2

ORIGINAL

3

FILED SEP 04 '021'1101:39 USCTlD

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

FOR THE DISTRICT OF IDAHO

10

11 EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION, 12

l CIVIL ACTION NO.

Plaintiff,

)

13
v.

l COMPLAINT

14

) JURY TRIAL DEMAND

15 IDAHO POWER COMPANY,

16 Defendant.
17

18

NATURE OF THE ACTION

19

This is an action under the Age Discrimination in Employment Act and Title VII of the

20

Civil Rights Act of 1964 and Title I of the Civil Rights Act of 1991 to correct unlawful

21

employment practices on the basis of age and race and to provide appropriate relief to

22

Marlon Herrera, who was adversely affected by such practices. The Equal Employment

23

Opportunity Commission alleges that Defendant failed to consider Mr. Herrera for

24

employment because of his race, Hispanic and/or age. Plaintiff seeks injunctive and

25

monetary relief, including pecuniary and nonpecuniary compensatory damages and

26

punitive damages. 27

(j

COMPLAINT - PAtin I

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Seattle District Office
Fedefal Ol'tlce Building 909 First A\iE!()ue, Suite 400 S~~tlll!, W~shin8lcn $S1c'l4-1001
191ephone (206)220-6883
rax (206) 220.891 i
TOO (206) 220-61:l62

JURISDICTION AND VENUE

2

1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§451, 1331, 1337,

3 1343 and 1345. This action is authorized and instituted pursuant to sections 706(f)( 1) and

4 (3) otTitle VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. sections 2000e-

5 5(f)(1) and (3) (''Title VII"), and Section 102 of the Civil Rights Act of 1991, 42 US.C

6 §1981a and Section 7(b) of the Age Discrimination in Employment Act of 1967, as

7 amended, 29 U.S.C. §626(b) (the "ADEA"), which incorporates by reference Sections 16(c)

8 and 17 of the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. §§216(c) and 217.

9

2. The employment practices alleged to be unlawful were committed within the

10 jurisdiction of the United States District Court for the District of Idaho.

11

PARTIES

12

3. Plaintiff, the Equal Employment Opportunity Commission (the "Commission"), is

13 the agency of the United States of America charged with the administration, interpretation

14 and enforcement of Title VII and the ADEA, and is expressly authorized to bring this action

15 by Section 706(f)(1) otTitle VII, 42 U.S.C. §2000e-5(f)(1) and Section 7(b) of the ADEA, 29

J6 U.S.C. §626(b), as amended by Section 2 of Reorganization Plan No.1 of 1978,92 Stat.

17 3781, and by Public Law 98-532 (1984), 98 Stat. 2705.

18

4. At all relevant times, Defendant Idaho Power Company, an IDACORP

19 Company, ("Defendant") has been an entity continuously doing business in the State of

20 Idaho and has continuously had at least 20 employees.

21

5. At all relevant times, Defendant has continuously been an employer engaged in

22 an industry affecting commerce within the meaning of Sections 701(b), (g) and (h) of Title

23 VII, 42 U.S.C §§2000e-(b), (g) and (h)and Section 11 (b), (g) and (h) of the ADEA, 29

24 U.S.C. §§630(b), (g) and (h).

25

CONCILIATION

26

6. Prior to institution of this lawsuit, the Commission's representatives attempted to

27 eliminate the unlawful employment practices alleged below and to effect voluntary

COMPLAINT - PAGE 2

E;QUAL EMPL.OYMeNT O~PORTUNITY COMMISSION Seattle District Office Fmd~r.1 OfficI;! BUilding
909 Flfst A~"'r'\ul!t, Suit!! 400 $!!~Ulo, W.. ~hinaton 95104-1061
TeleplloM (206) 2::l0-BeB3 Fax (206) 220-6911 TDO (2013) 22O-a982

1 compliance with the ADEA through informal methods of conciliation, conference, and

2 persuasion within the meaning of Section 7(b) of the ADEA, 29 U.S.C. §626(b).

3

STATEMENT OF CLAIMS

4

7. More than thirty days prior to the institution of this lawsuit, Marlon Herrera filed a

5 charge with the Commission alleging violations of Title VII and the ADEA by Defendant.

6 All conditions precedent to the institution of this lawsuit have been fulfilled.

7

8. Since April 14, 2001, Defendant engaged in unlawful employment practices at

8 its Idaho, Washington sites, in violation of §§ 703(a) of Title VII, 42 U.S.C. §§ 2000e-2(a)

9 and §4(a) of the ADEA, 29 US.C. §623(a). The practices include the failure to consider

10 Mr. Herrera for employment because of his race and/or age.

11

9. The effect of the practices complained of in paragraph 8 above has been to

12 deprive Marlon Herrera of equal employment opportunities and were adopted and used

13 intentionally to discriminate against him because of his race and age.

14

10. The unlawful employment practices complained of in paragraph 8 above were

15 willful within the meaning of Section 7(b) of the ADEA, 29 U.S.C. §626(b).

16

11. The unlawful employment practices complained of in paragraph 8 above were

17 done with malice or with reckless indifference to the federally protected rights of Marlon

18 Herrera.

19

PRAYER FOR RELIEF

20

Wherefore, the Commission respectfully requests that this Court:

21

A. Grant a permanent injunction enjoining Defendant, its officers, successors,

22 agents, assigns, and all persons in active concert or participation with it, from engaging in

23 any other employment practice which discriminate on the bases of race or age.

24

B. Order Defendant to institute and carry out policies, practices, and programs

25 which provide equal employment opportunities for all employees, and which eradicate the

26 effects of its past and present unlawful employment practices.

27

C. Order Defendant to make whole Marlon Herrera by providing appropriate back

COMPLAINT - PAGE 3

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION S9att10 DlsWct Office Felder;!!1 Offi~ Rl,Jildjng
909 First Avenue. Sulls 400 SeI",HI!!, W;;IshingtQI1 98104-1001
Telephooe (20B) 22D-6B83
Fax (~OO) 220-6911 rOD (206) 220-6682

wages in an amount to be determined at trial, an equal sum as liquidated damages, and

2 prejudgment interest, and other affirmative relief necessary to eradicate the effects of its

3 unlawful employment practices.

4

D. Order Defendant to make whole Marlon Herrera by providing compensation for

5 past and future pecuniary losses resulting from the unlawful employment practices

6 described in paragraph 8 above, including past and future out-of-pocket expenses, in

7 amounts to be determined at trial.

8

E. Order Defendant to make whole Marlon Herrera by providing compensation for

9 past and future nonpecuniary losses resulting from the unlawful practices complained of in

10 paragraph 8 above, including without limitation emotional pain, suffering, and loss of

11 enjoyment of life, in amounts to determined at trial.

12

F. Order Defendant to pay Marlon Herrera punitive damages for its malicious and

13 reckless conduct described in paragraph 8 above, in amounts to be determined at trial.

14

G. Grant such further relief as the Court deems necessary and proper in the public

15 interest.

16

H. Award the Commission its costs of this action.

17 /I

18 /I

19 /I

20 /I

21 /I

22 /I

23 /I

24 /I

25 /I

26 /I

27 /I

COMPLAINT - PAGE 4

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Seattle DI~trlct Office
Feelersl Offl~ Bulldir'lg 909 First AVelIlul;l, SUil1ii 400
Seattle, Washington 98104-1061 Tl!!lephone (208) 2:?0-6aA3 Fax (206} 220-6911 TDO (206) 220,BBa2

1

JURY TRIAL DEMAND

2

The Commission requests a jury trial on all questions of fact raised by its complaint.

3

4

,2002.

5

6 A LUIS LUCERO, JR
7 Regional Attorney

GWENDOLYN YOUNG REAMS Associate General Counsel

8 KATHRYN OLSON Supervisory Trial Attorney
9 CARMEN FLORES
10 Senior Trial Attorney

11

12

13 EQUAL EMPLOYMENT
14 OPPORTUNITY COMMISSIO Seattle District Office
15 909 First Avenue, Suite 400 Seattle, Washington 98104
16 Telephone (206) 220-6893

EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION Office of the General Counsel
1801 "L" Street, N.W. Washington, D.C. 20507

17

18

Attorneys for Plaintiff

19

20

21

22

23

24

25

26

27

COMPLAINT· PAGE 5

EQUAL. EMPLOYMENT OPPO~TUNITY COMMISSION Seilttle Dlljltrlct Offlce FlldArill Office Building
900 t-Irsl Averlu£<, Suit!! 400 Seattle, W.a!lhington 96104-1061
T!!lephl;llle (206) 220-6883 Fax (20B) 220-13911 TDD (200) 220-6882

 
 .. -

•

•

I Keller W. Allen, ISB No. 5021 ALLEN & McLANE, P.C.
2 The Paulsen Center, Suite 421
3 421 W. Riverside Avenue
4 Spokane, WA 99201 Telephone: (509) 777-2211
5 Facsimile: (509) 777-2215
6 E-Mail: kwa@allenmclane.com

uu..ss..

OIS"rFUCI" COURl BANKRI.Wf'CY CC)UFlT.•_

_

OISTfllCT ()F iD/\HO

FEB 27 2003
- _ _ M, REC'D ___
-i11--- lODGEO_~ FILED

7
Attorneys for Plaintiff in Intervention, Marlon A. Herrera
8

9

10

11

UNITED STATES DISTRICT COURT

12

FOR THE DISTRICT OF IDAHO

13

EQUAL EMPLOYMENT

)

14 OPPORTUNITY COMMISSION, )

15

)

16
17 vs.

Plaintiff,

)

)

)

18

)

19 IDAHO POWER COMPANY,

)

)

20

Defendant.

)

21 -------------------)

22

)

MARLON A. HERRERA,

)

23

)

24

Plaintiff in Intervention.

)

25

)

Case No. CV02-409-S-EJL COMPLAINT BY PLAINTIFF IN INTERVENTION
MARLON A. HERRERA
JURY TRIAL DEMANDED

26

Plaintiff in Intervention, Marlon A. Herrera, alleges as follows:

27

28

29 COMPLAINT BY PLAINTIFF IN INTERVENTION
MARLON A. HERRERA - Page 1 30 Y:\pamm\Hsrrera\USDC Complaint.doc\

Allen & Mc,Lam~, P.C.

421 W. Rivcr~idC" Avenue, Suit~ 421

Spokane, WA 99201 Tdephonl::: (509) 777-}..211

f\.\

Fax: (509) 777-221.'i

()

• •

1

JURISDICTION AND VENUE

2

1. This Court has jurisdiction over the subject matter of this

3

4 complaint in intervention pursuant to 28 U.s.C. §§ 1331, 1343, 1367,

5 42 U.S.C. § 1981,42 U.S.C. § 2000e et. seq., and 42 U.S.C. § 1981a.

6

7

2. Venue is proper before this Court pursuant to 28 U.S.C. §

8 1391, as all employment practices and actions alleged herein occurred
9
10 within the jurisdiction of the United States District Court for the District

II of Idaho.

12

13

3.

All prerequisites required by federal and state law have

14 been satisfied by Plaintiff in Intervention before bringing this action,
15
16 including acquisition of the attached Right to Sue letter from the Idaho

17 State Human Rights Commission.

18

19

PARTIES

20

4. This matter was commenced by Plaintiff, the Equal

21

22 Employment Opportunity Commission ("EEOC").

23

5. Plaintiff in Intervention, Marlon A. Herrera, is a resident of

24
25 the State of Idaho, and has been during all periods relevant to the

26 claims herein.
27 28

29 COMPLAINT BY PLAINTIFF IN INTERVENTION
MARLON A. HERRERA - Page 2 30 Y:lpammlHerreralUSDC Complaint.docl

Allen & Md .nlle, P.C.
421 W. Rivcr~lde A\'t=nu~, Suite 4),1
Spobni::, WA 997..01 "l'dt:pholle: C;;(9) 777-27.11
Fax: (509) 777-221:1j

•

•

•

1

6. At all relevant times to the allegations herein, Defendant

2 Idaho Power Company, an "IDACORP Company" ("Defendant"), has
3
4 been an entity continuously doing business in the State of Idaho, and

5 has continuously had at least one hundred (100) or more employees.
6
7 At all relevant times to the allegations herein, Defendant has

8 continuously been an employer engaged in an industry affecting
9
10 commerce within the meaning of Sections 701 (b), (g), and (h) of Title

II VII, 42 U.S.C. §§ 2000e-(b), (g), and (h).

12

13

7. The EEOC has alleged that Defendant subjected Mr.

14 Herrera to unlawful discrimination on the basis of his national origin
15
16 and age. As the aggrieved person in the unlawful practices as alleged

17 by the EEOC, Mr. Herrera is entitled to intervene as a matter of right in
HI
19 this action to assert his individual national origin/race discrimination

20 claims pursuant to 42 U.S.C. § 2000e-5(f)(1). Mr. Herrera has
2.
22 satisfied all requirements concerning exhaustion of administrative

23 remedies and all conditions precedent to the institution of his claims.

24

25

8. Paragraphs 1 through 11 of the complaint filed by the

26 EEOC against Defendant in this matter are incorporated by reference
27
as if fully set forth herein.
28

29 COMPLAINT BY PLAINTIFF IN INTERVENTION
MARLON A. HERRERA - Page 3 30 Y;lpammIHe"er.IUSOC Complalnt.docl

Allen & McLane, P.C. 42 J W. Rivel':!.idc Ayenue, S(lilc 121
Spokane, WA 1.)9201 Tclcph~mc: (:'i()(» 777-2211
hlx: C'i(9) 777-2215

£S

•

•

1

DEFENDANT'S WRONGFUL CONDUCT

2

9. Mr. Herrera sought employment with Defendant on

3

4 numerous occasions in 2000 and 2001. Mr. Herrera sought positions

5 with Defendant as a Meter Specialist 1 and/or 2, and he was highly
6
7 qualified to perform the duties of such positions as a result of his

8 approximately twenty (20) plus years of experience performing
9
10 electrical meter reading with other employers prior to applying for such

11 positions with Defendant.

12

13

10. During all periods relevant to these claims, Mr. Herrera

14 was over the age of forty (40) and is a minority by virtue of being a
15
16 Hispanic and Native American, and he was protected from age and

17 national originlrace discrimination in employment by federal and state
18
19 statutes.

20

11. Despite his superior experience and qualifications,

21

22 Defendant hired less qualified, less experienced non-minority

23 applicants under the age of 40 to fill the positions of Meter Specialist
24
25 sought by Mr. Herrera. As a result of his age and/or race/national

26 origin, Defendant failed to provide employment to Mr. Herrera. These
27
28 actions and practices of Defendant relating to the race/national origin

29 COMPLAINT BY PLAINTIFF IN INTERVENTION
MARLON A. HERRERA - Page 4
30 Y:lpammlHerreralUSDC Compl.int.doc\

Allen & McLane, P.C.
421 W, J{ivt=r~iJe Avenue, Slli{c 4"21 Spokane, WA 991.01
Telephone: (509) 777-2211 Fax: (509) 117-2215

• •

1 of Mr. Herrera were in violation of Section 703(a) of Title VII, 42 U.S.C.

2 §§ 2000e-2(a), and in violation of the race discrimination prohibitions
3
4 of 42 U.S.C. § 1981. In addition, such actions and practices

5 concerning race/national origin and age discrimination were in violation
6
7 of Idaho Code, Title 67, Chapter 59.

8

12. The effect of Defendant's actions set forth above has been

9

10 to deprive Mr. Herrera of equal employment opportunities under

11 federal and state anti-discrimination laws, and upon information and
12
13 belief were adopted and used intentionally to discriminate against him

14 because of his race/national origin and/or age. Because the EEOC
15
16 has asserted claims of discrimination under the ADEA on behalf of Mr.

17 Herrera against Defendant, Mr. Herrera does not assert individually
18
19 any federal ADEA claims as per 29 U.S.C. § 626(c)(1).

20

13. Upon information and belief, the unlawful employment

21
22 practices complained of above were done with malice or with reckless

23 indifference to the statutorily protected rights of Mr. Herrera. Such
24
25 actions and practices by Defendant have caused economic and non-

26 economic damages to Mr. Herrera, which amount will be proven at
27
28 trial.

29 COMPLAINT BY PLAINTIFF IN INTERVENTION

30

MARLON A. HERRERA - Page 5
Y:\pamm\Herrera\USDC Complaint.doc\

Allen & M('Lane~ P.c. 421 W, Riverside Avenue, Suite 421
Spokane. WA 99201 Telephone: (509) 777 ·2211
Fax: (509) 777-221.'i

• •

1

PRAYER FOR RELIEF

2

WHEREFORE, Plaintiff in Intervention, Marlon A. Herrera,

3

4 respectfully requests that the Court enter the following relief:

S

A. Granting a permanent injunction enjoining Defendant, its

6

7 officers, employees, agents, successors and all persons in active

8 concert or participation with it from engaging in any employment
9
10 practices which discriminate against Mr. Herrera on the basis of

11 national origin/race and/or age;

12

13

8. Granting Mr. Herrera back pay, front pay and lost benefits,

14 plus prejudgment interest, in an amount to be determined at trial;

15

16

C. Granting judgment against Defendant for punitive damages

17 as allowed under federal and state law in an amount to be determined
18
19 at trial;

20

D. Granting judgment for past and future nonpecuniary

21

22 damages, including, without limitation, emotional pain, suffering,

23 stress, and loss of enjoyment of life, in amounts to be determined at
24
2S trial;

26

E. For reasonable attorney fees and costs incurred by Mr.

27
28 Herrera in prosecuting this action; and

29 COMPLAINT BY PLAINTIFF IN INTERVENTION

30

MARLON A. HERRERA - Page 6
Y:\pamm\Herrera\USDC Complaint.doc\

Allen & Ml~L... ne~ v.e.
42 J W, Riv(':~id!': Avenue, s.uite 421 Spokane, WA 9920 I
Idephone.: (509) 777··].2 11 Fax: (509) 777-22L'i

•

•

1

F. For such other relief as the Court deems necessary and

2 proper.

3

4

DATED this (( day of 0 go8EK

,2002.

5

ALLEN & McLANE, P.C.

6

7

8

Keller W. Allen, ISS No. 5021

9

Attorney for Plaintiff in Intervention

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29 COMPLAINT BY PLAINTIFF IN INTERVENTION

30

MARLON A. HERRERA - Page 7
Y;\pamm\Herrera\USDC Complaint.doc\

Allen & M(',Ll::\I]I.~, P.C.
421 W. Riv/;:rsi(\c,: AVl!nue, SU1Le421
Spokane. WA 99201 Telephone: (509) 777 '},)'Il
Fax: (509) 777-221:;

• •

1

CERTIFICATE OF SERVICE

2

2 ; I HEREBY CERTIFY that on the

day of February, 2003, I

3 caused to be served a true and correct copy of the foregoing on the

4 following:

5

Damien A. Lee

x U.S. Mail

6

Equal Employment

__ Overnight Mail

7

Opportunity Commission

__ Hand Delivery

Federal Office Building

__ Facsimile

8

909 First Avenue, Suite 400

9

Seattle, WA 98104~1061

to Attorney for Plaintiff EEOC
11

12

Candy Wagahoff Dale

13

Hall, Farley, Oberrecht &

14

Blanton, PA

15

PO Box 1271

Boise, 10 83701
16

-..2L U.S. Mail
__ Overnight Mail __ Hand Delivery
__ Facsimile

17

Attorneys for Defendant Idaho Power Company

18

19

20

21

22

23

24

2S

26

27

28

29 COMPLAINT BY PLAINTIFF IN INTERVENTION
MARLON A. HERRERA - Page 8 30 Y;\pamm\He"era\USDC Complalnt.docl

Allen & McLane, P.C.
421 W. Rivcr~i(\c AVl::nue. SuiLe421
Spokane. WA 99201 Telephulle: (509) 777-2211
Fax: (509) 777-2215

COMMISSIONERS.
fstella Zamora, Prt!sidem Hyong K. Pak, Wee Pre$id~n.l

Vemon Baker

Eloy Chaves
Rwhif. Johnson Stephen M, Malo!! Claris$c M. Maxwell
William L. Swifl Sandra 1\Viggs

IDAHO HUMAN RIGHTS COMMISSION

1".0. BOX 83720
OW'iHEE PLAZA, "'OURTli t',.OOK
l109l'vlAIN Sl'Kgg'l', sn:. 400

or NOTICE ADMINISTRATIVE DISMISSAL
AND RIGHT TO SUE

POISE, IDAHO 83720·0()40
(208) 334·~873 FAX 334·2664 TDon7Y (208) 334·4751
TQI I FPEF NQ ., 8582'9-7025

E'·Mj\ rL: inquiry@ihrc.statc.ld.us

Keller W. Allen

The Idaho Power Compaff§II' R, Goddard, Dimlor

Allen & McLane, PC

Human Resources Dept

421 W. Riverside Ave

P. O. Box 70

Spokane, WA 99201

Boise, ID 83707

October 1, 2002

RE: Marlon Herrera vs. Idaho Power Company Complaint Nos.: DAAD·7·0102·275; 380A200330

The above complaint filed with the Human Rights Commission is hereby dismissed pursuant to the Commission's Rules and Procedures for the following reason.

[ ] Complainant has requested administrative dismissal/notice of right to sue,

[ ] Failure of the Complainant to cooperate with the Commission in the processing of the case, including failure to answer interrogatories,

[] Inability to locate Complainant.
[J Investigation indicates that the case was not timely filed or is otherwise not jurisdictional.

[ ] The Complainant has filed a suit in either state or federal court alleging the same unlawful practices.

[ ] The facts alleged in the administrative complaint do not appear to violate the Human Rights Act.

[ ] The Complainant has requested that the complaint be withdrawn.

[X] Other: This caSe was handle>! by the EEOC, IHRG. has been notified of EE.Qld. administrative c!osur§:,

This dismissal terminates the Commission's handling of the above·referenced complaint. This is

also Complainant's Notice of Right to Sue under the Human Rights Act. If Complainant intends to

sue the Respondent(s) named in the charge, a lawsuit must be filed in district court within

ninety (90) days of the date of this notice, Otherwise, Complainant's right to sue under the

Human Rights Act is lost.

0,1.\
Date

cR~" G..~: ~kQ.llu\."___
Leslie R. GOddard

Director

Equal Opportunity Employel'

 
 -. ,

•

•

1 Keller W. Allen, ISB No. 5021 ALLEN & McLANE, P.C.
2 The Paulsen Center, Suite 421
3 421 W. Riverside Avenue
4 Spokane, WA 99201 Telephone: (509) 777-2211
5 Facsimile: (509) 777-2215
6 E-Mail: kwa@allenmclane.com

u.s. DISTRICT COURT _ __ u.s. BANKriUPTCV coum·___..
DISTf'ICT OF I[)UIO
FEB 28 2OU)
- _ _ M. PGC;f) -.~_ LODGED _ _ .• F:U'O ~~,

7
Attorneys for Plaintiff in Intervention, Marlon A. Herrera
8

9

to

11

UNITED STATES DISTRICT COURT

12

FOR THE DISTRICT OF IDAHO

13

EQUAL EMPLOYMENT

)

14 OPPORTUNITY COMMISSION, )

Case No. CV-02-409-S-EJL

15

)

Plaintiff,
16

) FIRST AMENDED ) COMPLAINT OF PLAINTIFF

17

and

) IN INTERVENTION

18

) MARLON A. HERRERA

MARLON A. HERRERA,

)

19

)

20

Plaintiff Intervenor, ) JURY TRIAL DEMANDED

21

)

22

v.

)

)

23 IDAHO POWER COMPANY,

)

24

)

Defendant.

)

2S

26 --------------------)

27

Plaintiff in Intervention, Marlon A. Herrera, alleges as follows:

28

29 FIRST AMENDED COMPLAINT OF PLAINTIFF IN INTERVENTION MARLON A. HERRERA - Page 1
30 Y:\pammlHerrera\USDC Cornplaint,1.doc\

Allen & Mf..~L~ne:l P.C.
421 W. Riverside Avenu~, Suit~ 421
Spokllne, wA 99201 Telephune: (509) 777-2'211
Fax: (509) 777-2115

rJ'.,
(\ :
'iJ'

• •

1

JURISDICTION AND VENUE

2

1. This Court has jurisdiction over the subject matter of this

3

4 complaint in intervention pursuant to 28 U.S.C. §§ 1331. 1343, 1367,

5 42 U.S.C. § 1981,42 U.S.C. § 2000e et. seq., 42 U.S.C. § 1981a and
6
7 42 U.S.C. §12101 et. seq.

8

2. Venue is proper before this Court pursuant to 28 U.S.C. §

9
10 1391, as all unlawful employment practices and actions alleged herein

II occurred within the jurisdiction of the United States District Court for
12
13 the District of Idaho.

14

3. All prerequisites required by federal and state law have

15
been satisfied by Plaintiff in Intervention before bringing this action.
16

17 including acquisition of (1) the attached Right to Sue letter from the
18
Idaho State Human Rights Commission; and (2) the attached Right to
19

20 Sue letter from the Equal Employment Opportunity Commission
21
22 concerning claims under the Americans with Disabilities Act of 1990.

23 42 U.S.C. §12101 et. seq.
24
25

PARTIES

26

4. This matter was originally commenced by Plaintiff, the

27
28 Equal Employment Opportunity Commission ("EEOC").

29 FIRST AMENDED COMPLAINT OF PLAINTIFF
IN INTERVENTION MARLON A. HERRERA - Page 2 30 Y:\pamm\Herrera\USDC Complaint.1 ,doc\

Allen & Mel ,eue, P,C. 421 W. R.i\'cr~lde Avt::rJut:, Suite 421
Spokane, WA 992.01
Tdephonc: (509) 777-2211 F;tx: (,,}09) 77"1-2215

• •

1

5. Plaintiff in Intervention, Marlon A. Herrera, is a resident of

2 the State of Idaho, and has been so during all periods relevant to the
3
4 claims herein.

5

6. At all relevant times to the allegations herein, Defendant

6

7 Idaho Power Company, an "IDACORP Company" ("Defendant"), has

8 been an entity continuously doing business in the State of Idaho, and
9
10 has continuously had at least one hundred (100) or more employees.

11 At all relevant times to the allegations herein, Defendant has
12
13 continuously been an employer engaged in an industry affecting

14 commerce within the meaning of Sections 701 (b), (g), and (h) of Title 15 16 VII, 42 U.S.C. §§ 2000e-(b), (g), and (h), and is an employer under the

17 Americans with Disabilities Act, 42 U.S.C. §12101 et. seq. and Idaho
18
Code, Title 67, Chapter 59.
19

20

7. The EEOC has alleged that Defendant subjected Mr.

21 22 Herrera to unlawful discrimination on the basis of his national origin,

23 race, and age. As the aggrieved person in the unlawful practices as
24
2S alleged by the EEOC, Mr. Herrera has been granted the right to

26 intervene in this action by Order of the Court dated February 20, 2003
27
28 to assert his individual claims under federal and state laws. Mr.

29 FIRST AMENDED COMPLAINT OF PLAINTifF IN INTERVENTION MARLON A. HERRERA - Page 3
30 Y:\pamm\Herrera\USDC Complaint.1.doc\

Allen & McLane, P.C.
1121 W. Rivt:I'~idc. Av(!nllc, SuiLe 421 Spokane, WA t)920l
Telephone: (509) 777 ·2111
"ax: (509) 777-211:'i

• •

1 Herrera has satisfied all requirements concerning exhaustion of

2 administrative remedies and all conditions precedent to the institution
3
4 of his claims.

5

8. Paragraphs 1 through 11 of the Complaint filed by the

6

7 EEOC against Defendant in this matter are incorporated by reference

8 as if fully set forth herein.

9

10

DEFENDANT'S WRONGFUL CONDUCT

II

9. Mr. Herrera sought employment with Defendant on

12

13 numerous occasions in 2000 and 2001. Mr. Herrera sought positions

14 with Defendant as a Meter Specialist 1 and/or 2. Mr. Herrera was
15
16 highly qualified to perform the duties of such positions as a result of his

17 approximately twenty (20) plus years of experience performing
18
19 eleCtrical meter reading with other employers prior to applying for such

20 positions with Defendant.

21

22

10. During all periods relevant to these claims, Mr. Herrera

23 was over the age of forty (40), and he is a minority by virtue of being a
24
25 Hispanic and Native American. Upon information and belief,

26 Defendant also regarded Mr. Herrera as disabled under federal and
27
state laws. Upon further information and belief, Defendant regarded
28

29 FIRST AMENDED COMPLAINT OF PLAINTIFF
IN INTERVENTION MARLON A. HERRERA - Page 4 30 Y:\pammIHerreraIUSDC Complaint.1.docl

Allen & McLane, P.C. 421 W. River~idc Avenue, Suite,121
Spokane, WA 91)201 Telephune: (509) 777-221 J
Fax: (509) 777-').2 15

• •

1 Mr. Herrera as a union sympathizer and "union seed" who was seeking

2 to obtain employment in order to infiltrate Defendant's workforce and
3
4 organize a union.

5

11. Despite his superior experience and qualifications,

6
7 Defendant hired less qualified, less experienced non~minority

8 applicants under the age of 40 to fill the positions of Meter Specialist
9
10 sought by Mr. Herrera. As a result of (1) Mr. Herrera's age, race,

11 and/or national origin. (2) Defendant's regard of Mr. Herrera as
12
13 disabled, and/or (3) Defendant's regard of Mr. Herrera as a Union

14 sympathizer and "union seed" who was affiliated with a labor
15
organization, Defendant willfully and intentionally refused to invite Mr.
16

17 Herrera to certain job interviews and to hire him for positions for which
18
he Was actually interviewed. Defendant willfully (1) hired less qualified
19

20 and experienced white males under the age of 40, (2) hired less
21
22 qualified and experienced males who were not regarded as having a

23 disability under federal and state laws, and (3) hired less qualified and
24
experienced males who were not regarded as having union beliefs and
2S

26 sympathies that were detrimental to Defendant's business interests.
27
28 These actions and practices of Defendant relating to the race/national

29 FIRST AMENDED COMPLAINT OF PLAINTIFF
IN INTERVENTION MARLON A. HERRERA - Page 5 30 Y:\pamm\He..era\USDC Complaint.1 ,doc\

11.110" & McLane, p,e.
42! W. Riverside Avenue, Suite '121 Spokane. WA 99201
Telephone: (:'i09) 777-221 J rax: (509) 777 ·2215

• •

1 origin of Mr. Herrera were in violation of Section 703(a) of Title VII, 42
2 u.S.C. §§ 2000e-2(a), and in violation of the race discrimination
3
4 prohibitions of 42 U.S.C. § 1981. In addition, such actions and
5 practices concerning race, national origin, and age discrimination were
6
7 in violation of Idaho Code, Title 67, and Chapter 59. Defendant's
8 perception and regard of Mr. Herrera as having a disability, and its
9
10 actions and practices in regard thereto, was in violation of the
11 Americans with Disabilities Act, 42 U.S.C. §121 01, et. seq. and Idaho
12
13 Code, Title 67, Chapter 59. Further, Defendant's actions and practices
14 with regard to discriminating against Mr. Herrera in hiring due to
15
16 Defendant's beliefs that Mr. Herrera was a union sympathizer and
17 "union seed" was in violation of Idaho's right to work laws set forth in
18
Idaho Code, Title 44, Chapter 20 et. seq.
19

20

12. Defendant's actions have deprived Mr. Herrera of equal

21
22 employment opportunities under federal and state anti-discrimination

23 laws, and upon information and belief were with reckless disregard to
24
25 Mr. Herrera's rights under federal and state laws, and were willfully

26 and intentionally done with the purpose to discriminate against Mr.

27
Herrera because of his race, national origin, age, perceived disability 28

29 FIRST AMENDED COMPLAINT OF PLAINTIFF
IN INTERVENTION MARLON A. HERRERA - Page 6 30 Y:\pammIHerreraIUSDC Complaint.1.docl

Allen & McLane, P.C.
421 W. RiveI'l;.idc Avenue. Suite 421
SpQk::l,n~. WA l)')~OI
Telephone: (:S09) 777-2211 foil}',: (509) 777··2'1.15

• •

1 and/or his perceived union sympathies and affiliations with a labor

2 organization. Because the EEOC has asserted claims of
3
4 discrimination under the ADEA on behalf of Mr. Herrera against

5 Defendant, Mr. Herrera does not assert individually any federal ADEA
6
7 claims as per 29 U.S.C. § 626(c)(1).

8

13. Upon information and belief, the unlawful employment

9

10 practices complained of above were done with malice or with reckless

11 indifference to the statutorily protected rights of Mr. Herrera. Such
12
13 actions and practices by Defendant have caused economic and non-

14 economic damages to Mr. Herrera, which amount will be proven at
15
16 trial.

17

PRAYER FOR RELIEF

18

19

WHEREFORE, Plaintiff in Intervention, Marlon A. Herrera,

20 respectfully requests that the Court enter the following relief:

21

22

A. Granting a permanent injunction enjoining Defendant, its

23 officers, employees, agents, successors and all persons in active
24
2S concert or participation with it from engaging in any employment

26 practices which discriminate against Mr. Herrera on the basis of
27
national origin, race, age, perceived disability and union beliefs;
28

29 FIRST AMENDED COMPLAINT OF PLAINTIFF
IN INTERVENTION MARLON A. HERRERA ~ Page 7
30 Y:\pamm\Herrera\USDC Complaint.1.doc\

Allen & McLane, P.C. 421 w. Riverside Avenue, Suite ·121
SPOK;'lIlC. WA 91)201
Tclephnne: (_~09) 777-221 J
""''' (509) 7772215

• •

1

B. Granting Mr. Herrera back pay, front pay and lost benefits,

2 plus interest, in an amount to be determined at trial;

3

4

c. Granting judgment against Defendant for punitive damages

5 as allowed under federal and state laws in an amount to be
6
7 determined at trial;

8

D. Granting judgment for past and future nonpecuniary

9

10 damages, including, without limitation, emotional pain, suffering,

11 stress, and loss of enjoyment of life, in amounts to be determined at
12
13 trial;

14

E. For reasonable attorney fees and costs incurred by Mr.

15
Herrera in prosecuting this action;
16

17

F. For an award of monetary damages to offset any adverse

18
19 tax consequences attributable to any back pay, front pay, and

20 attorney's fee award andlor recovery; and
21
22 11111

23 11111
24
25 11111

26 /1/ 1/ 27

28

29 FIRST AMENDED COMPLAINT OF PLAINTIFF

30

IN INTERVENTION MARLON A. HERRERA - Page 8
Y:\pamm\Herrera\USDC Complaint.1.doc\

Allen & McLone, P.C.
illl W. Rivt=rsiJe Averlue, Suite 421 Spukallt:, WA 997J) I
Telephone: (509) 777-2211 Fax: (!)09)71"!-2215

• •

G. For such other relief as the Court deems necessary and

2 proper.

3

4

;)C DATED this

day of February, 2003.

5

ALLEN & McLANE, P.C.

6

7

8

Klier W. Allen, ISB No. 5021

9

Attorney for Plaintiff in Intervention

lO

11

12

13

14

15

16

17

18

19

20

21

22
23

24

25

26

27

28

29 FIRST AMENDED COMPLAINT OF PLAINTIFF

30

IN INTERVENTION MARLON A. HERRERA - Page 9
Y:\pamm\Herrera\USDC Complaint.1.doc\

Allen & McLane, P.C.
421 W. River:-;ide Ave,ilut\ Suite 421 SpOk<l.Jle, WA 9920 I
Telephone: (:'i()!» 777-221l Fl:lx: (509) 777-2215

• •

I

CERTIFICATE OF SERVICE

2

de: I HEREBY CERTIFY that on the

day of February, 2003, I

3 caused to be served a true and correct copy of the foregoing on the

4 following:

5

Damien A. Lee

x U.S. Mail

6

Equal Employment

__ Overnight Mail

7

Opportunity Commission

__ Hand Delivery

Federal Office Building

__ Facsimile

8

909 First Avenue, Suite 400

9

Seattle, WA 98104-1061

10
Attorney for Plaintiff EEOC
II

12

Candy Wagahoff Dale

13

Hall, Farley, Oberrecht &

14

Blanton, PA

15

PO Box 1271

Boise, 10 83701
16

~ U.S. Mail __ Overnight Mail __ Hand Delivery __ Facsimile

17

Attorneys for Defendant Idaho Power Company

18

19

20

21

22

23

24

25

26

27

28

29 FIRST AMENDED COMPLAINT OF PLAINTIFF

30

IN INTERVENTION MARLON A. HERRERA- Page 10
Y;\pamm\Herrera\USDC Complaint.1.doc\

Allen & McLane, I).C.
421 W. River!>ide AHmue. Suite 421 Spokarlli\ WA 9920 I
Tclcphon~; (~(JI:) 777-2211 Jiax: (50L)) 7"1'1-2215

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
NOTICE OF RIGHT TO SUE
(I$SUEd on request)

To: Marlon A. Herrera

From;

c/o Keller W. Allen

ALLEN & MCLANE. PC

421 Wast Riverside Avenue

Spokane. WA 99201

D

On bf-h.al.fofa person aggrieved whose identily i~· CO]'WIDENTIAL

(29 C,P:R. 16IJ/.7(ql)

Charge Number
380A200330

EEOC Representative

Kari

I

EEOC/Seattle District Office 909 First Avenue, Rm 400 Soattle. WA 98104-1061
Te!ephone N:...;mber
220-6852

TO THE PERSON AGGRIEVED: This is your NOTICE OF RIGHT TO SUE, It is issued .t your request. If you intend to sue the respondent(s) named in your charge. YOU MUST DO SO WITHIN NINETY (90) DAYS OF YOUR RECEIPT OF THIS NOTICE: OTHERWISE YOUR RIGHT TO SUE IS LOST,
[ i ] More than 180 days havo oxpired since the filing of this charge,
c:::::::::J Less than 180 days have expired since the filing of this charge. but I have determined that the Commission will be unable to
be unablE;! to compl@t@ it:s proce:ss within 180 days from the filing of the charge.
c:::::::::J With the issuance of this NOTICE OF RIGHT TO SUE, the Commission is terminating its proc.ss with respect to this charge,
this charge.
c:::::::::J It has been determined that the Commission will continue to investigate your charge, c:::::::::J ADEA: While Title VII and the ADA require EEOC to issue this notice of right to SUe before you can bring a lawsuit, you may
lawsuit you may sue under the Age Discrimination in Employment Act (ADEA) any time 00 days after your charge was filed until

c:::::::::J Because EEOC is closing your case, your lawsuit under the ADEA must be brought within gO days of your
receipt of this notice. Oth~rwise, your right to sue is lost.
c:::::::::J EEOC is continuing its investigation, You will be notified when we have completed ;;Iction and. if
our notice will include notice of right to sue under the ADEA.
c:::::::::J EPA: While Title VII and the ADA require EEOC to issue this Notic@ of night to Sue before you can bring a lawsuit. you already
lawsuit yau already have the right to sue under the Equal Pay Act (EPA) (You are not required to complain to any enforcement agency before bringing an EPA suit in court), EPA suits must be brought within 2 years (3 years for willful violations) of the alleged EPA underpayment.

I certify that this notice was mailed on the date set out below,

On Behalf of the Commission

(Typed Name & Title of Commission Official)

cc; Idaho Power Corporation
f.F.OC Form 181.0 rres.t 10je4)

CO~OOs..i}10NERS:
Estella Zamora, President Hyong K. Pak, Wee President Vernon Baker Eloy Cho,,,
Rllfhie Johnson Stephell M. Mala!1 ClariJse M. Ma.'O'r'ell
William L Swi/' Scl.11dra Twiggs

• •
IDAHO HUMAN RIGHTS COMMISSION
NOTICE OF ADMINISTRATIVE DISMISSAL AND RIGHT TO SUE

P.O. BOX Sl'n.O OWYHEE PLAZA, FOUR'l'fi FLOOR
1109 r-.lAIN STREET, 51'£'. 400 BOIS(.:, lOA.HO SJ7l0-0WO (lOS) 334-2873 f"X )3~.l664 TDDIITY (03) 334-47.<1
TOl I EPrE "'0 1 SSs '19-70Z5

E-1'oL\.lL: Inquiry @ lhrc~ta tc.id.L1.~

Keller W. Allen"

The Idaho Power Compawt' R. Goddard, /Jjr",,,

Allen & McLane, PC

Human Resources Dept

421 W. Riverside Ave

P. O. Box 70

Spokane, WA 99201

Boise, ID 83707

October 1, 2002

RE: Marlon Herrera VS. Idaho Power Company Complaint Nos.: DAAD·7·0102-275; 380A200330

The above complaint filed with the Human Rights Commission is hereby dismissed pursuant to the Commission's Rules and Procedures for the following reason.

[ ] Complainant has requested administrative dismissal/notice of right to sue.

[ ] Failure of the Complainant to cooperate with the Commission in the processing of the case, including failure to answer interrogatories.

[ ] Inability to locate Complainant.

[ ] Investigation indicates that the case was not timely filed or is otherwise not jurisdictional.

[ ] The Complainant has filed a suit in either state or federal court alleging the same unlawful practices.

[ ] The facts alleged in the administrative complaint do not appear to violate the Human Rights Act.

[ ] The COlTlpl"irIOliTt IIOIS rcqucslecililat the corn plaint be l'Iithch8vm.

[X] Other: Ill.i.S._l&>!LYl'<!5Jl,mdled by the EE.Q.c,~JJJRC.ili!.~J)een DQlLfie.ct...of EEOC's ad min C:;,lL(l.liYlL~J9.WIT.

This dismissal terminates the Commission's hClndline of the above-referenced compl"int. This is
also Complainant's Notice of Right to Sue under the Ilumen Right" Act. If Compl3inanl intends to
sue the Responclellt(s) ,named in the charge, a lawsuit mllst be filed in district COlirt within
ninety (90) days of the date of this notice. otherwiso, Complainant's right to suo under the Human Rights Act is lost.

6 , -t .. L..<:r"'::J:cO:>JO.,ko,':::!L-_ __

Date

1

W. "~Q O. ~,~,__
Leslie R. Goddard

Director

Eqll(11 Opj)od\l!1ity Employer

 
 •

105 m m~

• NI4

P,003/009

1\

, IiI

I' Ii

/\ KJ"

".
i"

W:,YI~II.

".'I'"RC), JR. HF.('IONAI "
1"11 'c:UN, f.-UPI' PVISORY

HOnN Tf{IAL

E.Y ATTORN

EY

. I' 1)1\~Mr:r.1 I f I' i HlI\l "lTOHNEY

, ',I F!,)II ".1 '·+1F'!r)YMEN r UPPOHTUNITY COMMISSION

J

I:I !~?"I;)<I-; 'IU

Ip"~ f liF,r

IWF "JUE, SUITE vM;IIING10N

1100 98104

II,1 11-'1 I.. ,:·'111 )Nl. (ZOG) ;.>20091 ~,

I,U. "" r.'"u",I,";\TS,
03 JUi! 13 P;; y: 33

Ii~; 1,1 1\!1()rn~vt": f('11''~··jln\.f1 t'rff
:\
h III'

FAX FILED

:~ i,lI ,I
~ !:

UNITED STATF.S DISTFHCT COURT FOFl TH1~ DISTRICT OF IDAHO

"

f.l \(
I "

H) !\'f\OIl,: FMiJ! DYMENT OPPORTUNITY )

i \ \; Cf tr:.i"\/l!::',;(,:"~l(lN

)

CIVIL ACTION NO. CY 02-409-S-EJl

Plaintiff, :' ',I ~~.f\lll {)~J 1,l'"prH'.CRA,

\
) SECOND AMENDED COMPLAINT
\

\1 1\

. .

:d. " 'f

PI(lintiff Intervenor

) )

JURY TRIAL DEMAND

~

61\i I 11 '.fli In pnWLR COf\WANY,
17 I

\
I

l~ !,

DefendRnt.

)

__. _., .___

. ___......J

I\:.1 :\

)01\

NATI,lRE. OF JI::!f.ACTION

1 I 1\

' hI'" is '"In "clion limier Title VII of the Civil Rights Act of 1964, Title I of the Civil Rights

:,', I' ""I 'If 1<1<)1 Rnrl the .AQe DiscrITninahrll1 in Emrloyment Ad to correct unlawful employment '~ , II p,,,dwpo; "n the ba<;i~ of national origin and Rge and to provide appropriate relief to Marlon
il . :'1 ~.Ig"Rr" who Wl'IS ad\ler$ely affected by <;IJct, practices. The Equal Employment
"',1\,I C)r'l"vtIIlWV (:omml",:llon "lle<]m:; th"t O",f'~nd~n\ failed to eonllider Mr. Herrera for

'c' b 1\ <., nnl"11"\1pnl tH'caW:;f! of his nation,,1 origin. HispRnic and/or age. Plaintiff seeks injunctive

,~, , II "lIvl ,nnn"';:"V relid. InclUding pecuni"ry and nonpecuniary compensatory damages and

il . . I

.QU"~ ~MP~OYM.NT OPPO~TU~""_!=T'!l" dYe,ocD a!OO_ M~ MIl$iuSlmlldOk•lIg•I

1\

~ FII'II !I\I,,,UII, ~i\t ~IX

,
II:I

"".''',08),....... ,.ottlo, ,....."...." •.,..., ••,
... T... 1"·1 .."'01'

.1 ' " '.'1",\1'" ",,';1" 1

TOD(2CO'W''''''

06-13-03
I
I II punitive dAmages.
, I. I
,II

• 206 220 6955

T-!24 P 004/009 H2S

,JURI~;DIC;;.:rIQNANDV..E.N~_J;

41

1

.Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§451 , 1331, 1337,

I i
5 134:, and 1:'\45 This action is <luthorized and instituted pursuant to sections 706(f)(1) and

6\ n! of Title VII of the Civil Rights Act of 1964. as amended, 42 U.S.C. sections 20009-
(:~) 71 S(t)( 1) CllJd ("Title VII"). and Section 102 of the Civil Rights Act of 1991, 42 U.S.C.

R ~ 19R1 a :'lnd Seclion 7(b) of the Age Discrimination in Employment Act of 1967, as

9 amended. 28 LJ S.C. §626(b) (the "Al)FA"). which incorporates by reference Sections 16(c) I (] and" /' of the Fair labor Standards Act of 19:~8, as amended, 29 U.S.C. §§216(c) and 217.

1 I

2

lile prnployment practices alleged to be unlawful were committed within the

12 ,Ilris(jiction of the United States District Court for the District of Idaho.

1.3

14

PI,lintiff, the Equal Employment Opportunity CommisSion (the "Commission"). is

1:5 tbe agenr;y of the United States of Amorlc~ charged with the administration, interpretation

16 _",,:.1 t"flron;(lment of Title VII and the AD EA. and is expressly authorized to bring this action

17 bv SE'ction lOfl(f)(1) ofTitie VI!. 47 US C §2000e-5(f)(1) and Section 7(b) of the ADEA, 29 18 U Pi C ~626(b), as amended by Section 7. of HcorgElnlzation Plan NO.1 of 1978, 92 Stat.

19 37H1. Rnd hy Public Law 98-532 (1984).98 StaL 2705.

20

4. At all relevant times, Defendant Idaho Power Company, an IDACORP

:' I L\,mpany ("Derr:lI1dant"l hi'ls bf'Jen <'In entity continuously doing business in the State of

27, Idaho and has continuollsly had at le:'lSt 70 employees.

5.

At all relevant times. Defendant has continuously been an employer engaged in

~;:4 Ml ,ndlJf\try ['lffeding commerce witbin the meaning of Sections 701 (b), (g) and (h) of Title

2,'l 'ill 42 U,S.C §§2000e-{b), (\1) and (h)ilfld Secti'ln 11(b), (9) and (h) of the ADEA, 29

26 U S.C. §§630(b), (g) and (h).

27

((,,>H"(.AINT· PAGE 2

EQUAL EII/IPLOYMENT OPPORTUNITY COMMISSION
Sl!aftil9 DI$lttCt Omga
r~gr'lId cr~ lulh::lltIO 90Q rif.1 ,....fIIl"IUiI, tl,llte oKJO $GClI!."- Wfi.,..,,;I1IL'I ~a104.1061 Tl;llklpl'ton9 (2OG) 22O-68e.~
Fax: ~:2(6) 2'l1J-I;;g"
TOD (206) 22Cl-G!lB:

06-13-01

206 m 6955 •

T-324 P.005/00i F-629

1

GQNGJJJAI!Qr::!.

i I
::>

G

Prior to institution of this lawsllit, the Commission's representatives attempteo to

l!I ~lirn'ni3t", the unlHwful fJmploymnnt p'''lctices alleged below and to effect voluntary

II·t compliance with Titl@ VII and the ADLA through informal methods of conciliation,

51 conference, and persuasion within the mp,ming of Section 706 of Title VII, 42 U.S.C. § I
6 2000",·5 and Section 7(11) of the ADEA, 29 U.S.C §626(b).

'j

STATEMF.NT..QF.GLAIMS

7

MOlo than thirty days prior to the institution of this lawsuit, Marlon Herrera filed a

charqe with the Commission all(~ging vlok;1tions of Title VII and the ADEA by Defendant.

All conditions precedent to the institution of this lawsuit have been fulfilled.

11

8

Since November 2, ;l000, Defendant engaged in unlawful employment practices

17> c~f its Idnho t.il",s, In violation of §§ 703(a) of Title Vii, 42 U,S.C. §§ 2000e-2(a) and §4(a) of

13 th(~ ADFA 29 tLS.C. §623(a). The practices include the failure to consider Mr. Herrera for

1.\ employment because of his national origin "lnd/or age.

9

The effect of the practices cornplained of in paragraph 8 above has been to

16 dep!lve MOtlun HNrera of equal employment opportunities and were adopted and used

17 Intentionallv \0 dlscrlrrllilate against him because of his national origin and age.

IS!

10. The unlawful employment practic:es cornplalMd of in paragraph 8 above were

19 wi!lful within tho meaning of Sectiot1 7(b) of the ADEA. 29 U.S.C. §626(b).

20 '

11. The unlawful employment pmdice,:; complained of In paragraph 8 above were

21 done wiU, malice or with reckless indifference to the federally protected rights of Marlon

22 HNre(::!.

Wherefore, the Commission respocllully requests that this Court:
A. Grf-lnt a perrnanent injunction enjoining Defendant, its officers. successors,
I 76 ."qel1ll'<, aSl'<igns, and all persons in active concert or participation with it, from engaging in
27 anv other ernployment practice which discrimini'ltc on the bases of national origin or age.
• QuAL EMPLOVMENT OP~ORTUNITV COMlllnss,aN SI!I8ttle 'Oll!Itrict Ottl~1IlI F'e~l OUItO Bundlng
gog. First AvenlJE!, S~I\I:I 4M Sl!I3ttlB, \N;;I~l'In!;ltcn 9B104-1C61
11:l1E!phonIJ (20B) 22C'-.bea::
,,,,-4110: f~1( (206) 220-B911
TOO (000'

06-1 HJ
I

208 no e9!5 •

T-324 p.00e/009 H2S

I I

B.

Order Defomlant to institute and cBrry out policies, practices, and programs

I1 which provide ",qual &.mploym&.nt opportunitip.~ for all employees, and which eradicate the

'1 offp(.,'s of its past and presnnt unlawful employment practices.

4!' (~

Order Defendant to make whole Marlon Herrera by providing appropriate back

S I, w,'1lj()sin an amount to be dnterrnined at trial, an equal sum as liquidated damages, and
(, iI prejudgment interest, and other etffirrnatlve relief necessary to eradicate the effects of its
i7 lllllawfl)1 employment practices.

1
8

D

Orrkr Defendant to make whole Marlon Herrera by providing compensation for

') pa,:;! and futllre pecuniary 10~L'';'s resulting from the uillawful employment practices

10 described in paragraph 8 above, including past and future out-of-pocket expellses, in

11 »I'll<llmls to be determined at trial.

1:2

F. Older Defendant to make whole Marlon Herrera by providing compensation for

I ~ p;;st <Jnd future nonpecuniary lossf's resulting from the unlawful practices oomplained of In

14 paraqr;,ph B <It)()ve, including without limitation emotional pain, suffering, and loss of

15 enj0vrnflnt of liffl, in amounts to determined at trial.

F. Order Defendant to pny Marlon Herrera punitive damages for its malicious and

1"1 18r:kloss cond\.Ict d",scribed ;n paragraph 8 above, in amounts to be determined at trial.

1 R

G. Grant such further relief <'IS the Court. deems necessary and proper in the pUblic

1.9 IPtelHst

10

H

Awmd the Commission its coMs of this action.

21 /I

") ~I Ii

23 II
7.~ 'I
2~ II
26 II
..')7 /.1

EQUAL EMPLOyMENT OPPORTUNITY COMMISSION $lI!attllt Dlstrld: OffICe
Fed&filll Offil:il8 BUllr;Ilng $09 First A'fflll~, Sl..lit9 .400 SElattlQ, 'IJIJI:IshlngiDn 9810'1-,081
l"gIOphO't".8 (:20&) 22.0-66133-
FQ'II; (206) 22t\-S!:I11 TOO {2Q6} 22C1-G882

06-11-01
\1

•

• 206 220 6955

T-324 P.007/009 F-628

JURY TRIAL OFMAND I \

TI1e CornlT'lsslon roqup-sts ;=t jurv trial on all Cluestions of fact raised by its complaint.

2 \

I I
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1\ A LUIS I. UGFRO, JR .,. I. Reolonal Attorney

G\NENOOLYN YOUNG REAMS A~soci;;te General Counsel

IS !I KAll-iRyN 01 SON
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DAMIFN I Et
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FOIJAl EMPLOY

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14 OPf"OIHUNITY COMMiSSIoN

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15 909 Fi[!')i Avenue, Suito 400

SNltlifJ. W>'lsI1H)gton 98104
16 Tel~'phone (/06) 220"(J91~

[QUAI FMPLOYMENT OPPORTUNITY COMMISSION Office of the General Counsel
1801 "I " Street, N.W.
Washington, D.C. 20507

17 Attorneys for Plaintiff
18
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22

25
26 27

EQUAL EMPLOYMENT QPPORTUNIT'f COMMISSION
Seattle District Oftlce
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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

EQUAL EMPLOYMENT' OPPORTUNITY COMMISSION,
Plaintiff, MARLON HERRERA,
P laintiff-Intervenor,
IDAHO POWER COMPANY, Defendant.

Case No, CY02-409-S-RJL ORDER

Pending before the Court in the above-entitled aclion is Defendant's motion for summary judgment. Defendanl Idaho Power Company ("Idaho Power") argues lhere arc legitimate nondiscriminalory reas(Jns why Plainti n~lntervenor Marlon Herrera ("Herrera") was not hired by Idaho Power, therefore, summary judgment is proper. Plaintiffs Equal Opportunity Employment Commission ("EEOC") ami Marlon HetTera each contend there are genuine isslles oI'material fact as to the reasons given by Defendant for not hiring Herrera and f"'iher, the reasons given are a pretext lor race and age discrimination; with Herrera individually claiming discrimination on the basis of disability or that he was not hired because Idaho Power regarded him as a "union sympathizer. "

ORDER - Page I
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Having fully reviewed the record herein, the Court finds that the legal arguments are adeqllately presented in the briefs and record. Accordingly, in the interest ofavoiding further delay, and because the court conclusively Ends that the decisional process would not be signi ficanlly aided by oral argument, this motion shall be decided on (he record bdore (his Court without oral argument.
SUMMARY OF FACTS On October 17, 2001, Herrera filed a complaint against Idaho Power with the EEOC claiming race, age, and disability discrimination. The EEOC initiated an investigation and detennined there was cause to bring an enforcement action on the claims of race and age discrimination under Title VII and the Age Discrimination in Employment Act ("ADEA"). Herrera intervened in the action to pursue (he disability discrimination and state law right to work causes of action that the EEOC did not bring. Hen'era is a minority in his l1ltics who has suffered frOIll back problems for the past several years. Hcrrera has twen(y-(wo years experience as a metcr reader worki ng (()r the Ci ties 0 I'T~OlllpOC, California and Bllrley, Idaho. He applied multiple times for a job with Idaho Power as a Meter Specialist. According (0 Idaho Power, Meter Specialists arc not the same as meter read~rs becaus~ a Meter Specialist combines the positions of meter reader, collections specialist, and connect/disconnect specialist. (Docket No. 76, p. 3). Herrera disputes that Idaho Power's Meter Specialist is materially ditIcrent than other meter reader positions he has prcviously held. (Docket No. 93, p. 13). The reasons given by Idaho Power ((IT no( hiring Hen-era are generally that his communication skills, interpersonal skills, or teamwork skills were lacking which would negatively impact his abili(y to deal with customers. (Docket No. 76, pp. 7-14). Plaintiffs both claim these reasonS are a pretext for discrimination. Plaintiffs' complaint is that Idaho Power used subjective criteria to deny Herrera a position for which he was qualified because Herrera is llispanic and Native Amen.can or because hc is over the age of rorty. On this basis, the EEOC claims race/national origin discrimination and age discrimination. Herrera joins (he EEOC and additionally claims he was not hired because ofdisability discrimination and because
ORDER - Page 2
040R.DERS\1 Ierreri.l_.sj. WI-' j)

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Idaho Power belieyed he was a "union seed." Idaho Power claims their undisputed, legitimate, nOlidiscriminatory reasons for not hiring Herrera make sLLmmary judgment appropriate on all counts.
STANDARD OF REVIEW Motions for summary judgment are govemed by Rule 56 of the Federal Rules of Civil Procedure. Rule 56 provides,in pertinent part, that judgment "shall be rendered forthwith ifthc pleadings, depositions, answers to intenogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to ajudgment as a maller of law." Fed. R. Civ. P. 5O(c). The Supreme COLlrt has made it clear that under Rule 56 summary judgment is mandated iflhe nOlHlloving party fails to make a showing sufficient to establish the existence oLm element which is essential to the non-moving paliy's case and upon which the non-moving party will bear the burden of proof at trial. Sec, Celotex Com v. Catrett, 477 U.S. 317, 322 (1986). If the nonmoving party fails to make slich a showing on any eSsential element, "there can be no .genuine issue (lfmaterial fact,' since a complete failure ofproofconceming an essential clement ofthe nonmoving party's case necessarily rcnders all other facts immaterial" Id. at 323. J Moreover, under Rule 56, it is clear that an issue, in order to preclude entry of summary j LLdgment, must be both "material" and "genuine." An issue is "material" if it affects the outcome ofthe litigation. An issue, belore it may be considered "genuine," must be established by "sufficient evidence supporting the claimed factual dispute ... to require ajury orj LLdge to resolve the parties' di ffering versions onhe truth at trial." Hahn v. Sargent, 523 F.2d 461,464 (I st Cir. 1975) (quoting First Nat'l Bank v. Cities Servo Co. Inc., 391 U.S. 253, 289 (1968)). The Ninth CirC~lit cases are in accord. See, e.g., British MotorCar Distrib. Y. San Francisco Automotive Indus. Welfare Fund, 882 F.2d 371 (9th Cir. 1989).
I See also, Rule 56(c) which provides, in parI: When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations Or tk'nials of the adverse party's pleadings, but the adverse party's response, by affldavit& or as otherwise provided in this mle, must sel forth specific facts showing that there is a genuine issue for tria1. If the adverse party Jocs not so respond, summary judgment, if appropriate, shall be entered against the adverse party.
ORDER - Page 3
040ROhI{S\Hcm;:nu;j, WPD

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According to the Ninth Circuit, in order to withstand a motion for SUlllmary judgment, a party
(I) must make a showing sufficient to eslablisb a genuine issue of fact with respect to any clement for which it bears the burden of proof; (2) must show that there IS an issue that may reasonably be resolved in favor of either parly; and (3) must come forward with more persuasive evidence than would otherwise be necessmywhen the factual context makes the non-moving pmty's claim implausible. Td. at 374 (citation omilled). Of course, when applying the above standard, the court must view all of the evidellce in a light most favorable to the non-moving party. Anderson v. LibeltyLobby. Inc., 477 U.s. 242, 255 (1980); Hllghe~ v. United States, 953 F.2d 531, 541 (9th Cir. 1992).
DISCUSSION In ml employment discrimination suit where there is no direct cvidcnce of disCl1mination, lhe McDonnell Douglas burden ofproofscbeme is used. McDolUlCll Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this scheme the plaintiff bears the burden ofselting forth facts sufficient to establish aprimafade case of discrimination. Once lhe plainliffhas establishcd the primafade case, the burden shifts 10 the defendanlto articulate a legitimate, non-discriminatory reason for lhe employment action. If the defendant presents such a reason, the burden shi Ils hack to the plaintiff to show by a preponderance of the evidence the defendant's given reason is a pretext for discrimi\lation. Td.; Tex.as Dep'l OfC011l11ll111ily Affairs v. Burdine, 450 U.S. 248, 252-54 (1981);
st. Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993). It is impottant to note that while lhe
McDonnell Douglas burden of proof is used, this does not heighten Plaintiffs' burden ofprooi' at the summaryjudgment stage. All factual disputes are still viewed in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255; Hughes, 953 F.2d at 541.
1) RACE AND AGE DISCRIMINATION' Under the McDonnell Douglas burden oi'prooi' scheme Plaintiffs must present a prima
Ji,,:;e case for race and age discrimination, showing: 1) Plainti fris a member of the protected class,
2) who is qualified for the position, 3) suffered an adverse persOlUlel action, and 4) the posi lion was
'Plaintiffs and Defendant otler the same analysis tor both the age discl'imination claim and the race discrimination claim; therefore, the Comt will .1so address these issnes together. ORDER - Page 4
()40RDERS\HctTcr<I_sj, WPD

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filled by a member of an unprotected class with equal or inferior qualifications. Sec Coleman v. Ouaker Oats Co., 232 F.3d 1271, 1281 (9th Cir. 2002); McDonnell Douglas, 411 U.S. at 802.
HelTera is over the age of forty and a minority, making him a member ofthe protected class for both age and race discrimination. Coleman, 232 F.3d at 1281; McDonnell Doughls, 411 U.S. at 802. The parties dispute whether Herrera was qualified for the position. Plaintiffs both contend that with over twenty years experience and being found hy Idaho Power to be at least minimally qltali lied, having been granted multiple interviews, Herrera was at least as quali fied Cor the positions as the applicants hired. IdallO Power argues PlaintiJls cannot make out a prima facie case because they cannot show that Herrera was the best candidate for the job because, while Herrera has many years of experience, it is only related experience because a Meter Specialist is different from a meter reader. (Docket No. 142, pp. 10-14). To make a prima fade case Plainli ITs, however, do not have to show that Herrera was the best candidate for the job, they need only show he was equally qualified for the job, whieh PlaintitTs have done here. McDonnell Douglas, 411 U.S. at 802. It is undisputed that Herrera suffered an adverse personnel action by not being hired. (Docket No. 76, p. 17). Finally, it appears thaI many positions were given to individl~als with fewer years experience, who were younger than Hererra, and not minorities:' Because "making a prima facie showing of employment discrimination is not an onerous burden," and in viewing the evidence in the light most favorable to Plainti I'll:, the Court finds Plaintiffs have established a prima facie case sufficient to withstand summaryjdugment. Snead v. Metropolitan Property & Casualty Insurance Co., 237 F.3d 1080,1091 (9th Cir. 2001).
The burden now shifts to Idaho Power to give a legitimate, non-discriminatory reason lor its decision not to hire Herrera. To meet this burden, Idaho Power has produced affidavits ('rom its employees who sat on the interview board and made the hiring decisions. The reason most commonly articulated was that Herrera did not have the communication or team work skills IdallO

'Idaho Power states one successful applicant disdosed that his race was Native Amelic"n and another stated his race was Hispanic. (Docket No. 76, p. 22).
ORDER ~ Page 5
040RDERS\Ilcrrcl'<u;j,"VPD

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Power wanted from a Meter Specialist and lh"r" w"re other, more qualified applicants: (Docket
No. 76, pp. 7-14). Plaintiffs counter argue that these reasons are a pretext for disclimination.
The pretext must bc shown hy a preponderance ofthe evidence. McDonnell-Douglas, 411
U.S. at 792. To support this contention, Plaintiffs point to intemal irregularities in the way Herrera's
first application was bandied, including Idaho Power consul!ing with its counsel whell it received
HelTera's application, and lhat the job announcement primarily locuses on technical requirements
but Idaho Power now claims subjeclive communication skills arc more important. (Docket No. 76,
pp.3-4). Further, Plaintifrs hoth claim each person hired had substantially less experience, was
younger U1an HelTera, and not a minority. Plaintiffs also claim discovelydocumcnts filed under seal
give statislical evidence to SUppOlt their claim the reasons articulated by Idaho Power are a pretext
for discrimination.
In this instance, the parties agree on thc applicahle law. The only issues appear to be factual
disputcs, which must be decided by a jury. In fact, the voluminous filillgs only further make clear
U1e factnal disputes inlhis case. Accordingly, in viewing the evidence in light most favorable to the
llon-moving party, summary judgment on the claims ofrace/llatiollal origin discrimination and age
diselimillalion are denied.
2) DISABILITY DISCRIMINA TTON
HetTera intervened to raise the issue of disability discrimination pursuant to the ADA and
Idaho state law.5 The same burdcn ofproor applies to claims of disability discrimination as applies
to other employment discrimination causes of actiOll. See McDonnell-Douglas, 411 U.S. at 792.
"Both pm1ies focus individually On each application made hy Ilerrera. An example is Job Opening No. 2132-7431-Mountain Home. Herrera was une uf eight out of sixty-eight applicants selected for an interview. The interview team expressed eone~TnS about Henera 's "detlcient communication skills and his lack of skills in the area ofteamwork" (Docket No. 76, p. 11). Idaho Power then selected thirty-three year' old Wesley Lucas for the joh hecause he was found to be the most qualitled individuaL Plaintitls claim two months earlier when Mr. I ,ucas had interviewed the interview team found he should not be hired because or hi, "lack ofpractieal expericncc." (Docket No. 103, p. 5). Plaintiffs claim Mr. Lucas has less experience, a total of seven months expericnce, ami not hiring Herrera, who has more practical experience, is a prdext ror discrimination. (Id.). Herr'era claims the only difference in Me. Lucas' application trom a previous position is that Mr. Lucas listed camping as a personal interc,! and included an ATV certification, (Docket No. 93, p. Ill.
SThe Court will analyze the federal and state law claims together beea"se the Idaho state claim is patterned after the federal law, allowing state courts to look to federal law for guidance. See Stansbury v. Blue Cross ofIdaho Health Service, 918P.2d 266,269 (Idaho 1996).
ORDER - Page 6
040RDERS\HeITera_!lj. WI-'D

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The primaj<lcie case for an ADA action requires the plaintiff to show "(1) he is a disabled person within the meaning ofthe statue; (2) he is a qualified individual with a disahility; and (3) he suffered an adverse employment action because of his disahility" Hutton v. Elf Atochem North America. Inc., 273 1'.3d 884,891 (9th Cir. 2001).
In order to meet the first part of the prima facie casc for disability diSClimination, Herrera must show that he is disabled or that Jdaho Power regarded him as having a disability. 42 IJ.S.C. § 12102(2) (2003). HelTera asserts Idaho Power regarded him as being disabled d,te to the disclosure of Herrera's previous back injury, as evidoneed by the fact he was denied interviews because of time gaps in his resume when he was not employed which he explains with his back injury. (Docket No. 76, pp.22-23). Plaintiffs further contend discrimination is shown by an Idaho Power intcrnal memo which specified HelTera could not be denied an interview because ofhis back injury and that another reason, such as his communication skills, mllst be givcn for denying Henera ajob. (Docket No. 93, p. 6). Plaintiff also points to a conversation between Herrera and an Idaho Power Human Resources Specialist where Herrera claims the Human Resources Specialist talked him Ollt of even accepting an interview for ajob in Hailey by detailing all the physical requirements and questioning whether Herrera would be able to "usc snow shoes and dig out eleclricalmetcrs in the snow."6 ([d., p. 7). [n viewing the cvidence in the light most favorable to the non-moving party,
a qLlestion of fact exists as to whether Herrera may have becn denied an interview or job with Idaho
Power due to his back injury. As to the second and third elements, in viewing the evidence in the light most favorable to
the Plaintiff, Herrera appears to be at least minimally quali lied for the position and suffered an adverse employment action when he was not hired. Applying the McDonnell Douglas burden of proof: Idaho Power must articulate a non-discriminatory reason for their hiring decision. Idaho Power makes the same argument as above, that their were other, more qualified applicants. HelTera maintains this is a pretext bascd on the same evidence previously used to show Idaho Power
6The Court recognizes there is an evidentiary dispute as to whether evidence of the Hailey job po,ting is admissible due to the 300 day time limit on how far back the EEOC may investigate. (See Docket No. 46, pp. 8-11).
ORDER - Page 7
04() l{J)hI{S\H~TTcra_Ilj. WP I)

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regarded Herrera as disabled. Sce Sncad, 237 F.3d at I094 (To survive summaryjudgment, plaintiff "docs not necessarily have to introduce additional, independent evidence ofdiscrimination," heyond
that used to establish the primu /iu,;e case). Based on the foregoing, the Court finds there is a
genuine issue of material fact as to whether Idaho Power unlawfully discriminated against Herrera because of his back injury, making summary judgment inappropriate at illis time.
3) STATE LAW RIGHT TO WORK Idaho Power argues Idaho's right to work law is preempted by federal law through the National Labor Relations Act CNLRA"). State right to work laws, however, arc not preempted by the NLRA. See Oil Chemical and Atomic Workers. International Union. AFL~CIO v. Mobil Oil Corp., 426 U.S. 407, 409 (1976); Retail Clerks hlt'IAssoc .. Local 1625. AFL~CIOv. Schermerhorn, 375 U.S. 96, 98 (1963). Section 14(b) of the NLRA allows individual states to exempt themselves from section 8(a)(3), allowing unions and employers to create union shops which require all employees to be members of the union. ld. Through such an exemption states may enact right to work laws, as Idaho has done. Sec Idaho Code § 44~2001 et seq. (2003). While Idaho's right to work law is not preempted by the NLRA, its scope is naIT(lW. Right to work laws prohibit an e111ploy~r from making union membership or non~memhership a condition of employment. Laborers' Int'l Union of North America, Local No.1 07 v. Kunco, Inc., 472 F.2d 456, 548 (8th Cir. 1973). Idaho's right to work law prohibits employers from requiling their employees to join ornotjoin a union in order to maintain their employment. Idaho Code § 44~2003. Hen-era's claim that Idaho Power did not hire him for fear he was involved with a union docs not raise a right to work claim. ill Mobil Oil, the Supreme Court said, "these safeguards and the agencyor union~shop agreements to which they apply are not focused on the hiring process. Rather, they arc directed at conditions that must be fulfilled hy an employee only after he is already hired." 426 U.S. at 415. Based on the ii)regoing, the Court finds Herrera's claim in this case does not raise a right to work claim, where the alleged di.scrimination occurred in tho hiring process. Therefore, Herrera's state law claim based on Idaho's right to work law is dismissed.
ORDER - Page 8
040RDERS\II~rrerl:l ...sj. W1-'1)

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4) AFTER-ACOUTRED EVIDENCE Defendant reqllests the Court grant partial sununary judgment to limit damages, arguing Herrera provided false infornlation on an employment application which would have resulted in tennination had he heen hired, The doctrine of after-acquired evidence allows damages to be limited when during the course of discovery an employer learns of information that, had it known at the time of the wrongful ternlination, would have given the employer a legitimate, non~ discriminatory reason to fire the employee. McKennon v. Nashvi lie Banner Publishing Company, 513 U.S. 352,356 (1995). "Where an employer seeks to rely upon after-acquired evidence of wrongdoing, it must (irst establish that the wrongdoing was of such severity that the employee in fact would have heen terminated on those grounds alone if the employer had known ofit at the time of the discharge." Td. at 362-63. Idaho Power claims had theyhircd HelTera and then discovered Hen'era's employment and subsequent tennination from Walmart, IdallO Power wOLdd have terminated his employment for misrepresenting his employment history on his job application. Plaintiffs argue other applicants hired by Idaho Power had been temlinated by previous employers and are still employed by Idaho Power. (Docket No. 103, p. 25). Tn viewing the evid~nce in the light most favorable to Plaintiffs, the Court I1nds that genuine issues of material lact exist as to whether infomlation regarding Herrera's employment and slLbsequent discharge from Walmart would have resulted in him being tenninated. Therefore, summary judgment is inappropriate. 5) MOTIONS TO STRIKE Both Plaintiffs and Defendant have filed motions to strike portions ofaffidavits. "It is well settled that only admissible evidence may be considered by the trial eourt in ruling on a motion For
summUly judgment." Reyene v. Coleman Security Services, Inc., 854 F.2d 1179,1181 (9th Cir.
1988). Plaintiffs seek to strike portions of the affidavit of Linda Perkins arguing it contains conciusory allegations and unauthenticated supporting documents. (Docket No. 77, p.2). The
Cmlrt did not rely On the affidavit orLinda Perkins in detennining whether summary judgment was
appropriate. Therefore, Plaintifj~Tnt~rvenor's motion to strike is moot.
ORDER - Page 9
040RDEf.:.S\Hcn"CrLu;j·WPD

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DcJcndant's motion to strike contends that Herrera's affidavit inclndes irrelevant and opinion statements that should be stricken b~callse they would not be admissible testimony pursuant to the Federal Rules of Evidence. (Docket No. 144). Defendant's arguments appear to raise evidentiary objections or arguments marc properly addressed at trial as an objection or as crossexamination. For the purpose of summary judgment, the Court finds HelTera's statements are rationally based on his perceptions as allowed by Rule 701 (a). 7 Therefore, Defendant's motion to strike is denied.
ORDER Based on the foregoing and being fully advised in the premises, Defendant's motion for
11>~ summary judgment (Docket No,.J'v") is DENIED IN PART and GRANTED IN PART. On the state law Right to Work claim, sUI111muyjudgment is granted in Defendant's favor. All other claims survive sLlmmalY judgment. Plaintin~Intervenor's motion to strike (Docket No. 77) is MOOT. Defendant's motion for leave to file rebuttal brierin response to Plaintiff-Intervenor's supplemental reply (Docket No. 107) is MOOT. Defendant's motion to strike (Docket No. 143) is DENIED. PlaintilIs' motion to file second strlclllcntal response (Docket No. 147) is DENIED.
SO ORDERED this IS' - day of March, 2004.

7 FRE 701 states in part "the witness' testimony in the form of opinions or inferenccs is limited to those opinions 01' inferences which are (a) rationally based on the perception of the witness.. "
ORDER - Page 10
040RDERS\Herrera_!>j. WPI)

• • United States District Court

wm

for the

District of Idaho

March 15, 2004

* * CLERK'S CERTIFICATE OF MAILING * *

Re: 1:02-cv-00409

I certify that I caused a copy of the attached document to be mailed or faxed to tho following named persons:

Kathryn Olson, Esq.

1-206-220-6911

US EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Seattle District Office

909 First Ave #400

Seattle, WA 98104-1061

Damien Lee, Esq.

1-206-220-6911

EQUAL, EMPLOYMENT OPPORTUNITY COMMISSION

909 First Ave #400

Seattle, WA 98104-1061

Candy W Dale, Esq.

1-208-395-8585

HALL FARLEY OBERRECHT & BLANTON

PO Box 1271

Boise, ID 83701-1271

Keller W Allen, Esq.

1-509-777-2215

ALLEN & MCLANE

421 W Riverside Ave #421

Spokane, WA 99201

~Chief Judge B. Lynn Winmill <.Judge Edward J. Lodge
--:-\7--rChief Magistrate Judge Larry M. Boyle ,/Magistrate Judge Mikel H. Williams
"
Visiting Judges: Judge David O. Carter
----Judge John C. Coughenour
____Judge Thomas S. Zi11y

Date:

Cameron S. Burke, Clerk BY:
(Deputy C1erk)'----

 
 11-17-04 03:5SPI From-EEOC SEDO ~

Z06 ZZO 8811 ~ T-.58 P.DDZ/Oll F-BOO

1

. THE HONORABLE EPWARD J. LODGE

2

3

4

c.' '.

., i

(;1.,::'" :, ,,',1\1 (i

5

6

7

UNITED STATES DISTRICT COURT

DISTRICT OF IDAHO

8

9

EQUAL EMPLOYMENT

)

~ 10 OPPORTUNITY COMMISSION,

11

Plaintiff,

)

12

and

13 MARLON HERRERA,

!

14
15

~ Plaintii'r Intervenor,
vs.

)

16 IDAHO POWER COMPANY,

Case No. CV02-409-S-EJL
P80POSED CONSENT DECREE AND ORDER DISMISSING ACTION

17

Defendant

\

18

19 I. INTRODUCTION
20 1. This action originated when Marlon Herrera ("Mr. Herrera; filed an October 17,2001
21 Intake Questionnaire with the Equal Employment Opportunity Commission ("EEOC" or
22 "Commission"), followed by his formal charge filed on orabout December 18, 2001. Mr. Herrera
23 alleged that Idaho Power Company discriminated against him based upon his national origin
24
(Hispanic), age and/ordisabllltyin violation of TItle VII ofthe Civil Rights Act of 1964,42 U.S.C.§ 25
2000e, etseg. (''Title VII"), theAge Discrimination In Employment Act of 1967, 29 U.S.C. § 621, 26
etseg. ("ADEN), and Title I oftheAmericans with Disabilities Act of 1990,42 U.S.C. § 12101,
27

.a.UAL. EMPLOYMI!NT CPPOI\TUNrTY co,.MISSICN
SD:lH:I. Di6tJ'ic[ ornclli' Feder"l crr,ea el,ln(ling

lOS r~LAvSnW.l)l,Ille "100

Se!IlIIIIII, w...I'!i!'Igron SI1D+1OS"l

l'elliphonli\l (205) UCI...i3

CONSENT DECREE - PAGE 1

rlnl120ij) 22c-Gt11 TOO I'D') 220.....

11-1T-04 03:63pm From-EEOC SEDO •

20S 2ZO 6811 •

T-45S P.OOS/Oll F-800

1 et seg. ("ADA") when he was denied employment as a Meter Specialist from November 2, 2000

2 to November 5, 2001.

3

2. On May 21, 2002, the EEOC Issued a letter of determination with a finding of

4 reasonable cause to believe that Idaho Power Company violated Title VII and the ADEA when

5 Mr. Herrera was not hired for a Meter Specialist position during the time period referred to in Mr.

6 Herrera's charge. However, the EEOC also determined that there was insufficient evidence to

7 conciude that Mr. Herrera was disabled or regarded as disabled by Idaho Power Company under

8 the ADA. Thereafter, the EEOC attempted to conciliate the charge, but was unsuccessful.

9

3. The Commission filed its Complaint on August 29, 2002 in the United States District

10 Courtforthe District of Idaho in Boise, Idaho. The complaint aIleged that Idaho Power Company

11 violated Title VII and the ADEA by failing to consider Mr. Herrera for employment since April 14,

12 2001 based on his race andlor age. The EEOC then filed an amended complaint on October 2,

13 2002 which alleged that Idaho Power Company had violated Trtle VII and the ADEA by failing to

14 consider Mr. Herrera for employment since April 14, 2001 based on his national origin andlor

15 age.

16

4. The Court then granted Mr. Herrera's petition to intervene In the EEOC's ongoing

11 lawsuit by Order dated February 1B, 2003. After Mr. Herrera received a notice-of-right-to-sue

18 from the EEOC regarding his claim under the ADA, he timely filed: (a) a claim under 42 U. S,C.

19 § 1981 based on the same underlying facts as the ongoing lawsuit: (b) a claim under the ADA

20 based on the same underlying facts as the ongoing lawsuit: and (c) three other claims under Idaho

21 state law.

22

5. Idaho Power Company denied the allegations of discrimination in the EEOC's

23 amended complaint and in Mr. Herrera's complaint in intervention and asserted several

24 affirmative defenses.

25

6. The parties want to conclude fUlly and finally all claims arising out of EEOC's

26 complaint, the charge of discrimination filed with EEOC by Marlon Herrera, and Mr. Herrera's

27 complaint brought under 42 U.S.C. § 1981, the ADA, and Idaho state law. The EEOC. Mr.

iQUAL EMPLOYMeNT OPPOR.TUNITY COMMISSION

SO..-. Dlatrtct Offlce

FI~II:IClr.lIl C~ 6uilfJing

'0iI Fir=;~Avl!ltwe, .9uli.l 4CO

Scoddo, Wahk'ltjltor'l 9B1D+;CII5'

TBlepI'\onllll ~Oi,) .220-S81!3

CONSENT DECREE - PAGE 2

''~(206) 221).G911
Toe 1"",)""0_,

11-17-04 03 :54pm From-EEOC SEDO 4l1li

4IIt zcs 220 6911

T-45i P.004/011 F-Bcc

1 Herrera and Idaho Power Company enter into this-Consent Decree to further the objectives of

2 equal employment as set forth in Title VII, the ADEA, the ADA, and Idaho state law.

3

11. NONADMISSION OF l1ABILI1Y A~NONDETERMINATION

4

BYTHECOV

5

7. This Consent Decree Is not an adjudication or finding on the merits of this case and

6 shall notbe construed as an admission by Idaho Power Company ofa violation of 11tle VII, the

7 ADEA, the ADA or any Idaho state law.

8

III. :JURISDICTION AND VENUE

9

8. Jurisdiction ofthis Court is InVoked pursuant to 28 U.S.C. §§ 451, 1331,1337, 1343

10 and 1346. This action is authorized pursuantto Sections 706(f)( 1) and (3) of Title VII of the Civil

11 Rights Act of 1964, as amended, 42 U.S.C. §§ 20ooe-5(f)(1) and (3), and Section 102 ofthe Civil

12 Rights Act of 1991, 42 U.S.C. § 1981a. The employment practices alleged to be unlawful in the

13 complaint filed herein occurred within the jurisdiction ofthe United States District Court for the

14 District Idaho.

15

IV. SETILEMENT SCOPE

16

9. This Consent Decree Is the final and complete resolution of a\l allegations of unlawful

11 employment practices contained in Mr. Herrera's discrimination charge, in the EEOC's

18 administrative determinations, and in the complaints filed herein, including all claims by the

19 parties for attorney fees and costs. The scope of this Consent Decree will be limited to Idaho

20 Power Company's facilities In the State of Idaho.

21

V. MONETARY RELlEF

22

10. In settlement of this lawsuit. Idaho Power Company agrees to pay Marlon Herrera

23 $175.000, at such times in such amounts as specified in the Settlement and Release Ag reement

24 between Mr. Herrera and Idaho Power Company. All settlement proceeds will be handled

25 between Idaho Power Company and Keller Allen, Esq., Mr. Herrera'slegal counsel, whose law

26 offices are located at The Paulsen Center, Suite 421, 421 W. Riverside Ave.. Spokane, WA

27 99201.

IQU,t.t.. EMPLOYM~NT OPPO~ITY COMMISSION Sllt~ Dis'Ut01 Offk;e:

hcieral OffiCII ~~

W9 Flr.al A\ltlJ\Ul;I. suh/ll.1X)

Sllllldl., ~Nngtgtl ae1[w"1081

11!1I*'P1"IIiIM 12C18) 22D.aea:9

CONSENT DECREE - PAGE 3

l'aM (2OGJ ~O.n11 TeO ~::IIc(j.) 22C-66i!2

From-EEOC SEDD •

Z06 ZZO Sill ~ T-456 P.006/oll F-800

1

VI. AFFIRMATIVE AND OTHER RELIEF

2

A. General Provisions

3

11. Idaho Power Company, its officers, agents, and employees will not engage in

4 practices which unlawfully discriminate against applicants andlor employees on the basis of

5 national origin, age or disability. In recognition of its obligations under Title VII, the ADEA, and

6 the ADA, Idaho Power Company will institute, to the extent no already In place or being

7 Implemented, the poliCies and practices set forth below.

S

B. Anti-Discrimination pOlicies and Procedures

9

12. Idaho Power Company shall carry out anti.ciiscrimination pOlicies, procedures and

10 training for employees, supervisors and management personnel, to the extent not already

11 established, and will provide equal employment opportunities for all employees. As an ongoing

12 commitment to Equal Employment Opportunity ("EEO"), Idaho Power CompanywiUtake steps

13 to ensure that its managers and supervisors fully understand its EEO pOlicies and how those

14 policies define and identify what constitutes employment discrimination.

15

13. Within one-hundred-twenty (120) days ofthe date ofthe effective date of this Consen

16 Decree, Idaho Power Company Will: (a) review its EEO pOlicy, and revise It if necessary, to

17 ensure that It adequately prohibits discrlmination against applicants andlor employees on the

IS basis of national origin, age or disability with respect to any term, condition or prlvilege of

19 employment, and addresses Idaho Power Company's obligation to provide a discrimination-free

20 work. envlronmentfor its employees; and (b) distribute, to the extent not already done, a written

21 copy of its EEO policy to ali employees, both management and non-management. Idaho Power

22 Company will provide EEOC with a written copy of Its EEO policy as part of its first semi-annual

23 report as provided In paragraph 21 below.

24

C. Training

25

14. Within one hundred and twenty (120) days of the execution of this Consent Decree,

26 and annually thereafter, Idaho PowerCompanywili present to ali managers and supervisors three

27 (3) hours oftraining on employment discrimination, including discrimination against applicants

~Q.UAL EIIIPLOYMEM'r QPPORfUMllY COMMISSIDN

Sa&Wc:! DI_bic:t atka

FlldiW81 otr.eo Bulldll"lljI

QD9 "'It AlrlilriUCI, Suite! 4DO

80111\10, wnT't11"llJWn lIa104-10Ei1

TdflFlI'lOM (:IIOGI220-H133

CONSENT DECREE - PAGE 4

Fin! taDG) 220-6911
TOO "0.1,,,.80,.

11-17-04 03:54P11 From-EEOC SEOO •

Z08 ZZO S911 •

T-458 P,008/011 F-BOO

1 andlor employees based on national origin, age andlor disability. (managers and supervisors

2 who have received such training within the preceding 180 days ofthis decree will have satisfied

3 the training requirementforthe first year ofthls decree Ifthe EEOC determines the training was

4 comparable). The EEOC will have an opportunity to review the training materials prior to the

5 training date. Idaho Power Company will also provide two (2) hours oftrainlng on employment

6 discrimination against applicants, to all non-management employees participating on selection

7 teams.

8

15. Idaho Power Company will notifythe EEOC ofthe completion ofthe training and will

9 specifythe names andjob titles ofthe employees who participated In and completed the training

10 as part of its semi-annual reporting to the EEOC.

11

D. Expuogement of Records

12

16. Idaho Power Company will not disclose any information or make references to aoy

13 charge of discrimination or this lawsuit in responding to requests for information about Marlon

14 Herrera.

15

E. policies Designed to Promgte SupervisQr Accountability

16

17. Idaho Power Company agrees that it shall impose substantial discipline -- up to and

17 including termination ofemployrnent, suspension without payor demotion - upon any supervisor

18 or manager who discriminates against any applicant andlor employee on the basis of national

19 origin, age and/ordisabIlity, orwho retaliates against any person who complains or participates

20 in any Investigation or proceeding concerning any such conduct, Idaho Power Company shall

21 communicate this policy to all of its supervisors and managers.

22

18. Idaho Power Company agrees that it shall continue to adVise all managers and

23 supervisors oftheir duty to actively monitor their work areas to ensure employees' compliance

24 with the company's EEO policy, and to report any incidents andlor complaints of diSCrimination

25 or retaliation of which they become aware.

26

19. Idaho Power Company agrees to revise its appraisal process to include

27 "commitmentto equal employment opportunity" as a criterion for qualification and performance

EQUAL IMPwyMI....T OPPoRTUNnY CQMMIUION
SdWg PiSU'lct ornr:.e

~iill28tQ\ o~ auildlno

wt ....... ~ &LlI~4IJg

8U1.1.~ wesl'llnglGn 98,04·10!1

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CONSENT DECREE - PAGE 5

,';,~=:::::~

11-17-04

FrOlll-EEOC SEDO •

4l1li 206 220 6611

T-466 P.007/011 F-BOO

1 evaluation for employees holding supervisory positions..

2

F. 8dvert!slng

3

20. Idaho Power Company agrees to continue advertising vacancies for the Meter

4 Specialist position by providing notice of such vacancies to the Idaho Commission on Hispanic

5 Affairs.

6

G. Reporting

7

21. Idaho Power Company shall report in writing and in affidavit fonn to the EEOC on a

8 seml-annual baSis, beginning six (6) months from the date of the entry of this decree. and

9 thereafter every six (6) months for the duration of the decree the following Information:

10

a· Certification of the completion of three (3) hours of training for managers and

supervisors, and of two (2) hours of training for non-management employees

11

participating on selection teams, and lists of attendees;

12

b. Certification that Its EEO policy has been distributed to all current and newly hired

employees;

.

13

c. A list of any changes, modifications, revocations or revisions to its EEO policies

14

and procedures which concern or affect the subject of discrimination or retaliation.

15

d. A summary offormal discrimination complaints, if any1filed by employees working

at Idaho Power Company and the resolution of eaen such complaint; and

16
e. Astatement listing the other provisions ofthis Decreethat Idaho Power Company

17

Is required to perform and certifying that Idaho Power Company has complied with

the terms ofthe Decree. If Idaho Power Company has not complied with any term

18

ofthe Decree, the statement will specify the areas of noncompliance, the reason

for the noncompliance, and the steps taken to bring Idaho Power Company into

19

compliance.

20

f. A summary of all advertisements of vacancies for Meter SpeCialist positions in

media oriented to the Hispanic population of Idaho.

21 H. Posting

22

22. Idaho Power Company will post a Notice, attached as Exhibit 1 to this Consent

23 Decree. The Notice shall be posted on a centrally located bulletin boards at all Idaho Power
24

Company facilities within the State of Idaho for the duration of the Consent Decree.

25

VII. ENFORCEMENT
26
23. If the EEOC determines that Idaho Power Company has not complied with t\1e

27

O!O.u.... EMPLOYI!SHT oPPO,':ruNfl'I COMIIIISSIOII

SaClIiI. Dilitrlat Offtl;::B

F_r4l1 Offv=o Bundlng

101 FrEil Avenua, 15iu\t8.4oo

$GlilWI!!, W.1~n Ga1004l·1gjij1

T~~hano(206)2~a3

CONSENT DECREE· PAGE 6

:','~=l=

11-17-04 08 :66pm From-EeOc seoo •

20e 220 6all •

T-466 p.ooe/Oll F-eoo

1 terms of this Consent Decree, the EEOC will prev,ide written notification of the alleged breac

2 to Idaho power Company. The EEOC will not petition the court for enforcement of this

3 consent Decree for at least thirty (30) days after providing written notification of the alleged

4 breach. The 3[)...day period following the written notice shall be used by the parties for good

5 faith efforts to resolve the dispute.

6

VIII. RETENTION OF JURISDICTION

7

24. The United States District Court for the District of Idaho shall retain Jurisdiction

8 over this matter for the duration of this Consent Decree.

9

IX. DURATION ANP TERMINATION

10

25. This Consent Decree shall be in effect for two (2) years beginning December 1,

11 2004 and ending November 30, 2006. If the EEOC petitions the Court for breach of this

12 Consent Decree, and the Court finds Idaho Power Company to be in Violation of the terms

13 the Consent Decree, the Court may extend the duration of this Consent Decree.

14

X. CONCLUSION

15

26. The parties are not bound by any provision of this decree until It is Signed by

16 authorized representatives of each party and entered by the Court.

17

18

Dated this 11th day of'-1l.!n!. ,2004.

19

20 A. LUIS LUCERO, JR,
21 Regional Attorney

ERIC S. DREIBAND General Counsel

22 KATHRYN OLSON Supervisory Trial Attorney
23 TERIHEALY
24 Trial Attorney

GWENDOLYN YOUNG REAMS Associate General Counsel

25 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
26 Seattle District Office 909 First Avenue, Suite 400
27 Seattle, Washington 98104

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of the General Counsel 1801 "L" Street, N.W. Washington, D.C. 20507

IiiQU.... EMP"LQVIIIEMT OPPORtUNITY COMMlSSIO,N.

Saaille DI.tt1d Office

F!Id8t!!1 cffl~ BI-I~din:a
11:1. Firillt AIf!Jf'uQ. Su\tItI4QC

S."... W.~n 90104-'CII\

l"glllpMnII (ZOIii) ~B8l

CONSENT DECREE - PAGE 7

:"0;, ::l=~

11-17-04 08:65pm From-EeOC SEDO •

zca ZZO a911 •

7-456 P.009/011 F-800

19 HALL, FARLEY, OBERRECHT & BLANTON, P.A. 702 West Idaho, Suite 700
20 BOise, 10 83701 (208) 395-8500
21
22
23
24
25
26
27

itQUA\. EN.PLO'/MiNT QPPOR1\INrrt C~$ION

SOmlo"iStriot 0Ifi...

F.-rill OffIl1l BUlqtl'll

lOS rlr.a iwWI'V.IB. $uita 40Q

Sean~, ~l'Igtcm ta1o,a.,061
r""","",, (2<lG1220"'"

CONSENT DECREE - PAGE 8

Fa. (2Q61220..." l1lD 120'112,,",,'"

11-17-04

as: &&pm

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- zoe m e911

T-466 P.Ol0/0l1 F-SOO

1

ORDER APPROVING CONSENT DECREE

2

The Court havllJ!Lconsidered the foregoing stipulated agreement of the parties, IT IS HEREBY ORDERED THAT the fore~olng Consent Decree be, and the same hereby Is

3 approved as the final decree of this Court In full settlement of this action. This lawsuit is

hereby dismissed with prejudice and without costs or attorneys' fees to any party. The Cou

4 retains jurisdiction of this matter for purposes of enforcing the Consent Decree approved

herein. 5

~3~ DATED this

day of 4~~~~-. 2004.

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25
26

27

~ ",p~OYM~.1cPPOflnJ"l1Y COMMISSION

hlttle DlstJ'lct Offi,ca

F....... Offico ""'0"1/

Iil~ flnIl ./W4It'II.II:I', &unlli ilor)

SgolrJo, ~I~ ;8104-,001

T.,*~ClI (2Ml:rza.GW

CONSENT DECREE -PAGE 9

~';=~:.:::

11-17-04 08 :55pm From-l!EOC SEDO •

• 206 Z20 6911

T-456 P.Oll/011 HOO

1

NOTICE TO ALL EMPLOYEES

2

This notice is being posted pursuant to an agreement between Idaho Power ("Idaho

3 Power"), the U.S. Equal Employment Opportunity Commission and Marlon A. Herrera.

entered as the result of a resolution of a lawsuit In federal district court. There was no

4 finding on the merits of the lawsuit and this notice should not be considered an admission

by Idaho Power of a violation of any law.

5

Title VII of the Civil Rights Act of 1964. as amended, the Age Discrimination In

6 Employment Act of 1967, the Eql.lal Pay Act of 1963. and the Americans with Disabilities

Act of 1990 are enforced by the EEOC and require the following:

7

That there be no discrimination against any employee or applicant for

8

employment because of the employee's race, sex. color religion. national

origin, age (40 and above), or disability with respect to hIring, firing,

9

compensation, or other tenns, conditions or privileges of employment.

10

It is an unlawful employment practice for an employer to retaliate against any

employees or applicants for employment because they have opposed a practice or

11

because they have made a charge, testified, assisted, or participated in any manner

in an investigation, proceeding, or hearing under these statutes.

12

Idaho Power has instituted a training program to train Its managers regarding the

13 requirements of the above statutes.

14

Idaho Power has posted this notice because the company supports and will comply

with these federal laws in all respects.

.

15

16

17

18

19

20

21

22

23

24

25

26

27

EQU"~ EMPLOVMiNT OPPOI<TUIIII1Y COMMlS!l10"

5._ 0"'1110< QII1••

F.GIiI,iIIl otfb Buildl(lg

9CB Fir91 ,lwanu., Sull• .dOC

S~h:l, Wa.'nh~I"'" gS104-10111

"cl~l:it1lm. ~Cl6) 22O-.fi883

CONSENT DECREE - PAOE 10

= - , r-ax. (2.0$) :22O-eiilil11
TCC 1206)

• • United States District Court

ja

for the

District of Idaho

November 24, 2004

* * CLERK'S CERTIFICATE OF MAILING * *

Re: 1:02-cv-00409

I certify that I caused a copy of the attached document to be mailed or faxed to the following named persons:

Kathryn Olson, Esq.

1-206-220-6911

US EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Seattle District Office

909 First Ave #400

Seattle, WA 98104-1061

Kathryn Olson, Esq. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
909 First Ave #400 Seattle, WA 98104-1061

Candy W Dale, Esq.

1-208-395-8585

HALL FARLEY OBERRECHT & BLANTON

PO Box 1271

Boise, ID 83701-1271

Keller W Allen, Esq.

1-509-777-2215

ALLEN & MCLANE

421 W Riverside Ave #421

Spokane, WA 99201

____~Chief Judge B. Lynn Winmill

---~~~JCuhdigeef

Edward J. Lodge Magistrate Judge

Larry M.

Boyle

_____Magistrate Judge Mikel H. Williams

Visiting Judges:
Judge David o. Carter
-----Judge John C. Coughenour _____Judge Thomas S. Zilly

Cameron S. Burke, Clerk

Date:

BY IDepurf!!(b,p

 
 District of Idaho Live CM/ECF - Docket Report

https://ecf.idd.uscourts.gov/cgi-bin/DktRpt.pl?125032254026078-L_35...

MTNDDL, NDPLMB, RFSETL, TERMED
U.S. District Court District of Idaho (LIVE Database)Version 3.0.4 (Boise)
CIVIL DOCKET FOR CASE #: 1:02-cv-00409-EJL

EEOC v. Idaho Power Company Assigned to: Honorable Edward J. Lodge Demand: $0 Cause: 42:2000 Job Discrimination (Employment)

Date Filed: 09/04/2002 Date Terminated: 11/24/2004 Jury Demand: Defendant Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
Equal Employment Opportunity Commission

represented by Carmen Flores US EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Seattle District Office 909 First Ave #400 Seattle, WA 98104-1061 (206) 220-6883 Fax: 1-206-220-6911 Email: carmen.flores@eeoc.gov TERMINATED: 11/29/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Damien Lee EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 909 First Ave #400 Seattle, WA 98104-1061 (206) 220-6915 Fax: 1-206-220-6911 TERMINATED: 10/15/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathryn Olson EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 909 First Ave #400 Seattle, WA 98104-1061 (206) 220-6895 Fax: (206) 220-6911 Email: kathryn.olson@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

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V. Defendant Idaho Power Company
Intervenor Plaintiff Marlon A Herrera

represented by Candy W Dale HALL FARLEY OBERRECHT & BLANTON PO Box 1271 Boise, ID 83701-1271 (208) 395-8500 Fax: 1-208-395-8585 Email: cwd@hallfarley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Keller W Allen ALLEN & McLANE, P.C. Paulsen Ctr, Ste 421 421 W. Riverside Ave Spokane, WA 99201 (509) 777-2211 Fax: (509) 777-2215 Email: kwa@allenmclane.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed
09/04/2002 09/05/2002
09/12/2002 09/23/2002
10/08/2002 10/17/2002 10/17/2002 11/01/2002

#

Docket Text

1 COMPLAINT (Summons(es) issued) Fee Waived. (msb) (Entered: 09/05/2002)
2 NOTICE of Availability of Magistrate Judge and Requirement for Consent sent to counsel for plaintiff (msb)
3 LITIGATION ORDER by Honorable Edward J. Lodge ; Teleconf set for 12/4/02 at 9:30 (cc: all counsel) (wm)
4 WAIVER OF SERVICE/PROCESS executed upon defendant Idaho Power Company on 9/17/02 (wm) (Entered: 09/24/2002)
5 AMENDED COMPLAINT [1-1] by pla; jury trial demand (ja)
6 MOTION by Marlon A Herrera to intervene (wm)
7 MEMORANDUM by intervenor-pla Marlon A Herrera in support of motion to intervene [6-1] (wm)
8 ANSWER by def; to amended complaint jury demand (wm) (Entered: 11/04/2002)

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11/04/2002 11/06/2002 11/15/2002 11/19/2002 11/25/2002
11/29/2002 01/08/2003 01/23/2003 01/27/2003 02/14/2003 02/20/2003 02/20/2003
02/27/2003 02/28/2003 02/28/2003 03/04/2003 03/06/2003 03/11/2003 03/17/2003

9 NOTICE of Availability of Magistrate Judge and Requirement for Consent sent to counsel for def re answer [8-1] (wm)
10 OBJECTION AND RESPONSE by def to motion to intervene [6-1] (wm) (Entered: 11/07/2002)
11 REPLY MEMORANDUM of Marlon A. Herrera in support of motion to intervene [6-1] (ja)
12 LITIGATION PLAN by pla (wm)
13 SCHEDULING ORDER by Honorable Edward J. Lodge ; Telephonic Status Conference vacated ; Discovery ddl set for 6/1/03 ; Disp Motion ddl set 7/1/03 ; Jury Trial set for 2/10/04 at 9:30 Non-dispositive pretrial matters referred to Judge Larry M. Boyle (cc: all counsel) (wm)
14 NOTICE OF ATTORNEY SUBSTITUTION: terminating attorney Carmen Flores for EEOC and substituting attorney Damien Lee (wm)
15 NOTICE OF HEARING motion to intervene [6-1] set before LMB in Boise 9:30 1/27/03 (cc: all counsel) (wm) (Entered: 01/09/2003)
16 ORDER by Honorable Edward J. Lodge Settlement conference referred to Judge Mikel H. Williams (cc: all counsel) (wm)
17 MINUTES OF MOTION HEARING - taking under advisement on 1/27/03 the motion to intervene [6-1] LMB (wm)
18 STIPULATION to extend tie frames in litigation order (wm)
19 ORDER by Judge Larry M. Boyle granting stipulation to extend time frames in litigation order [18-1] (cc: all counsel) (wm)
20 ORDER by Judge Larry M. Boyle granting motion to intervene [6-1] ; Case Mgmt ddl set for 3/6/03 for Herrera to file and serve complaint (cc: all counsel) (wm)
21 INTERVENOR'S COMPLAINT by intervenor-pla Marlon A Herrera (wm) (Entered: 02/28/2003)
22 FIRST AMENDED INTERVENOR'S COMPLAINT by intervenor-pla Marlon A Herrera (wm)
23 STIPULATION to extend time frame for disclosure of expert witnessess in litigation order (wm) (Entered: 03/03/2003)
24 ORDER by Judge Mikel H. Williams ; Settlement conference set for 3/31/03 at 9:30 (cc: all counsel) (wm)
25 WAIVER OF SERVICE/PROCESS executed upon defendant Idaho Power Company on 2/28/03 (wm) (Entered: 03/07/2003)
26 ORDER by Judge Larry M. Boyle granting stipulation to extend time frame for disclosure of expert witnessess in litigation order [23-1] (cc: all counsel) (wm)
27 JOINT MOTION by EEOC, Marlon A Herrera to compel disclosures (wm) (Entered: 03/18/2003)

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03/17/2003 03/17/2003 03/25/2003 03/25/2003 03/25/2003 04/02/2003 04/03/2003 04/03/2003 04/03/2003 04/03/2003 04/14/2003 04/14/2003 04/16/2003 04/25/2003 04/28/2003 04/28/2003 04/28/2003 05/16/2003 05/22/2003 05/23/2003

28 JOINT MEMORANDUM by EEOC, Marlon A Herrera in support of motion to compel disclosures [27-1] (wm) (Entered: 03/18/2003)
29 DECLARATION of Keller W. Allen in support of motion to compel disclosures [27-1] (wm) (Entered: 03/18/2003)
30 MOTION by pla to file second amended complaint (ja)
31 MEMORANDUM by pla in support of motion to file second amended complaint [30-1] (ja)
32 DECLARATION of Damien Lee by pla in support of EEOC's motion to file second amended complaint [30-1] (ja)
33 AMENDED ORDER by Judge Mikel H. Williams ; Settlement conference set for 4/28/03 at 9:30 (cc: all counsel) (wm)
34 ALTERNATIVE MOTION by def for protective order (wm) (Entered: 04/04/2003)
35 AFFIDAVIT of Jenny C. Ridinger in support of motion for protective order [34-1] (wm) (Entered: 04/04/2003)
36 MEMORANDUM by def in opposition re: motion to compel disclosures [27-1] (wm) (Entered: 04/04/2003)
36 MEMORANDUM by def in support of motion for protective order [34-1] (wm) (Entered: 04/04/2003)
37 OBJECTION AND RESPONSE by def to motion to file second amended complaint [30-1] (wm) (Entered: 04/15/2003)
38 AFFIDAVIT of Jenny C. Ridinger regarding motion response [37-1] (wm) (Entered: 04/15/2003)
39 REPLY by EEOC and Marlon A Herrera to response to motion to compel disclosures [27-1] (dkh)
41 ANSWER by def (wm) (Entered: 04/28/2003)
40 REPLY BRIEF by pla to response to motion to file second amended complaint [30-1] (wm)
42 NOTICE of Availability of Magistrate Judge and Requirement for Consent sent to counsel for def re answer [41-1] (wm)
43 AMENDED REPLY by pla to response to motion to file second amended complaint [30-1] (wm) (Entered: 04/29/2003)
44 SUBPOENA as to: Nikki Garza c/o Wal-Mart Supercenter served on 5/7/03 (wm)
45 SUBPOENA as to: City Clerk for the City of Burley served on 5/13/03 (wm) (Entered: 05/23/2003)
46 ORDER by Judge Larry M. Boyle granting motion to compel disclosures [27-1], granting in part and denying in part motion to file second amended complaint

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05/30/2003 05/30/2003
05/30/2003 05/30/2003 05/30/2003 06/04/2003 06/04/2003 06/13/2003 06/13/2003 06/18/2003 06/18/2003 06/20/2003 06/20/2003 06/20/2003 06/30/2003 06/30/2003 06/30/2003 07/01/2003 07/01/2003

[30-1] granting in part and denying in part motion for protective order [34-1] (cc: all counsel) (wm)
47 MOTION by intervenor-pla Marlon A Herrera to compel discovery , and for a limited discovery extension (wm)
48 MEMORANDUM by intervenor-pla Marlon A Herrera in support of motion to compel discovery [47-1], of motion for a limited discovery extension [47-2] (wm)
49 DECLARATION of Keller W. Allen in support of motion to compel discovery [47-1], re motion for a limited discovery extension [47-2] (wm)
50 MOTION by def to extend discovery deadline (wm)
51 AFFIDAVIT of Jenny C. Ridinger in support of motion to extend discovery deadline [50-1] (wm)
52 MOTION by def Idaho Power Company to expedite shorten time for hearing on dfts motion to extend the discovery deadline (wm) (Entered: 06/05/2003)
53 SUPPLEMENTAL DECLARATION by intervenor-pla Marlon A Herrera re motion to compel discovery [47-1] (wm) (Entered: 06/05/2003)
54 SECOND AMENDED COMPLAINT [5-1] by pla EEOC; jury trial demand (ja) (Entered: 06/16/2003)
55 CERTIFICATE OF SERVICE by pla regarding Second Amended Complaint (ja) (Entered: 06/16/2003)
56 NOTICE by pla EEOC of withdrawal of second amended complaint filed on 6/13/03 (dkh) (Entered: 06/19/2003)
57 NOTICE OF WITHDRAWAL by def terminating motion for extension and motion to shorten time [52-1] (ja) (Entered: 06/20/2003)
58 RESPONSE by def to motion to compel discovery [47-1] (wm) (Entered: 06/23/2003)
59 AFFIDAVIT of Linda Perkins regarding motion response [58-1] (wm) (Entered: 06/23/2003)
60 AFFIDAVIT of Jenny C. Ridinger regarding motion response [58-1] (wm) (Entered: 06/23/2003)
61 REPLY by intv-pla Marlon A Herrera to response to motion to compel discovery [47-1], motion for a limited discovery extension [47-2] (wm)
62 SUPPLEMENTAL DECLARATION of Keller W. Allen in support of motion reply [61-1] (wm)
FILE DIVISION - File # 2 begins with document # 63 (wm) (Entered: 07/08/2003)
63 MOTION by def for summary judgment (wm) (Entered: 07/02/2003)
64 STATEMENT OF MATERIAL FACTS by def in support of motion for summary judgment [63-1] (wm) (Entered: 07/02/2003)

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07/01/2003 07/01/2003 07/01/2003 07/01/2003 07/01/2003 07/01/2003 07/01/2003
07/02/2003 07/16/2003 07/17/2003
07/17/2003
07/17/2003 07/24/2003 07/24/2003 07/24/2003 07/24/2003 07/24/2003 07/24/2003

65 AFFIDAVIT of Candy W. Dale regarding motion for summary judgment [63-1] (wm) (Entered: 07/02/2003)
66 AFFIDAVIT of Karl L. Peck regarding motion for summary judgment [63-1] (wm) (Entered: 07/02/2003)
67 AFFIDAVIT of Chris Elordi regarding motion for summary judgment [63-1] (wm) (Entered: 07/02/2003)
68 AFFIDAVIT of Chris Bell regarding motion for summary judgment [63-1] (wm) (Entered: 07/02/2003)
69 AFFIDAVIT of Sam Turner regarding motion for summary judgment [63-1] (wm) (Entered: 07/02/2003)
70 AFFIDAVIT of Linda Perkins regarding motion for summary judgment [63-1] (wm) (Entered: 07/02/2003)
71 MOTION by def Idaho Power Company to exceed the page limit for memorandum in support of motion for summary judgment (wm) (Entered: 07/02/2003)
72 MOTION by def to exceed the page limit for statement of undisputed facts in support of dfts motion for summary judgment (wm) (Entered: 07/07/2003)
73 MOTION by intervenor-pla Marlon A Herrera for leave to file second supplemental declaration and brief (wm)
74 ORDER by Honorable Edward J. Lodge granting motion to exceed the page limit for memorandum in support of motion for summary judgment [71-1] (cc: all counsel) (wm)
75 ORDER by Honorable Edward J. Lodge granting motion to exceed the page limit for statement of undisputed facts in support of dfts motion for summary judgment [72-1] (cc: all counsel) (wm)
76 MEMORANDUM by def Idaho Power Company in support of motion for summary judgment [63-1] (wm)
77 MOTION by intervenor-pla to strike portions and exhibits of affidavits of Linda Perkins (wm)
78 MEMORANDUM by intervenor-pla in support of motion to strike portions and exhibits of affidavits of Linda Perkins [77-1] (wm)
79 MOTION by intervenor-pla pursuant to FRCP 56(f) (wm)
80 MEMORANDUM by intervenor-pla in support of motion pursuant to FRCP 56(f) [79-1] (wm)
81 DECLARATION of Keller W. Allen in support of motion pursuant to FRCP 56(f) [79-1] (wm)
82 MOTION by pla, intervenor-pla to exceed the page limit on statement of material facts (wm)

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07/24/2003 07/24/2003 07/24/2003 07/24/2003 07/24/2003 07/24/2003 07/24/2003
07/25/2003 07/25/2003 07/25/2003 07/28/2003 08/01/2003 08/01/2003 08/01/2003
08/01/2003 08/01/2003 08/01/2003
08/04/2003

83 AFFIDAVIT of Keller W. Allen in support of motion to exceed the page limit on statement of material facts [82-1] (wm)
84 AFFIDAVIT of Marlon A. Herrera in opposition to dfts motion for summary judgment [63-1] (wm)
85 MOTION by intervenor-pla to exceed the page limit on brief in opposition to dfts motion for summary judgment (wm)
86 AFFIDAVIT of Keller W. Allen in support of motion to exceed the page limit on brief in opposition to dfts motion for summary judgment [85-1] (wm)
87 AFFIDAVIT of Keller W. Allen in opposition to motion for summary judgment [63-1], in accordian file not scanned in (wm) Modified on 07/24/2003
92 RESPONSE by intervenor-pla Marlon A Herrera to motion for summary judgment [63-1] (wm) (Entered: 07/29/2003)
93 STATEMENT OF MATERIAL FACTS by intervenor-pla Marlon A Herrera in opposition to dfts motion for summary judgment [63-1] (wm) (Entered: 07/29/2003)
88 MOTION by pla to exceed the page limit on memorandum in opposition to dfts motion for summary judgment (wm)
89 NOTICE OF PLAS OPPOSITION TO DFTS MOTION FOR SUMMARY JUDGMENT by pla (wm)
90 DECLARATION of Damien Lee re notice [89-1], not scanned in (wm)
91 ORDER by Judge Larry M. Boyle granting motion for leave to file second supplemental declaration and brief [73-1] (cc: all counsel) (wm)
94 REPLY by intervenor-pla Marlon A Herrera to response to motion to compel discovery [47-1] (wm)
95 SECOND SUPPLEMENTAL DECLARATION of Keller W. Allen in support of motion to compel discovery [47-1] (wm)
96 NOTICE OF NON OPPOSITION by def to motion to exceed the page limit on brief in opposition to dfts motion for summary judgment [85-1] (wm) (Entered: 08/04/2003)
97 MOTION by def to extend time to file reply brief in support of motion for summary judgment (wm) (Entered: 08/04/2003)
98 MEMORANDUM by def in support of motion to extend time to file reply brief in support of motion for summary judgment [97-1] (wm) (Entered: 08/04/2003)
99 AFFIDAVIT of Tamsen L. Leachman in support of dfts motion to extend time to file reply brief in support of motion for summary judgment [97-1] (wm) (Entered: 08/04/2003)
100 ORDER by Honorable Edward J. Lodge granting motion to exceed the page limit on statement of material facts [82-1] (cc: all counsel) (wm)

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08/04/2003
08/04/2003
08/04/2003 08/04/2003 08/04/2003 08/06/2003 08/08/2003
08/11/2003
08/18/2003 08/18/2003 08/18/2003 08/19/2003
09/04/2003 09/08/2003 09/12/2003 09/15/2003 10/22/2003

101 ORDER by Honorable Edward J. Lodge granting motion to exceed the page limit on brief in opposition to dfts motion for summary judgment [85-1] (cc: all counsel) (wm)
102 ORDER by Honorable Edward J. Lodge granting motion to exceed the page limit on memorandum in opposition to dfts motion for summary judgment [88-1] (cc: all counsel) (wm)
103 MEMORANDUM by pla in opposition re: motion for summary judgment [63-1] (wm)
104 MOTION by def to shorten time for hearing on dfts motion for extension of time to file reply brief (wm)
FILE DIVISION - File # 3 begins with document # 103 (wm) (Entered: 08/06/2003)
105 MOTION by def to exceed the page limit for reply to plas oppositions to dfts motion for summary judgment (wm) (Entered: 08/07/2003)
106 ORDER by Honorable Edward J. Lodge granting motion to extend time to file reply brief in support of motion for summary judgment [97-1], finding moot the motion to shorten time for hearing on dfts motion for extension of time to file reply brief [104-1] (cc: all counsel) (wm)
107 MOTION by def Idaho Power Company for leave to file rebuttal brief in response to pla Herrera's supplemental reply memorandum (wm) (Entered: 08/12/2003)
109 RESPONSE by def Idaho Power Company to motion to strike portions and exhibits of affidavits of Linda Perkins [77-1] (wm) (Entered: 08/19/2003)
110 AFFIDAVIT of Jenny C. Grunke in support of motion response [109-1] (wm) (Entered: 08/19/2003)
111 AFFIDAVIT of Sharon Swinney regarding motion response [109-1] (wm) (Entered: 08/19/2003)
108 ORDER by Honorable Edward J. Lodge granting motion to exceed the page limit for reply to plas oppositions to dfts motion for summary judgment [105-1] (cc: all counsel) (wm)
112 REPLY by intervenor-pla to response to motion to strike portions and exhibits of affidavits of Linda Perkins [77-1] (wm)
113 STIPULATION to extend time frame for motions in limine (wm)
114 NOTICE OF HEARING ; All Non-dispositive Motions Hrg set for 10/22/03 at 10:00 (cc: all counsel) (wm)
115 ORDER by Honorable Edward J. Lodge granting stipulation to extend time frame for motions in limine [113-1] (cc: all counsel) (wm)
116 MINUTES OF MOTIONS HEARING - taking under advisement on 10/22/03 the motion to compel discovery [47-1] and the motion for a limited discovery extension [47-2], finding moot the motion to extend discovery deadline [50-1] ;

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District of Idaho Live CM/ECF - Docket Report

https://ecf.idd.uscourts.gov/cgi-bin/DktRpt.pl?125032254026078-L_35...

11/03/2003 11/26/2003 12/03/2003 12/05/2003 12/05/2003 12/12/2003 12/18/2003 12/19/2003 01/06/2004
01/16/2004 01/22/2004 01/30/2004 01/30/2004 01/30/2004
02/03/2004
02/12/2004 02/13/2004
02/13/2004

All Pending Motions Hrg held 10/22/03 LMB (wm) (Entered: 10/23/2003)
117 RESPONSE by def to court order to produce documents in camera re minutes [116-2] (wm) Modified on 11/03/2003
118 STIPULATION to extend motion in limine deadlines (wm) (Entered: 11/28/2003)
119 ORDER by Judge Larry M. Boyle granting motion to compel discovery [47-1], granting motion for a limited discovery extension [47-2] (cc: all counsel) (wm)
120 NOTICE by intervenor-pla Marlon A Herrera of ruling by LMB (wm)
121 ORDER by Honorable Edward J. Lodge granting stipulation to extend motion in limine deadlines [118-1] (cc: all counsel) (wm)
122 ORDER by Honorable Edward J. Lodge granting stipulation to extend motion in limine deadlines [118-1] (cc: all counsel) (wm)
123 STIPULATION re: protective order (wm)
124 STIPULATION to vacated trial date and for new scheduling order (wm) (Entered: 12/22/2003)
125 ORDER by Honorable Edward J. Lodge granting stipulation to vacated trial date and for new scheduling order [124-1] ; Jury trial set for 11/9/04 (no time given) (cc: all counsel) (wm)
126 STIPULATION to amend summary judgment briefing (wm)
127 ORDER by Honorable Edward J. Lodge granting stipulation to amend summary judgment briefing [126-1] (cc: all counsel) (wm)
128 MOTION by pla to compel discovery , and to shorten time (wm) Modified on 01/30/2004
129 MEMORANDUM by intervenor-pla Marlon A Herrera in support of motion to compel discovery [128-1], of motion to shorten time [128-2] (wm)
130 DECLARATION of Keller W. Allen in support of motion to compel discovery [128-1], re motion to shorten time [128-2], exhibit B filed under seal (wm) Modified on 01/30/2004
131 ORDER by Judge Larry M. Boyle granting motion to shorten time [128-2] ; a joint written report shall be filed with the Court advising the status of the motion and any remaining issues by 2/13/04 (cc: all counsel) (ja)
132 JOINT REPORT TO LMB by intervenor-pla Marlon A Herrera (wm) (Entered: 02/13/2004)
133 SUPPLEMENTAL MEMORANDUM by pla in opposition re: motion for summary judgment [63-1], filed under seal (wm) Modified on 02/17/2004 (Entered: 02/17/2004)
134 NOTICE by pla of supplemental opposition to dfts motion for summary judgment, filed under seal (wm) Modified on 02/17/2004 (Entered: 02/17/2004)

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02/13/2004 02/13/2004
02/13/2004
02/13/2004
02/13/2004
02/19/2004 02/26/2004 02/27/2004 02/27/2004 02/27/2004 02/27/2004 02/27/2004 02/27/2004 02/27/2004 02/27/2004 02/27/2004 02/27/2004 02/27/2004

135 JOINT MOTION by pla EEOC, Marlon A Herrera for leave to file supplemental joint statement of material facts (wm) (Entered: 02/17/2004)
136 DECLARATION by Keller W. Allen in support of motion for leave to file supplemental joint statement of material facts [135-1] (wm) (Entered: 02/17/2004)
137 SUPPLEMENTAL BRIEF by intervenor-pla Marlon A Herrera in opposition re: motion for summary judgment [63-1], filed under seal (wm) (Entered: 02/17/2004)
138 SUPPLEMENTAL DECLARATION by Keller W. Allen in opposition to dfts motion for summary judgment [63-1], filed under seal (wm) (Entered: 02/17/2004)
140 SUPPLEMENTAL JOINT STATEMENT OF MATERIAL FACTS by intervenor-pla Marlon Herrera, filed under seal (wm) Modified on 02/19/2004 (Entered: 02/19/2004)
139 ORDER by Honorable Edward J. Lodge granting motion for leave to file supplemental joint statement of material facts [135-1] (cc: all counsel) (wm)
141 ORDER by Judge Larry M. Boyle denying motion to compel discovery [128-1] (cc: all counsel) (wm)
142 MOTION by def to exceed the page limit for reply memorandum in support of motion for summary judgment (wm)
143 MOTION by def to strike affidavit of Marlon A. Herrera and objections to plas evidence (wm) (Entered: 03/01/2004)
144 MEMORANDUM by def in support of motion to strike affidavit of Marlon A. Herrera [143-1] (wm) (Entered: 03/01/2004)
145 REPLY by def Idaho Power Company to response to motion for summary judgment [63-1] (wm) (Entered: 03/01/2004)
149 AFFIDAVIT of Candy W. Dale in support of motion reply [148-1] (wm) (Entered: 03/05/2004)
150 AFFIDAVIT of Jim S. Bell regarding motion reply [148-1] (wm) (Entered: 03/05/2004)
151 AFFIDAVIT of Mary Anne Wikoff regarding motion reply [148-1] (wm) (Entered: 03/05/2004)
152 AFFIDAVIT of David S. Willis regarding motion reply [148-1] (wm) (Entered: 03/05/2004)
153 AFFIDAVIT of Mark Stevenson regarding motion reply [148-1] (wm) (Entered: 03/05/2004)
154 AFFIDAVIT of Bruce Bartlett regarding motion reply [148-1] (wm) (Entered: 03/05/2004)
155 SECOND AFFIDAVIT of Linda Perkins regarding motion reply [148-1] (wm) (Entered: 03/05/2004)

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02/27/2004 02/27/2004 02/27/2004 02/27/2004 02/27/2004 02/27/2004 02/27/2004 02/27/2004 02/27/2004 02/27/2004 02/27/2004 02/27/2004 03/02/2004
03/02/2004 03/03/2004 03/03/2004 03/15/2004

156 AFFIDAVIT of Kris Clarich regarding motion reply [148-1] (wm) (Entered: 03/05/2004)
157 AFFIDAVIT of Tom Behm regarding motion reply [148-1] (wm) (Entered: 03/05/2004)
158 AFFIDAVIT of Terri Fry regarding motion reply [148-1] (wm) (Entered: 03/05/2004)
159 AFFIDAVIT of Jim Mix regarding motion reply [148-1] (wm) (Entered: 03/05/2004)
160 AFFIDAVIT of Sam Turner regarding motion reply [148-1] (wm) (Entered: 03/05/2004)
161 AFFIDAVIT of Ben Gardner regarding motion reply [148-1] (wm) (Entered: 03/05/2004)
162 AFFIDAVIT of Rick Astley regarding motion reply [148-1] (wm) (Entered: 03/05/2004)
163 SECOND AFFIDAVIT of Christopher Elordi regarding motion reply [148-1] (wm) (Entered: 03/05/2004)
164 AFFIDAVIT of M.D. (Rocky) Reece regarding motion reply [148-1] (wm) (Entered: 03/05/2004)
165 AFFIDAVIT of Dawn Thompson regarding motion reply [148-1] (wm) (Entered: 03/05/2004)
166 AFFIDAVIT of Steve Atkins in support of motion reply [148-1] (wm) (Entered: 03/05/2004)
167 AFFIDAVIT of John P. Ziegler regarding motion reply [148-1] (wm) (Entered: 03/05/2004)
146 ORDER by Honorable Edward J. Lodge granting motion to exceed the page limit for reply memorandum in support of motion for summary judgment [142-1] (cc: all counsel) (wm)
148 REPLY MEMORANDUM IN SUPPORT by def to response to motion for summary judgment [63-1] (wm) (Entered: 03/05/2004)
147 MOTION by pla EEOC, Marlon A Herrera for leave to respond to new factual allegation raised in dfts summary judgment reply brief (wm)
FILE DIVISION - File # 4 begins with document # 148 (ja) (Entered: 03/15/2004)
168 ORDER by Honorable Edward J. Lodge granting in part and denying in part motion for summary judgment [63-1] finding moot the motion to strike portions and exhibits of affidavits of Linda Perkins [77-1], finding moot the motion for leave to file rebuttal brief in response to pla Herrera's supplemental reply memorandum [107-1], denying motion to strike affidavit of Marlon A. Herrera [143-1], denying motion for leave to respond to new factual allegation raised in dfts summary judgment reply brief [147-1] (cc: all counsel) (wm)

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03/29/2004 04/29/2004 05/05/2004 07/22/2004 07/22/2004 07/22/2004
07/27/2004 07/27/2004 08/05/2004
08/16/2004
10/12/2004 10/12/2004 10/12/2004 10/12/2004 10/15/2004 10/26/2004 10/26/2004 10/26/2004 10/26/2004 10/26/2004

169 ORDER by Honorable Edward J. Lodge finding moot the motion pursuant to FRCP 56(f) [79-1] (cc: all counsel) (dkh) (Entered: 03/30/2004)
170 STIPULATION to take the perpetuation deposition of Eliasabeth Lewis and Levi Foltz (wm) (Entered: 04/30/2004)
171 ORDER by Judge Larry M. Boyle granting stipulation to take the perpetuation deposition of Eliasabeth Lewis and Levi Foltz [170-1] (cc: all counsel) (wm)
172 MOTION by pla to continue the November 9-19, 2004 trial date , and to shorten time (ja) Modified on 07/26/2004 (Entered: 07/26/2004)
173 MEMORANDUM by pla in support of motion to continue the November 9-19, 2004 trial date [172-1] [172-2] (ja) (Entered: 07/26/2004)
174 DECLARATION of Damien Lee by pla in support of pla EEOC's motion to continue the November 9-19, 2004 trial date [172-1] [172-2] (ja) (Entered: 07/26/2004)
175 NOTICE OF NON-OPPOSITION by def Idaho Power Company to pla EEOC's motion to shorten time [172-2] (ja)
176 AFFIDAVIT OF Candy Dale in response by def Idaho Power Company to EEOC's motion to continue the November 9-19, 2004 trial date [172-1] (ja)
177 NOTICE by plaintiff of withdrawal of motion to continue the November 9-19, 2004 trial date [172-1] motion to shorten time [172-2] (wm) (Entered: 08/09/2004)
178 ORDER by Honorable Edward J. Lodge granting document withdrawal [177-1] withdrawing motion to continue the November 9-19, 2004 trial date [172-1] and motion to shorten time [172-2] (cc: all counsel) (ja)
179 MOTION by defs in limine (ja) (Entered: 10/13/2004)
180 MEMORANDUM by def in support of motions in limine [179-1] (ja) (Entered: 10/13/2004)
181 AFFIDAVIT of Tamsen L. Leachman in support of motions in limine [179-1] (ja) (Entered: 10/13/2004)
182 MOTIONS by pla EEOC and intvp Marlon A Herrera in limine (ja) (Entered: 10/13/2004)
183 NOTICE OF ATTORNEY SUBSTITUTION: terminating attorney Damien Lee for EEOC and substituting attorney Kathryn Olson (wm) (Entered: 10/18/2004)
184 TRIAL WITNESS list by def Idaho Power Company (ja) (Entered: 10/27/2004)
185 TRIAL BRIEF by defendant (ja) (Entered: 10/27/2004)
186 PROPOSED VOIR DIRE by defendant (ja) (Entered: 10/27/2004)
187 JURY INSTRUCTIONS (proposed) by defendant (ja) (Entered: 10/27/2004)
188 MOTION by def Idaho Power Company to amend def's answer to conform to the evidence (ja) (Entered: 10/27/2004)

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10/26/2004 10/26/2004 10/26/2004 10/26/2004 10/26/2004 10/26/2004 10/26/2004 10/26/2004 10/26/2004 10/26/2004 11/02/2004 11/24/2004

189 MEMORANDUM by def in support of motion to amend def's answer to conform to the evidence [188-1] (ja) (Entered: 10/27/2004)
190 OPPOSITION by def to pla EEOC's and pla intervenor's motions in limine [182-1] (ja) (Entered: 10/27/2004)
191 AFFIDAVIT of Candy W. Dale in support of motion to amend def's answer to conform to the evidence [188-1] (ja) (Entered: 10/27/2004)
192 AFFIDAVIT of Candy W. Dale in support of def's opposition to pla EEOC's and pla intervenor's motions in limine [190-1] (ja) (Entered: 10/27/2004)
193 WITNESS list by pla EEOC and pla Intervenor (ja) (Entered: 10/28/2004)
194 PROPOSED VOIR DIRE by pla for the court (ja) (Entered: 10/28/2004)
195 TRIAL BRIEF by pla and pla intervenor (ja) (Entered: 10/28/2004)
196 PROPOSED JURY INSTRUCTIONS by pla and pla intervenor with proposed special verdict included (ja) (Entered: 10/28/2004)
197 OPPOSITION by pla and intvp to def's motions in limine [179-1] (ja) (Entered: 10/28/2004)
198 CERTIFICATE OF SERVICE by plaintiff regarding trial docs (ja) (Entered: 10/28/2004)
199 NOTICE OF HEARING ; Jury trial set for 11/9/04 is VACATED; parties have notified the Court this case has settled (cc: all counsel) (ja)
200 CONSENT DECREE AND ORDER DISMISSING ACTION by Honorable Edward J. Lodge dismissing case without costs or attorneys' fees to any party (cc: all counsel) (ja)

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 EEOC LITIGATION SETTLEMENT REPORT - November 2004

Page 1 of 1

z EEOC v. Idaho Power Co. No. 02-0409 (D. Idaho November 24, 2004)
The Seattle District Office filed this Title VII and ADEA case alleging that defendant, a power company providing services throughout Idaho, failed to hire charging party for a meter specialist position because of his national origin, Hispanic and Native American, and his age, 57. Charging party intervened and raised additional claims arising out of the same facts, including an allegation of discrimination under the ADA. The charging party applied for electrical meter specialist I and II positions within several of defendant's geographic areas. Defendant's corporate headquarters in Boise, Idaho facilitated the application process. The nine individuals selected for the positions were white men between 21 and 33 years old. Only two of the selectees had any significant electrical meter experience, and none could match charging party's 23 years of meter reading and customer service experience obtained working for Pacific Gas & Electric Company in California and Idaho. The parties resolved the case through a 2-year consent decree providing $175,000 to charging party. The decree prohibits defendant from discriminating against applicants or employees on the basis of national origin, age, or disability.

http://www.eeoc.gov/litigation/settlements/settlement11-04.html

5/9/2007

 
 Office of General Counsel FY 2005 Annual Report

Page 1 of 1

In EEOC v. Idaho Power Co. (D. Idaho Nov. 24, 2004), EEOC alleged that an Idaho power company failed to hire an Hispanic/Native American applicant for a meter specialist position because of his race, national origin, and age, 57, instead hiring nine other applicants who could not match his 23 years of meter reading and customer service experience and who were significantly younger. A consent decree requires the company to pay $175,000, prohibits future discrimination, and requires the company to notify the Idaho Commission on Hispanic Affairs of vacancies for meter specialist positions.

http://www.eeoc.gov/litigation/05annrpt/index.html

5/9/2007