                 Even if it had, that reference

would not have been enough without some further argument on the

matter -- an argument that Plaintiffs wholly failed to provide.

See Belk, Inc., 679 F.3d at 153 n.6; 11126 Balt. Blvd., Inc. v.

Prince     George’s   Cnty.,      Md.,       58   F.3d   988,     993    n.7     (4th   Cir.

1995).

       The majority also ignores Plaintiffs’ waiver because their

brief    contains     some      broadly      stated      attacks    on     the    district

court’s      decertification       decision        --    attacks        purportedly      not

                                             71
“limit[ed] to the question of commonality.”                              Maj. op. at 55.

But in the usual case, a generalized attack on the lower court’s

decision does not preserve the specific arguments that might be

subsumed     within      the   broader          one.           Quite    the     opposite:       a

“generalized assertion of error” will not suffice to preserve

anything.     MMG Fin. Corp. v. Midwest Amusements Park, LLC, 630

F.3d 651, 659 (7th Cir. 2011); see also, e.g., Garrett v. Selby

Connor   Maddux     &   Janer,      425     F.3d      836,      841    (10th    Cir.    2005);

Norman v. United States, 429 F.3d 1081, 1091 n.5 (Fed. Cir.

2005).      Preservation       would        have       little     to     recommend      it     if

litigants    could      make   nebulous,             broadly     worded       arguments       and

trust appellate courts to work out the details once the opposing

party points out the default.

     In much the same way, Plaintiffs did not preserve their

predominance    challenge          by    citing       a   few    cases    that    happen       to

touch upon the concept.                 See maj. op. at 54.               The traditional

rule provides that citations to the “occasional case,” without

any fuller discussion, do not preserve an argument.                                    Pike v.

Guarino, 492 F.3d 61, 78 n.9 (1st Cir. 2007); see also Am.

Wildlands v. Kempthorne, 530 F.3d 991, 1001 (D.C. Cir. 2008) (“A

fleeting statement in the parenthetical of a citation is no more

sufficient     to     raise    a        claim    than      a     cursory       remark    in     a

footnote[.]”).          Similarly, “[m]ere notation of the applicable

law, without any argumentation as to how it applies to [this]

                                                72
case, does not raise the issue of its application on appeal.”

Sou v. Gonzales, 450 F.3d 1, 6 n.11 (1st Cir. 2006) (internal

quotation    marks      and    citations         omitted     here    and   throughout);

accord Johnson v. United States, 734 F.3d 352, 360 (4th Cir.

2013).

      The majority’s analysis casts an inappropriate role for an

appellate court.         Now, a court must review each decision that an

appellant cites and independently consider whether any part of

it might undermine the district court’s judgment for some reason

that the appellant never raised.                       That concept reconceives the

appellate courts’ role, as those “courts do not sit as self-

directed     boards      of       legal     inquiry       and     research.”      Nat’l

Aeronautics & Space Admin. v. Nelson, 562 U.S. 134, 147 n.10

(2011); see also Walker v. Prince George’s Cnty., Md., 575 F.3d

426, 429 n.* (4th Cir. 2009) (“Judges are not like pigs, hunting

for   truffles        buried      in   briefs.”).          In    addition,    using    the

majority’s new rule, appellants may now launch late-in-the-day

challenges       to   any   part       of   a    district       court’s    certification

decision so long as they serendipitously cited a case canvassing

Rule 23 in their opening brief.                      This “preservation-by-citation”

approach renders the waiver rule a nullity.

                                                D.

      In   the    end,      the    majority          declares    itself    unwilling    to

exercise its “discretion” to “discard years of litigation on

                                                73
appeal because of an inartful brief.”                Maj. op. at 58.        That

approach seems to give pro se litigant treatment to a brief

crafted   by   experienced     class    counsel      --    counsel   that     has

appeared in our court before.               Surely it does not expect too

much from veteran counsel to ask them to make their arguments

straight up and square.        All the more so when these counsel have

been specifically cautioned about waiver on previous occasions.

See, e.g., Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d

955, 972-73 (11th Cir. 2008) (holding that party represented by

same counsel had “abandoned” claim by failing to raise it in his

opening brief); see also Angles v. Dollar Tree Stores, Inc., 494

F. App’x 326, 330 n.6 (4th Cir. 2012) (same); cf. Bennett, 656

F.3d at 821 (holding that party represented by same counsel had

“essentially abandoned” argument by making only a “conclusory

challenge”); Anderson v. Cagle’s, Inc., 488 F.3d 945, 959 (11th

Cir. 2007) (same).

       The “purpose” of the preservation rule is also not served

by overlooking Plaintiffs’ waiver.            See maj. op. at 57-58.          The

rule   “ensures   that   the   opposing      party   has   an   opportunity    to

reflect upon and respond in writing to the arguments that his

adversary is raising.”         Hamilton v. Southland Christian Sch.,

Inc., 680 F.3d 1316, 1319 (11th Cir. 2012); see also United

States v. Leeson, 453 F.3d 631, 638 n.4 (4th Cir. 2006) (noting

that late arguments are “unfair to the appellee”); Pignons S.A.

                                       74
de Mecanique v. Polaroid Corp., 701 F.2d 1, 3 (1st Cir. 1983)

(“In preparing briefs and arguments, an appellee is entitled to

rely on the content of an appellant’s brief for the scope of the

issues   appealed[.]”).        Nucor   never     had    a    chance    to   address

Plaintiffs’     predominance     arguments       directly,       as     Plaintiffs

waited until their reply brief to make them.                  Plaintiffs argued

in    their   reply   brief,     for   example,        that    no     “heightened”

predominance    standard    applies    after     Wal-Mart      Stores,      Inc.   v.

Dukes, 131 S. Ct. 2541, 2551 (2011), and the majority agrees,

see maj. op. at 62.        There might very well be reason to believe

otherwise, though Nucor has never had a chance to make that

argument.     See, e.g., Andrey Spektor, The Death Knell of Issue

Certification and Why That Matters After Wal-Mart v. Dukes, 26

St. Thomas L. Rev. 165, 172 (2014) (suggesting that Wal-Mart

rendered it harder for issues to predominate).                  It must be cold

comfort to Nucor, then, to hear that it was not “prejudice[d]”

by these and other unanswerable arguments.              Maj. op. at 58.

                                       E.

      The majority goes on to hold that the mandate rule barred

the district court from examining Rule 23(b)(3) predominance.

See maj. op. at 58-62.           That view is factually and legally

incorrect.      The decision in the prior appeal in this case did

not   prevent   the   district    court     in   any   way    from    considering



                                       75
predominance because our prior decision did not say anything

about predominance.

       In its original class certification decision in 2007, the

district court held that Plaintiffs did not satisfy three of

Rule    23(a)’s    four     requirements.        It     expressly   declined      to

consider “the remaining requirements of Rule 23(b).”                     J.A. 8997.

On   appeal,     the   parties’      submissions      focused    solely    on   Rule

23(a).    A majority of the Court then reviewed these “Rule 23(a)

factors” and found them “satisfied.”               Brown v. Nucor Corp., 576

F.3d 149, 160 (4th Cir. 2009) (“Brown I”).                The Brown I majority

initially went on to hold, in a single sentence at the end of

the opinion, that “the requirements of [Rule] 23(b)(3) ha[d]

also    been    satisfied    for   these   claims.”       See    Brown    v.    Nucor

Corp., No. 08-1247, slip op. at 19 (4th Cir. Aug. 7, 2009).

Nucor    then    petitioned    for    rehearing    en    banc,    arguing,      among

other things, that neither the lower court nor the parties had

previously analyzed the Rule 23(b) issue.                  See Nucor Pet. for

Reh’g at 9, Brown I, 576 F.3d 149 (No. 08-1247), ECF No. 53.                      In

response, the Brown I panel amended its opinion and excised any

mention of Rule 23(b)(3).            See Order, Brown v. Nucor Corp., No.

08-1247 (4th Cir. Oct. 8, 2009).              One can easily discern why the

opinion was amended: Brown I could not decide a fact-intensive

issue -- that is, the predominance issue under Rule 23(b)(3) --

when the parties had not yet argued it and the district court

                                         76
had not yet addressed it.                See Transamerica Leasing, Inc. v.

Instit. of London Underwriters, 430 F.3d 1326, 1332 (11th Cir.

2005) (explaining that the mandate rule and the broader law of

the case doctrine “cannot apply when the issue in question was

outside the scope of the prior appeal”).                    In fact, up to that

point, Plaintiffs had never even sought certification under Rule

23(b)(3); they sought to certify only a Rule 23(b)(2) class or,

in the alternative, a so-called “hybrid” action.

     By removing any reference to Rule 23(b), Brown I left it to

the district court to determine in the first instance whether

Plaintiffs’      class     met    that    provision’s        requirements.        The

district court complied with both the letter and the spirit of

Brown I, and it correctly took “into account [the] opinion and

the circumstances it embrace[d].”              United States v. Bell, 5 F.3d

64, 66 (4th Cir. 1993); see also, e.g., Lindy Pen Co. v. Bic Pen

Corp.,     982   F.2d    1400,     1404-05     (9th    Cir.     1993)     (affirming

district court’s decision not to order accounting or damages,

despite appellate court’s instructions to “order an accounting

and to award damages,” where district court acted in line with

the “spirit” of the mandate).               An appellate mandate “does not

reach questions which might have been decided but were not.”

United States v. Lentz, 524 F.3d 501, 528 (4th Cir. 2008).                        And

“[w]hile    a    mandate    is    controlling    as    to    matters    within    its

compass,    on    the    remand    a   lower   court    is    free   as    to   other

                                          77
issues.”       Sprague       v.   Ticonic        Nat’l   Bank,     307    U.S.   161,   168

(1939).      Simply put, the Brown I mandate did not apply to Rule

23(b)(3), nor could it.

      On     remand    after      Brown     I,    the     district       court   initially

certified the two promotions classes under Rule 23(b)(3).                               The

court later reconsidered, as it was entitled to do under Rule

23, which provides that “[a]n order that grants or denies class

certification may be altered or amended before final judgment.”

Fed. R. Civ. P. 23(c)(1)(C); see also Fed. R. Civ. P. 54(b).

“[C]ertifications are not frozen once made,” Amgen, Inc., 133 S.

Ct.     at   1202     n.9,    and     a     district      court     has    “considerable

discretion to decertify the class,” Cent. Wesleyan Coll. v. W.R.

Grace & Co., 6 F.3d 177, 189 (4th Cir. 1993).                            See also Prado-

Steiman ex rel. Prado v. Bush, 221 F.3d 1266, 1273 (11th Cir.

2000).       The    district        court    could       revisit    its    interlocutory

decision regardless of whether, as the majority puts it, “new

facts or legal precedent [arose] after Brown I.”                             Maj. op. at

59.

      In effect, the majority today certifies a Rule 23(b)(3)

class    action     without       any     court    ever     finding       that   the    Rule

23(b)(3)      requirements        are     satisfied.          It     cannot      genuinely

contend that Brown I did the work, as “the Fourth Circuit has

never allowed the rigorous Rule 23 analysis to be accomplished

implicitly.”        Partington v. Am. Int’l Specialty Lines Ins. Co.,

                                             78
443 F.3d 334, 341 (4th Cir. 2006).                               And the district court

ultimately did not make such a finding either.                                The majority’s

decision     to    certify   in     part         on       this   illusory     mandate,     then,

substantially        damages      Rule       23(b)(3)’s              “vital   prescription.”

Amchem, 521 U.S. at 623.            The Supreme Court recently reminded us

that “plaintiffs wishing to proceed through a class action must

actually prove -- not simply plead -- that their proposed class

satisfies     each    requirement           of    Rule         23,   including   .   .    .   the

predominance requirement of Rule 23(b)(3).”                             Halliburton Co. v.

Erica P. John Fund, Inc., 134 S. Ct. 2398, 2412 (2014).                                       At

least as to predominance, Plaintiffs have yet to prove anything.

                                        *    *        *    *

      Plaintiffs       did        not       challenge            the     district        court’s

predominance ruling and do not credibly explain why they failed

to do so.          The district court’s decision should therefore be

affirmed on that basis alone.



                             II. Relevant Standards

      Even ignoring Plaintiffs’ waiver of the predominance issue,

they have not established that the district court abused its

discretion in finding insufficient commonality.                               To see why, it

is   first   necessary       to    recognize              the    standard     that   appellate

courts use in reviewing a district court’s class-certification

decision.         Then, the standard that the district court used in

                                                 79
evaluating        the    evidence      at   the      certification         stage   must    be

considered.

                                               A.

                                               1.

       A district court’s ultimate class-certification decision --

that is, how it applied the Rule 23 factors -- is reviewed for

an abuse of discretion.               See, e.g., EQT Prod. Co., 764 F.3d at

357; Ward, 595 F.3d at 179; Monroe v. City of Charlottesville,

Va.,   579    F.3d      380,    384    (4th     Cir.    2009);       Gregory      v.   Finova

Capital Corp., 442 F.3d 188, 190 (4th Cir. 2006).                            But reciting

the standard is not enough; there must be genuine respect and

adherence paid to the limits that it imposes.

       The    abuse-of-discretion              standard       does      establish         some

substantial limits, representing “one of the most deferential

standards of review.”             Matthew Bender & Co. v. West Publ’g Co.,

240 F.3d 116, 121 (2d Cir. 2001).                    Under it, the appellate court

may    reverse         only    when     “the        [trial]    court’s       exercise      of

discretion, considering the law and the facts, was arbitrary and

capricious.”           United States v. Mason, 52 F.3d 1286, 1289 (4th

Cir. 1995).        We act only when the decision could not “have been

reached      by    a    reasonable      jurist,”        or    when    we    may    call    it

“fundamentally          wrong,”       “clearly       unreasonable,         arbitrary,      or

fanciful.”         Bluestein v. Cent. Wis. Anesthesiology, S.C., 769

F.3d 944, 957 (7th Cir. 2014); accord Am. Copper & Brass, Inc.

                                               80
v. Lake City Indus. Prods., Inc., 757 F.3d 540, 543 (6th Cir.

2014) (characterizing review of a class certification decision

as “very limited”).

       Of course, deference does not equal blind acceptance.                        If,

for instance, the district court entirely fails to undertake

some part of the requisite analysis, then it may be appropriate

to reverse.      See, e.g., EQT Prod., 764 F.3d at 371 (vacating and

remanding a certification order where the district court failed

to   conduct    an     appropriately        rigorous    analysis       of    Rule   23’s

requirements).         But   when     our    review    ventures       into   intensely

factual      matters    or    areas    of        practical     concern,      then   our

deference must be at its greatest -- indeed, we must stand aside

in   those    circumstances      unless      the     lower    court    was    “clearly

wrong.”      Windham, 565 F.2d at 65; accord CGC Holding Co., LLC v.

Broad & Cassel, 773 F.3d 1076, 1086 (10th Cir. 2014) (“[A]s long

as the district court applies the proper Rule 23 standard, we

will   defer    to     its   class    certification          ruling   provided      that

decision falls within the bounds of rationally available choices

given the facts and law involved in the matter at hand.”).

       We do not then reverse anytime we disagree with the result

that the district court reaches.                 See First Penn-Pac. Life Ins.

Co. v. Evans, 304 F.3d 345, 348 (4th Cir. 2002).                        Rather, “the

[abuse-of-discretion] standard draws a line . . . between the

unsupportable and the merely mistaken, between the legal error,

                                            81
disorder of reason, severe lapse of judgment, and procedural

failure    that    a    reviewing     court      may   always    correct,     and   the

simple disagreement that, on this standard, it may not.”                         Evans

v. Eaton Corp. Long Term Disability Plan, 514 F.3d 315, 322 (4th

Cir. 2008); see also Cooter & Gell v. Hartmarx Corp., 496 U.S.

384, 405 (1990) (holding that the district court did not abuse

its discretion where it “applied the correct legal standard and

offered substantial justification for its finding”).

     These principles might strike some as truisms, but they

carry     special       force    in     the      class-certification          context.

“Granting    or     denying     class      certification    is     a    highly   fact-

intensive matter of practicality,” Monreal v. Potter, 367 F.3d

1224, 1238 (10th Cir. 2004), so much so that “[h]ighly fact-

based, complex, difficult matters” arise as a matter of routine,

Amchem, 521 U.S. at 630 (Breyer, J., concurring in part and

dissenting in part).            Unsurprisingly, then, we give district

courts    “broad       discretion     in    deciding     whether       to   allow   the

maintenance of a class action.”                  Roman v. ESB, Inc., 550 F.2d

1343, 1348 (4th Cir. 1976); see also Lowery v. Circuit City

Stores, Inc., 158 F.3d 742, 757-58 (4th Cir. 1998), vacated 527

U.S. 1031 (1999), reaff’d in relevant part, 206 F.3d 431 (4th

Cir. 2000).        As with any other decision that appellate courts

review for abuse of discretion, we should affirm a certification

decision even if we are convinced that “reasons clearly existed

                                            82
for taking the other course.”           Lewis v. Bloomberg Mills, Inc.,

773 F.2d 561, 564 (4th Cir. 1985); accord Simmons v. Poe, 47

F.3d 1370, 1382 (4th Cir. 1995).

                                       2.

       An appellate court must be even more careful in reviewing

any factual findings underlying the district court’s decision,

as we review those only for clear error.                 Thorn, 445 F.3d at

317-18; see also Fed. R. Civ. P. 52(a)(6).                    “The clear error

standard . . . protects district courts’ primacy as triers of

fact.”    Evans, 514 F.3d at 321.           Our opinions have repeatedly

emphasized that clear-error review is “narrow,” Walker v. Kelly,

593 F.3d 319, 323 (4th Cir. 2010), “highly deferential,” Green

v. Johnson, 515 F.3d 290, 301 (4th Cir. 2008), and “particularly

circumscribed,” Jimenez v. Mary Washington Coll., 57 F.3d 369,

378 (4th Cir. 1995).           We may reverse findings reviewed under

this standard only when, having reviewed the entire record, we

are “left with the definite and firm conviction that a mistake

has been committed.”      United States v. Heyer, 740 F.3d 284, 292

(4th   Cir.   2014).     If    the   district    court   chose   between        “two

permissible views of the evidence,” or if it otherwise offered a

“plausible”    account    of    that   evidence,      Anderson    v.     City    of

Bessemer City, N.C., 470 U.S. 564, 574 (1985), then its factual

findings are “conclusive,” Walker, 594 F.3d at 323.                And as with

the    abuse-of-discretion      standard,       we   cannot    reverse     merely

                                       83
because     we   would        have   decided       the    matter       differently.          See

Anderson, 470 U.S. at 573.

                                              3.

       Despite these deferential standards of review, the majority

identifies reversible error in virtually every legal and factual

judgment that the district court rendered.                           Yet in searching the

majority’s       opinion       for   any     of   the     hallmarks         of   deference    --

explanations as to how the district court clearly erred, or full

analysis of how the district court abused its discretion -- we

find very little.

       In   truth,      the    majority      seems       to    apply    just      about    every

standard of review but a deferential one.                             For the most part,

the   majority     offers       bare     statements           that    the    district      court

erred,      apparently        because      the    district       court       decided      things

differently      than     the    majority         would    have.        For      instance,    it

insists that Plaintiffs’ statistical evidence is simply “less

precise” and rejects out-of-hand the district court’s view that

the evidence was “fundamentally unreliable.”                                Maj. op. at 18,

23.    Likewise, it draws its own conclusions about the anecdotal

evidence, reciting certain portions of certain affidavits and

declaring     them      enough.         It   makes       credibility         determinations,

categorically rejecting Nucor’s evidence as “self-serving,” id.

at    25,   or   “coercive,”         id.     at    42,     while       embracing     contrary

statements       from    Plaintiffs          because      the        majority     finds    them

                                              84
“credible,” id. at 41.         And it offers its own notions about what

is    “plain,”   id.   at    29,    “elementary,”      id.       at   39,   or   “common

sense,” id. at 42.          The majority does so even while decrying the

dangers of “cherry pick[ing] facts from an 11,000 page record.”

Id. at 41.       In short, the majority opinion shows little respect

for a district court that is far more familiar with each page of

the record than we are.

       Contravening our “axiomatic” rule against factual findings

on appeal, Core Commc’ns, Inc. v. Verizon Md. LLC, 744 F.3d 310,

324 (4th Cir. 2014), the majority eventually finds in the first

instance that “there is only one answer to the question of why

Nucor’s black workers were consistently disfavored,” maj. op. at

45.    This adventuresome approach is rather jarring when placed

against the more measured methods found in some of our other

class certification decisions.              See, e.g., EQT Prod., 764 F.3d

at     371   (remanding        for    further        consideration          of     class

certification after determining that district court misapplied

the relevant standards); Gariety v. Grant Thornton, LLP, 368

F.3d 356, 366 (4th Cir. 2004) (same).                Making matters worse, the

majority offers no good reason for it.                Instead, it engages in a

rather    extended     discussion     of    the    Brown     I    dissent    and    then

declares     any     attack    on     the       majority’s       factfinding       today

“iron[ic].”      Maj. op. at 21.



                                           85
      Too      often,    we     fail     to     give    standards      of    review       the

attention that they deserve.                  We see them recited in boilerplate

and then dispensed with when the perceived exigencies of a case

seem to call for it.                But “[s]tandards of review are . . . an

elemental      expression        of    judicial      restraint,      which,       in    their

deferential varieties, safeguard the superior vantage points of

those entrusted with primary decisional responsibility.”                               Evans,

514 F.3d at 320-21.             An appellate court should not be so quick

to ignore them.

                                              B.

        We must next consider the district court’s role in deciding

the   certification           motion    in    the   first     place.        The       majority

implies     that        the     district        court       too    readily        dismissed

Plaintiffs’ efforts to certify.                    But the district court was not

just permitted to take a hard look at Plaintiffs’ submissions --

it was required to.

                                              1.

      Although     plaintiffs          shoulder     the     burden   of     demonstrating

that a proposed class complies with Rule 23, the district court

has an “independent obligation to perform a rigorous analysis to

ensure that all of the prerequisites have been satisfied.”                                EQT

Prod., 764 F.3d at 358.                  Among other things, this “rigorous

analysis”      requires       the     district      court    “to   resolve        a   genuine

legal     or     factual         dispute       relevant       to     determining          the

                                              86
requirements.”         In re Hydrogen Peroxide Antitrust Litig., 552

F.3d 305, 320 (3d Cir. 2008).

      “[C]areful       attention       to     the    requirements           of       [Rule]    23

remains . . . indispensable” even in cases “alleging racial or

ethnic discrimination.”               E. Tex. Motor Freight Sys., Inc. v.

Rodriguez, 431 U.S. 395, 405 (1977).                       Thus, “a Title VII class

action, like any other class action, may only be certified if

the trial court is satisfied, after a rigorous analysis, that

the prerequisites of [the Rule] have been satisfied.”                                 Gen. Tel.

Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982); see also Desert

Palace,   Inc.    v.    Costa,        539    U.S.    90,    99    (2003)         (noting      the

“conventional       rule[s]      of    civil        litigation     .    .        .    generally

appl[y] in Title VII cases”).                  And there is no “entitlement to

class proceedings for the vindication of statutory rights,” Am.

Express   Co.    v.    Italian    Colors        Rest.,      133   S.    Ct.          2304,    2309

(2013), Title VII included.                 Thus, the Court must be careful not

to bend and twist the “rigorous analysis” that Rule 23 compels

merely    for    the     sake    of     abstract        notions        of     Title          VII’s

objectives and purposes.               Cf. Touche Ross & Co. v. Redington,

442   U.S.   560,      578   (1979)         (“[G]eneralized       references            to    the

‘remedial purposes’ of [a statute] will not justify reading a

provision    more      broadly    than        its    language     and       the       statutory

scheme reasonably permit.”).                To do so would not only ignore the



                                              87
Supreme Court’s warnings; it might also have unforeseen effects

in the many other areas of law in which Rule 23 is implicated.

       In     basic     terms,     the     rigorous-analysis               standard        tests

whether       plaintiffs        have    presented        substantial             evidence    of

compliance with Rule 23.               Plaintiffs may “not simply plead” that

the    relevant       requirements       have    been     met,      but     must    “actually

prove” it.       Halliburton, 134 S. Ct. at 2412; accord Monroe, 579

F.3d at 384.           To meet that standard, plaintiffs must summon

“evidentiary          proof,”     Comcast,        133     S.        Ct.     at     1432,     and

“affirmatively         demonstrate       [their]    compliance            with     the   Rule,”

Wal-Mart, 131 S. Ct. at 2551.                   “[S]ome evidence” is not enough.

In re Initial Pub. Offerings [“IPO”] Sec. Litig., 471 F.3d 24,

33 (2d Cir. 2006).

       Before certifying a class action, courts will require a

plaintiff to establish by a preponderance of the evidence that

the action complies with each part of Rule 23.                              See In re U.S.

Foodservice      Inc.    Pricing       Litig.,     729    F.3d       108,    117    (2d     Cir.

2013); Carrera v. Bayer Corp., 727 F.3d 300, 306 (3d Cir. 2013);

Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 811 (7th

Cir. 2012); Ala. Elec. Pension Fund v. Flowserve Corp., 572 F.3d

221,    228    (5th     Cir.     2008),    abrogated           in    other       respects     by

Halliburton,      134    S.     Ct.    2398;     accord    In       re    Titanium       Dioxide

Antitrust Litig., 284 F.R.D. 328, 336 (D. Md. 2012); In re Mills

Corp. Sec. Litig., 257 F.R.D. 101, 104 (E.D. Va. 2009); In re

                                            88
Safety-Kleen Corp. Bondholders Litig., No. 3:00-1145-17, 2004 WL

3115870, at *2 (D.S.C. Nov. 1, 2004); see also Anthony F. Fata,

Doomsday Delayed: How the Court’s Party-Neutral Clarification of

Class   Certification      Standards     in    Wal-Mart       v.    Dukes    Actually

Helps Plaintiffs, 62 DePaul L. Rev. 675, 681                        (2013) (reading

Wal-Mart to apply a preponderance-of-the-evidence standard).

                                        2.

     “[T]he factors spelled out in Rule 23 must be addressed

through    findings,     even    if   they    overlap      with     issues      on   the

merits.”       Gariety, 368 F.3d at 366; accord In re Rail Freight

Fuel Surcharge Antitrust Litig., 725 F.3d 244, 249 (D.C. Cir.

2013) (recognizing that certification will sometimes “resemble[]

an appraisal on the merits”).           Obviously, “[a] court may not say

something like ‘let’s resolve the merits first and worry about

the class later’ . . . or ‘I’m not going to certify a class

unless I think that the plaintiffs will prevail.’”                           Szabo v.

Bridgeport     Machs.,   Inc.,    249   F.3d   672,     677    (7th      Cir.    2001),

cited   with    approval   in    Wal-Mart,     131    S.   Ct.      at   2552.       But

overlap “cannot be helped,” as certification “generally involves

considerations that are enmeshed in the factual and legal issues

comprising the plaintiff’s cause of action.”                       Wal-Mart, 131 S.

Ct. at 2551—52.      Compare Brown I, 576 F.3d at 156 (citing Eisen

v. Carlisle & Jacquelin, 417 U.S. 156, 177 (1974), and refusing

to inquire into Plaintiffs’ statistics because it would be an

                                        89
impermissibly “in-depth assessment of the merits”), with Wal-

Mart,   131   S.    Ct.    at    2552     &    n.6   (admonishing     courts    not    to

“mistakenly cite[]” Eisen for the incorrect idea that merits

inquiries are barred).

                                              3.

      Contrast these well-defined and rigorous standards with the

ambiguous and limitless ones found in the majority opinion.                           The

majority acknowledges the “rigorous analysis” that lower courts

must perform, but abandons that standard soon after mentioning

it.       Instead,        it     treats        the   evidentiary       standard       for

certification as one different from that required for a party to

prevail on the merits, never acknowledging that this view breaks

from the many courts (including those in our Circuit) that apply

the preponderance standard.                   Nor does it even tell us what a

“rigorous     analysis”         might   consist       of.      Instead,    it    merely

invokes   Amgen,     a    case     that       addresses     what   questions    may    be

considered     on    class       certification,        not     what   evidence     will

suffice to answer them.            133 S. Ct. at 1194-95.             Having rendered

the rigorous analysis less rigorous than other courts’ (though

to what degree, one does not know), the majority then proceeds

to apply its weakened test, repeatedly using mere allegations --

or, sometimes, allegations “proven” by allegations -- to justify

certification.       See, e.g., maj. op. at 25, 33, 34, 39, 43, 45,



                                              90
50, 51, 62.       The necessary implication is that the majority’s

“rigorous analysis” consists of very little.

     One finds a further hint at the level of proof that the

majority means to apply when it embraces Brown I’s metric.         Maj.

op. at 16-17.       Brown I held that “allegations” of disparate

treatment were enough to establish commonality, a conclusion at

odds with Wal-Mart.     Compare Brown I, 576 F.3d at 153, with Wal-

Mart, 131 S. Ct. at 2553 (distinguishing between an “otherwise

unsupported allegation” and the “significant proof” required to

establish a common policy).       The majority in Brown I also said

that anecdotes from three employees concentrated in a single

department proved a common policy of discrimination.        576 F.3d

at 153.    And it held that statistical evidence of “relatively

weak probative value” was enough, even though problems in that

evidence -- the statistical evidence seen here -- might “very

well discredit” it at some later stage.      Id. at 156 & n.10.      In

short,    Brown    I   required   the   plaintiffs   to   summon     an

exceptionally low, almost non-existent level of proof at the

class-certification stage.

     The majority’s decision to reanimate Brown I’s negligible

evidentiary standard leaves this circuit alone on an island.

The Brown I majority suggested that its lenient view of the

necessary evidence aligned with the Second Circuit’s decision in

Caridad v. Metro-North Commuter Railroad, 191 F.3d 283 (2d Cir.

                                   91
1999).       See Brown I, 576 F.3d at 157 (citing Caridad, 191 F.3d

at 293).      But by the time Brown I was issued, the Second Circuit

had already repudiated any part of Caridad suggesting a lesser

burden of proof than a preponderance of the evidence.                 See In re

IPO, 471 F.3d at 42 (“[O]ur conclusions necessarily preclude the

use of a ‘some showing’ standard, and to whatever extent Caridad

might have implied such a standard for a Rule 23 requirement,

that implication is disavowed.”).            Only one circuit followed

Brown I’s lead and accepted such a low degree of proof: the

Ninth Circuit, in its now-reversed decision in Dukes v. Wal-Mart

Stores, Inc.        See 603 F.3d 571, 595-96 & n.17 (9th Cir. 2010).

(citing Brown I, 576 F.3d at 156).               In the meantime, another

circuit rejected Brown I outright.          See Bennett, 656 F.3d at 816

n.2 (declining to “follow” Brown I’s finding that sufficient

evidence      established    commonality,   as   “Brown[   I]    was    decided

without the benefit of the Supreme Court’s recent opinion in

Dukes”).

       All    in   all,   despite   assurances   otherwise,     the    majority

treats Rule 23 as something akin to a pleading standard.                 It is

not.     See Wal-Mart, 131 S. Ct. at 2551.          Were the rule written

as the majority envisions it, district courts would get to “duck

hard questions.”          West v. Prudential Sec., Inc., 282 F.3d 935,

938 (7th Cir. 2002).         But framing class certification as a mere

pleading standard “amounts to a delegation of judicial power to

                                       92
the plaintiffs.”          Id.    “[A] district court’s certification order

often bestows upon plaintiffs extraordinary leverage, and its

bite       should    dictate    the    process      that       precedes     it.”   Oscar

Private Equity Invs. v. Allegiance Telecom, Inc., 487 F.3d 261,

267 (5th Cir. 2007), abrogated in other respects by Erica P.

John Fund, Inc. v. Halliburton Co., 131 S. Ct. 2179 (2011).



                                  III. Commonality

       With the proper standards in mind, it becomes evident that

the district court did not abuse its discretion in finding that

Plaintiffs failed to establish commonality.

       “In this case, proof of commonality necessarily overlaps

with [Plaintiffs’] merits contention that [Nucor] engages in a

pattern or practice of discrimination.”                        Wal-Mart, 131 S. Ct. at

2552.            Plaintiffs     must     establish         a     unifying     policy   of

discrimination at certification, or “it will be impossible to

say that examination of all the class members’ claims for relief

will produce a common answer to the crucial question [of] why

was    I    disfavored.”        Id.      In    other      words,    Plaintiffs     cannot

simply identify a group of people who they allege have suffered

some type of Title VII injury.                     Id.         To certify the class,

Plaintiffs must be able to trace that injury to a single, common

source.          Id.; accord Ellis v. Costco Wholesale Corp., 657 F.3d

970,       981    (9th   Cir.   2011);    see      also    William     B.    Rubenstein,

                                              93
Newberg on Class Actions § 3:19 (5th ed. 2014) (citing Brown I

as an example of a case that approached commonality “loosely”

and    explaining         that   Wal-Mart          articulated          “a     more     explicit

definition of commonality”).                  Plaintiffs here must identify a

common policy with common injury to members of a class spanning

more   than     a    decade,     covering      Nucor’s           entire       South    Carolina

production      facility,        and    touching          upon        dozens     of     relevant

decisionmakers.             That       task    can         be     decidedly           difficult,

especially given that Plaintiffs premise their class in part on

a disparate treatment theory.                  See Stastny v. S. Bell Tel. &

Tel. Co., 628 F.2d 267, 274 n.10 (4th Cir. 1980); see also

Garcia     v.   Johanns,         444    F.3d        625,        633    (D.C.     Cir.     2006)

(“Establishing commonality for a disparate treatment class is

particularly difficult where, as here, multiple decisionmakers

with significant local autonomy exist.”).

       A   plaintiff         who       brings        a      class-wide           charge      of

discrimination must traverse a “wide gap” between his claim of

individual mistreatment and a class-wide harm.                               Falcon, 457 U.S.

at 157.    The plaintiff could do so in one of two ways.                               See Wal-

Mart, 131 S. Ct. at 2553.                   First, he might identify a “biased

testing    procedure”        that      is    used    to     evaluate          applicants     and

employees.          Id.    By all accounts, Plaintiffs do not identify

that sort of procedure here.                   Second, a plaintiff might offer

“significant proof” that an employer “operated under a general

                                              94
policy      of     discrimination      . . .   [that]     manifested        itself   in

hiring and promotion practices in the same general fashion.”

Id.    This second route forms the focus of this case.

       Plaintiffs offer two types of evidence that they say bridge

the gap between individual and class-wide claims: statistical

evidence and anecdotal evidence.                 Whether examining these two

categories        of   evidence     separately     or    together,        the   district

court did not abuse its discretion in deeming the Plaintiffs’

case insufficient.

                               A. Statistical Evidence

                                          1.

      Plaintiffs first present a statistical study comparing a

hypothesized, weighted benchmark of black bidders for promotions

to    the   number        of   black   employees    that    they     assumed      Nucor

promoted during the relevant period.                    This evidence performs a

double duty, as it goes to Plaintiffs’ disparate impact claim

and their disparate treatment claim.

       As to the disparate impact claim, this sort of statistical

evidence         should    identify    disparities      that   are    “sufficiently

substantial” to raise “an inference of causation.”                         Anderson v.

Westinghouse Savannah River Co., 406 F.3d 248, 281 (4th Cir.

2005).           Without       “substantial”     disparities,        we     cannot   be

confident that a challenged policy produced an injury common to

the class.        See Wal-Mart, 131 S. Ct. at 2551.

                                          95
       As     to    the     disparate         treatment      claim,     “gross      statistical

disparities” “may in a proper case constitute prima facie proof

of a pattern or practice of discrimination.”                                  Hazelwood Sch.

Dist.    v.      United      States,      433    U.S.      299,     307-08    (1977);   accord

Ardrey      v.     United     Parcel      Serv.,      798     F.2d    679,    683    (4th   Cir.

1986).       But see Warren v. Halstead Indus., Inc., 802 F.2d 746,

753    (4th        Cir.     1986)    (“[S]tatistics            cannot      alone    prove     the

existence of a pattern or practice of discrimination[.]”).                                    But

not every case will present the truly egregious and unexplained

disparities         that     leave       no   room    for     any    inference      other   than

intentional              discrimination.              Moreover,         “[i]nferring        past

discrimination from statistics alone assumes the most dubious of

conclusions: that the true measure of racial equality is always

to be found in numeric proportionality.”                               Md. Trooper Ass’n,

Inc. v. Evans, 993 F.2d 1072, 1077 (4th Cir. 1993).

                                                 2.

       The       majority        observes           that      Plaintiffs’        evidence      is

“statistically significant at 2.54 standard deviations from what

would be expected if race were a neutral factor.”                                  Maj. op. at

28.     Statistical significance, however, is a necessary but not

sufficient         condition        to    finding      a     discriminatory        practice    or

policy; statistical significance does not axiomatically equate

with    legal       significance.             See     EEOC    v.    Fed.     Reserve   Bank    of

Richmond,          698    F.2d   633,      648   (4th       Cir.     1983)    (“[S]tatistical

                                                 96
significance        as   measured         by        the   standards         of     acceptable

statistical       principles         will       not       necessarily            be     legally

significant[.]”), rev’d sub nom on other grounds, Cooper v. Fed.

Reserve Bank of Richmond, 467 U.S. 867 (1984).                            High statistical

significance levels might lack practical and legal significance,

for    instance,     because       “a   high        significance          level       may   be    a

misleading       artifact     of    the    study’s        design.”          Kadas       v.    MCI

Systemhouse Corp., 255 F.3d 359, 362 (7th Cir. 2001).                                       Thus,

determining       what   is    legally         significant           --    as     opposed        to

statistically significant -- “is a legal determination properly

made by the court and not by an expert.”                         Fed. Reserve Bank of

Richmond, 698 F.2d at 648; cf. United States v. Philip Morris

USA,     Inc.,    449    F.    Supp.       2d        1,   706    n.29       (D.D.C.         2006)

(criticizing one of Plaintiffs’ experts for his undue reliance

on statistical significance).

       Nevertheless, the majority seems to defer to Plaintiffs’

experts and assume legal significance because the statistical

evidence     crosses     the        two-standard-deviation                 threshold,        the

threshold     for    statistical          significance          at    a    95%     confidence

level.      Yet     “courts    of    law    should        be    extremely        cautious        in

drawing any conclusions from standard deviations in the range of

one to three.”        EEOC v. Am. Nat’l Bank, 652 F.2d 1176, 1192 (4th

Cir. 1981); see also Kingsley R. Browne, Statistical Proof of

Discrimination: Beyond “Damned Lies”, 68 Wash. L. Rev. 477, 503

                                               97
(1993) (“Random disparities of this magnitude are pervasive in

the workplace and are not suggestive of a nonrandom cause, let

alone an illegal one.”).          In specific cases, even higher numbers

may not be enough.        EEOC v. Western Electric Co., Inc., 713 F.2d

1011 (4th Cir. 1983), provides one example.          There, we held that

a district court clearly erred in finding a policy or practice

of     discrimination,     even    though    statistics   showed   overall

disparities of 4.7955 and 5.883 standard deviations.               Id. at

1018-19.

       Similarly, other courts have rejected statistical evidence

even     though     the   evidence     met   the   two-standard-deviation

threshold.        See, e.g., Carpenter, 456 F.3d at 1201 (7.95 and

38.03 standard deviations); Lopez v. Laborers Int’l Union Local

No. 18, 987 F.2d 1210, 1213-14 (5th Cir. 1993) (3.26 and 3.01

standard deviations); Waisome v. Port Auth. of N.Y. & N.J., 948

F.2d 1370, 1376 (2d Cir. 1991) (2.68 standard deviations); EEOC

v. Chi. Miniature Lamp Works, 947 F.2d 292, 300 (7th Cir. 1991)

(20.1 standard deviations); Gay v. Waiters’ & Dairy Lunchmen’s

Union, Local No. 30, 694 F.2d 531, 551 (9th Cir. 1982) (2.45

standard deviations).       In short, “there is nothing magical about

two or three standard deviations.”           Ramona L. Paetzold & Steve

L. Willborn, The Statistics of Discrimination § 4:13 (2014).




                                      98
                                       3.

       Instead    of    assuming     “that    any        particular            number     of

‘standard      deviations’”     establishes       a      discriminatory           policy,

courts    must   evaluate   statistical      evidence          on    a     “case-by-case

basis.”       Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 995

n.3 (1988) (plurality opinion); see also Int’l Bhd. of Teamsters

v. United States, 431 U.S. 324, 340 (1977).                          Neither “courts

[n]or     defendants    [are]    obliged     to        assume       that      plaintiffs’

statistical evidence is reliable.”                 Watson, 487 U.S. at 996.

And we must always keep in mind that we are looking for reliable

indications of “gross” or “substantial” disparities that amount

to “significant proof.”            Wal-Mart, 131 S. Ct. at 2551, 2553;

Hazelwood, 433 U.S. at 307-08.

       The duty to test the relevant statistical evidence attaches

at the class certification stage, Comcast, 133 S. Ct. at 1433,

as   “reliance    on   unverifiable    evidence          is    hardly         better    than

relying on bare allegations,” Unger v. Amedisys, Inc., 401 F.3d

316,    324   (5th   Cir.   2005).     District         courts       must      probe     the

validity of statistical evidence, as “any method of measurement”

would    otherwise     become   “acceptable       so    long    as       it    c[ould]    be

applied classwide, no matter how arbitrary the measurements may

be.”      Comcast, 133 S. Ct. at 1433; accord Rail Freight Fuel

Surcharge Antitrust Litig., 725 F.3d at 254; Am. Honda Motor

Co., Inc. v. Allen, 600 F.3d 813, 815 (7th Cir. 2010).

                                       99
       In   this   case,   the    district      court   evaluated       Plaintiffs’

statistical evidence, reasonably found it wanting, and explained

in detail why that was so.          It should not then be said that the

district     court   clearly     erred    by    refusing   to    give    weight   to

unconvincing       evidence.      And    when    one    takes    a    closer   look,

Plaintiffs’        statistical     evidence        truly    is        fundamentally

unconvincing, not just -- as the majority calls it -- “less

precise.”     Maj. op. at 18.

                                         4.

       “[T]rial judges may evaluate the data offered to support an

expert’s bottom-line opinions to determine if that data provides

adequate support to mark the expert’s testimony as reliable.”

Milward v. Acuity Specialty Prods. Grp., Inc., 639 F.3d 11, 15

(1st Cir. 2011).       And in any case involving expert testimony, “a

court may conclude that there is simply too great an analytical

gap between the data and the opinion offered.”                       Gen. Elec. Co.

v. Joiner, 522 U.S. 136, 146 (1997).

       Plaintiffs’ own experts conceded that they used problematic

data.       In support of a motion to compel, one of Plaintiffs’

experts affirmed under oath that the information he had received

thus far was “incomplete in a number of important ways that

ma[d]e it impossible to calculate reliable statistics.”                        J.A.

399.    Because of this “inadequate” data, the expert opined that

he could not calculate “proper statistics” or perform “any of

                                         100
th[e] three standard forms of statistical analysis.”                                   J.A. 403,

409.     Without additional data, it was concededly “impossible to

calculate . . . statistical patterns that might show whether or

not a common issue of fact exists in this case.”                                  J.A. 403-04.

Ultimately, the expert did not receive any of the additional

data    that   he     professed       to    need     for       a    scientifically         valid

analysis.      But, despite his sworn statements that the task was

“impossible,”         he     and    another        expert          nevertheless         produced

statistical analyses based on the “incomplete” and “inadequate”

data.

        Plaintiffs’        experts’        report        confirms          that    they       used

incomplete data to support and reach their conclusions.                                       For

instance,      even        though    the      experts       drew       conclusions         about

positions throughout the Nucor plant, they did not employ any

data from either the shipping or maintenance departments.                                     J.A.

1154.      They     used     only    a     “limited       amount       of    data”      for   the

remaining departments.               J.A. 1153.            And although Plaintiffs’

experts    chose      to    use     bidding       data    to       determine      an    expected

number of black promotions, they conceded that incomplete data

“undermined” their “ability to use posting and bidding records

to   analyze    [those]       promotions.”           J.A.      1161.         Nucor’s      expert

identified other basic issues in Plaintiffs’ experts’ data that

the majority opinion ignores.                     See J.A. 5892.                 For instance,

Plaintiffs’       experts     included        a    promotion         won    by    an    external

                                             101
candidate in their pool -- even though this case only concerns

internally     filled    promotions.            They   further        overlooked         seven

selections of black employees for promotions.                    See J.A. 5891.

       The district court did not clearly err in discrediting this

incomplete work and deeming it unworthy of evidentiary weight.

                                          5.

                                          a.

       To further understand why Plaintiffs’ statistical evidence

is problematic, it helps to consider how it came about.                                    In

discovery, Nucor produced bidding packets and other promotion-

related applicant data covering certain promotions from January

2001 to February 2006.            Plaintiffs’ analysis of the 2001-2006

data   indicated    that    the   black     selection          rate       fell    only   0.84

standard       deviations     from        the     mean     --         a     statistically

insignificant      result.          See    J.A.        5872.          Fortunately         for

Plaintiffs, the district court limited the use of the actual

data   to   the   January    2001    to    December       2003    period.           But    an

analysis of that period’s data did not produce a statistically

significant disparity, either.              At best, analysis of the 2001-

2003    data    produced     disparities         falling       only        1.53    standard

deviations from the mean.           See J.A. 1449.

       Left with no results from actual records that suggested

discrimination,         Plaintiffs’        experts         set        about        creating

extrapolated “benchmark” figures for promotions bidding between

                                          102
December 1999 and January 2001.               They began by using so-called

“change-of-status”         forms    plucked    from     personnel     records    to

identify 27 purported promotions during the period.                   The experts

then   constructed     a    hypothetical      bidding    pool    by   essentially

guessing that bidders in early years were racially identical to

bidders in later ones.             See J.A. 1162.       With their theoretical

promotion and bid figures established, Plaintiffs’ experts then

calculated an expected black promotion rate and compared it to

the “actual” black promotion rate for the same period.                          Tied

with   the    actual   promotions      figures    from    2001   through    2003,

Plaintiffs’ extrapolated figures produced the number on which

the majority now relies -- 2.54 standard deviations.

                                        b.

       Plaintiffs’ experts, however, based their extrapolations on

several      erroneous      assumptions        that     render      their   model

unreliable.

       It begins with the change-of-status forms, which Nucor used

to record any change of employee status.                Because the forms also

recorded demotions, pay increases, reassignments, and transfers,

one cannot and should not assume that every form reflects a

posted promotion.          But up to the time that the district court

decertified     the      promotions     classes,      Plaintiffs      had   never

provided the 27 relevant change-of-status forms to the district

court.       Quite understandably, the district court wanted more

                                        103
concrete assurance that Plaintiffs’ selected forms showed actual

promotions.      The district court never got that assurance, and it

was “not inclined” to “take [Plaintiffs’] word for it.”                             J.A.

10943.    Plaintiffs did eventually submit the 27 relevant change-

of-status forms -- but only after the district court decertified

the promotions classes.            As it turns out, those forms do little

to dispel the concern that Plaintiffs misidentified promotions.

For example, two forms seem to show transfers, not promotions,

J.A.    11006    (Reynolds),       11028    (Forsell),          while    another    just

reflects training, J.A. 11029 (Green).                    Others do not involve

pay raises, suggesting no promotion occurred.                           See J.A. 11006

(Haselden), 11030 (Cooper).            Certain other forms are ambiguous,

failing to indicate whether pay rates changed or what the nature

of the position change was.             See, e.g., J.A. 11022 (Anderson),

11024    (Proskine),      11025    (Pope).       Most    of     the     forms    fail   to

indicate whether Nucor posted the relevant opening for bidding.

See, e.g., J.A. 11006-15, 11019-21, 11023, 11026-32. So, the

district court was reasonably concerned that the 27 purported

promotions      --    representing     nearly     half     of    the     promotions     in

Plaintiffs’          statistical     analysis        --       were       suspect        and

statistically useless.

       The problems with Plaintiffs’ experts’ model continue to

mount    when   the     hypothesized       bidding      pools    for     the    purported

promotions are examined.            Plaintiffs’ experts hypothesized that

                                           104
at   least    one     black    employee        bid    on   each    of     the    27   assumed

promotion opportunities.             But that approach rejects the prospect

of   an   all-white       bidding         pool    during     the    projected         period,

something     likely     to    randomly        happen      from    time    to    time    given

Nucor’s      11%     black    workforce.             Consequently,        Nucor’s       expert

concluded      that     Plaintiffs’         experts’       model    “overstat[ed]         the

expected number of African American selections” between December

1999 and January 2001, as the model very likely inflated the

number of black bidders.                  J.A. 5912.        And indeed, Plaintiffs’

experts      calculated       that   black       workers     applied       to    jobs    at   a

substantially higher pace than their actual percentage of the

workforce, further suggesting some degree of inflation.                               Compare

J.A. 1157 (noting that workforce was “11.3% African-American”),

with J.A. 1162 (“The racial composition of the bidders . . . was

19.24% African-American.”).

      An “inflated pool” like the one that Plaintiffs used “can

undermine      the    validity       of    a     statistical       study    to    determine

imbalances.”         Smith v. Va. Commonwealth Univ., 84 F.3d 672, 677

(4th Cir. 1996).              When a statistical model overestimates the

number of black bidders, for instance, then black bidding rates

artificially rise and black selection rates artificially fall.

These effects might explain, for instance, why the black bidder

selection rate for January 2001 to December 2003 -- when actual

data was available -- was three times higher than the calculated

                                               105
selection       rate      for    December    1999     to    January       2001    --     when

projected data was used.                 If, during the projected period, the

hypothesized number of black bidders in the pool (artificially)

rose    while      the   number     of    black   bidder    selections          stayed   the

same,    then      the     hypothesized      black       selection      rate     would    be

(artificially) driven down during the projected period.

                                             c.

       The    majority          nevertheless      dubs     the     extrapolated          data

“sound.”      Maj. op. at 17.            That conclusion, however, reflects an

unwillingness        to     confront      genuine     concerns      over     statistical

validity.

        For instance, although admitting that the change-of-status

forms     are      ambiguous,       the     majority       blames       Nucor     for    not

explaining         how    these     ambiguities       would       affect       Plaintiffs’

statistical accuracy.              Maj. op. at 22.               That burden was not

Nucor’s.      Cf. Cooper v. Smith & Nephew, Inc., 259 F.3d 194, 199

(4th Cir. 2001) (noting that the “proponent of the testimony”

bears the burden of proving that it is reliable).                          Recently, for

example,     the       Court     affirmed    a    district       court’s       refusal    to

consider statistical evidence offered to show disparate impact

because      the    evidence       contained      a    number      of     “mistakes      and

omissions” in its analysis.                EEOC v. Freeman, 778 F.3d 463, 467

(4th Cir. 2015).            The Court did so even though the plaintiff

there    raised      the    very    same     argument      that     the    majority       now

                                            106
embraces: that the employer never “show[ed] that correcting the

errors would negate the disparate impact.”                 Brief for Appellant

at 26, Freeman, 778 F.3d 463 (No. 13-2365), 2014 WL 320746.                      The

Court appropriately rejected that argument then; it should have

done the same now.

     Rather than focusing on the reliability of the extrapolated

statistics, the majority prefers to revisit the Brown I dissent.

See maj. op. at 20-21.            That dissent noted some of the concerns

mentioned     here:        not    all   change-of-status      forms      used    to

extrapolate openings reflect promotions, many forms are unclear,

and few forms indicate whether positions were posted.                    See Brown

I, 576 F.3d at 168 (Agee, J., concurring in part and dissenting

in part).       To illustrate these concerns, the dissent examined

“the change-of-status forms found in the record for 2000.”                       Id.

Bear in mind that, at least up to that point, Plaintiffs had

never produced the particular change-of-status forms that they

relied   upon      to    guesstimate    their   statistics.       Nor    had    they

informed the Court that the forms in the record were not those

upon which they based their statistical evidence.                 So, the Brown

I   dissent     used      the    only   change-of-status     forms      that    were

available     to        assess   whether    they   could    credibly       support

Plaintiffs’ alleged statistical disparities.                Id.      Although the

majority labels this exercise “sua sponte fact-finding,” maj.



                                         107
op. at 21, the discussion in the Brown I dissent consisted of

nothing more than explication by example.

       The   majority    then    attempts         to    tie    the    district    court’s

decertification     decision         to     the     “error”      that      the    majority

mistakenly identifies in the Brown I dissent.                          According to the

majority, the district court committed “clear factual error” by

assuming that the change-of-status forms discussed in the Brown

I dissent were those that Plaintiffs relied upon to build their

statistical     model.         But   here’s       the   rub:     the    district     court

expressly disclaimed that very assumption.                        The district court

noted that, at the time of decertification, Plaintiffs still had

not produced the relevant forms.                  So, it had “never seen the 27

change-of-status         forms       upon     which           [Plaintiffs’]       experts

apparently relied.”           J.A. 10943.         Thus, the district court cited

the Brown I dissent only to emphasize the potential problems

inherent in using the forms and why it needed to see them.                              See

J.A.    10942-43.       The    majority’s         protracted         discussion    of   the

Brown    I    dissent     therefore          does       nothing       to    rehabilitate

Plaintiffs’ evidence, resting as it does on a twofold misreading

of the Brown I dissent and the district court’s decertification

decision.

       Nor does the majority explain why inflated black bidding

rates can be excused.            Rather than address that obstacle, the

majority assures the reader that the problem causes only “an

                                            108
incremental reduction in probative value” that does not “fatally

undermine the probativeness of the experts’ findings.”                             Maj. op.

at 23.     But it is hard to minimize these defects so quickly when

Plaintiffs’          experts      offered      few      explanations           for    their

assumptions or any assessment of the expected impact of those

assumptions.           The experts did not say, for instance, whether

black bidding rates varied during the years for which data was

available.           If they had shown that the rates remained steady,

then    one    might     assume      that    those   same    rates       applied     to   the

extrapolated years.             But if the rates varied, then Plaintiffs’

experts’ assumptions are not sustainable.                         Oddly, the majority

again    blames       Nucor    for    not    summoning      any    evidence      going      to

variation, but that tack once more reverses the burden of proof.

“It is the plaintiffs’ burden to demonstrate compliance with

Rule    23,”    not     Nucor’s.       EQT     Prod.,    764      F.3d    at   358.       The

majority       further     finds      that     Plaintiffs’        experts      reasonably

assumed       that    “every”     position     was    posted      for    bidding.         But

Plaintiffs       themselves       submitted        testimony      identifying        several

unposted positions.             See, e.g., J.A. 1010, 1051, 1091, 1110.

Nucor’s    stated       policies      also    indicated     that,       at   least    for    a

time, “[v]acant supervisory positions [were] not [to] be posted

for bidding.”          J.A. 257.

       The majority stresses that, as a general matter, plaintiffs

may employ extrapolated data to prove discrimination.                              Maj. op.

                                             109
at 18-19.         That can be true in some cases, but extrapolated data

must still be statistically valid.                      And the majority ignores a

significant and telling distinction between this case and past

ones: Plaintiffs’ experts extrapolated two data points -- the

composition         of    the    applicant       pool    and      the    success       rates    -–

whereas experts in our prior cases only extrapolated one data

point.          See Lewis, 773 F.2d at 568; United States v. Cnty. of

Fairfax, Va., 629 F.2d 932, 940 (4th Cir. 1980).

          The   majority’s       cited     cases      also   involved          defendants      who

wrongfully destroyed relevant evidence.                        See Lewis, 773 F.2d at

568       (noting        that    the     defendant       “improperly            disposed”       of

applicant         records);       Cnty.    of    Fairfax,         629    F.2d    at     936    n.4

(noting         that     the    defendant       destroyed         applicant       data     “[i]n

violation of the record keeping regulations of [two statutes]”).

In    a    situation       involving       spoliation        of    evidence,         the   Court

commonly draws adverse inferences against the spoliators.                                      But

this record contains no evidence of spoliation.

          Regardless,      no    authority       requires      the      district       court    to

find extrapolated data convincing in every case.                                Our precedent

holds just the opposite.                  In Allen v. Prince George’s County,

737 F.2d 1299, 1306 (4th Cir. 1984), for example, the district

court      relied      solely     upon    actual      applicant         flow    data    “to    the

exclusion         of     all     [other]     statistical           evidence,”          including

evidence         crafted       from    alternative      benchmarks.             We     affirmed,

                                                110
emphasizing        that     we   could    not        “second-guess”       a     fact-bound

decision concerning “the relative weights to be accorded to the

parties’ respective evidence.”                 Id.    The district court here did

essentially        the    same   thing    as    the    district     court       in    Allen,

giving weight for good reason to the actual data available to

the exclusion of the speculative extrapolation evidence.                               As in

Allen, we should not say that the district court clearly erred

in doing so.

                                           6.

                                           a.

       Plaintiffs’         statistical     evidence        also     does       not     apply

controls     for    non-discriminatory           factors    that    could       very    well

have caused any observed disparities.                     See Lowery, 158 F.3d at

764.     Seniority, for instance, influences promotions decisions

at Nucor.       See, e.g., J.A. 257.                 Disciplinary issues also led

Nucor to reject certain applicants for promotion -- including

frequent bidder Jason Guy, who is black.                     See J.A. 659-67; see

also Coates v. Johnson & Johnson, 756 F.2d 524, 544 n.20 (“[A]n

employee’s prior discipline record seems likely to be a major,

if     not   the         most    important,      factor      in     [an        employment]

decision.”).        But Plaintiffs’ experts admitted that they did not

control for these or any other “additional factors beyond the

control for each job posting.”                  J.A. 1164.        The majority would

wish    these      considerations        away,       reasoning     that       Nucor    never

                                           111
raised them.     But Nucor’s expert noted the need to “control for

characteristics       that     would    seem    to     affect    the    chance     of

selection,”     which     would    include     matters    like    seniority       and

discipline.     See J.A. 5893.          Anyway, we could have affirmed the

district court’s decision here on “any basis supported by the

record.”     Defenders of Wildlife v. N.C. Dep’t of Transp., 762

F.3d 374, 392 (4th Cir. 2014).

      The majority also tries to summon its own justifications

for these omissions, implying that records were not available to

control for matters like discipline.                   Maj. op. at 25.           Even

Plaintiffs’    experts       conceded   that   they     were.     See    J.A.    1165

(acknowledging that Nucor had maintained and produced “bidders’

training, discipline, and bidding records”); see also J.A. 5893

(Nucor’s expert observing that “separate discipline and training

files [were] provided to Drs. Bradley and Fox and [him]”).                       And,

based on allegations and personal assessments from Plaintiffs

themselves,     the     majority    assumes     that    potential       explanatory

variables are themselves racially biased.                 See maj. op. at 25-

26.    Yet    here    again,     Plaintiffs’    experts    do    not    assume    so,

perhaps because there is no concrete evidence of such taint in

the record.     See Ottaviani v. State Univ. of N.Y. at New Paltz,

875 F.2d 365, 375 (2d Cir. 1989) (holding that district court

correctly     required     the    plaintiffs     to    account    for    potential

explanatory variable where the plaintiffs alleged but did not

                                        112
prove that the variable was biased).                       And even if one were to

indulge the majority’s assumption that discipline at Nucor was

itself   biased,       that     outcome      would       not   justify    excluding        the

variable    from    the       statistical         model    completely.           “[T]ainted

variables should not be routinely excluded from the regression

equation. Instead, the effects of the inclusion of a tainted

variable must be assessed and minimized.”                        Paetzold & Willborn,

supra, § 6:13.           The majority’s reasons, then, do not fill the

gaps in Plaintiffs’ experts’ work.

     The    failure       to     control     for     non-race-related        explanatory

variables     “is      sufficiently          serious       so    as    to    weaken       the

statistical study’s probativeness.”                       Lowery, 158 F.3d at 764;

see also Smith, 84 F.3d at 676; accord Rodriguez v. Nat’l City

Bank, 726 F.3d 372, 384-85 (3d Cir. 2013); Morgan v. United

Parcel Serv. of Am., Inc., 380 F.3d 459, 468 (8th Cir. 2004);

Munoz v. Orr, 200 F.3d 291, 301 (5th Cir. 2000); Sheehan v.

Daily Racing Form, Inc., 104 F.3d 940, 942 (7th Cir. 1997); Penk

v. Or. St. Bd. of Higher Educ., 816 F.2d 458, 465 (9th Cir.

1987).       A     trier       of    fact     must       determine       whether        racial

discrimination -- rather than chance or some other “confounding

factor[]”     --    caused          an     alleged       disparity.         In     re    Navy

Chaplaincy,      738     F.3d       425,    440    (D.C.       Cir.   2013).        Only    a

controlled       model     can      provide       that     answer,    and      Plaintiffs’

experts’ evidentiary model did not meet that definition.

                                             113
                                                b.

       In most every employment case, a valid statistical model

must     account     for      one     particularly               important       explanatory

variable: the applicant pool’s qualifications.                            “[T]he relevant

comparison is between the percentage of minority employees and

the percentage of potential minority applicants in the qualified

labor pool.”        Carter v. Ball, 33 F.3d 450, 456 (4th Cir. 1994);

see also City of Richmond v. J.A. Croson Co., 488 U.S. 469, 501-

02 (1989); McNairn v. Sullivan, 929 F.2d 974, 979 (4th Cir.

1991).     If courts were to accept statistical models containing

unqualified applicants, then employers could be punished merely

because    of   a    “dearth     of       qualified        nonwhite      applicants       (for

reasons    that     are    not   [the      employers’]           fault).”        Wards    Cove

Packaging    Co.     v.    Atonio,        490    U.S.      642,    651    (1989).        Thus,

“statistics based on an applicant pool containing individuals

lacking    minimal        qualifications             for   the    job    [are]    of   little

probative value.”          Watson, 487 U.S. at 997; see also Paetzold &

Willborn,       supra,       §      4:3     (“[W]hen             considering       potential

discrimination       in     promotions           within      an     organization,         only

employees qualified for promotion should be considered in the

proxy pool.”).        Furthermore, “[n]o rational enterprise that has

several qualified candidates for a position selects among them

by lot; it picks the best qualified.”                             Mason v. Cont’l Ill.

Nat’l Bank, 704 F.2d 361, 364 (7th Cir. 1983).                               So, a truly

                                            114
effective statistical model will not just account for minimum

qualifications, but should control for the variations in skills

even among minimally qualified applicants.

       By this point, Plaintiffs and their experts should have

known better than to ignore other explanatory factors.                               In a

related    case     challenging       promotions       practices     at   a     different

Nucor     facility,     the        Eighth     Circuit      found     that       similarly

substandard work from the same expert did not create a triable

question of fact on summary judgment.                   See Bennett, 656 F.3d at

812.      In so holding, the Eighth Circuit emphasized that the

expert’s       statistics     had    “little      force”   because       they    “assumed

that     all     applicants     were       qualified    for    promotion        to   each

available position.”               Id. at 818. The Eighth Circuit is not

alone.         Other   courts       have    criticized     Plaintiffs’          principal

expert for employing his “warm body hypothesis,” which “assumes

that     every     person     is    just     as    qualified       and    skilled     and

experienced as everyone else.”                    Davis v. Ala. Dep’t of Educ.

Dep’t of Disability Determination Serv., 768 F. Supp. 1471, 1477

(N.D. Ala. 1991); accord Adams v. Austal, U.S.A., L.L.C., No.

08–00155–KD–N, 2011 WL 1558790, at *8 (S.D. Ala. Apr. 25, 2011);

Rollins v. Ala. Cmty. Coll. Sys., No. 2:09cv636–WHA, 2010 WL

4269133, at *8-9 (M.D. Ala. Oct. 25, 2010); Bennett v. Nucor

Corp., No. 3:04CV00291 SWW, 2007 WL 2333193, at *3 (E.D. Ark.

Aug. 13, 2007); Yapp v. Union Pac. R.R. Co., 229 F.R.D. 608, 619

                                            115
(E.D. Mo. Aug. 5, 2005); Rhodes v. Cracker Barrel Old Country

Store, Inc., No. Civ.A. 4:99–CV–217–H, 2002 WL 32058462, at *65

(N.D. Ga. Dec. 31, 2002).                  We even affirmed a district court’s

choice to exclude work from the same expert precisely because he

did not incorporate adequate controls.                      See Anderson, 406 F.3d

at    262-63    (agreeing      with    the    district      court’s     view   that    the

expert had ignored “actual job performance or job requirements”

even though he “conceded” that he could have “use[d] a control

factor that would control for the actual job title or the job

duties”).

       Plaintiffs’       experts       assumed      that    all     persons    in     each

bidding pool were equally qualified because “only persons who

decided     to     bid   based        on     the   posted        qualifications       were

included.”       J.A. 1162.           This opaque language obscures another

faulty assumption built into the model: the experts assumed that

only qualified persons applied for each promotion opportunity.

It takes no expertise to comprehend that some people “might be

discouraged from applying because of a self-recognized inability

to meet the [opening’s] standards.”                      Dothard v. Rawlinson, 433

U.S. 321, 330 (1977).            But one could hardly assume that every

job    applicant    is   so    discerning,         and    even    the   majority    seems

unwilling to make that assumption.                       See maj. op. at 25.           The

majority       prefers    to    guess       that    the    number       of   unqualified

applicants will be so trivially small as to be statistically

                                             116
irrelevant,     and   it   makes    that       guess   simply   because    the   job

announcement includes job requirements.                    In practical effect,

the   majority   has   read    the    “qualified          applicants”    limitation

found in our prior cases out of the law, as most every job

opening provides some minimal description of what skills are

required.

      “A statistical study that fails to correct for explanatory

variables, or even to make the most elementary comparisons, has

no value as causal explanation[.]”                 People Who Care v. Rockford

Bd. of Educ., 111 F.3d 528, 537 (7th Cir. 1997).                         Plaintiffs

presented just such a study here, and the district court did not

clearly err in rejecting it.

                                          7.

      Lastly,     Plaintiffs’        statistical           evidence      improperly

aggregates data in a way that distorts the results.

                                          a.

      The objective in a class action -- even in a proceeding

that alleges disparate treatment -- is to identify a common,

uniform     policy.        “While    in        a   case    alleging     intentional

discrimination, such as this one, a plaintiff need not isolate

the particular practice and prove that such practice caused the

discrimination, plaintiffs must make a significant showing to

permit the court to infer that members of the class suffered

from a common policy of discrimination that pervaded all of the

                                      117
employer’s challenged employment decisions.”                       Love v. Johanns,

439 F.3d 723, 728 (D.C. Cir. 2006).

       Thus, if the class challenges a policy implemented at the

nationwide       level,        then     plaintiffs       might         use   applicable

statistics       showing      nationwide       disparities        to    establish       the

policy’s effects.            Conversely, if the class challenges policies

implemented       on    a    plant-by-plant         or   department-by-department

basis, then the class must summon statistics showing disparities

at that level.          Otherwise, non-uniform decisions made by one

discriminatory decisionmaker might create disparities that, when

aggregated with other, neutral decisions, misleadingly indicate

discrimination across the whole group of decisionmakers.

       Wal-Mart    demonstrates         these      concepts   well.          There,     the

plaintiffs offered statistics purporting to show regional and

national disparities in employment decisions at Wal-Mart.                              Wal-

Mart, 131 S. Ct. at 2555.               Those decisions, however, were made

at the store level.               Id. at 2547.       Because of that disconnect,

the    Supreme    Court      held     that    plaintiffs’     statistics         did    not

establish a common policy.               Once again, the broader disparities

might have been “attributable only to a small set of Wal-Mart

stores”    and    did       not     “establish     the   uniform,       store-by-store

disparity     upon          which     plaintiffs’        theory        of    commonality

depend[ed].”       Id. at 2555.         In essence, Wal-Mart agreed with our

own,   earlier     cases      indicating      that    statistics        should    not    be

                                             118
aggregated together to create disparities that are not actually

representative of the class as a whole.                      Compare Stastny, 628

F.2d 279-80 (requiring the plaintiffs’ statistics to focus on

the    “locus    of    autonomy”),       with    Elizabeth    Tippett,       Robbing    a

Barren Vault: The Implications of Dukes v. Wal-Mart for Cases

Challenging Subjective Employment Practices, 29 Hofstra Lab. &

Emp.    L.J.    433,    447    (2012),    cited    with    approval     by    Scott    v.

Family Dollar Stores, Inc., 733 F.3d 105, 113 (4th Cir. 2013)

(explaining that Wal-Mart requires that plaintiffs’ statistics

focus on “the locus of the subjective decision-making”).

       In requiring the plaintiffs’ statistics to be centered at

the     level    of     relevant       decisionmaking,        Wal-Mart        did     not

distinguish between nationwide and other class actions.                        Rather,

Wal-Mart asked whether the plaintiffs there were too dissimilar

to bring their claims together, regardless of how many claims

there might be.         Thus, courts have applied principles from Wal-

Mart in cases involving classes of roughly the same size as the

class at issue here.                See, e.g., Wang v. Chinese Daily News,

Inc., 737 F.3d 538, 544 (9th Cir. 2013) (200 class members);

Ealy,    514    F.     App’x    at    304-08     (150   class     members).         Even

statisticians agree that Wal-Mart reaches classes big and small.

See, e.g., Dr. Mary Dunn Baker, Class Certification Statistical

Analysis Post-Dukes, 27 ABA J. Lab. & Empl. L. 471, 479 (2012)

(“[T]he    size        of     the    putative      class     or   the    number        of

                                           119
establishments the defendant operates will have little to do

with whether the Dukes commonality approach is applicable.”).

So,    even    though    Plaintiffs            here    challenge          practices      in   one

plant,    they    still      must       offer     statistics            showing      disparities

among all the relevant decisionmakers, regardless of that one-

plant    focus.       See    Rubenstein,             supra,    §    24:40       (“Courts      have

certified [only] limited classes when the facts show that no

uniform personnel policies are applied among the various plants,

departments, or levels of employees.”).

                                                b.

       Here,     as   the        Brown     I     majority       agreed,         the     evidence

indicates “that each department manager” in each of Nucor’s six

production       departments            “has     unbridled          discretion         to     make

promotions within his department utilizing whatever objective or

subjective       factors     he    wishes.”            Brown       I,    576    F.3d    at    151.

Department       managers        took    full     advantage         of    that       discretion,

developing       processes        that     they       recurrently         characterized        as

unique and independent.                 See J.A. 7887, 7894-95, 7900, 7906-07.

Indeed,       these   processes         were     so    varied       that       one    supervisor

declared that he had “no idea what other departments d[id].”

J.A.     8109.        Even        the     decisionmakers            varied.            In     some

departments,      such      as    the     hot    mill    and       shipping       departments,

supervisors        and      the     department           managers           made       promotion

decisions.        In other departments, such as maintenance and the

                                                120
cold mill, promotions decisions were a more collaborative effort

involving        even     lower-level     lead      men.          These       different

decisionmakers then applied different standards.                           In the beam

mill, for example, the process centered upon interviews alone.

In contrast, the melt shop looked to applicants’ work history,

safety    record,       psychological    interview,      job    skills,      training,

attendance, and scores on a job-specific aptitude test.                         Nucor’s

general      manager      quite    reasonably     described          the     promotions

processes when he said that “each department ha[d] their own way

of doing [promotions].”           J.A. 1723.

      Plaintiffs’ own expert found that each department had its

own procedures, and at least eight different criteria -- not

including       “numerous    other    idiosyncratic      factors”       --    might    or

might not be considered in making any employment decision.                           J.A.

1518-19.         “Different       supervisors,”     he     explained,        “utilized

different       criteria    weighting     schemes      with    little      consistency

among     the     selection       officials      and     among       the      different

hiring/promotion/transfer            opportunities.”          J.A.   1525.       Taking

all   this      dissimilarity      together,     the     expert      concluded       that

Nucor’s      selection       process     was     only      “consistent         in     its

inconsistency.”         J.A. 1519.

      Yet    Plaintiffs’      statistical      evidence       incorrectly      assumed

the     exact    opposite:     perfect,     plant-wide         consistency      as     to

promotions.        Given that promotions decisions were made at the

                                         121
department or supervisor level using different and independent

criteria,       we     cannot     rightfully          assume    that       a     plant-wide

disparity resulted from a uniform problem arising in the same

way in each Nucor department.               See Wal-Mart, 131 S. Ct. at 2555.

Put differently, the district court reasonably found that the

“locus    of    autonomy”       rested    at    the     departmental       level,      not   a

plant-wide one.         We cannot then assume that department decisions

were     made     in    lockstep,        such     that      plant-wide         disparities

necessarily reflect common, departmental ones.                            See Bolden v.

Walsh Constr. Co., 688 F.3d 893, 896 (7th Cir. 2012) (rejecting

aggregate data because it did not necessarily imply that “all 25

superintendents behaved similarly, so it would not demonstrate

commonality”).

       We have already seen these concepts play out in another

employment      discrimination           action       involving     a     similar      Nucor

facility.         Applying       Wal-Mart,        the      Eighth   Circuit        rejected

statistics -- from the same expert -- that reflected plant-wide

disparities in promotions at an Arkansas Nucor plant.                             Bennett,

656 F.3d at 815-16.               Just as in this case, the statistical

evidence there indicated that different departments in the plant

applied different criteria for promotions decisions.                                Id. at

815.     The plant-wide evidence therefore “ha[d] little value in

the    commonality      analysis”        because      it    “did    not    differentiate

between     the      hiring     and   promotion          decisions        made    in    each

                                           122
department.”      Id.        The Eighth Circuit found that, in those sorts

of circumstances, “a bottom-line analysis [wa]s insufficient to

demonstrate      that    any    disparate          treatment    or    disparate      impact

present in one department was also common to all others.”                                 Id.

at 815-16.

     As in Bennett, Nucor here provided its own analysis that

demonstrated how the statistical disparities varied among the

different departments in the plant.                    Nucor’s expert measured how

selection rates varied between white and black applicants on a

department-by-department basis over the period for which bidding

information was available.                  With proper controls applied, the

expert   found    that       race     differences      between       departments      could

vary by as much as 2.44 standard deviations.                            J.A. 5894.         In

other    words,       some    departments          experienced       decidedly     smaller

disparities      in    selection          rates,    undermining       any   inference      of

uniformity and commonality among all departments.

     Given      the    wide    variance       in     promotions       practices      at   the

Nucor    facility,      the     district       court    did     not    clearly     err    in

rejecting a statistical study that failed to account for that

variance.

                                              c.

     The    majority         finds,       however,    that     Nucor’s      entire    plant

should     be   treated       “as     a    single     entity”     when      it   comes     to

promotions decisions.            Maj. op. at 35-36 (alluding to Brown I,

                                             123
576 F.3d at 158).               Although the majority suggests otherwise,

Brown   I did      not    decide    this     issue.        Brown     I     held    that    the

district     court        should      treat        Nucor’s       various          production

departments        as     a     single     facility     only        for     purposes        of

Plaintiffs’ hostile work environment claim.                          576 F.3d at 158

(“[T]he affidavits of employees in one department are admissible

to   prove    a     plant-wide           hostile    environment            that     affected

employees     in        other    departments,        and     the      plaintiffs          have

satisfied    the    commonality          requirement       for     their    hostile       work

environment     claim.”         (emphasis     added));       see    also     id.     at   157

(discussing how a “hostile environment determination” must be

made in the context of discussing Plaintiffs’ “single entity”

argument).      It said nothing about the uniformity of promotions

decisions across the plant.                Id.      The Brown I majority did so

because     Plaintiffs          likewise     focused       their      “single        entity”

argument on only the hostile work environment claim.                              See Brief

for Appellant at 25-35, Brown I, 576 F.3d 149 (No. 08-1247),

2008 WL 2307453.          Thus, as with predominance, the district court

was not constrained in deciding the “single facility” issue, as

no Brown I mandate existed as to that issue.

     Nonetheless, the majority concludes that facts establishing

a single hostile work environment claim also establish a common

promotions policy.            Maj. op. at 37.         Yet “[d]isparate treatment

. . . is inherently different from hostile work environment.

                                            124
The federal courts treat the two types of cases differently for

good reason.”       See Pollard v. E.I. DuPont de Nemours Co., 213

F.3d 933, 943 (6th Cir. 2000), rev’d on other grounds, 532 U.S.

843 (2001).       And no court has held that a common hostile work

environment establishes that a facility must be treated as a

single entity for purposes of every other kind of employment

discrimination claim.

      In finding a common environment, Brown I focused on shared

locker rooms and spaces, plant-wide email, and plant-wide radio

systems.      576 F.3d at 158.         When it comes to a hostile work

environment      claim,   those    facts   may    matter:   racial    slurs    and

“monkey noises” uttered in a common space or transmitted via

plant-wide radio can affect whoever hears them.                See Burlington

Indus., Inc. v. Ellerth, 524 U.S. 742, 762 (1998) (“[A]nyone who

has regular contact with an employee can inflict psychological

injuries by his or her offensive conduct.”).                But locker rooms

and     radios   bear     no   relationship       to   promotions    decisions;

certainly nothing in the record supports such a concept.                      Only

supervisors can inflict the “pain” of a denied promotion, and

they can do so only when empowered by company structure, not

common spaces.      We should not assume that dozens of supervisors

acted    in   concert     merely   because    their    employees     might    have

changed clothes in the same room.                Nor should we assume -- in

the face of expressly different criteria applied to different

                                      125
groups    of     employees     --     that      applicants        in    each     department

nevertheless       suffer    the     same      injury      merely      because      of   their

physical       proximity     to     one   another         at   some     point       during    a

workday.         Though     the      majority        insists         that     “centralized,

circumscribed            environments”           will          “generally”           increase

“consistency”       in    managerial        decisionmaking,            maj.    op.    at   33,

Plaintiffs’ own expert made clear that this hypothesized general

rule cannot apply here, see J.A. 1519 (“The best sentiment I can

muster in favor of the [Nucor] selection procedure is that it is

consistent in its inconsistency.”).                       See also, e.g., Tabor v.

Hilti, Inc., 703 F.3d 1206, 1229 (10th Cir. 2013) (affirming

denial of class certification where “Plaintiffs challenge[d] a

highly discretionary policy for granting promotions”).

      The majority also notes that the general manager formally

approved promotions in the plant.                         Maj. op. at 50.             Without

saying so explicitly, the majority seems to propose that the

general manager provided some common, plant-wide direction that

drove    common,    plant-wide       disparities.              Yet    even    the    Brown    I

majority recognized that the general manager played no genuine

role in the promotions decisionmaking process.                          576 F.3d at 152

(“Although, by policy, the plant’s general manager approves all

promotions        and       handles         discrimination             and       harassment

investigations, the record suggests that each department manager

has     unbridled        discretion       to       make     promotions         within        his

                                             126
department utilizing whatever objective or subjective factors he

wishes.”).     The evidence confirms that proposition.                      Promotions,

the     general     manager        explained,         were     “not    [his]    area    of

responsibility,”        as    he    had    “department         managers    that     ma[d]e

those    decisions.”          J.A.       8163.        Nucor     instead    trained     its

department managers to make promotions decisions and implement

the anti-discrimination policy.

        The majority nevertheless says the general manager engaged

in “inaction.”          Maj. op. at 48, 50.              The majority’s theory --

premised on an assumed culture of “odious racism” and passive

enabling     --     resembles       a     theory       that    Wal-Mart     out-and-out

rejected.         See   131   S.     Ct.       at    2553-54    (refusing      to   credit

evidence asserting that a “strong corporate culture,” enabled by

policies of discretion, permitted bias in pay decisions); accord

Davis v. Cintas Corp., 717 F.3d 476, 489 (6th Cir. 2013).

        Even if one assumes that such a theory were viable and

relevant here, it would not prove commonality.                            “Inaction” --

letting supervisors do as they wish -- is just discretion by

another     name.        “[I]t      is     a    policy       against   having       uniform

employment practices.”             Wal-Mart, 131 S. Ct. at 2554.                “Wal-Mart

tells us that local discretion cannot support a company-wide

class no matter how cleverly lawyers” (or judges) “may try to

repackage local variability as uniformity.”                      Bolden, 688 F.3d at

898; accord In re Navy Chaplaincy, No. 1:07–mc–269 (GK), 2014 WL

                                               127
4378781, at *15 (D.D.C. Sept. 4, 2014).               Were it otherwise, one

could find a common policy in most every case, as most every

company has a management head at the top that could be accused

of not doing enough.               Beyond that, Plaintiffs’ experts never

traced their identified disparities to the general manager, and

their     reports    never    even     mention    him.      For     good     reason.

Individual     acts    of     discretion,      not   the    general        manager’s

purported acquiescence, would have caused any disparities and

the    injuries     that    they    reflect.     Thus,     the    not-very-common

common policy does not present a common injury.

        Nucor also used a plant-wide “dual-approval” scheme, under

which promotions required approval from both “originating” and

“destination” department heads.                The majority sees this as a

case     of   potential      “cat’s    paw”    liability,        wherein    a   non-

decisionmaker influences the ultimate decisionmaker’s choice in

a discriminatory way.          Maj. op. at 36-37 (citing Smith v. Bray,

681 F.3d 888, 897 & n.3 (7th Cir. 2012)).                    But nothing other

than speculation indicates that dual approval was used to effect

discrimination in any common way, and any cat’s paw must be the

“proximate cause” of the discriminatory harm to be actionable.

Staub v. Proctor Hosp., 131 S. Ct. 1186, 1192 (2011).                      Not even

Plaintiffs’ statistical experts attempt to tie their disparities

to a dual-approval policy.



                                        128
      The majority surmises that a discriminatory supervisor in

one department could have theoretically used dual approval to

inflict his animus upon employees outside his own department.

But if a racist department head had tried to use the dual-

approval scheme to disadvantage black workers, he would not have

been able to reach all or even most of the promotions decisions

in the plant, dual approval notwithstanding.                                 A discriminatory

department head in the beam mill, for instance, would have had

no say when it came to a cold mill employee seeking a higher

position within the cold mill, hot mill, melt shop, maintenance

department,       or       shipping       department.                 Perhaps,          then,    the

majority’s concept -- if properly supported with evidence --

might   justify        a   class    of       persons      applying          in    and    out    of   a

particularly      problematic            department.             In    fact,       the    district

court proposed certifying just such a class as to the beam mill.

See J.A. 10953-54 & n.16.                 But it would not justify the plant-

wide class action that Plaintiffs now mean to bring.                                    Cf. Ellis,

657   F.3d   at   983       (“A    disparity         in       only    25%    of    the     regions,

however,     would         not    show       that       discrimination            manifested         in

promotions practices in the same general fashion.”).

                                         *    *     *     *

      In sum, the district court did not clearly err in choosing

not to rely on Plaintiffs’ statistical evidence.                                        Faced with

evidence     based     on    questionable           data,       uncontrolled            explanatory

                                               129
variables,      and    poorly    structured       methodologies,       the       district

court did not act irrationally in determining that such evidence

was     of    negligible       credence.          The   “troubling          effects   of

statistical inferences require thoughtful consideration in each

case,”       Mister v. Ill. Cent. Gulf R.R. Co., 832 F.2d 1427, 1437

(7th Cir. 1987), and that consideration is sorely lacking from

the work of Plaintiffs’ experts.                   Thus, Plaintiffs’ evidence,

with its many deficiencies, does not establish the common policy

necessary for class certification.                 The district court did not

abuse its discretion in making that finding.

                               B. Anecdotal Evidence

      Plaintiffs also present affidavits from sixteen employees

in support of certifying the promotions classes.                        The district

court    did    not    abuse     its    discretion      in   refusing       to    certify

Plaintiffs’ proposed class based on this limited evidence.

                                           1.

      In     their    original    class    certification          motion,    Plaintiffs

never    argued      that   anecdotal      evidence,      standing     alone,      could

establish a common policy of discrimination.                      Rather, Plaintiffs

presented      the     anecdotal       evidence    only      to    supplement       their

statistical evidence.            See Brown I, 576 F.3d at 164 (Agee, J.,

dissenting).         The Brown I majority constructed its own theory of

the case, finding that Plaintiffs could in fact advance their



                                          130
case on anecdotal evidence “alone.”                       Id. at 153.               Plaintiffs now

take up the Brown I majority’s theory in this appeal.

       Plaintiffs      made       the           better     choice            in    their        initial

offering, as anecdotes only help tell the story.                                   They are meant

to bring “the cold numbers convincingly to life,” Teamsters, 431

U.S.    at    339,    providing         “texture”             for       statistical         evidence.

Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 168 (2d

Cir. 2001), abrogated on other grounds by Wal-Mart, 131 S. Ct.

at    2560-62.       But    standing            alone,    “anecdotal              evidence      .    .    .

[will]    rarely,      if    ever,          .   .   .    show       a    systemic         pattern        of

discrimination.”            O’Donnell Constr. Co. v. Dist. of Columbia,

963 F.2d 420, 427 (D.C. Cir. 1992); accord Briggs v. Anderson,

796 F.2d 1009, 1019 (8th Cir. 1986) (observing that plaintiffs

“punished         themselves”          by       choosing        to       rely        on     anecdotal

evidence); EEOC v. Bloomberg L.P., 778 F. Supp. 2d 458, 470-71 &

n.8 (S.D.N.Y. 2011) (collecting cases); see also Michael Selmi,

Theorizing Systemic Disparate Treatment Law: After Wal-Mart v.

Dukes,       32    Berkeley       J.        Emp.     &    Lab.          L.    477,        501   (2011)

(“[A]necdotal evidence is always of marginal significance in a

pattern or practice claim.”).

       In discrimination cases, courts move anecdotal evidence to

the    background      because         such         evidence        does      not     prove         much.

“Anecdotal        reports     .    .        .    are     ordinarily           more        helpful        in

generating        lines     of     inquiry             than     in       proving          causation.”

                                                 131
Federal Judicial Center, Reference Manual on Scientific Evidence

217 (2011).       Individual stories say little, for instance, about

the frequency of an event’s occurrence or the reasons for that

occurrence.       Without knowing at least those two items, it can

hardly    be   assumed     that    the   stories      reflect   a    broader   trend

flowing directly from intentional discrimination.                        See Wessman

v. Gittens, 160 F.3d 790, 805-06 (1st Cir. 1998); Coral Constr.

Co. v. King Cnty., 941 F.2d 910, 919 (9th Cir. 1991).                      Anecdotes

are also more susceptible to mistaken perception, leading to

erroneous conclusions -- especially when collections of stories

are treated as quasi-statistics.               See Fisher v. Vassar Coll., 70

F.3d 1420, 1444-45 (2d Cir. 1995).               And bias can skew anecdotal

evidence, as when only those who feel most strongly about an

issue    offer     anecdotes      or   when    the    soliciting     party     has   a

particular objective in mind.            Cf. United States v. Local 560 of

Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen, & Helpers of

Am., 780 F.2d 267, 277 (3d Cir. 1985) (finding that a survey

that     was   meant   to    show      the    “reputation”      of   a    particular

organization should have been excluded when it only surveyed

persons known “to be hostile” to the organization).                          Because

“anecdotes       provide    no    mechanism     for    assessing     truthfulness,

typicality, or frequency,” courts can and should question their

usefulness, just as “[s]cientists and medical researchers” have



                                         132
done for many years.           David A. Hyman, Lies, Damned Lies, and

Narrative, 73 Ind. L. J. 797, 803 (1998).

                                         2.

       The    majority      finds       Plaintiffs’        anecdotal      evidence

sufficient principally because the ratio reflecting the number

of affidavits alleging discrimination compared to the number of

class members is purportedly small.                Maj. op. at 40-41.         As of

2006,   Plaintiffs’      experts      determined    that    “approximately      150

African-Americans” comprised the class.               J.A. 1154.        Given that

the class period extends well into 2011, it is reasonable to

assume that Nucor hired additional black applicants since 2006,

conservatively       setting    the    present     class   size    at   160   black

employees     or    more.      The    sixteen    affidavits    that     Plaintiffs

provide therefore represent roughly one affidavit for every ten

class members -- a weak sample from the entire class.                          “[A]

court must be wary of a claim that the true color of a forest is

better revealed by reptiles hidden in the weeds than by the

foliage of countless free-standing trees.”                 Cooper, 467 U.S. at

879-80.      When ten percent of a class (or less) complains of

mistreatment in a discrimination case, a district court does not

clearly err in finding that such complaints do not establish a

“standard operating procedure” of discrimination, Teamsters, 431

U.S.    at   336,   “significant       adverse    effects”    on   the    relevant



                                        133
class, Watson, 487 U.S. at 986, or “significant proof” of class-

wide discrimination, Wal-Mart, 131 S. Ct. at 2553.

                                                 3.

         What may matter more than the quantity of a plaintiff’s

evidence     is    its     quality.             If,   for    instance,         the    anecdotal

evidence     is    indirect      and       circumstantial,          the       district      court

might justifiably probe whether that evidence truly gives rise

to   a    necessary      inference         of    discrimination.              After    all,    “a

district        court    may     properly         consider        the     quality      of     any

anecdotal evidence.”            Rossini v. Ogilvy & Mather, Inc., 798 F.2d

590, 604 (2d Cir. 1986); accord Eastland v. Tenn. Valley Auth.,

704 F.2d 613, 625 (11th Cir. 1983).

         At least as to the promotions-related matters at issue in

this     appeal,       Plaintiffs      do       not   present      compelling         anecdotal

evidence.          Byron       Turner,      for       instance,         does    not    address

promotions at all.             Neither does Walter Joseph Cook.                        In what

might be an employment law first, Kenneth Hubbard complains that

Nucor promoted him.              See J.A. 1097; cf. Kalamazoo Cnty. Rd.

Comm’n     v.    Deleon,       135    S.    Ct.       783,   784    (2015)      (Alito,       J.,

dissenting from denial of certiorari) (“Respondent’s supervisors

did not violate federal law by granting him the transfer that he

sought     and    that    they       had    no    reason     to    believe       he    did    not

want.”).         And    Earl    Ravenell         testifies    about       a    time    that    he

applied for a promotion and was not selected -- because another

                                                134
black employee was selected for that opening.                           He also tells us

that he chose not to apply for any other positions because of

“the look on his [supervisor]’s face.”                          J.A. 1111.          These and

other examples are not “cherry pick[ed],” maj. op. at 41, but

merely   offer     some    insight      into       why    the    district      court    could

reasonably decide differently than the majority does.

       Much of the anecdotal evidence also amounts to conclusory

and speculative statements of personal belief.                               For instance,

even    those    employees    who       do   mention       job       qualifications      rely

almost     exclusively        on        their       personal,          subjective,          and

unsubstantiated views of their own abilities.                          We usually do not

give such testimony much, if any, weight.                        See Williams v. Giant

Food Inc., 370 F.3d 423, 433 (4th Cir. 2004); Evans v. Techs.

Applications & Serv. Co., 80 F.3d 954, 960 (4th Cir. 1996).

Other employees assume racism in the process without identifying

an objective fact to support that view.                         Named plaintiff Ramon

Roane declares, for example, that he applied for a position that

was    “suddenly    cancelled       because        Nucor       was    not    ready    for    an

African American to hold a supervisory position.”                                   J.A. 996.

Yet he does not explain how or why he came to that conclusion,

and    “[a]     plaintiff’s    self-serving              opinions,      absent       anything

more,    are    insufficient       to    establish         a    prima       facie    case    of

discrimination.”          Mackey v. Shalala, 360 F.3d 463, 469-70 (4th

Cir. 2004).

                                             135
       In addition, Plaintiffs’ evidence is often so incomplete

that    it    lacks   any   probative    value.    For     example,   Bernard

Beaufort discusses a promotions decision that he believes “was

made unfairly.”       J.A. 6008.   But he does not know who eventually

received the job, what his or her race was, “what [the decision]

was based on,” or whether “it was based on [his] race.”                  J.A.

6008.     Other employees testify about not receiving promotions,

but many of these declarants do not indicate whether they were

minimally qualified for the position or whether the selected

employee was of another race.            Without these fundamental facts,

we   cannot    know   whether   particular    promotions    decisions   raise

even a circumstantial inference of discrimination.             See Cline v.

Roadway Express, Inc., 689 F.2d 481, 485 n.4 (4th Cir. 1982);

accord Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253

(1981).

                                        4.

       The majority concentrates on one anecdotal comment from one

supervisor in the beam mill: “I don’t think we’ll ever have a

black supervisor while I’m here.”             J.A. 1885-86; see also maj.

op. at 6, 51.         That comment could be compelling evidence in a

case hinging on decisions made by that particular decisionmaker.

On the other hand, it might not be, as we have discounted “stray

or isolated” remarks, even at summary judgment.                 Brinkley v.

Harbour Recreation Club, 180 F.3d 598, 608 (4th Cir. 1999); see

                                        136
also Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 511-12 (4th

Cir. 1994) (finding that decisionmaker’s singular remark did not

evidence discriminatory practices at company).

       In the end, the question proves academic.                       A class-wide

claim     challenging            decisions      made      by      many       different

decisionmakers         plainly    requires     something   more       than   a   single

comment from just one of them.               We see this rule -- that sparse

comments are not enough for class treatment -- illustrated in

cases like King v. General Electric Company, 960 F.2d 617 (7th

Cir.    1992).         There,     the   Seventh      Circuit      found      that   the

plaintiffs’ anecdotal evidence in an age-discrimination case was

not enough, even though the record contained testimony from a

higher manager that the company was “going to get rid of these

old farts and get some new blood in here.”                     Id. at 628 (Cudahy,

J., dissenting) (summarizing evidence rejected by the majority).

This Court, too, has rejected anecdotal evidence of a similarly

“damning character,” this time in a racial discrimination case.

See Coker v. Charleston Cnty. Sch. Dist., No. 92-1589, 1993 WL

309580, at *6 (4th Cir. Aug. 16, 1993).                         We found that the

plaintiffs       had     not     established     a     policy    or      practice   of

discrimination despite testimony that a black principal was told

the community would not “accept” him at a predominantly white

school. Id. at *4.             All this goes to illustrate that plaintiffs

likely cannot prove a class-wide policy with a single comment,

                                         137
no matter how bigoted the comment may be.                     One comment certainly

does not make the showing that Plaintiffs insist they make here:

a   common,    uniform    policy      of   animus      inflicted    by    55   or   more

independent supervisors upon more than 150 employees scattered

throughout a multi-department plant.                   Consequently, the district

court    did    not    abuse    its   discretion        in    refusing    to   certify

Plaintiffs’ class based on a single comment.

                                           5.

                                           a.

        The district court also gave “limited weight” to almost 80

affidavits from black employees at the Nucor plant.                       J.A. 10950.

The affidavits consistently rejected the idea of discrimination

in the promotions process, and the district court did not abuse

its     discretion       in     affording        them     some     minimal      value.

Repeatedly, the affidavits suggest that the promotions process

was fair.       See, e.g., J.A. 6024, 6042, 6052, 6069, 6078.                        One

such    employee      specifically     remarked        that   “[n]ot     all   African-

Americans      feel    like    they   have      been    discriminated     against    at

Nucor.”       J.A. 6109.       The same employee was actually “upset by

this racial discrimination issue because it is not something

that has happened to me or is happening across the board here at

Nucor.”       Id.     Another employee explained that “the way things

are done . . . at Nucor are not influenced by race.”                      J.A. 6164.



                                           138
     The list goes on: black employees approved of management’s

handling of race-related issues in the plant, see, e.g., J.A.

6109,   6215,    6480-81,      6943,      explained       that    they    were     treated

well,   see,    e.g.,      J.A.     6350,    6361,       and    often    reasoned     that

complaints of racism from other employees were unjustified, see,

e.g., J.A. 6566.           Even those who felt that promotions were not

made fairly often blamed factors other than race, such as a

“buddy”   system      in    which    supervisors         promoted       friends.     See,

e.g.,   J.A.    6258,      6299,     6438,       6494.         Some   affidavits     also

directly contradicted the sixteen declarations that Plaintiffs

submitted.       In   fact,       Jacob     Ravenell,      Kenneth      Hubbard,     Robyn

Spann, and Byron Turner all expressly denied that they had been

denied promotions because of their race, even though Plaintiffs

cite them as four of their sixteen key witnesses.                                See J.A.

6400, 6746, 6933, 6964.             The district court had every right to

weigh such self-contradictory testimony and conclude as it did.

See Stevenson v. City of Seat Pleasant, Md., 743 F.3d 411, 422

(4th Cir. 2014).

                                            b.

     Based      on    “[c]ommon      sense        and    prudence,”       however,    the

majority finds yet again that the district court clearly erred -

- this time by finding that “potentially coercive” affidavits

supported Nucor to some small degree.                          Maj. op. at 42.         The

majority’s naked credibility determination is exactly the sort

                                            139
of decision we are not meant to undertake on appellate review.

“[W]hen a trial judge’s finding is based on his decision to

credit    the   testimony     of   [a    witness      who]        .     .    .    has   told   a

coherent and facially plausible story that is not contradicted

by     extrinsic    evidence,        that        finding,         if        not     internally

inconsistent, can virtually never be clear error.”                                   Anderson,

470 U.S. at 575.

       The   majority      nevertheless          adopts       a        self-contradictory

credibility rule: statements made in support of an employer must

be rejected when the employer obtains them, while statements

made    against    the    employer      will     be   given       “significant             weight

given the circumstances in which they were made.”                                 Maj. op. at

43.     The majority draws this distinction by assuming that an

employer exercises coercive power in most any interaction with

its employees.           “However, it is well settled that not every

interrogation      of     employees     by     Company      officials              constitutes

coercion[.]”       NLRB v. Lexington Chair Co., 361 F.2d 283, 289

(4th Cir. 1966).          And one must not lose sight of the practical

effect of the majority’s novel approach: employers now have no

incentive to investigate and remedy claims of discrimination.

Employers will well understand that investigations can no longer

benefit them -- at most, facts developed during an investigation

will only be used against the employer.                   Even an employer with a

supportive      workforce     will    be     unable     to        defend          itself    with

                                           140
beneficial employee testimony, lest it be accused of unproven

coercion.      Informal resolution, Congress’ preferred course, will

therefore become even more difficult.                     See West v. Gibson, 527

U.S. 212, 218-19 (1999) (noting Congress’s intention that Title

VII claims would be resolved informally).

      One    is    further    left    to   wonder       where    the    majority’s      new

imagined-coercion-based          rule       comes        from.         Generally,       the

purportedly         “coercive        nature        of      the     employer-employee

relationship . . . is insufficient to demonstrate that . . .

[employer-employee]          interviews     were        improper.”        Slavinski     v.

Columbia Ass’n, Inc., No. CCB–08–890, 2011 WL 1310256, at *4 (D.

Md.   Mar.    30,    2011)   (collecting         cases);    accord      Maddock    v.    KB

Homes, Inc., 248 F.R.D. 229, 237 (C.D. Cal. 2007); McLaughlin v.

Liberty Mut. Ins. Co., 224 F.R.D. 295, 298 (D. Mass. 2004); cf.

Gulf Oil Co. v. Bernard, 452 U.S. 89, 104 (1981) (“[T]he mere

possibility of abuses does not justify routine adoption of a

communications ban[.]”).              Certainly it cannot be found in the

cases   the       majority   cites,     which      all    raised       questions    about

defendants who contacted putative class plaintiffs after a class

action had been filed.               Here, Nucor investigated and obtained

affidavits before any lawsuit was filed, so it could not have

been attempting to break up the class -- the class did not even

exist   yet.        The   majority’s       cases    also     involved      a   level    of

egregious misconduct not found in this case, suggesting that

                                           141
those cases were directed at a problem that does not exist here.

See, e.g., Kleiner v. First Nat’l Bank of Atlanta, 751 F.2d

1193,    1197-98      (11th     Cir.   1985)     (finding    unilateral      contacts

improper where counsel violated direct court order and conducted

a vast “selling job” seeking class opt-outs in “[s]ecrecy and

haste” during “the district judge’s vacation”); see also Burrow

v. Sybaris Clubs Int’l, Inc., No. 13 C 2342, 2014 WL 5310525, at

*4-5 (N.D. Ill. Oct. 17, 2014) (summarizing many of the same

cases    and   concluding       that   they     “depict[ed]    communications          so

extreme that they actually cut against [the majority’s present]

position”).

      We also need not speculate about “potential” coercion, as

the   circumstances       make    plain     that     Nucor   did   not    coerce      its

employees      into   making     positive      statements.         No   employee      has

claimed   that     the    affidavits      were     coercive.       No   employee      has

suggested that Nucor retaliated against employees who complained

of discrimination.            And the contents of the affidavits do not

imply coercion either.            Employees evidently felt free to speak

honestly, as the affidavits were not universally favorable to

Nucor.     See, e.g., J.A. 10950 (district court noting that the

affidavits      “actually       bolstered      the    plaintiffs’       claims   of    a

common hostile work environment”).                   Some employees also chose

not to give statements at all.              See, e.g., J.A. 6911.          And still

other    employees       made    handwritten       corrections     to    their   typed

                                          142
affidavits, indicating that the employees had complete control

over their statements.          See, e.g., J.A. 6120.

       What is more, Nucor gave each employee a written notice

explaining that the interview was voluntary, that the interviews

were being taken on behalf of the company, that employees could

decline    to     participate,        and   that     they    would     not   face     any

retaliation for what they said.               See, e.g., J.A. 6003.           In other

contexts, the Court has said that disclosures like these prevent

coercion.        See, e.g., Overnite Transp. Co. v. NLRB, 280 F.3d

417,     434    (4th   Cir.    2002).             Each    employee     who   chose     to

participate then signed an acknowledgement and noted in his or

her affidavit that Nucor did not coerce the employee.                                See,

e.g., J.A. 6003.

       The majority nevertheless condemns Nucor for not informing

the employees that the company might use their statements in

litigation.       This novel requirement -- a sort of “civil Miranda

rule” -- seems an odd one given that litigation had not been

filed.         Instead,    interviewees       were       accurately    informed      that

“[t]here ha[d] been a few charges of discrimination filed by

African-American          employees    at    Nucor,”       and   the   interview     was

meant to “determine what happened.”                 J.A. 6003.

       The district court did not clearly err in affording some

weight to these many contrary affidavits.



                                            143
                                            6.

       In    addition    to    the    affidavits         supporting        Nucor’s    view,

Plaintiffs’       affidavits         must       also     be     weighed     against      the

company’s      announced      anti-discrimination              policy.      In   Wal-Mart,

the     Supreme     Court       found        that        a      “general        policy    of

discrimination”         was    harder        to        find     given     the     company’s

“announced policy forbid[ding] . . . discrimination and . . .

impos[ing] penalties for denials of equal opportunity.”                              Id. at

2553.       The same holds true here.              Nucor is an equal-opportunity

employer with an express anti-discrimination policy that harshly

penalizes employees engaging in discriminatory conduct.                               Nucor

policies even punish supervisors who fail to put an end to their

subordinates’ discriminatory conduct.                        The record also contains

accounts of instances in which Nucor’s general manager condemned

discriminatory acts and punished employees for using offensive

language.       This countervailing evidence supports the district

court’s      conclusion    that,      as    a     whole,       the   anecdotal     evidence

favored Nucor rather than Plaintiffs.

                                            7.

                                            a.

       Aside from the qualitative and quantitative deficiencies in

Plaintiffs’ anecdotal evidence, it also does not tell a plant-

wide story.       In Wal-Mart, plaintiffs’ anecdotal evidence failed

in    part    because    “[m]ore      than       half     of    the[]    reports     [we]re

                                            144
concentrated in only six States.”                 131 S. Ct. at 2556.                As a

result, even if one assumed that “every single one of these

accounts [were] true, that would not demonstrate that the entire

company operate[d] under a general policy of discrimination.”

Id.

      The lack of dispersion that proved fatal to the class in

Wal-Mart     presents      itself     here.          Eleven       of        the   sixteen

declarations -- again, more than half -- come from employees in

a single department: the beam mill.                 No cold mill or maintenance

employees are represented, while only one shipping employee and

one   melt   shop   employee     appear.          And     as    the    district     court

recognized,     when    one    examines       the     individual           instances     of

discrimination alleged in Plaintiffs’ declarations, most of them

concern just one manager and three supervisors who all worked in

the beam mill.       See J.A. 10951.          As one black employee put it,

“Whatever [wa]s happening in the beam mill [wa]s not a plant

wide problem.”      J.A. 6109.

                                        b.

      The    majority   somehow      finds    clear       error       in    the   district

court’s finding that Plaintiffs’ accounts were concentrated in

the beam mill.      But it proves easy to see why the district court

found   what   it   did:    Plaintiffs       do     not   cite        useful,     relevant

evidence     from   outside    the    beam    mill.            Some    anecdotes       fall

outside the class period.           See, e.g., J.A. 1085.                  Others involve

                                       145
promotions that did in fact go to a black employee.                                See, e.g.,

J.A. 1110-11.           Some involve transfers, not promotions.                               See,

e.g.,     J.A.     1063.         Still      others      trace       back     to     beam      mill

supervisors, not supervisors in other departments.                                 See, e.g.,

J.A. 1079-80.        Plaintiffs count six other instances twice.                                  See

Appellant’s       Br.   9-10.         And    some      of   the     cited    “instances            of

alleged promotions discrimination” amount to no evidence at all.

See, e.g., id. at 9 (citing J.A. 7237 -- an application for

transfer    --     as    one     instance       of     “promotion        discrimination”).

Most    incredibly,        Plaintiffs’          argument      --    which       the    majority

appears    to     adopt     --   assumes        that    one       can    find     evidence         of

discrimination in every single instance where a black employee

does not receive a promotion for which he applies.                                That concept

finds no support in any part of our jurisprudence.                                 Indeed, it

turns     the     Teamsters       framework          into     a     circular        absurdity.

Plaintiffs        presume      that      each      denied      promotion          evidences         a

discriminatory          policy     or       practice,       even         though       --     under

Teamsters -- Plaintiffs must prove that a discriminatory policy

or     practice     existed      before       the      court       may     presume         that     a

particular       denied     promotion        was     discriminatorily             made.           See

Teamsters, 431 U.S. at 362.

       The district court recognized, as it should have, that the

anecdotal evidence was more substantial when it came to the beam

mill.     For that reason, the district court explained that it was

                                             146
willing to certify a class of those applying out of and into the

beam mill.       J.A. 10953-54 & n.16.              Plaintiffs never accepted the

invitation, so they remain responsible for proving plant-wide

commonality.          That effort requires a substantial showing beyond

a   single     department.          See,     e.g.,    Bennett,       656    F.3d   at    816

(holding that the district court properly declined to certify a

hostile      work     environment      class       where    anecdotal       evidence    was

concentrated in a single department).

       Outside the beam mill, Plaintiffs at best present a few

scattered      anecdotes       in   each     department.           That’s    not   enough.

“[A] class plaintiff’s attempt to prove the existence of . . . a

consistent practice within a given department[] may fail even

though discrimination against one or two individuals has been

proved.”       Cooper, 467 U.S. at 878; accord Ste. Marie v. E. R.R.

Ass’n, 650 F.2d 395, 406-07 (2d Cir. 1981).                         The district court

might     very      well   have     clearly        erred     had    it     accepted     such

evidence.        One can hardly say that it clearly erred in doing

just the opposite.

                                             8.

        In a last effort to save their class-wide claim, Plaintiffs

make    much     of    other     facts     that      do    not     relate    directly    to

promotions.         They seem to give special attention to the facts

underlying       their     already-certified              hostile    work     environment

claim.       The      majority      agrees    that        such   evidence     provides    a

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“cultural      backdrop”            that     renders         an   “equitable        promotions

system” essentially impossible.                       Maj. op. at 38.            Notably, that

view never appeared in Brown I, but references to Plaintiffs’

hostile    work     environment            claims      now   appear    at    least       a    dozen

times in the majority opinion.                       The majority also finds evidence

of a “culture” in the alleged fact that Nucor hired only one

black    supervisor           before      the    EEOC    investigation,           even       though

“[t]he    mere      absence          of     minority         employees      in     upper-level

positions does not suffice to prove [even] a prima facie case of

discrimination without a comparison to the relevant labor pool.”

Carter, 33 F.3d at 457.

       We have never held that class plaintiffs may establish a

common, classwide policy of discrimination with mere evidence of

company “culture.”              Other decisions, including Wal-Mart, reject

the notion that “culture” is enough.                          See Wal-Mart, 131 S. Ct.

at    2553;    Davis,         717    F.3d       at    487-88.        The    majority         would

nevertheless “sweep many individual plaintiffs and sets of facts

into one class on the premise that all reflect illegal conduct

by the defendant in practice and culture if not in policy” --

even    though      that      is    “precisely         the    sort    of    class    that      the

Supreme Court recently rejected in [Wal-Mart].”                                   Jamie S. v.

Milwaukee Pub. Schs., 668 F.3d 481, 504 (7th Cir. 2012) (Rovner,

J.,    concurring        in    part).        Furthermore,         simply     saying       that   a

company       has    a     “cultural         problem”         does    not     identify         any

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particular      employment       policy     or    practice,     McClain           v.    Lufkin

Indus., Inc., 519 F.3d 264, 274 (5th Cir. 2008), let alone a

common, uniform policy spanning the class.

       We have also never held that facts establishing a hostile

work   environment       unavoidably        relate    to    all      other       employment

decisions made in the same company.                  Such a connection would be

hard     to   justify,      as    acts    giving     rise      to      a    hostile         work

environment are only distantly related to the discrete acts that

underlie disparate treatment and impact claims.                            “The probative

value of other discriminatory acts depends . . . on the nature

of the discrimination charged.”                  Hunter v. Allis-Chalmers Corp.,

Engine Div., 797 F.2d 1417, 1424 (7th Cir. 1986), abrogated on

other grounds by Patterson v. McLean Credit Union, 491 U.S. 164

(1989).       And “[h]ostile environment claims are different in kind

from discrete acts.”             Nat’l R.R. Passenger Corp. v. Morgan, 536

U.S. 101, 115 (2002).             In contrast to acts creating a hostile

work environment, discriminatory employment decisions “inflict[]

direct    economic     harm.”       Burlington       Indus.,        524     U.S.       at   762.

They will often require “the imprimatur of the enterprise and

the use of its internal processes.”                 Id.

       The    “probativeness”       of    items     like    comments,            jokes,      and

other acts “is [also] circumscribed if they were made [or done]

in a situation temporally remote from the date of the employment

decision[s],      or   if    they    were    not     related      to       the   employment

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decision[s]       in    question      or    were        made      by      nondecisionmakers.”

McMillan v. Mass. Soc’y for Prevention of Cruelty to Animals,

140 F.3d 288, 301 (1st Cir. 1998).                          Here, Plaintiffs’ evidence

suffers to some degree from all three of these defects.                                          For

instance, Plaintiffs’ statements often do not tell us when the

offensive      conduct     occurred,        so     we    have        no    way    of     assessing

temporal proximity.            None of the “cultural” evidence pertains

specifically       to    promotions.             And     most      all      of    the     relevant

hostile-work-environment             conduct       came      from         non-decisionmakers,

even though it “is the perception of the decisionmaker that is

relevant” in claims like Plaintiffs’.                          Smith v. Flax, 618 F.2d

1062, 1067 (4th Cir. 1980); accord Mateu-Anderegg v. Sch. Dist.

of     Whitefish        Bay,   304     F.3d        618,         623       (7th     Cir.      2002)

(“[S]tatements          are    only        relevant          if      they        come     from     a

decisionmaker,          someone     involved           in      the      adverse         employment

decision[s].”).          Lastly, to the limited extent that supervisors

did     involve        themselves     in     the        incidents           that        Plaintiffs

described, those supervisors chiefly worked in the beam mill --

undermining any inference of a common, plant-wide policy.

       At bottom, the majority concludes that we should permit

Plaintiffs to pursue two class claims pertaining to promotions

because they have successfully established their right to pursue

a     separate,        distinguishable           hostile-work-environment                   claim.

Title    VII   does      not   work   that       way,       and,       rhetoric        aside,    the

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majority is unable to identify a single decision to support that

kind of proposition.               “In the law, the absence of precedent is

no recommendation.”               Dukes v. Wal-Mart, Inc., 509 F.3d 1168,

1200 (9th Cir. 2007) (Kleinfeld, J., dissenting).                              Moreover, to

assume that a plaintiff establishes a right to class treatment

for his discrete-act class merely because he has established

such   a    right     as    to     a    hostile-work-environment               class     is   to

reinstate a suspect revision of the “across-the-board” rule that

the Supreme Court rejected three decades ago.                              See Falcon, 457

U.S.   at     153,    157-59       (rejecting           the    idea     that   “an     employee

complaining      of        one     employment           practice”       may    automatically

“represent      another          complaining         of       another    practice”       merely

because both alleged discrimination based on the same protected

trait).       The district court did not abuse its discretion in

refusing to exhume that long-dead idea.

       The district court did not clearly err in declining to give

dispositive     weight       to     evidence        going      to   Plaintiffs’        hostile-

work-environment           claim        when       deciding         whether     to     certify

Plaintiffs’ separate promotions-related classes.

                                         *     *    *     *

       When    closely           examined,         Plaintiffs’        anecdotal        evidence

proves to be just as unconvincing as their statistical proof.

“Because      [Plaintiffs]             provide          no    convincing       proof     of    a

companywide discriminatory . . . promotion policy, . . . they

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have    not    established      the      existence   of   any     common    question.”

Wal-Mart, 131 S. Ct. at 2556-57.                  The district court therefore

did not abuse its discretion in declining to certify the class

because of its lack of commonality.



                                            IV.

       On the road to its desired result, the majority undermines

well-established judicial processes, causes a rift between this

Court    and    a   co-equal    circuit      court      without    explanation,       and

brings substantial uncertainty to an area of law that begs for

clarity.

       As to judicial processes, the majority opinion evidences

little    respect      for   the     role    of   the    district    court      and   the

standard of review.             The district court has lived with this

matter for several years now, and it best understands how the

case has developed.             Its actions bespeak a court striving to

scrupulously apply Rule 23’s requirements.                      The district court

complied with our mandate, rejected more than one request to

decertify      from    Nucor,      and    continually     endeavored       to   respect

findings that this Court has (actually) made.                      Yet the majority

shows no concern for that effort.                 And it shows just as little

concern    for      this   Court’s       well-established       waiver     rule,   which

should plainly apply here.



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     As to our sister circuits, the majority opinion begets a

circuit split.       The Eighth Circuit affirmed the denial of class

certification    in    a   case   involving      the   same   claims,    the    same

experts, and the same defendant.                 As should be clear by now,

that decision cannot be reconciled with this one.                  The majority

never even tries to do so.

     And as to cases to come, the majority’s decision will offer

far more questions than answers.               What standard of review really

applies in this context?            How much evidence must a plaintiff

summon to comply with Rule 23?                 Does appellate waiver matter?

Does class treatment of one cause of action necessarily warrant

class treatment for another?          Must statistical evidence prove to

be reliable?     Does Wal-Mart reach only nationwide class actions?

Can a sufficiently “common” policy result from inaction?                       These

are only some of the questions that the majority opinion leaves

unresolved.

     We should hardly take this troubled road in the name of

“simple    justice.”       Maj.    op.    at    63.     “‘Simple   justice’       is

achieved when a complex body of law developed over a period of

years is evenhandedly applied.”            San Remo Hotel, L.P. v. City &

Cnty.     of   San    Fran.,      Cal.,    545     U.S.   323,     345    (2005).

Evenhandedness is nowhere to be found here, so justice remains

unserved.



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       Perhaps the Supreme Court will act to rectify the problems

that are sure to follow from today’s opinion.            One can only hope

that   it   will   do   so   soon.   In    the   meantime,   I   respectfully

dissent.     The district court did not abuse its discretion, and

its judgment to decertify should be affirmed.




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