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Lawyers for black employees who claimed they suffered racediscrimination while working for Southern Co. and three subsidiariesproduced a mountain of evidence — most notably photographs of hangman’snooses that were hung at Georgia Power facilities. But statistics backing allegations of a pattern or practice of racediscrimination in hiring, firing and promotion procedures did not holdup under scrutiny by a three-judge panel of the 11th U.S. Circuit Courtof Appeals. The panel late Wednesday issued a 104-page ruling that upheld a decisionby U.S. District Court Chief Judge Orinda D. Evans. She said charges byseven employees did not justify certifying a 2,400-member class actionagainst Southern Co. and its subsidiaries. The panel also affirmedEvans’ decision to toss out the seven individual claims on summaryjudgment. A major problem for the plaintiffs was the wide range of jobs within theSouthern Co. empire, which covers energy services primarily in Georgiaand Alabama but also reaches to Mississippi and Florida. “Since the hiring, compensation, and promotion decisions at issue weremade by different managers in different companies implementing differentpolicies, even if the named plaintiffs established that they were,individually, subjected to intentional discrimination, they would notnecessarily have established that other class members suffered from thesame discrimination,” wrote Judge Stanley Marcus. Judges R. LanierAnderson III and Edward E. Carnes joined the decision. Cooper v.Southern Co., No. 03-12230 (11th Cir. Nov. 10, 2004). MISSING VARIABLES The panel found that Evans did not abuse her discretion — the standard bywhich they evaluated her ruling — in conducting a critical analysis of theplaintiffs’ statistical reports. Evans found, wrote Marcus, that the plaintiffs’ statistics “did notincorporate variables that would allow for the comparison of individualswho were similarly situated with respect to managerial decision makers,job types, locations, departments, and the specific criteria relevantfor the jobs in question.” Bondurant, Mixson & Elmore’s Michael B. Terry, the lead lawyer for theplaintiffs, defended the statistical reports by University ofPennsylvania labor economist Janice F. Madden, noting that her work hadbeen accepted by other courts around the country. Madden could not bereached. More significantly, Terry argued that Evans and the 11th Circuitoverstepped their bounds by weighing the merits of the statistics in amanner that should have been left up to a jury. “The 11th Circuit has engaged in an analysis forbidden by Bazemore,”Terry said, referring to Bazemore v. Friday, 478 U.S. 385, a 1986decision by the U.S. Supreme Court. That ruling said that a plaintiffs’analysis that did not incorporate all conceivable variables wasnonetheless entitled to be considered by a fact-finder. But Marcus responded in a footnote that Bazemore would not help theplaintiffs because “it did not hold that any statistical report, nomatter how many critical variables were missing, should automaticallypresent a jury question … .” ‘INADEQUATE’ EVIDENCE As for the allegations of nooses, considered to be a sign of racialintimidation, Marcus added, “Again, we conclude that the district courtacted within its discretion in determining that, given the sheer sizeand geographically dispersed nature of the defendants’ workforce, theanecdotal evidence — disturbing as some of it may have been — was inadequateto establish discrimination class-wide.” Lolita Browning, a spokeswoman for Georgia Power, said the companyalways had taken the position that the suit was without merit, and “webelieve the panel’s decision is correct.” She added that the allegations in the suit brought “focus and speed” tothe company’s pursuit of diversity goals. Since the suit was filed in2000, she said, about 10,000 employees have undergone two-day trainingseminars on working with employees from different backgrounds. Stephen W. Riddell, the Troutman Sanders partner who led the SouthernCo. defense, said the evidence of nooses had been overplayed by the newsmedia, arguing that many were found by the company itself in itsinvestigation into race discrimination and, at most, only one namedplaintiff claimed seeing a noose. Atlanta plaintiffs lawyer Kenneth S. Canfield of Doffermyre, Shields,Canfield, Knowles & Devine, who was not involved in the case, noted thatthe Southern Co. decision reflects that, “in class action litigationthese days, it is increasingly difficult to tell before you file suitwhether you have a case that should be brought. “That is because the certification decision oftentimes seems to dependso heavily on the personal proclivities of the trial judge,” Canfieldadded. Terry, the lead plaintiffs’ lawyer, helped his colleagues at BondurantMixson pursue a class action race discrimination case against TheCoca-Cola Co. in 1999 and 2000. That case settled for $192.5 million.A federal judge granted class certification in that case, Terry said,making the same judgments Evans was supposed to make in the Southern Co.case. But the Coke case reached the class certification question in amuch different atmosphere than the Southern Co. case, in that theparties had agreed to a settlement in principle by the time the judgemade the class decision and had much less to dispute.

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