IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plaintiff,

)

)

v.

)

)

THORMAN & WRIGHT CORP., THORMAN )

ENTERPRISES, INC., ELDON THORMAN )

& ASSOCIATES, INC., and THE ELDON

)

THORMAN FAMILY NO. 1 THROUGH

)

NO. 5 LIMITED PARTNERSHIPS,

)

)

Defendants.

)

CIVIL ACTION NO. 06-2412 JWL COMPLAINT
JURY TRIAL DEMAND

NATURE OF THE ACTION

This is an action under Title VII of the Civ il Rights Act of 1964 and Title I of the Civil

Rights Act of 1991 to correct unlawful em ployment practices on the basis of retaliation and

pregnancy, and to provide appropriate relief toBrooke Sonntag, who was adversely affected by such

practices. The Commission alleges that Defendants Thorman & Wright Corp., Thorman Enterprises,

Inc., Eldon Thorman & Associates, Inc., a nd The Eldon Thorman Family No. 1 through No. 5

Limited Partnerships discharged or constructively discharged Brooke Sonntag in retaliation for her

opposition to unlawful employment practices based on race and because of her pregnancy.

JURISDICTION AND VENUE

1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343

and 1345. This action is authorized and institutedpursuant to Section 706(f)(1) and (3) of Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5(f)(1) and (3) (“Title VII”) and

Section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981a.

2. The employment practices alleged to be unlawf ul were com mitted within the jurisdiction of the United States District Court for the District of Kansas.
PARTIES 3. Plaintiff, the Equal Employment Opportunity Commission (the “Commission”), is the agency of the United States of Ame rica charged with the adm inistration, interpretation and enforcement of Title VII, and is expressly authorized to bring this action by Section 706(f)(1) and (3) of Title VII, 42 U.S.C. § 2000e-5(f)(1) and (3). 4. At all relevant times, Defendants have continuously been a doing business in the State of Kansas and the City of Topeka, functioning as a single em ployer and continuously employing at least 15 employees. 5. At all relevant times, Defendants have continuously been an employer engaged in an industry affecting commerce within the meaning of Sections 701(b), (g) and (h) of Title VII, 42 U.S.C. §§ 2000e(b), (g) and (h).
STATEMENT OF CLAIMS 6. More than thirty days prior to the institution of this lawsuit, Brooke Sonntag filed a charge with the Com mission alleging violations of Title VII by Def endant Employers. All conditions precedent to the institution of this lawsuit have been fulfilled. 7. From approximately June 2002 throughAugust 2003, Defendant Employers engaged in the following unlawful employment practices at their Topeka, Kansas f acility in violation of Section 703(a)(1) and 404(a) of Title VII, 42 U.S.C. § 2000e-2(a)(1) and 3(a):
(a) Defendants discharged or constructively discharged Brooke Sonntag in retaliation for her opposition to unlawful em ployment practices based on race; and

(b) Defendants discharged or constructively discharged Brooke Sonntag because of her pregnancy.
8. The effect of the practices complained of in paragraph 7 above has been to deprive Brooke Sonntag of equal employment opportunities and otherwise adversely affect her status as an employee because of her opposition to unlawful employment practices and be cause of her pregnancy.
9. The unlawful em ployment practices com plained of in paragr aph 7 above were intentional.
10. The unlawful employment practices complained of in paragraph 7 above were done with malice or with reckless indifference to the federally protected rights of Brooke Sontag.
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoini ng Defendant Em ployers, their officers, successors, assigns, and all persons in active concert or participation with them, from engaging in retaliation for opposition to unlawful em ployment practices, pregnancy discrim ination in terminations, and any other em ployment practice which discrim inates on the basis of protected activity or pregnancy. B. Order Defendant Employers to institute and carry out policies, practices, and programs that provide equal em ployment opportunities for all em ployees, and that eradicate the effects of its past and present unlawful employment practices. C. Order Defendant Employers to m ake whole Brooke Sonntag, by providing appropriate backpay with prejudgm ent interest, in am ounts to be determined at trial, and other affirmative relief necessary to eradicate the effects of its unlawful employment practices.

D. Order Defendant Em ployers to m ake whole Brooke Sonntag, by providing compensation for past and future pecuniary losses resulting fromthe unlawful employment practices described in paragraph 7 above, including job search and m edical expenses, in am ounts to be determined at trial.
E. Order Defendant Em ployers to m ake whole Brooke Sonntag by providing compensation for past and future nonpecuniary losses result ing from the unlawful practices complained of in paragraph 7 above, including emotional pain, suffering, inconvenience, loss of enjoyment of life, and humiliation, in amounts to be determined at trial.
F. Order Defendant Em ployers to pay Brooke Sonntag punitive dam ages for their malicious and reckless conduct described in paragraph 7 above, in amounts to be determined at trial.
G. Grant such further relief as the Court deem s necessary and pr oper in the public interest.
H. Award the Commission its costs of this action. JURY TRIAL DEMAND
The Commission requests a jury trial on all questions of fact raised by this complaint. DESIGNATION OF PLACE OF TRIAL
Kansas City, Kansas is designated as the place of trial.
Respectfully submitted, RONALD S. COOPER General Counsel JAMES L. LEE Deputy General Counsel GWENDOLYN YOUNG REAMS Associate General Counsel

/s/ Robert G. Johnson ROBERT G. JOHNSON Regional Attorney

/s/ Barbara A. Seely BARBARA A. SEELY Supervisory Trial Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION St. Louis District Office 1222 Spruce St., Room 8.100 St. Louis, MO 63103 (314) 539-7914 FAX: (314) 539-7895 e-mail: robert.johnson@eeoc.gov
barbara.seely@eeoc.gov

/s/ Andrea G. Baran

ANDREA G. BARAN

MO #46520

Senior Trial Attorney

U.S. EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Kansas City Area Office

400 State Avenue, Suite 905

Kansas City, KS 66101

(913) 551-5848

FAX: (913) 551-6957

e-mail: andrea.baran@eeoc.gov

 
 IN THE UNITED STATES DISTRICT COURT DISTRICT OF KANSAS

Equal Employment Opportunity Commission,

Plaintiffs,

v.

Case No. 06-2412-JWL

Thorman & Wright Corporation; Thorman Enterprises, Inc.; Eldon Thorman & Associates, Inc.; and The Eldon Thorman Family No. 1 through No. 5 Limited Partnerships,

Defendants.

MEMORANDUM & ORDER

Plaintiff filed suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et

seq., alleging that defendants discharged or constructively discharged Brooke Sonntag on the

basis of her pregnancy and in retaliation for her opposition to employment practices prohibited

by Title VII. In its com plaint, plaintiff alleges that all defendants function as a “single

employer.” All defendants exce pt for Thorman & Wright Corporation now m ove to dismiss

and/or for sum mary judgment (doc. 4) on the gr ounds that plaintiff has not established an

employer-employee relationship with any of these defendants. As will be explained, the omtion

is denied without prejudice to filing a subsequent motion based on facts pertinent to the “single

employer” issue.

In resolving defendants’ motion, the court first addresses the threshold issue concerning

the appropriate dispositional standard. Defendants have filed their motion pursuant to “Rule 12”

of the federal rules, without specifying a subsection of tha t Rule or referencing an applicable

standard under Rule 12. Alternatively, defendants have filed their motion pursuant to Rule 56
of the federal rules and, toward that end, have subm itted affidavits on which their m otion is
based. To the extent the motion is made pursuant to Rule 12, the court construes that motion as
one based on subsection (b)(6), for failure to state a claimupon which relief may be granted, as
that construction accords with defendants’ alternative Rule 56 motion and the motion, liberally
construed, is phrased in terms of plaintiff’s failure to state a claimagainst the defendants in the
absence of an employer-employee relationship.1 However, plaintiff has specifically alleged in
its complaint that all defendants function as a“single employer” and the court cannot conclude
at this juncture that plaintiff can prove no set ofacts in support of its theory which would entitle
it to relief. See Aspenwood Investment Co. v. Martinez, 355 F.3d 1256, 1259 (10th Cir. 2004)
(The court will dismiss a cause of action for failure to state a claimonly when “it appears beyond
a doubt that the plaintiff can prove no set of facts in support of [its]claims which would entitle
[it] to relief.”) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). Moreover, defendants’
reliance on evidence outside the pleadings renders Rule 12(b)(6) relief inappropriate.See Price
1In construing the motion as a Rule 12(b)(6) motion, the court has also considered and rejected the potential applicability of Rule 12(b)(1) in this context, regardless of whether plaintiff is asserting “single employer” status for purposes of Title VII’s employeenumerosity requirement. See Arbaugh v. Y & H Corp., ___ U.S. ___, 126 S. Ct. 1235, 1245 (2006) (“[T]he threshold number of employees for application of Title VII is an element of a plaintiff’s claim for relief, not a jurisdictional issue.”) (rejecting view of several Circuit Courts of Appeals, including the Tenth Circuit, that employee-numerosity requirements in federal anti-discrimination statutes are jurisdictional); Trainor v. Apollo Metal Specialities, Inc., 318 F.3d 976, 978 & n.2 (10th Cir. 2002) (where defendant’s status as an “employer” within the statutory definition is undisputed and the only question is whether the plaintiff and the defendant have an employment relationship, issue is one for summary judgment disposition).
2

v. Philpot, 420 F.3d 1158, 1167 (10th Cir. 2005). For these reasons, the motion is denied to the extent it is brought pursuant to Rule 12(b)(6).
Ultimately, then, defendants’ motion is properly resolved through the lens of Rule 56. Under that rule, summary judgment is appropriate if the moving party demonstrates that there is “no genuine issue as to any material fact” and that it is “entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Lifewise Master Funding v. Telebank, 374 F.3d 917, 927 (10th Cir. 2004). An issue is “genuine” if “there is sufficient evidence on each side so that a rati onal trier of fact could resolve the issue either way.” Thom v. Bristol-Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2003) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A fact is “material” if, under the applicable substantive law, it is “essential to the proper disposition of the claim.” Id. (citing Anderson, 477 U.S. at 248).
The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlem ent to judgment as a m atter of law. Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). In attempting to meet that standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party’s clai;mrather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party’s claim. Id. (citing Celotex, 477 U.S. at 325).
As stated above, plaintiff has alleged that alldefendants named in the complaint constitute and function as a “single em ployer.” Under the single-em ployer test, a plaintiff who is the
3

employee of one entity may seek to hold another entity liable by arguing that the two entities effectively constitute a single employer. See Bristol v. Board of County Commr’s of the County of Clear Creek, 312 F.3d 1213, 1218 (10th Cir. 2002). The single-employer test is sometimes confused with, but is distinct from, the joint-employer test. Id. Under the joint-employer test, a plaintiff who is the employee of one entity may seek to hold another entity liable by claiming that the two entities are joint employers. Id. The joint-employer test acknowledges that the two entities are separate, but looks to whether they co-determine the essential terms and conditions of employment. Id. Thus, the single-employer test asks whether two nominally separate entities should in fact be treated as an integrated enterprise, while the joint-employer test assumes that the alleged employers are separate entities. Id. Moreover, while the single-employer test “looks at the overall relationships of the two entities, joint-employer status is determined by focusing on the entities’ relationships to a given employee or class of employees.” Sandoval v. City of Boulder, Colorado, 388 F.3d 1312, 1324 (10th Cir. 2004).
The Tenth Circuit weighs four factors in considering “whether two nominally separate entities constitute an integrated enterprise or single employer: (1) interrelations of operations; (2) common management; (3) centralized control of labor relations; and (4) common ownership and financial control.” Id. at 1322. While the Circuit has stated that it considers the third factor to be the most important, see id., it has also stated that the “heart of the inquiry” concerning single-employer status “is whether there is an absence of an arm’s length relationship among the companies.” Knowlton v. Teltrust Phones, Inc., 189 F.3d 1177, 1184 (10th Cir. 1999).
In support of their m otion, defendants submit the affidavits of Ron Wright and Eldon 4

Thorman, both of whom are owners and officers of defendant Thorman & Wright Corporation (the only defendant not seeking sum mary judgment). The facts set forth in these affidavits, however, shed little light on the issue of whether the defendants function as a single employer and focus instead on issues m ore pertinent to the joint-employer test. Aside from summarily asserting that Thorman & Wright Corporation is a “separate and distinct legal entity” from the other defendants that files its own tax return, the affiants do not offer any evidence concerning the overall relationships among the defendants, including whether those relationships are “arm’s length” relationships. The affiants do not speak to the issue of common management or financial control among the defendants (but do indicate that Mr. Thorman is at least a part owner of each of the defendants). With respect to centralized control of labor relations, the evidence before the court focuses almost exclusively on defendants’ involvement in the terms and conditions of Ms. Sonntag’s employment, rather than the extent of control those defendants have over epmloyment decisionmaking in general. While defendants’ involvement in the terms and conditions of Ms. Sonntag’s employment is pertinent to the third factor of the single-employer test, it does not end the inquiry into single-employer status.
In sum, the facts set forth by defendants insupport of their motion do not demonstrate that defendants are entitled to judgment as a matter of law on the issue of single-em ployer status. Defendants’ motion, then, is denied and defendants may file a subsequent motion based on facts pertinent to the single-em ployer test. In responding to any subsequent m otion filed by defendants on this issue, plaintiff is directed to the spe cific requirements of Rule 56(f) if it
5

intends to invoke that rule.2
IT IS THEREFORE ORDERED BY THE COURT THAT defendants’ motion to dismiss and/or for summary judgment (doc. 4) is denied without prejudice.
IT IS SO ORDERED.
Dated this 15th day of December, 2006, at Kansas City, Kansas.
s/John W. Lungstrum John W. Lungstrum United States District Judge
2In response to defendants’ motion, plaintiff states that it has not had an opportunity to conduct discovery (namely, the depositions of Mssrs. Thorman and Wright) regarding the interrelations of operations between and among the defendants named in the complaint and that Ms. Sonntag’s knowledge is fairly limited on that issue. While plaintiff’s statement includes a citation to Federal Rule of Civil Procedure 56(f), plaintiff has not complied with the procedure outlined in Rule 56(f) and would be required to do so if it intends to invoke this rule in response to any subsequent motion filed by defendants. See Price v. Western Resources, Inc., 232 F.3d 779, 783-84 (10th Cir. 2000) (holding that where a party opposing summary judgment seeks additional discovery and fails to take advantage of the shelter provided by Rule 56(f) by filing an affidavit, there is no abuse of discretion in granting summary judgment if it is otherwise appropriate).
6

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION and BROOKE SONNTAG, )

)

Plaintiffs,

)

)

vs.

)

)

)

THORMAN & WRIGHT CORP., THORMAN )

ENTERPRISES, INC., ELDON THORMAN )

& ASSOCIATES, INC., and THE ELDON

)

THORMAN FAMILY NO. 1 THROUGH

)

NO. 5 LIMITED PARTNERSHIPS,

)

)

Defendants.

)

Civil Action No. 2:06-cv-02412JWL-DJW

COMPLAINT IN INTERVENTION Plaintiff/Intervenor, Brooke Sonntag (“Plaintiff Sonntag”) , brings this Com plaint in Intervention pursuant to Rule 24(a) of the Federal Rules of Civil Procedure and states and alleges the following for her cause of action agains t Defendants T horman & W right Corp., Thorm an Enterprises, Inc., Eldon Thor man & Associates , Inc., and the Eldon Thorm an Family No. 1 through 5 Limited Partnerships (“Defendants”):
Jurisdiction and Venue 1. Jurisdiction of this Court is invoked pursuant to 28 U .S.C. §§ 1331, 1337, 1343(a)(4), and 42 U.S.C. § 2000e-5(f). 2. Venue is proper becau se the em ployment practices alleg ed to be unlawful were committed within the jurisdiction of the United States District Court for the District of Kansas.

1

Parties 3. Plaintiff Equal Em ployment Opportunity Commission is the federal agency authorized by federal law to enforce Title VII. 4. Plaintiff Sonntag is a white female residing in Tonganoxie, Kansas. 5. At all relevant tim es, Defendants have continuously been doing business in the State of Kansas and the City of Topeka, functioning as a single employer and continuously employing at least 15 employees. 6. At all relevant tim es, Defendants have continuously been an e mployer in Kansas within the meaning of 42 U.S.C. § 2000e(b), (g) and (h).
Exhaustion of Administrative Remedies 7. Plaintiff Sonntag time ly filed with the Equal Em ployment Opportunity Commission (“EEOC”) a charge a lleging violations of Title VII agains t defendants (attached as Exhibit A). 8. After a reasonable investigation, the EEOC issued a Determ ination finding reasonable cause to believe that Defendants violated Title VII. 9. After an unsuccessful attempt at conciliation, the EEOC initiated this action. 10. All private, administrative and jud icial prerequisites to the ins titution of this action have been fulfilled.
COUNT I (Violation under Title VII of the Civil Rights Act) 11. Paragraphs 1 through 10 above are incorporated as if stated fully herein. 12. Plaintiff is a white female.
2

13. Plaintiff became employed by Defendant s in about June 2002 as the General Manager at the Best Western Meadow Acres in Topeka, Kansas.
14. Plaintiff reported directly to owners Eldon Thorman and Ronald Wright. 15. As part of her job, P laintiff Sonntag and her husband lived on the premises in a rent-free apartment. 16. Plaintiff Sonntag was qua lified for and perform ed her job duties satisfactorily throughout her employment. 17. Plaintiff Sonntag’s job duties included hiring and firing employees. 18. Shortly after Plaintiff Sonntag was hire d, she observed and rem oved a sign fro m her office (where interviews occurred) which stated, “Blacks need not apply.” 19. Throughout Plaintiff Sonntag’s employment with Defendants, Mr. Thorman made derogatory and insu lting comments about Afri can-Americans, Hispanics and Indians in her presence, including but not lim ited to telling Plaintiff Sonntag to “fire the colored people”; “the problem with this property is that you hired al l these coloreds”; and “W hy did you hire all these Mexicans? They work for awhile and then they take off to Mexico and don’t come back.” 20. Mr. Thorman expressed to Plaintiff S onntag that he did not want m inority employees working in the “front of the house pos ition,” and he became very angry with Plaintiff Sonntag when she hired an African-American male to work at the front desk. 21. Mr. Thorman told Plaintiff Sonntag that the marquee outside the Best W estern Meadow Acres stated “Owner Eldon Thorman,” because he wanted people to know that the hotel was not run by someone from India.
3

22. Plaintiff Sonntag opposed Mr. Thorm an’s discriminatory views and practices based on race, color an d national origin and communicated her opposition to Mr. Thorm an and his business partner, Ron Wright.
23. Plaintiff Sonntag inform ed Mr. Wright that she was pregnant in July 2003. He suggested that she not tell Mr. Thorman she was pregnant.
24. Approximately one week later, Mr. T horman hung up on Plaintiff Sonntag when she called him and informed him of her pregnancy.
25. On or about July 25, 2003, Plaintiff Sonntag and her husband had a m eeting with Mr. Thorman and Mr. W right in which Mr. Thorm an instructed her to fire the “colored people and Mexicans.” Plaintiff Sonntag stated she w ould not fire employees because of their race an d that she hired employees based on their qualifications. Mr. Thorman stated, “No one will tell me who to hire and fire” and “no one is going to put a gun to my ribs.”
26. In about August 2003, Mr. W right informed plaintiff that he and Mr. Thorm an were hiring a new General Mana ger for the property and she was being offered a sales job. When asked why she wa s being removed from the General Manager position, Mr. W right stated that Mr. Thorman did not work well with her “type” and did want her on his team.
27. Plaintiff Sonntag did not want a sales job with Defendants because such a position was not substantially sim ilar to her position as General Manager. The sales job would have no guaranteed salary and would requ ire Plaintiff Sonntag and her hus band to vacate the apartm ent on the property where they had lived rent-free during Plaintiff Sonntag’s employment as General Manager.
28. Defendants refused to let Plaintiff Sonnt ag keep her position as General Manager and terminated her.
4

29. The above described conduct of Mr. Thor man and Mr. W right specifically, and the unlawful employment practices of Defendants generally, was intentional, malicious or with reckless indifference to the federally protected ri ghts of Plaintiff Sonntag. Plaintiff Sonntag is therefore entitled to an award of punitive damages in an amount sufficient to pun ish Defendants or to deter them and other companies from like conduct in the future.
30. As a direct and proxim ate result of th e practices com plained of above, Plaintiff Sonntag has suffered intentional discrim ination and retaliation by Defe ndants because of her opposition to unlawful employment practices and her pregnancy.
31. As a direct and proxim ate result of Defendants’ actions and/or inactions, Plaintiff Sonntag has suffered and will continue to suffer lost income, lost fringe benefits and has incurred expenses in searching for replacement employment.
32. As a direct and proxim ate result of Defendants’ actions and/or inactions, Plaintiff Sonntag has also suffered and will continue to suffer other compensatory damages, including but not limited to em otional distress, m ental anguish, inconvenience, em barrassment and humiliation.
33. Plaintiff Sonntag is entitled to rec over from Defendants reasonable attorney’s fees, as provided in 42 U.S.C. § 2000e-5(k).
Prayer for Relief WHEREFORE, Plaintiff Sonntag requests that the Court enter judgm ent in her favor and against Defendants for such dam ages, actual and nominal, as are fair and reasonable, for her reasonable attorney’s fees and costs incurred herein, for interest as allowed by law, and for such other and further legal and equitable relief as the Court deems just and proper.
5

DEMAND AND DESIGNATION FOR JURY TRIAL Plaintiff hereby requests a trial by jury on all counts and allegati ons alleged in this Complaint to be held in Kansas City, Kansas.
Respectfully submitted,

By: /s/ Amy L. Coopman

Amy L. Coopman

KS #17314

Tiffany B. Klosener

KS #16698

FOLAND, WICKENS, EISFELDER,

ROPER & HOFER, P.C. 911 Main, 30th Floor

Kansas City, MO 64105

(816) 472-7474 (telephone)

(816) 472-6262 (facsimile)

e-mail: acoopman@fwpclaw.com

tklosener@fwpclaw.com

Attorneys for Plaintiff/Intervenor Sonntag

CERTIFICATE OF SERVICE
I certify that on December 18, 2006, I elect ronically filed the above and foregoing document with the Clerk of the Court using the CM/ECF system which sent notification of such filing to the following CM/ECF participants:

Robert G. Johnson robert.johnson@eeoc.gov
Barbara A. Seely barbara.seely@eeoc.gov
Andrea G. Baran andrea.baran@eeoc.gov
Andrea Gould McCarthy andimccarthy@gtb-law.com

Attorney

/s/ Amy L. Coopman for Plaintiff/Intervenor Sonntag

6

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION

)

)

Plaintiff,

)

)

and

)

)

BROOKE SONNTAG,

)

)

Plaintiff-Intervenor

)

)

vs.

)

)

)

THORMAN & WRIGHT CORP., THORMAN )

ENTERPRISES, INC., ELDON THORMAN )

& ASSOCIATES, INC., THE ELDON

)

THORMAN FAMILY NO. 1 THROUGH

)

NO. 5 LIMITED PARTNERSHIPS, and

)

RED COACH INNS LTD.

)

)

Defendants.

)

Civil Action No. 2:06-cv-02412JWL-DJW

FIRST AMENDED COMPLAINT IN INTERVENTION Plaintiff-Intervenor, Brooke Sonntag (“Sonnt ag”), brings this Fi rst Amended Complaint in Intervention pursuant to Rule 24(a) of the Fe deral Rules of Civil Procedure and states and alleges the following for her cause of action against Defendants Thorm an & W right Corp., Thorman Enterprises, Inc., Eldon Thorman & Associates, Inc., the Eldon Thorman Family No. 1 through 5 Limited Partnerships and Red Coach Inns Ltd. (“Defendants”):
Jurisdiction and Venue 1. Jurisdiction of this Court is invoked pursuant to 28 U .S.C. §§ 1331, 1337, 1343(a)(4), and 42 U.S.C. § 2000e-5(f).

1

2. Venue is proper becau se the em ployment practices alleg ed to be unlawful were committed within the jurisdiction of the United States District Court for the District of Kansas.
Parties 3. Plaintiff Equal Em ployment Opportunity Commission is the federal agency authorized by federal law to enforce Title VII. 4. Plaintiff-Intervenor Sonntag is a white female residing in Tonganoxie, Kansas. 5. At all relevant tim es, Defendants have continuously been doing business in the State of Kansas and the City of Topeka, functioning as a single employer and continuously employing at least 15 employees. 6. At all relevant tim es, Defendants have continuously been an e mployer in Kansas within the meaning of 42 U.S.C. § 2000e(b), (g) and (h).
Exhaustion of Administrative Remedies 7. Sonntag timely filed with the E qual Employment Opportunity Commission (“EEOC”) a charge alleging violations of Title VII against defendants (attached as Exhibit A). 8. After a reasonable investigation, the EEOC issued a Determ ination finding reasonable cause to believe that Defendants violated Title VII. 9. After an unsuccessful attempt at conciliation, the EEOC initiated this action. 10. All private, administrative and jud icial prerequisites to the ins titution of this action have been fulfilled.
GENERAL ALLEGATIONS 11. Paragraphs 1 through 10 above are incorporated as if stated fully herein. 12. Sonntag is a white female.
2

13. Sonntag became employed by Defendant s in about June 2002 as the General Manager at the Best Western Meadow Acres in Topeka, Kansas.
14. Sonntag reported directly to owners Eldon Thorman and Ronald Wright. 15. As part of her job, Sonntag and her hus band lived on the prem ises in a rent-free apartment. 16. Sonntag was qualified for and perform ed her job duties satisfactorily throughout her employment. 17. Sonntag’s job duties included hiring and firing employees. 18. Shortly after Sonntag was hired, she observed and removed a sign from her office (where interviews occurred) which stated, “Blacks need not apply.” 19. Throughout Sonntag’s em ployment with Defendants, Mr. Thorman m ade derogatory and insu lting comments about Afri can-Americans, Hispanics and Indians in her presence, including but not lim ited to telling Sonntag to “fire the colored people”; “the problem with this property is that you hired all these co loreds”; and “W hy did you hire all these Mexicans? They work for awhile and then they take off to Mexico and don’t come back.” 20. Mr. Thorman expressed to Sonntag that he did not want m inority employees working in the “front of the hous e position,” and he became very angry with Sonntag when sh e hired an African-American male to work at the front desk. 21. Mr. Thorman told Sonntag that the m arquee outside the Best W estern Meadow Acres stated “Owner Eldon Thorman,” because he wanted people to know that the hotel was not run by someone from India.
3

22. Sonntag opposed Mr. Thorm an’s discriminatory views and practices based on race, color and national orig in and communicated her opposition to Mr. Thorm an and his business partner, Ron Wright.
23. Sonntag informed Mr. Wright that she was pregnant in July 2003. He suggested that she not tell Mr. Thorman she was pregnant.
24. Approximately one week later, Mr. Thorman hung up on Sonntag when she called him and informed him of her pregnancy.
25. On or about July 25, 2003, Sonntag a nd her husband had a m eeting with Mr. Thorman and Mr. W right in which Mr. Thorm an instructed her to fire the “co lored people and Mexicans.” Sonntag stated she would not fire employees because of their race and that she hired employees based on their qualif ications. Mr. Thorm an stated, “No one will tell m e who to hire and fire” and “no one is going to put a gun to my ribs.”
26. In about August 2003, Mr. W right informed plaintiff that he and Mr. Thorm an were hiring a new General Mana ger for the property and she was being offered a sales job. When asked why she wa s being removed from the General Manager position, Mr. W right stated that Mr. Thorman did not work well with her “type” and did want her on his team.
27. Sonntag did not want a sales job with Defendants because su ch a position was not substantially similar to her pos ition as General Manager. The sales job would have no guaranteed salary and would require Sonntag and her husband to vacate the apartm ent on the property where they had lived rent-free during Sonntag’s employment as General Manager.
28. Defendants refused to let Sonntag keep her po sition as General Man ager and terminated her.
4

29. The above described conduct of Mr. Thor man and Mr. W right specifically, and the unlawful employment practices of Defendants generally, was intentional, malicious or with reckless indifference to the federally protected rights of Sonntag. Sonntag is therefore entitled to an award of punitive damages in an amount sufficient to punish Defendants or to deter them and other companies from like conduct in the future.
30. As a direct and proxim ate result of th e practices com plained of above, Sonntag has suffered intentional discrimination and retaliation by Defendants because of her opposition to unlawful employment practices and her pregnancy.
31. As a direct and proxim ate result of Defendants’ actions and/or inactions, Sonntag has suffered and will continue to suf fer lost incom e, lost f ringe benefits and has incur red expenses in searching for replacement employment.
32. As a direct and proxim ate result of Defendants’ actions and/or inactions, Sonntag has also suf fered and will con tinue to suf fer other com pensatory damages, including but not limited to emotional distress, mental anguish, inconvenience, embarrassment and humiliation.
33. Sonntag is entitled to recover from De fendants reasonable attorney’s fees, as provided in 42 U.S.C. § 2000e-5(k).
COUNT I: PREGNANCY DISCRIMINATION IN
VIOLATION OF TITLE VII
34. Sonntag restates and incorporates by refe rence Paragraphs 1-33 as if stated fully herein.
35. Defendants have discriminated against Sonntag and terminated her because of her pregnancy, in violation of the Title VII of the Civil Righ ts Act of 1964, 42 U.S. C. § 2000e et seq., as amended.
5

36. Defendants’ conduct, as described above, was intentional, malicious or in reckless disregard of the rights of Sonntag.
37. By reason of defendants’ discrim inatory employment practices, Sonntag has experienced extreme harm, including loss of compensation, wages, back and front pay, and other employment benefits, and as suc h, is entitled to all remedies available under Title VII, including compensatory and punitive damages, pre-judgment interest and attorney’s fees.
COUNT II: RETALIATION IN VIOLATION OF SECTION 1981 AND TITLE VII 38. Sonntag restates and incorporates by refe rence Paragraphs 1-37 as if stated fully herein. 39. Defendants have retaliated against S onntag and terminated her in violation of 42 U.S.C. § 1981 and 42 U.S.C. § 2000e, as amended. 40. Defendants’ conduct, as described above, was intentional, malicious or in reckless disregard of the rights of Sonntag. 41. By reason of defendants’ discrim inatory employment practices, Sonntag has experienced extreme harm, including loss of compensation, wages, back and front pay, and other employment benefits, and as such, is entitled to all rem edies available under Title VII and Section 1981, including compensatory and punitive damages, pre-judgment interest and attorney’s fees.
PRAYER FOR RELIEF WHEREFORE, Sonntag requests that the Court enter judgm ent in her favor and against Defendants for such dam ages, actual and nom inal, as are fair and reasonable, co mpensatory damages, including back pay and com pensation for past and future m onetary and non-monetary losses, front pay in lieu of rein statement, punitive damages, reasonable attorney’s fees and costs
6

incurred herein, interest as allowed by law, a nd for such other and further legal and equitable relief as the Court deems just and proper.
DEMAND AND DESIGNATION FOR JURY TRIAL Plaintiff-Intervenor Sonntag hereby requests a trial by jury on all counts and allegations alleged in this Complaint to be held in Kansas City, Kansas.
Respectfully submitted,

By: /s/ Amy L. Coopman

Amy L. Coopman

KS #17314

Tiffany B. Klosener

KS #16698

FOLAND, WICKENS, EISFELDER,

ROPER & HOFER, P.C. 911 Main, 30th Floor

Kansas City, MO 64105

(816) 472-7474 (telephone)

(816) 472-6262 (facsimile)

e-mail: acoopman@fwpclaw.com

tklosener@fwpclaw.com

Attorneys for Plaintiff/Intervenor Sonntag

7

CERTIFICATE OF SERVICE
I certify that on April 5, 2007, I electroni cally filed the above and foregoing docum ent with the Clerk of the Court using the CM/ECF system which sent no tification of such filing to the following CM/ECF participants:

Robert G. Johnson robert.johnson@eeoc.gov
Barbara A. Seely barbara.seely@eeoc.gov
Andrea G. Baran andrea.baran@eeoc.gov
Andrea Gould McCarthy andimccarthy@gtb-law.com

Attorney

/s/ Amy L. Coopman for Plaintiff/Intervenor Sonntag

8

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plaintiff,

)

)

and

)

)

BROOKE SONNTAG,

)

)

v.

)

)

THORMAN & WRIGHT CORP., THORMAN )

ENTERPRISES, INC., ELDON THORMAN )

& ASSOCIATES, INC., THE ELDON

)

THORMAN FAMILY NO. 1 THROUGH

)

NO. 5 LIMITED PARTNERSHIPS, and RED )

COACH INNS LTD.,

)

)

Defendants.

)

Case No. 06-2412 JWL-DJW FIRST AMENDED COMPLAINT JURY TRIAL DEMAND

NATURE OF THE ACTION This is an action under Title VII of the Civ il Rights Act of 1964 and Title I of the Ci vil Rights Act of 1991 to correct unlawful em ployment practices on the basis of retaliation and pregnancy, and to provide appropriate relief toBrooke Sonntag, who was adversely affected by such practices. TheCommission alleges that Defendants Thorman & Wright Corp., Thorman Enterprises, Inc., Eldon Thorman & Associates, Inc., The Eldon Thorman Family No. 1 through No. 5 Limited Partnerships, and Red Coach Inns Ltd. dischargedor constructively discharged Brooke Sonntag in retaliation for her opposition to unlawful employment practices based on race and because of her pregnancy.

JURISDICTION AND VENUE

1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343 and 1345. This action is authorized and institutedpursuant to Section 706(f)(1) and (3) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5(f)(1) and (3) (“Title VII”) and Section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981a.
2. The employment practices alleged to be unlawf ul were com mitted within the jurisdiction of the United States District Court for District of Kansas.
PARTIES 3. Plaintiff, the Equal Employment Opportunity Commission (the “Commission”), is the agency of the Uni ted States of Am erica charged with the adm inistration, interpretation and enforcement of Title VII, and is expressly authorized to bring this action by Section 706(f)(1) and (3) of Title VII, 42 U.S.C. § 2000e-5(f)(1) and (3). 4. At all relevant times, Defendants have continuously been doing business in the State of Kansas and the City of Topeka, functioningas a single employer and continuously employing at least 15 employees. 5. At all relevant times, Defendants have continuously been an employer engaged in an industry affecting commerce within the meaning of Sections 701(b), (g) a nd (h) of Title VII, 42 U.S.C. §§ 2000e(b), (g) and (h).
STATEMENT OF CLAIMS 6. More than thirty days prior to the institution of this lawsuit, Brooke Sonntag filed a charge with the Com mission alleging violations of Title VII by Def endant Employers. All conditions precedent to the institution of this lawsuit have been fulfilled.
2

7. From approximately June 2002 through August 2003, Defendant Employer engaged in the following unlawful employment practices at their Topeka, Kansas f acility in violation of Section 703(a)(1) and 404(a) of Title VII, 42 U.S.C. § 2000e-2(a)(1) and 3(a):
(a) Defendants discharged or constructively dis charged Brooke Sonntag in retaliation for her opposition to unlawful em ployment practices based on race; and
(b) Defendants discharged or constructively discharged Brooke Sonntag because of her pregnancy.
8. The effect of the practices complained of in paragraph 7 above has been to deprive Brooke Sonntag of equal employment opportunities and otherwise adversely affect her status as an employee because of her opposition to unlaw ful employment practices and because of her pregnancy.
9. The unlawful employment practices com plained of in paragraph 7 above were intentional.
10. The unlawful employment practices complained of in paragraph 7 above were done with malice or with reckless indifference to the federally protected rights of Brooke Sonntag.
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A. Grant a perm anent injunction enjoini ng Defendant Em ployers, their officers, successors, assigns, and all persons in active concert or participation with them, from engaging in retaliation for opposition to unl awful employment practices, pregnancy discrim ination in
3

terminations, and any other em ployment practice which discriminates on the bas is of protected activity or pregnancy.
B. Order Defendant Employers to institute and carry out policies, practices, and programs that provide equal em ployment opportunities for all em ployees, and that eradicate the effects of its past and present unlawful employment practices.
C. Order Defendant Employers to make whole Brooke Sonntag by providing appropriate backpay with prejudgment interest, in amounts to be determined at trial, and other affirmative relief necessary to eradicate the effects of its unlawful employment practices.
D. Order Defendant Em ployers to m ake whole Brooke Sonntag by providing compensation for past and future pecuniary ol sses resulting fromthe unlawful employment practices described in paragraph 7 above, including job search and m edical expenses, in am ounts to be determined at trial.
E. Order Defendant Employers to m ake whole Brooke Sonntag by providing compensation for past and future nonpecuniary losses resulting from the unlawful practices complained of in paragraph 7 above, including emotional pain, suffering, inconvenience, l oss of enjoyment of life, and humiliation, in amounts to be determined at trial.
F. Order Defendant Em ployers to pay Br ooke Sonntag punitive damages for their malicious and reckless conduct described in paragraph 7 above, in amounts to be determined at trial.
G. Grant such further relief as the Court deem s necessary and proper in the public interest.
H. Award the Commission its costs of this action. JURY TRIAL DEMAND
4

The Commission requests a jury trial on all questions of fact raised by this complaint. DESIGNATION OF PLACE OF TRIAL
Kansas City, Kansas is designated as the place of trial.

Respectfully submitted,

RONALD S. COOPER General Counsel

JAMES L. LEE Deputy General Counsel

GWENDOLYN YOUNG REAMS Associate General Counsel

/s/ Robert G. Johnson ROBERT G. JOHNSON Regional Attorney

/s/ Barbara A. Seely BARBARA A. SEELY Supervisory Trial Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION St. Louis District Office 1222 Spruce St., Room 8.100 St. Louis, MO 63103 (314) 539-7914 FAX: (314) 539-7895 e-mail: robert.johnson@eeoc.gov
barbara.seely@eeoc.gov

/s/ Andrea G. Baran

ANDREA G. BARAN

MO #18988

Senior Trial Attorney

U.S. EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Kansas City Area Office

400 State Avenue, Suite 905

Kansas City, KS 66101

(913) 551-5848

5

FAX: (913) 551-6957 e-mail: andrea.baran@eeoc.gov
6

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, et al.,
Plaintiffs, v. THORMAN & WRIGHT CORP., et al.,
Defendant.

Case No. 06-2412-JWL-DJW

MEMORANDUM AND ORDER Pending before the Court is Plaintiff Equal Em ployment Opportunity Com mission’s (“EEOC”) Motion to Compel (doc. 63). More specifically, Plaintiff EEOC seeks (1) production of documents that D efendants refuse to produce b ecause of a typographical error in the title of Plaintiff’s request; and (2) an order requiring Defendants Thorman Enterprises, Inc. and Eldon Thorman Family Limited Partnership No. 4 to produce one or more designees to testify regarding particular topics as required by Fed. R. Civ. P. 30(b)(6). For the reasons stated below, Plaintiff’s Motion will be granted.
Discussion A. Plaintiff’s Request for Production of Documents
On January 19, 2007, Plaintiff EEOC served itssecond request for production of documents to all Defendants.1 On March 28, 2007, Pl aintiff EEOC served by hand-delivery a request for production of documents containing the following two requests:

1See Doc. 30.

1. All notes or documents showing loans to employees from January 1, 2000 to December 31, 2005.
2. All room revenue and deposit analyses for all m otel / hotel properti es (including Best Western Red Coach Inn in Eldorado, KS; Best Western in Newton, KS; Best Western in Emporia, KS, Best Western Medow Acres in Topeka, KS; Cedar Court in Clay Ce nter, KS; J-Hawk Inn in Greensburg, KS; and Best Western in Abilene, KS) fromJanuary 1, 2000 to December 31, 2005.
While the title of the March 28, 2007 document request is “Plaintiff EEOC’s Second Request for Production of Docum ents and Things to Defendant The Eldon Thorm an Family Limited Partnership No. 1,” the first line of the pleading states, “Pursuant to Rule 34 of the Federal Rules of Civil Procedure, Plaintiff Equal Employment Opportunity Commission hereby request [sic] all Defendants to produce all documents and things described herein.” Later that same day, Plaintiff served the same pleading electronically by sendi ng a Word version of the doc ument to defense counsel via e-mail. The filename of the Word document attached to the e-mail was “doc rq – fourth to all defendants.doc.”
On April 14, 2007, counsel for Plaintiff discovered the title of its March 28, 2007 pleading (1) erroneously designa ted the discovery as Plaintiff’s second request for production; and (2) erroneously limited the discovery request to just one Defendant. Counsel for Plaintiff sent an e-mail message to counsel for Defenda nts that same day, calling attention to the errors and specifically noting that the text of the docum ent properly identified the proper recipient of the request as all Defendants.
On April 27, 2007, Defendant Eldon Thorman Family Limited Partnership No. 1 responded to Plaintiff’s March 28, 2007 docum ent request, but no response was provi ded by a ny other Defendant. On May 1, 2007, counsel for Plaintiff snet an e-mail message to counsel for Defendants
2

asking that the rem aining Defendants r espond to the March 28, 2007 docum ent request. On May 7, 2007, counsel for Defe ndants verbally com municated to Plaintiff that the rem aining Defendants did not intend to provide the requested doucments. As a result, Plaintif filed this Motion to Compel responses from the remaining Defendants.
In response to Plaintiff’s Motion to Com pel, Defendants argue that a previously served discovery request cannot be amended by simply sending an e-mail indicating the desire to make a change, particularly when the change is m ade more than half-way th rough the allotted t ime for responding and when the change af fects the party who will be responding to the discovery. Defendants next argue that, to the extent Plaintfif could somehow amend its request via e-mail, such a request is untimely since the Court’s Scheduling Order specifically indicates all discovery was to be served in time to meet the April 27, 2007 discovery deadline.
The Court is not persuaded by Defendants’ arguments. Notwithstanding the typographical error in the title of the pleading, the Court finds that the text ofthe pleading properly identified the recipient of the request as all Defendants at the time the requests were served. Accordingly, the Court finds the original requests were tim ely, and the rem aining Defendants will be ordered to respond these requests. B. 30(b)(6) Deposition Testimony
On February 28, 2007, Plaintiff issued a Ru le 30(b)(6) deposition notice r equesting all Defendants to designate and produce one or m ore persons to give testimony regarding six topics identified in the notice: 1) the purpose of each Defendant entity; 2) the date each Defendant entity was created and, if applicable, disbanded; 3) assets held or controlled by each entity; 4) the number of employees for each entity fromJanuary 1, 2002 through July 31, 2004; 5) all business operations
3

in which each entity is involved; and 6) the ownership of each entity. Defendants designated one of their accountants, Gary Edwards, as the witness prepared to give testimony on these topics.
It is undisputed that, during the deposition, Mr. Edwards was unable to answer va rious questions regarding the identified topics for two defendants, Thorman Enterprises, Inc. and Eldon Thorman Family Limited Partnership No. 4. Specifically, Mr. Edwards testified regarding Eldon Thorman Family Limited Partnership N o. 4., “I don’t have any know ledge of that entity.” 2 Regarding Thorman Enterprises, Inc., Mr. Edwards testified, “I can tell you I have no knowledge of it whatsoever.” 3 As a result, Plaintiff filed this Mot ion to Compel seeking to reconvene the 30(b)(6) deposition and have Defendants produce a corporate designee able to answer que stions regarding the topics at issue.
In response to Plaintiff’s Motion, Defendants first argue that Plaintiff’s request to compel was made out of time. Defendants maintain that Mr. Edward’s 30(b)(6) deposition was taken on March 22, 2007 and Plaintiff’s Motoi n was not filed until May 10, 2007, which is over the thirty-day limit to file such motions.
D. Kan. Rule 37.1(b) states as follows: Time for Filing Motions. Any motion to compel discovery in compliance with D. Kan. Rules 7.1 and 37.2 shall be filed and served within 30 days of the default or service of the response, answer or objection which is the subject of the m otion, unless the tim e for filing of such m otion is extended for good cause shown. Otherwise the objection to the default, response, a nswer, or objection shall be waived.
2Plaintiff’s Motion to Compel, Exhibit D, 30(b)(6) Dep. at 27:14-18. 3Id. at 39:4-9.
4

The 30(b)(6) deposition of Mr. Edwards was taken on March 22, 2007. On May 1, 2007, presumably after Plaintiff had received and reviewed the transcript from Mr. Edwards’ deposition, Plaintiff sent Defendants an email expressing concern about Mr. Edwards’ lack of preparation as a designated 30(b)(6) corporate representative.4 As a result of this concern, Plaintiff requested in this May 1, 2007 e-mail that the parties reconvene the deposition so that Defendants could provide an appropriately prepared 30(b)(6) witness t o answer the questions Mr. Edwards was unable to answer.5 Later that day, Defendants’ counsel Andrea McCarthy sent a response e-mail stating that she would “discuss the 30(b)(6) issues with Don [Andrea ’s co-counsel] and get back to you.” 6 Notably, the pleadings subm itted in conjunction with this Motion f ail to ref erence any f urther discussion between the parties regarding this issue.
Based on these facts, the Court deems Defendants’ objection to reconvening the deposition to have been lodged on May 10, 2007. Plainti ff filed this M otion to Compel 30(b)(6) on May 10, 2007, ten days after Defendants’ objecti on was lodged. Accordingly, the Cour t finds Plaintiff’s Motion is timely under D. Kan. Rule 37.1(b).
In addition to timeliness, Defendants oppose Plaintiff’s Motion to Compel a continuation of the 30(b)(6) deposition on grounds that there is nowitness more knowledgeable than Mr. Edwards regarding the Thorm an entities. Def endants maintain that Mr. Edwards answered Plaintif f’s questions to “the best ofhis ability.” Defendants state that Thorman Enterprises, Inc. and the Eldon
4Plaintiff’s Motion to Compel, Exhibit I, May 1, 2007 e-mail from Andrea Baran and Amy Coopman to Andi McCarthy and Don Bucher.
5Id. 6Plaintiff’s Motion to Com pel, Exhibit J, May 1, 2007 e-m ail from Andrea McCarthy to Andrea Baran and Amy Coopman
5

Thorman Family Limited Partnership No. 4 were entities created by Eldon Thoramn a very long time
ago either by himself or in conjunction with an attorney who is no longer avail able. Defendants
further state that Eldon Thorman currently is an 85 year-old man who is easily confused and does
not have a clear understanding or recollection of tehinformation sought regarding any of the entities.
As a result of these circumstances, Defendants contend that neither Mr. Thorman nor Mr. Edwards
are able to answer some of the questions posed.
The appropriate starting place for a discussion regarding adequacy of a Rule 30(b)(6)
corporate designee’s testimony is the language of the Rule itself:
A party may in [its deposition] notice ... nam e as the deponent a public or private corporation ... and describe with reasona ble particularity the m atters on which examination is requested. In that event, the organization so nam ed shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and m ay set forth, for each person designated, the m atters on which the person will testif y. * * * The persons so designated shall testif y as to matters known or reasonably available to the organization.
In a Rule 30(b)(6) deposition, there is no distinction between the corporate repre sentative
and the corporation.7 “The Rule 30(b)(6) designee does not give his personal opinion. Rather, he
presents the corporation' s ‘position’ on the topic.” 8 The designee testifies on behalf of the
corporation and thus holds it accountable.9
7Sprint Communications Co., L.P. v. theglobe.com, Inc.2, 36 F.R.D. 524, 527 (D. Kan. 2006) (citations omitted).
8Id. 9Id. (citing Starlight Int'l, Inc., v. Herlihy , 186 F.R.D. 626, 638 (D. Kan.1999) (holding a corporation has a duty under Rule 30(b)(6) to provide someone who is knowledgeable in order to provide “binding answers on behalf of the corporation”) (quoting Audiotext Communications Network, Inc. v. US Telecom, Inc., 94-2395-GTV, 1995 WL 625962, at *13 (D.Kan. Oct.5, 1995)); see, also, Media Services Group, Inc. v. Lesso, Inc., 45 F.Supp.2d 1237, 1253 (D.Kan.1999).
6

With regard to choosing a deponent to speakon behalf of the corporation, companies “have a duty to m ake a conscientious, good-faith effort to designate knowledgeable pe rsons for Rule 30(b)(6) depositions and t o prepare them to fully and unevasively answer questions about the designated subject matter.”10 Notably, and because Rule 30(b)(6) explicitly requires a company to have persons testify on its behalf as toall matters reasonably available to it,11 this Court has held that the Rule “implicitly requires persons to review all m atters known or reasonably available to [the corporation] in preparation for the 30(b)(6) deposition.”12 In other words, personal knowledge of the designated subject matter by the selected deponent is of no consequence1.3 Thus, the Rule makes clear that a party is not permitted to undermine the beneficial purposes of the Rule by producing a witness who has failed to adequately prepare to respond to questions about the designated topics. Any other interpretation of the Rule would a llow the responding corporati on to “sandbag” the deposition process.
Although the Court readily acknowledges that the requirements listed above may be onerous, the burden upon such a r esponding entity is justified since a corporation can only act through its employees. These requirements negate any possibility that an inquiring party will be directed back and forth from one corporate representative to another, vainly searching for a deponent who is able to provide a response which w ould be binding upon that corporation. To allow the Rule to effectively function, the requesting party must take care to designate, with painstaking specificity,
10Id. (citing Starlight, 186 F.R.D. at 639). 11Rule 30(b)(6). 12Id. at 537-38 (citing T & W Funding Co. XII, L.L.C. v. Pennant Rent-A-Car, 210 F.R.D. 730, 735 (D.Kan.2002)). 13Id. at 538.
7

the particular subject areas that are intended to be questioned, and that are relevant to the issues in dispute. Then, and a s noted above, the res ponding party must make a conscientious good-faith endeavor to designate the persons having knowledge of the matters sought by the interrogator and to prepare those persons in order that they cananswer fully, completely, unevasively, the questions posed by the interrogator as to the r elevant subject matters. Once notified as to the reasonably particularized areas of inquiry, the corporationthen “must not only produce such number of persons as will satisfy the request, but m ore importantly, prepare them so that they m ay give complete, knowledgeable and binding answers on behalf of the corporation.”14
Upon review of the deposition testimony at issue here, the Court finds that Mr. Edwards’ inability to answer various questions regarding the identified topics for Thorman Enterprises, Inc. and Eldon Thorman Family Limited Partnership No. 4 demonstrates that Defendants breached their obligation to produce, in good faith, a knowledgeabldeeponent who is competently prepared to fully and responsibly address the questions posed on thetopics designated. In so finding, the Court notes that in preparation for his testim ony as a 30(b)(6) designee, Mr. Edwards did not talk to Eldon Thorman, a co-owner of defendants and the regist ered agent for Thorm an Enterprises, Inc. and Eldon Thorman Family Limited Partnership No. 4, he did not review any docum ents in Mr. Thorman’s possession, and he did not request documents from Ronald Wright or from any other accountants or attorneys who performed work for Thorman Enterprises, Inc., and Eldon Thorman Family Limited Partnership No. 4.15 Accordingly, Plaintiff’s Motion to Compel 30(b)(6) Testimony will be granted.
14Id. 15Plaintiff’s Motion to Compel, Exhibit D,30(b)(6) Dep. at 28:2-29:4; 42:19-43:24; 44:2-10.
8

Based on the discussion above, it is he reby ordered that Plaintiff’s Motion to Com pel

(doc. 63) is granted and

C

Any Defendant who did not respond to Palintiff’s March 28, 2007 discovery requests

shall respond to these discovery requests on or before June 18, 2007.

C

The parties shall meet and confer regarding a mutually convenient time within the

next fourteen (14) days for Defendant s Thorman Enterprises, Inc., and Eldon

Thorman Family Limited Partnership No. 4 to produce a designee who is

competently prepared to fully and responsibly address questions posed regarding the

topics identified in Plaintiff’s Notice to Take 30(b)(6) Deposition.

IT IS SO ORDERED.

Dated in Kansas City, Kansas on this 5th day of June, 2007.

cc: All counsel and pro se parties

s/ David J. Waxse David J. Waxse United States Magistrate Judge

9

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, et al.,

Plaintiffs,

v.

Case No. 06-2412-JWL-DJW

THORMAN & WRIGHT CORP., et al.,

Defendant.

MEMORANDUM AND ORDER

Pending before the Court is Defendant Thor man & Wright Corporation’s (“Defendant”)

Motion to Compel (doc. 70). More specifically, Defendant moves to compel Plaintiffs to provide

an executed release, signed by Plaintiff Sonnta g, that authorizes Defendant to access Sonntag’s

employment records fromSimplex Grinnell, Sonntag’s subsequent employer. Defendant also moves

to compel Plaintiffs to produce a severance agreement between Sonntag and Simplex Grinnell.

Authorization for Release of Employment Records

Defendant requests Plaintiff Sonntag sign an authorization for release of information and

records with regard to her past employment with Simplex Grinnell. Defendant asserts it requested

Plaintiff Sonntag execute the referenced authorization in conjunct ion with its written discovery

requests in order to obtain relevant docum ents from a third party. The Court, however, finds no

basis within Fed. R. Civ. P. 34 to compel a party signature.

“The purpose of Rule 34 is to make relevant and nonprivileged documents and objects in the

possession of one party available to the other.” 1 The breadth of Rule 34 extends to all relevant

18A C. Wright & A. Miller, Federal Practice and Procedure § 2202, at 356 (2d ed. 1994).

documents, tangible things, and entryupon designated land or other property2. Rule 34 requires that the party upon whom the request is served m ust be in pos session, custody, or control of the requested item.3 Here, it appears the employment records are documents or tangible items as defined by Rule 34(a). It also appears that, with the exception of the severance agreement that is discussed below, Plaintiffs do not have actua l possession or custody of the em ployment records at issue. Although there may not be actual possession, the Court must go on to decide whether Plaintiff has “control” of the referenced employment records within the parameters of Fed. R. Civ. P. 34.
“[A] party need not have actual possession of documents to be deemed in control of them. A party that has a legal right to obta in certain docum ents is deem ed to have control of the documents.”4 But “[ t]he relationship between the party and the person or entity having actual possession of the document is central in each case.” 5 Here, the Court f inds that the relationship between Plaintiff and former employer Simplex Grinnell is not sufficient to establish that Plaintiff has control of the employment records.
Apparently, Defendant has not yet attempted to secure copies of the requested documents from the non-party custodian of the records via subpoena. The appropriate procedure to compel a non-party to produce documents is to serve them a subpoena as set forth in Rule 45 of the Federal Rules of Civil Procedure.6 It is only after the individuals or entities object on grounds of privilege
2Id. § 2206, at 381. 3Wardrip v. Hart, 934 F. Supp. 1282, 1286 (D. Kan. 1996) 4DirecTV, Inc. v. Hess, No. 04-2233-GTV-DJW, 2005 WL 375668, at *1 (D. Kan. Feb. 9, 2005) 5Id. 6Id.
2

or otherwise fail to produce the docum ents pursuant to subpoena that the Court will consider a motion requesting (1) the Court compel the entity to produce the documents pursuant to Rule 45; or (2) compel the party to execute appropriate releases pursuant to the Court’s general powers to enforce its own orders.
At this juncture, and under the specific circumstances presented, there is no basis under Rule 34 to allow this Court to compel Plaintiff to sign the release form as requested.
Production by Plaintiffs of the Severance Agreement A. Relevance
Federal Rule of Civil Procedure 26(b)(1) pr ovides that “[p]arties m ay obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party . . .. Relevant information need not be adm issible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.”7 Relevancy is broadly construed, and a request for discovery should be considered re levant if there is “any possibility” that t he information sought may be relevant to the claim or defense of any party.8 A request for discovery should be allowed “unless it is clear that the information sought can have no possible bearing” on the claim or defense of a party.9
When the discovery sought appears relevant, the party resisting the discovery has the burden to establish the lack of relevance by demonstrating that the requested discovery (1) does not come within the scope of relevance as defined under Fed. R. Civ. P. 26(b)(1), or (2) is of such marginal
7Fed. R. Civ. P. 26(b)(1). 8Owens v. Sprint/United Mgmt. Co., 221 F.R.D. 649, 652 (D. Kan. 2004) (citation omitted). 9Id.
3

relevance that the potential harmoccasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure. 10 Conversely, when the request is overly broad on i ts face or when relevancy is not readily apparent, the party seeking the discovery has the burde n to show the relevancy of the request.11
The Court finds Defendant ’s request for Sonntag’s severance agreem ent with Sim plex Grinnell is relevant on its face. Plaintiff cl aims she was unlawfully discrim inated against and terminated from employment as a hotel general m anager by Defendants (1) because of her pregnancy; and (2) because she opposed and refused to pa rticipate in racially discrim inatory employment practices. Plaintiff seeks compensatory damages for emotional pain, distress, suffering, inconvenience, mental anguish, hum iliation and lo ss of enjoym ent of l ife as well as punitive damages. In response, Defendants claim Plaintiff was rem oved from her position as general manager due to a personality conflict with one ofthe owners, a lack ofskills necessary to efectively run the hotel property, ineffective management of employees, and failure to contain labor costs in relation to the hotel’s income.
Upon consideration of the arguments presented by counsel, the Court finds information in the severance agr eement is reasonably calculated to lead to discovery of adm issible evidence regarding Plaintiff’s job performance and work habits, as well as Plaintiff’s ability to effectively work with others in her job. The Court also finds inform ation in the severance agreem ent is
10Gen. Elec. Cap. Corp. v. Lear Corp. , 215 F.R.D. 637, 640 (D. Kan. 2003) (citation omitted).
11Owens, 221 F.R.D. at 652 (citation omitted). 4

reasonably calculated to lead to discovery of admissible evidence regarding Plaintiff’s emotional state, which is relevant considering that she is claiming damages for mental distress and anxiety.
Given the Court has found the request for production of the severance agreement is relevant on its face, the burden now shifts to Plaintiffs to establish lackof relevance. To sustain this burden, Plaintiffs argue that Ms. Sonntag’s e mployment status, m itigation efforts and accrued incom e subsequent to her employment with Defendants are irrelevant because Plaintiffs are not asserting a claim for back wages or front pay in t his case. Plaintiffs further argue that, even if they were asserting a wage claim , the severance agreem ent does not reflect or report a specific m onetary amount of earned income.
Although Plaintiffs’ argument is persuasive withregard to front and back pay issues nowthat those damage claims have been withdrawn, Plainti ffs have failed to establish – given the factual contentions and defenses asserted by Defendants – that the severance agreem ent is irrelevant to Plaintiff’s job performance, Plaintiff’s work habits, Plaintiff’s ability to effectively work with others in her job and Plaintiff’s emotional state. B. Confidentiality
Plaintiffs also object to production of the sveerance agreement on grounds that the agreement is confidential. This objection will be overruled because, as t his Court previously has held, “a concern for protecting confidentiality does not equate to privilege.”12 With that said, a party may request the court enter a protective order pursuant toFed. R. Civ. P. 26(c) as a means to protect such confidential information. Under the circumstances presented here, the Court finds that entry of such
12DIRECTV, Inc. v. Puccinelli, 224 F.R.D. 677, 682 (D. Kan. 2004) (citingSonnino v. Univ. of Kan. Hosp. Auth., 220 F.R.D. 633, 642 (D. Kan. 2004)).
5

a protective order appropriately will safeguard any potential for harm associated with disclosure of

the severance agreement. Accordingly, the Court hereby orders the parties to l imit their use of

severance agreement and the inform ation contained therein to purposes directly related to this

litigation and prohibits the parties from disclosing this information to anyone outside this litigation.

For the reasons stated above, Defendant’s Motionto Compel (doc. 70) is granted in part and

denied in part as specifically set forth below:

C

Defendant’s Motion is denied with respect to Defendant’s r equest to com pel

Plaintiffs to provide an executed releases, igned by Plaintiff Sonntag, that authorizes

Defendant to access Sonntag’s employment records from Simplex Grinnell.

C

Defendant’s Motion is granted to the extenthat Plaintiffs shall produce a copy of the

severance agreement between Sonntag and Simplex Grinnell.

IT IS SO ORDERED.

Dated in Kansas City, Kansas on this 5th day of June, 2007.

cc: All counsel and pro se parties

s/ David J. Waxse David J. Waxse United States Magistrate Judge

6

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plaintiff,

)

)

and

)

)

BROOKE SONNTAG,

)

)

Plaintiff-Intervenor,

)

)

v.

)

)

THORMAN & WRIGHT CORP., THORMAN )

ENTERPRISES, INC., ELDON THORMAN )

& ASSOCIATES, INC., THE ELDON

)

THORMAN FAMILY NO. 1 THROUGH

)

NO. 5 LIMITED PARTNERSHIPS, and

)

RED COACH INNS LTD.,

)

)

Defendants.

)

CIVIL ACTION NO.06-2412-JWL

CONSENT DECREE

Plaintiff Equal Employment Opportunity Commission has instituted this action alleging

that Defendants Thorman & Wright Corp., Thorman Enterprises, Inc., Eldon Thorman &

Associates, Inc., The Eldon Thorman Family No. 1 through No. 5 Limited Partnerships, and Red

Coach Inns Ltd. retaliated against Brooke Sonntag and discharged or constructively discharged

her from employment because of her opposition to unlawful race discrimination and because of

her pregnancy, both in violation of Title VII of the Civil Rights Act of 1964 and Title I of the

Civil Rights Act of 1991. Plaintiff-Intervenor Brooke Sonntag has intervened in this action,

joining in the Commission=s allegations and also alleging a claim under 42 U.S.C. ' 1981. For

purposes of settlement and compromise only, the parties have advised the Court that they wish to resolve the instant controversy without the expense, delay and burden of further litigation;
THEREFORE, it is the finding of this Court, made on the pleadings and on the record as a whole and upon agreement of the parties, that: (i) this Court has jurisdiction over the parties to and the subject matter of this action, (ii) the requirements of Title VII, Section 1981 and Kansas law will be carried out by the implementation of this Decree, (iii) this Decree is intended to and does resolve all matters in controversy in this lawsuit among the parties, and (iv) the terms of this Decree constitute a fair and equitable settlement of all issues in this lawsuit.
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED as follows: I. NON-DISCRIMINATION AND NON-RETALIATION
1. In all matters arising from or relating to employment, Defendants and their officers, agents, employees, successors, and assigns, and all of those in active concert or participation with them, or any of them, shall not engage in any employment practice which unlawfully discriminates against an employee or applicant under Title VII of the Civil Rights Act of 1964.
2. Defendants, their officers, agents, employees, successors, assigns, and all those in active concert or participation with them, or any of them, shall not engage in reprisal or retaliation of any kind against any person because such person:
a. opposed any practice made unlawful under Title VII; b. filed a charge of discrimination with the Commission or a state agency or testified or participated in any manner in any investigation, proceeding, or hearing under Title VII;
2

c. requested and/or received relief in accordance with this Consent Decree; d. participated in any manner in this action or in the investigation giving rise to this action; or e. asserted any rights under this Consent Decree. II. MONETARY RELIEF 3. Within fifteen (15) days after this Decree is approved by the Court, Defendants will forward to Amy L. Coopman a check made payable to her and to Brooke Sonntag jointly in the gross amount of Three Hundred Twenty Five Thousand Dollars ($325,000.00) as compensation for damages. V. INJUNCTIVE RELIEF 4. Within thirty (30) days of the entry of this Decree, owner Eldon Thorman shall transfer all of his ownership interest in any motels owned by any Defendants to a trust to be formed with Dustin Wright as the sole trustee. In the event Dustin Wright ceases to be the sole trustee for such trust, a new trustee other than Eldon or Viola Thorman will be appointed. Dustin Wright shall replace Eldon Thorman as an officer or board member for any Defendant owning or operating a motel or hotel. 5. Within thirty (30) days of entry of this Decree, Defendants will, at each motel and hotel property owned or operated by them, implement an anti-discrimination policy prohibiting discrimination on the basis of race, sex, or pregnancy in hiring, firing, work assignment, pay, evaluation, promotion or any other term or condition of employment; harassment or creation of a hostile work environment on any of these bases and retaliation against any employee who opposes any practice declared unlawful under Title VII, including filing a charge, giving
3

testimony or assistance, or participating in any investigation, proceeding or hearing under Title VII. Defendants will discipline, up to and including termination, any employee who fails to adhere to the anti-discrimination policy and will include adherence to the anti-discrimination policy in its evaluations of management personnel.
6. Within forty-five (45) days of entry of this Decree, Defendants will inform all employees in writing of the anti-discrimination policy, reporting procedures, and disciplinary procedures set forth in paragraph 5. Defendants will require each employee to sign a stipulation that the policy has been read and understood.
7. Within sixty (60) days of entry of this Decree, Defendants will provide a minimum of four (4) hours of EEOC-approved live anti-discrimination training for all managerial and supervisory employees. The training will include review of the employment policies described in paragraph 5 above, types of prohibited employment actions (including harassment by employees or non-employees and retaliation), consequences of engaging in prohibited employment actions, and what employees should do if they believe they have been subjected to prohibited employment actions. Similar live training will be provided annually thereafter. In addition, similar training (either live or videotape) will be provided for all new managerial and supervisory employees within seven (7) days of hire.
8. Within sixty (60) days of entry of this Decree, Defendants will provide all non managerial and non-supervisory employees anti-discrimination training (either live or videotape). The training will include review of the employment policies described in paragraph 5 above, types of prohibited employment actions (including harassment by employees or non-employees and retaliation), consequences of engaging in prohibited employment actions, and what
4

employees should do if they believe they have been subjected to prohibited employment actions. Such training will last a minimum of 30 minutes. Similar training will be provided for all new non-managerial and non-supervisory employees within seven (7) days of hire. All nonmanagerial and non-supervisory employees will receive similar training at least once per year.
9. Within sixty (60) days of entry of this Decree, Defendants= owners will attend a minimum of 16 hours of EEOC-approved training on federal and state statutes prohibiting discrimination in employment, and will attend a minimum of 4 hours of EEOC-approved followup training annually thereafter.
10. Within six (6) months of entry of this Decree, owner Eldon Thorman will attend an EEOC-approved program regarding cultural sensitivity training or employment discrimination.
11 Within thirty (30) days of entry of this Decree, Defendants will eliminate from Brooke Sonntag=s personnel records all information regarding her Charge of Discrimination or this lawsuit, and any negative information concerning Ms. Sonntag created after the termination of her employment. The EEOC, Ms. Sonntag, and her attorney will have the right to review her personnel file to determine if any improper information remains in the file.
12. Within thirty (30) days of entry of this Decree, Defendants= owners will issue a letter to Brooke Sonntag as set forth in Exhibit A. Neither Defendants nor any of their agents or assigns shall make any statement, public or private, in contradiction to any statement included in Exhibit A.
13. Within ninety (90) days of entry of this Decree, Defendants will obtain a contract with a reputable employment law specialist or consultant to assist with the creation of the
5

policies described in paragraph 5 above and to consult regarding employee hiring, discipline and termination decisions, investigation of discrimination complaints, and modifications to employment-related policies during the term of this decree. V. POSTING AND NOTICES
14. Defendants will post and cause to remain posted the posters required to be displayed in the workplace by Commission Regulations, 29 C.F.R. ' 1601.30.
15. Defendants will post and cause to remain posted copies of the notice attached as Exhibit B in locations publicly visible to all employees of its hotel and motel operations during the term of this Decree. VI. MONITORING AND REPORTING
16. At any time during the term of this Decree, the Commission=s Regional Attorney in its St. Louis District Office may request from the Defendants a report, including supporting documentation, regarding their continued compliance with any term of this Decree. Defendants will provide such reports, as requested, within a reasonable amount of time, not to exceed thirty (30) days after the request is made.
17. Upon reasonable, written notice to Defendants, the EEOC may conduct random interviews, file reviews and copy documents to monitor compliance with this Decree.
18. Within thirty (30) days after this Decree is approved by the Court, Defendants will forward to the Commission=s Regional Attorney in its St. Louis District Office a copy of the check forwarded to Amy L. Coopman and Brooke Sonntag as described in paragraph 3 above.
19. Within sixty (60) days after this Decree is approved by the Court, Defendants will forward to the Commission=s Regional Attorney in its St. Louis District Office a letter signed by
6

or on behalf of their owners stating that it has complied with the requirements of paragraphs 4, 5, 6, 7, 8, 9, 11, and 12 describing the manner and dates on which such compliance was effected.
20. Within one hundred ninety five (195) days after this Decree is approved by the Court, Defendants will forward to the Commission’s Regional Attorney in its St. Louis District Office a letter signed by or on behalf of their owners stating that it has complied with the requirements of paragraphs 10 and 13 describing the manner and dates on which such compliance was effected.
21. During the term of this decree, on a semi-annual basis, Defendants with employees will prepare and submit to the Commission=s Regional Attorney in its St. Louis District Office a list of all individuals who were terminated or laid off, whose position was restructured or eliminated, or who involuntarily resigned or retired during the previous six months. This list will include each individual=s name; home address; home telephone number; date of separation; a brief description of the reason for separation; and the name of each person involved in the employment decision. If no individuals exist in these categories for the previous six months, Defendants will so inform the Commission=s Regional Attorney in its St. Louis District Office.
22. During the term of this decree, on a quarterly basis, Defendants with employees will prepare and submit to the Commission=s Regional Attorney in its St. Louis District Office a list of all individuals who have complained of or reported any discrimination in employment on the basis of race or pregnancy during that quarter. This list will include each individual=s name; home address; home telephone number; nature of the individual=s complaint; name of individual who received the complaint or report; date complaint or report was received; description of
7

Defendant=s actions taken in response to the complaint or report, including the name of each manager or supervisor involved in those actions. If no individuals have complained of or reported any discrimination in employment on the basis of race or pregnancy during that quarter, Defendants will so inform the Commission=s Regional Attorney in its St. Louis District Office. VI. TERM AND EFFECT OF DECREE
23. By entering into this Decree the parties do not intend to resolve any charges of discrimination currently pending before the Commission other than the charge that created the procedural foundation for the complaint in this case.
24. This Decree will be binding upon the parties hereto, their successors and assigns. 25. This Decree will be for a period of four (4) years. During the Decree=s term the Court will retain jurisdiction of this cause for purposes of compliance. 26. Each party will bear its own costs.
8

•
FOR DEFENDANTS:
RONALD WRIGHT
On behalf ofThorman & Wright Corp.
ELDON THORMAN On behalf of:
o Thorman & Wright Corp.
o Red Coach Inns Ltd.
o The Eldon Thorman Family Limited Partnerships No. 1 o The Eldon Thorman Family Limited Partnerships No. 2
o Eldon Thorman & Associates, Inc. o Thorman Enterprises, Inc. (Forfeited 1998)
o The Eldon Thorman Family Limited Partnerships No. 3 (Forfeited 2003) o The Eldon Thorman Family Limited Partnerships No. 4 (Forfeited 1997) o The Eldon Thorman Family Limited Partnerships No. 5 (Forfeited 2002)

ANDREA GOULD MCCARTHY KS#19201
Gould Thompson & Bucher P.C.
1441 E. 104 th Street
Suite 100
Kansas City, MO 64131
tel.: 816-943-0010
fax: 816-943-0016
donbucher@gtb-law.com (e-mail) andimccarthy@gtb-law.com (e-mail)

SO ORDERED: August 17, 2007 Date

s/ John W. Lungstrum UNITED STATES DISTRICT JUDGE 10

EXHIBIT A

LETTER REGARDING BROOKE SONNTAG

This letter confirms the employment of Brooke Sonntag by Thorman & Wright Corp. as the General Manager of the Best Western Meadow Acres in Topeka, Kansas. Ms. Sonntag held the General Manager position from June of 2002 to September of 2003. During her employment, Ms. Sonntag was paid a salary of $26,000 plus a commission based on room rentals. Ms. Sonntag=s duties as General Manager of Meadow Acres included sales responsibilities for which she was meeting the Company=s expectations. It is against Company policy to comment further regarding any present or former employees.

11

EXHIBIT B

NOTICE TO EMPLOYEES AND JOB APPLICANTS (on letterhead)

This Notice is posted as part of a remedy agreed to pursuant to a Consent Decree entered in the case of Equal Employment Opportunity Commission (EEOC) v. Thorman & Wright Corp., et al., Case No. 06-2412-KHV, on file in the United States District Court for the District of Kansas in Kansas City. The agreed remedy as set forth in the Consent Decree includes monetary relief; training regarding federal and state statutes prohibiting employment discrimination; notice of rights to employees and job applicants; reporting requirements; and an agreement by defendants to not discriminate on the basis of race or pregnancy in hiring, firing, work assignments, pay, promotion or other terms or conditions of employment.

Federal law prohibits discrimination against any employee because of race, national origin, color, religion, sex, disability or age (forty and over) with respect to hiring, promotion, firing, compensation, or other terms, conditions or privileges of employment. Federal law also prohibits retaliation against persons who complain of or oppose practices they believe are discriminatory on the basis of race, national origin, color, religion, sex, disability or age (forty and over), and it prohibits retaliation against persons who file charges with the EEOC, or who participate in or cooperate with an EEOC investigation.

The owners of this hotel or motel support and will comply with such federal law in all respects and will not take any action against employees because they have exercised their rights under the law. Specifically, the owners will not tolerate discrimination in employment, nor will it tolerate retaliation against any employee for exercising rights under law.

Employees or job applicants should feel free to report instances of discriminatory treatment to the owners at any time. Defendants have established policies and procedures to promptly investigate any such reports and to protect the person making the reports from retaliation, including retaliation by the person allegedly guilty of the discrimination. Individuals are also free to make complaints about employment discrimination to the Office of the Regional Attorney, United States Equal Employment Opportunity Commission, Kansas City Area Office, 400 State Avenue, Suite 905, Kansas City, KS 66101 (Attention: Andrea G. Baran, Senior Trial Attorney) or by telephone to (913) 551-5848 or e-mail to andrea.baran@eeoc.gov.

 
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CASREF, CLOSED, MEDIATION, PROTO
U.S. District Court District of Kansas (Kansas City) CIVIL DOCKET FOR CASE #: 2:06-cv-02412-JWL-DJW

Equal Employment Opportunity Commission v. Thorman & Wright Corp et al Assigned to: District Judge John W. Lungstrum Referred to: Magistrate Judge David J. Waxse Cause: 42:2000 Job Discrimination (Sex)

Date Filed: 09/27/2006 Date Terminated: 08/17/2007 Jury Demand: Both Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
Equal Employment Opportunity Commission

represented by Andrea G. Baran U. S. Equal Empoyment Opportunity Commission - KCK Gateway Tower II 400 State Ave Kansas City, KS 66101 913-551-5848 Fax: 913-551-6957 Email: andrea.baran@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Barbara A. Seely Equal Employment Opportunity Commission- St Louis Robert A. Young Federal Bldg. 1222 Spruce - Room 8.100 St. Louis, MO 63103 314-539-7916 Fax: 314-539-7895 Email: barbara.seely@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert G Johnson Equal Employment Opportunity Commission- St Louis Robert A. Young Federal Bldg. 1222 Spruce - Room 8.100 St. Louis, MO 63103 314-539-7910 Fax: 314-539-7895 Email: robert.johnson@eeoc.gov

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District of Kansas
Plaintiff Brooke Sonntag
V. Defendant Thorman & Wright Corp.
Defendant
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TERMINATED: 04/30/2007
represented by Amy L. Coopman Foland Wickens Eisfelder Roper & Hofer P.C. 911 Main Street, Suite 3000 Kansas City, MO 64105 816-472-7474 Fax: 816-472-6262 Email: acoopman@fwpclaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tiffany Basantz Klosener Foland Wickens Eisfelder Roper & Hofer P.C. 911 Main Street, Suite 3000 Kansas City, MO 64105 816-472-7474 Fax: 816-472-6262 Email: tklosener@fwpclaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Andrea Gould McCarthy Gould Thompson & Bucher, PC 1441 E. 104th St. #100 Kansas City, MO 64131 816-943-0010 Fax: 816-943-0016 Email: andimccarthy@gtb-law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Donald E. Bucher Gould, Thompson & Bucher, P.C. 1441 E. 104th St., Suite #100 Kansas City, MO 64131 816-943-0010 Fax: 816-943-0016 Email: donbucher@gtb-law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
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District of Kansas
Thorman Enterprises, Inc.
Defendant Eldon Thorman & Associates, Inc.
Defendant The Eldon Thorman Family No. 1 Limited Partnership
Defendant The Eldon Thorman Family No. 2 Limited Partnership
Defendant The Eldon Thorman Family No. 3 Limited Partnership
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represented by Andrea Gould McCarthy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Donald E. Bucher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Andrea Gould McCarthy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Donald E. Bucher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Andrea Gould McCarthy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Donald E. Bucher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Andrea Gould McCarthy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Donald E. Bucher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Andrea Gould McCarthy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
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Defendant The Eldon Thorman Family No. 4 Limited Partnership
Defendant The Eldon Thorman Family No. 5 Limited Partnership
Defendant Red Coach Inns Ltd.

Donald E. Bucher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Andrea Gould McCarthy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Donald E. Bucher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Andrea Gould McCarthy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Donald E. Bucher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Andrea Gould McCarthy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 09/27/2006 10/04/2006
10/18/2006

# Docket Text
1 COMPLAINT (No Summons Issued) with trial location of Kansas City, filed by Equal Employment Opportunity Commission.(jb) (Entered: 09/27/2006)
SUMMONS ISSUED as to The Eldon Thorman Family No. 1 Limited Partnership, The Eldon Thorman Family No. 2 Limited Partnership, The Eldon Thorman Family No. 3 Limited Partnership, The Eldon Thorman Family No. 4 Limited Partnership, The Eldon Thorman Family No. 5 Limited Partnership, Thorman & Wright Corp., Thorman Enterprises, Inc., Eldon Thorman & Associates, Inc.. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (jb) (Entered: 10/04/2006)
2 MOTION to Intervene by Movant Brooke Sonntag. (Attachments: # 1 Exhibit A# 2 Exhibit B Complaint in Intervention) (Coopman, Amy) (Entered: 10/18/2006)

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10/30/2006 10/30/2006
11/03/2006 11/13/2006 11/22/2006
11/22/2006
12/07/2006 12/13/2006 12/13/2006 12/14/2006

3 ANSWER to Complaint with Jury Demand by Thorman & Wright Corp..(Bucher, Donald) (Duplicate text removed on 10/31/2006. (mg)) (Entered: 10/30/2006)
4 MOTION to Dismiss, or in the alternative, for Summary Judgment by Defendants The Eldon Thorman Family No. 1 Limited Partnership, The Eldon Thorman Family No. 2 Limited Partnership, The Eldon Thorman Family No. 3 Limited Partnership, The Eldon Thorman Family No. 4 Limited Partnership, The Eldon Thorman Family No. 5 Limited Partnership, Thorman Enterprises, Inc., Eldon Thorman & Associates, Inc. (Bucher, Donald) (Motion title modified on 10/31/06. (mg)) (Entered: 10/30/2006)
5 ORDER SETTING SCHEDULING CONFERENCE: Telephone Scheduling Conference set for 12/18/2006 at 03:00 PM before Magistrate Judge David J. Waxse. Report of Parties Planning Meeting deadline 12/11/2006. Signed by Magistrate Judge David J. Waxse on 11/3/06. (ll) (Entered: 11/03/2006)
6 MEMORANDUM in Opposition by Plaintiff Equal Employment Opportunity Commission re 4 MOTION to Dismiss, or in the alternative, for Summary Judgment. (Attachments: #(1) Exhibit 1 - Sonntag Declaration)(Baran, Andrea) (Entered: 11/13/2006)
7 ENTRY OF APPEARANCE by Andrea Gould McCarthy on behalf of The Eldon Thorman Family No. 1 Limited Partnership, The Eldon Thorman Family No. 2 Limited Partnership, The Eldon Thorman Family No. 3 Limited Partnership, The Eldon Thorman Family No. 4 Limited Partnership, The Eldon Thorman Family No. 5 Limited Partnership, Thorman & Wright Corp., Thorman Enterprises, Inc., Eldon Thorman & Associates, Inc.. (McCarthy, Andrea) (Entered: 11/22/2006)
8 REPLY to Response to Motion by Defendants The Eldon Thorman Family No. 1 Limited Partnership, The Eldon Thorman Family No. 2 Limited Partnership, The Eldon Thorman Family No. 3 Limited Partnership, The Eldon Thorman Family No. 4 Limited Partnership, The Eldon Thorman Family No. 5 Limited Partnership, Thorman Enterprises, Inc., Eldon Thorman & Associates, Inc. re: 4 MOTION to Dismiss, or in the alternative, for Summary Judgment. (Attachments: # 1 Affidavit Second Affidavit of Ron Wright)(McCarthy, Andrea) (Entered: 11/22/2006)
9 CERTIFICATE OF SERVICE of Initial Disclosures, First Interrogatories to Thorman & Wright Corp., and First Requests for Production of Documents to all Defendants by Equal Employment Opportunity Commission. (Baran, Andrea) (Entered: 12/07/2006)
10 CERTIFICATE OF SERVICE of Thorman & Wright Corp.'s First Interrogatories and Requests for Production of Documents on Plaintiff EEOC and Proposed Plaintiff-Intervenor Brooke Sonntag by Thorman & Wright Corp. (McCarthy, Andrea) (Entered: 12/13/2006)
11 CERTIFICATE OF SERVICE of Thorman & Wright Corp. Rule 26 Initial Disclosures on Plaintiff EEOC and Proposed Plaintiff-Intervenor Brooke Sonntag by Thorman & Wright Corp. (McCarthy, Andrea) (Entered: 12/13/2006)
12 MEMORANDUM AND ORDER granting 2 Movant's Motion to Intervene. Plaintiff-intervenor shall electronically file and serve her Complaint in Intervention no later than December 22, 2006. Signed by Magistrate Judge David J. Waxse on 12/14/2006.(jm) (Entered: 12/14/2006)

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12/15/2006 12/18/2006 12/18/2006
12/20/2006 01/02/2007
01/02/2007 01/02/2007 01/02/2007 01/02/2007 01/02/2007 01/02/2007 01/02/2007 01/10/2007 01/11/2007 01/11/2007

13 MEMORANDUM AND ORDER denying without prejudice 4 MOTION to Dismiss, or in the alternative, for Summary Judgment. Signed by Judge John W. Lungstrum on 12/15/2006. (ses) (Entered: 12/15/2006)
14 COMPLAINT in Intervention filed by Brooke Sonntag.(Coopman, Amy) (Entered: 12/18/2006)
MINUTE ENTRY for Telephone Scheduling Conference held before Magistrate Judge David J. Waxse on 12/18/2006. Written Scheduling Order to follow. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (ll) (Entered: 12/18/2006)
15 NOTICE by Movant Brooke Sonntag of taking deposition of Eldon Thorman on 01/10/07. (Coopman, Amy) (Entered: 12/20/2006)
16 SCHEDULING ORDER from Scheduling Conference held before Magistrate Judge David J. Waxse on 12/18/2006. Discovery deadline 4/27/2007. Dispositive motion deadline 6/1/2007. Confidential settlement reports due 1/11/2007. Mediation deadline 2/1/2007. Proposed Pretrial Order due by 5/8/2007. Final Pretrial Conference set for 5/15/2007 at 11:00 AM before Magistrate Judge David J. Waxse. Jury Trial set for 10/2/2007 at 09:30 AM before Chief Judge John W. Lungstrum. Estimated trial time 4 to 5 days. (SEE SCHEDULING ORDER FOR FURTHER DEADLINES.) Signed by Magistrate Judge David J. Waxse on 1/2/2007.(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.)(jm) (Entered: 01/02/2007)
17 ANSWER to Complaint with Jury Demand by Eldon Thorman & Associates, Inc..(McCarthy, Andrea) (Entered: 01/02/2007)
18 ANSWER to Complaint with Jury Demand by The Eldon Thorman Family No. 1 Limited Partnership.(McCarthy, Andrea) (Entered: 01/02/2007)
19 ANSWER to Complaint with Jury Demand by The Eldon Thorman Family No. 2 Limited Partnership.(McCarthy, Andrea) (Entered: 01/02/2007)
20 ANSWER to Complaint with Jury Demand by The Eldon Thorman Family No. 3 Limited Partnership.(McCarthy, Andrea) (Entered: 01/02/2007)
21 ANSWER to Complaint with Jury Demand by The Eldon Thorman Family No. 4 Limited Partnership.(McCarthy, Andrea) (Entered: 01/02/2007)
22 ANSWER to Complaint with Jury Demand by The Eldon Thorman Family No. 5 Limited Partnership.(McCarthy, Andrea) (Entered: 01/02/2007)
23 ANSWER to Complaint with Jury Demand by Thorman Enterprises, Inc..(McCarthy, Andrea) (Entered: 01/02/2007)
24 AMENDED NOTICE by Movant Brooke Sonntag of taking deposition of Eldon Thorman on 1/17/07. (Coopman, Amy) (Entered: 01/10/2007)
25 CERTIFICATE OF SERVICE of Plaintiff-Intervenor Sonntag's Answers to First Interrogatories and Responses to First Request for Production by Brooke Sonntag. (Coopman, Amy) (Entered: 01/11/2007)
26 CERTIFICATE OF SERVICE of discovery responses by Equal Employment Opportunity Commission. (Baran, Andrea) (Entered: 01/11/2007)

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01/16/2007
01/17/2007 01/17/2007 01/19/2007 01/31/2007 02/05/2007 02/05/2007 02/06/2007 02/20/2007
02/21/2007 02/28/2007 02/28/2007

27 NOTICE by Defendants The Eldon Thorman Family No. 1 Limited Partnership, The Eldon Thorman Family No. 2 Limited Partnership, The Eldon Thorman Family No. 3 Limited Partnership, The Eldon Thorman Family No. 4 Limited Partnership, The Eldon Thorman Family No. 5 Limited Partnership, Thorman & Wright Corp., Thorman Enterprises, Inc., Eldon Thorman & Associates, Inc. of taking deposition of Brooke Sonntag on January 16, 2007. (McCarthy, Andrea) (Entered: 01/16/2007)
28 CERTIFICATE OF SERVICE of Rule 26 Initial Disclosures by Brooke Sonntag. (Coopman, Amy) (Entered: 01/17/2007)
29 MINUTE SHEET for Telephone Discovery Hearing held before Magistrate Judge David J. Waxse on 1/17/2007 re depositions of Brooke Sonntag and Eldon Thorman. (See Minute Sheet for details.) (ll) (Entered: 01/17/2007)
30 CERTIFICATE OF SERVICE of Second Interrogatories to Thorman & Wright Corp. and Second Requests for Production of Documents to All Defendants by Equal Employment Opportunity Commission. (Baran, Andrea) (Entered: 01/19/2007)
31 Joint MOTION for extension of time to engage in mediation by Plaintiff Equal Employment Opportunity Commission. (Baran, Andrea) (Entered: 01/31/2007)
32 MOTION for Leave to Amend Complaint re 1 Complaint by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit A - Sonntag Declaration# 2 Exhibit B - Thorman Deposition Excerpts# 3 Exhibit C - First Amended Complaint) (Baran, Andrea) (Entered: 02/05/2007)
33 MOTION for Leave to Amend Complaint re 14 Intervenor Complaint by Movant Brooke Sonntag. (Attachments: # 1 Exhibit A First Amended Complaint in Intervention# 2 Exhibit B Sonntag Declaration# 3 Exhibit C Thorman Deposition Excerpts) (Coopman, Amy) (Entered: 02/05/2007)
34 ORDER granting 31 the parties' Joint Motion for Extension of Mediation Deadline. The deadline before which mediation must occur is extended to February 14, 2007. Signed by Magistrate Judge David J. Waxse on 2/6/2007.(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.)(jm) (Entered: 02/06/2007)
35 MEMORANDUM in Opposition by Defendants The Eldon Thorman Family No. 1 Limited Partnership, The Eldon Thorman Family No. 2 Limited Partnership, The Eldon Thorman Family No. 3 Limited Partnership, The Eldon Thorman Family No. 4 Limited Partnership, The Eldon Thorman Family No. 5 Limited Partnership, Thorman & Wright Corp., Thorman Enterprises, Inc., Eldon Thorman & Associates, Inc. re 32 MOTION for Leave to Amend Complaint re 1 Complaint and 33 MOTION for Leave to Amend Complaint re 14 Intervenor Complaint. (Attachments: # 1 Exhibit A)(McCarthy, Andrea) (Duplicate text removed on 02/23/07. (mg)) (Entered: 02/20/2007)
36 CERTIFICATE OF SERVICE of Third Reqests for Production of Documents, Third Interrogatories and First Requests for Admissions by Equal Employment Opportunity Commission. (Baran, Andrea) (Entered: 02/21/2007)
37 NOTICE by Plaintiff Equal Employment Opportunity Commission of taking deposition of Ronald Wright on March 5, 2007. (Baran, Andrea) (Entered: 02/28/2007)
38 NOTICE by Plaintiff Equal Employment Opportunity Commission of taking deposition of 30(b)(6) representative on March 8, 2007. (Baran, Andrea) (Entered: 02/28/2007)

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02/28/2007 02/28/2007 02/28/2007 03/06/2007
03/20/2007 03/20/2007 03/20/2007 04/03/2007
04/05/2007 04/05/2007 04/10/2007 04/11/2007
04/14/2007 04/16/2007

39 NOTICE by Plaintiff Equal Employment Opportunity Commission of taking deposition of Gary Edwards on March 8, 2007. (Baran, Andrea) (Entered: 02/28/2007)
40 AMENDED NOTICE by Plaintiff Equal Employment Opportunity Commission of taking deposition of Ronald Wright on March 5, 2007. (Baran, Andrea) (Entered: 02/28/2007)
41 AMENDED NOTICE by Plaintiff Equal Employment Opportunity Commission of taking deposition of Gary Edwards on March 8, 2007. (Baran, Andrea) (Entered: 02/28/2007)
42 JOINT REPLY to Response to Motion by Movant Brooke Sonntag, Plaintiff Equal Employment Opportunity Commission re: 32 MOTION for Leave to Amend Complaint re 1 Complaint, 33 MOTION for Leave to Amend Complaint re 14 Intervenor Complaint. (Coopman, Amy) (Document title modified on 3/7/2007. (mg)) (Entered: 03/06/2007)
43 DEPOSITION of Gary T. Edwards taken on March 22, 2007 filed by Brooke Sonntag. (Coopman, Amy) (Entered: 03/20/2007)
44 AMENDED NOTICE by Movant Brooke Sonntag of taking deposition of Gary Edwards on March 22, 2007. (Coopman, Amy) (Entered: 03/20/2007)
45 AMENDED NOTICE by Movant Brooke Sonntag of taking deposition of Gary Edwards on March 22, 2007. (Coopman, Amy) (Entered: 03/20/2007)
46 ORDER granting [32 and 33] Motions for Leave to Amend Complaint. Plaintiffs shall electronically file and serve the referenced Complaints on or before April 13, 2007. Signed by Magistrate Judge David J. Waxse on 04/03/2007. (mts) (Entered: 04/03/2007)
47 AMENDED COMPLAINT in Intervention against all defendants, filed by Brooke Sonntag.(Coopman, Amy) (Modified on 4/6/2007. (mg)) (Entered: 04/05/2007)
48 AMENDED COMPLAINT against all defendants, filed by Equal Employment Opportunity Commission.(Baran, Andrea) (Entered: 04/05/2007)
49 AMENDED NOTICE by Plaintiff Brooke Sonntag of taking deposition of Ron Wright on 04/18/07. (Coopman, Amy) (Entered: 04/10/2007)
50 NOTICE by Defendants Red Coach Inns Ltd., The Eldon Thorman Family No. 1 Limited Partnership, The Eldon Thorman Family No. 2 Limited Partnership, The Eldon Thorman Family No. 3 Limited Partnership, The Eldon Thorman Family No. 4 Limited Partnership, The Eldon Thorman Family No. 5 Limited Partnership, Thorman & Wright Corp., Thorman Enterprises, Inc., Eldon Thorman & Associates, Inc. of taking deposition of Geoff Sonntag on April 19, 2007. (McCarthy, Andrea) (Entered: 04/11/2007)
51 CERTIFICATE OF SERVICE of Second Privilege Log by Equal Employment Opportunity Commission. (Baran, Andrea) (Entered: 04/14/2007)
52 ANSWER to Amended Complaint in Intervention of Brooke Sonntag by Red Coach Inns Ltd., The Eldon Thorman Family No. 1 Limited Partnership, The Eldon Thorman Family No. 2 Limited Partnership, The Eldon Thorman Family No. 3 Limited Partnership, The Eldon Thorman Family No. 4 Limited Partnership, The Eldon Thorman

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04/16/2007
04/20/2007 04/26/2007 04/26/2007 04/27/2007 04/27/2007
04/27/2007 04/30/2007 04/30/2007 05/01/2007

Family No. 5 Limited Partnership, Thorman & Wright Corp., Thorman Enterprises, Inc., Eldon Thorman & Associates, Inc..(McCarthy, Andrea) (Entered: 04/16/2007)
53 ANSWER to Amended Complaint of Plaintiff EEOC by Red Coach Inns Ltd., The Eldon Thorman Family No. 1 Limited Partnership, The Eldon Thorman Family No. 2 Limited Partnership, The Eldon Thorman Family No. 3 Limited Partnership, The Eldon Thorman Family No. 4 Limited Partnership, The Eldon Thorman Family No. 5 Limited Partnership, Thorman & Wright Corp., Thorman Enterprises, Inc., Eldon Thorman & Associates, Inc..(McCarthy, Andrea) (Entered: 04/16/2007)
54 Joint MOTION for Leave to Supplemental Initial Disclosures by Plaintiff Equal Employment Opportunity Commission. (Baran, Andrea) (Entered: 04/20/2007)
55 CERTIFICATE OF SERVICE of First Supplemental Responses to First Request for Production of Documents and Responses to Second Request for Production of Documents by Brooke Sonntag. (Coopman, Amy) (Entered: 04/26/2007)
56 CERTIFICATE OF SERVICE of Plaintiff EEOC's Responses to Defendant's Second Request for Production of Documents by Equal Employment Opportunity Commission. (Baran, Andrea) (Entered: 04/26/2007)
57 MOTION to Withdraw as Attorney by Robert G. Johnson, counsel for Plaintiff by Plaintiff Equal Employment Opportunity Commission. (Baran, Andrea) (Motion title modified on 4/27/2007. (mg)) (Entered: 04/27/2007)
58 MOTION Leave to Depose Witness Lisa Noller Out of Time by Defendants Red Coach Inns Ltd., The Eldon Thorman Family No. 1 Limited Partnership, The Eldon Thorman Family No. 2 Limited Partnership, The Eldon Thorman Family No. 3 Limited Partnership, The Eldon Thorman Family No. 4 Limited Partnership, The Eldon Thorman Family No. 5 Limited Partnership, Thorman & Wright Corp., Thorman Enterprises, Inc., Eldon Thorman & Associates, Inc. (Attachments: # 1 Exhibit Noller Exhibits) (McCarthy, Andrea) (Entered: 04/27/2007)
59 CERTIFICATE OF SERVICE of Responses to Second Document Request by The Eldon Thorman Family No. 1 Limited Partnership. (McCarthy, Andrea) (Entered: 04/27/2007)
60 ORDER granting 58 Defendants' Unopposed Motion for Leave to Depose Witness. Defendants shall have up to and including May 23, 2007 before which to depose witness Lisa Noller. Signed by Magistrate Judge David J. Waxse on 4/30/2007.(jm) (Entered: 04/30/2007)
61 ORDER granting 57 Motion to Withdraw as Attorney. Attorney Robert G. Johnson witdrawn as counsel plaintiff. Signed by Magistrate Judge David J. Waxse on 04/30/07. (mg) (Entered: 04/30/2007)
62 MEMORANDUM in Opposition by Defendants Red Coach Inns Ltd., The Eldon Thorman Family No. 1 Limited Partnership, The Eldon Thorman Family No. 2 Limited Partnership, The Eldon Thorman Family No. 3 Limited Partnership, The Eldon Thorman Family No. 4 Limited Partnership, The Eldon Thorman Family No. 5 Limited Partnership, Thorman & Wright Corp., Thorman Enterprises, Inc., Eldon Thorman & Associates, Inc. re 54 Joint MOTION for Leave to Supplemental Initial Disclosures. (McCarthy, Andrea) (Entered: 05/01/2007)

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05/10/2007 05/10/2007
05/14/2007 05/15/2007 05/15/2007
05/18/2007
05/18/2007 05/18/2007

63 MOTION to Compel by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit A - 3-28-07 Document Request# 2 Exhibit B - 4-14-07 E-Mail from Andrea Baran to Andi McCarthy# 3 Exhibit C - 30(b)(6) Deposition Notice# 4 Exhibit D - 30(b)(6) Depo Excerpts) (Baran, Andrea) (Entered: 05/10/2007)
64 MEMORANDUM IN SUPPORT of 63 MOTION to Compel by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit A - 3-28-07 Document Request# 2 Exhibit B - 4-14-07 E-Mail from Andrea Baran to Andi McCarthy# 3 Exhibit C - deposition notice (30(b)(6))# 4 Exhibit D - 30(b)(6) Depo Excerpts# 5 Exhibit E - 3-28-07 E-Mail from Andrea Baran to Andi McCarthy# 6 Exhibit F - cert of serv 1-19-07# 7 Exhibit G - doc rq - second to eldon thorman family ptshp 1# 8 Exhibit H - 4-27-07 E-Mail from Andrea McCarthy to Andrea Baran# 9 Exhibit I - 5-1-07 E-Mail from Andrea Baran and Amy Coopman to Andi McCarthy and Don Bucher# 10 Exhibit J - 5-1-07 E-Mail from Andrea McCarthy to Andrea Baran and Amy Coopman# 11 Exhibit K - Ronald Wright Depo Excerpts)(Baran, Andrea) (Entered: 05/10/2007)
65 REPLY MEMORANDUM IN SUPPORT of 54 Joint MOTION for Leave to Supplemental Initial Disclosures by Plaintiffs Brooke Sonntag, Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Carol Crawford Declaration)(Coopman, Amy) (Entered: 05/14/2007)
66 MINUTE ENTRY for proceedings held before Magistrate Judge David J. Waxse: Final Pretrial Conference held on 5/15/2007. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (mts) Mo (Entered: 05/15/2007)
67 ORDER granting 54 Plaintiffs' Motion to File Supplemental Initial Disclosures. Defendants shall be permitted to depose witness Carol Crawford. All further discovery shall be completed by June 1, 2007; upon consultation with the trial judge in this matter, the dispositive motion deadline is reset to June 15, 2007; any response brief to Plaintiffs' Motion to Compel (doc. 63) shall be filed by May 18, 2007 and any reply brief filed by May 22, 2007; Defendants shall file the proposed Motion to Compel referenced by counsel in the telephone conference no later than May 18, 2007. Any response brief to Defendants' proposed Motion to Compel shall be filed by May 25, 2007 and any reply brief filed by May 29, 2007. Signed by Magistrate Judge David J. Waxse on 5/15/2007.(jm) (Entered: 05/15/2007)
69 MEMORANDUM in Opposition by Defendants Red Coach Inns Ltd., The Eldon Thorman Family No. 1 Limited Partnership, The Eldon Thorman Family No. 2 Limited Partnership, The Eldon Thorman Family No. 3 Limited Partnership, The Eldon Thorman Family No. 4 Limited Partnership, The Eldon Thorman Family No. 5 Limited Partnership, Thorman & Wright Corp., Thorman Enterprises, Inc., Eldon Thorman & Associates, Inc. re 63 MOTION to Compel. (Attachments: # 1 Exhibit 1 - Discovery Response# 2 Exhibit 2 - Gary Edwards 30(b)(6) Deposition# 3 Exhibit 3 - Eldon Thorman Deposition)(McCarthy, Andrea) (Entered: 05/18/2007)
70 MOTION to Compel Discovery by Defendant Thorman & Wright Corp. (McCarthy, Andrea) (Entered: 05/18/2007)
71 MEMORANDUM IN SUPPORT of 70 MOTION to Compel Discovery by Defendant Thorman & Wright Corp. (Attachments: # 1 Exhibit)(McCarthy, Andrea) (Entered: 05/18/2007)

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05/22/2007 05/23/2007
05/25/2007 05/25/2007 05/25/2007
05/29/2007 05/30/2007 06/05/2007
06/05/2007

72 PRETRIAL ORDER ENTERED: estimated trial time 5 days. Dispositive motion deadline 6/15/2007. Jury Trial set for 10/2/2007 at 09:30 AM before Chief Judge John W. Lungstrum. SEE ORDER FOR FURTHER DEADLINE INFORMATION. Signed by Judge John W. Lungstrum on 5/22/2007.(ses) (Entered: 05/22/2007)
73 MOTION for extension of time to Depose Plaintiffs' Witness Lisa Noller Beyond May 23, 2007, or, in the Alternative, to Exclude All Evidence and Testimony From Lisa Noller by Defendants Red Coach Inns Ltd., The Eldon Thorman Family No. 1 Limited Partnership, The Eldon Thorman Family No. 2 Limited Partnership, The Eldon Thorman Family No. 3 Limited Partnership, The Eldon Thorman Family No. 4 Limited Partnership, The Eldon Thorman Family No. 5 Limited Partnership, Thorman & Wright Corp., Thorman Enterprises, Inc., Eldon Thorman & Associates, Inc. (Attachments: # 1 Exhibit 1, 2 and 3) (McCarthy, Andrea) (Motion title modified on 5/24/2007. (mg)) (Entered: 05/23/2007)
74 Joint MEMORANDUM in Opposition by Plaintiffs Brooke Sonntag, Equal Employment Opportunity Commission re 70 MOTION to Compel Discovery. (Coopman, Amy) (Entered: 05/25/2007)
75 NOTICE of Hearing on Motion 73 MOTION for extension of time to Depose Plaintiffs' Witness Lisa Noller Beyond May 23, 2007, or, in the Alternative, to Exclude All Evidence and Testimony From Lisa Noller: (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) Motion Hearing by telephone conference is set for 5/25/2007 at 03:00 PM before Chief Judge John W. Lungstrum. The court will initiate the conference call.(ses) (Entered: 05/25/2007)
78 MINUTE ENTRY for proceedings held before Judge John W. Lungstrum - Motion Hearing held on 5/25/2007: granting in part as set forth on the record the 73 Motion for leave to depose plaintiffs' witness Lisa Noller beyond May 23, 2007, or, in the alternative, to exclude all evidence and testimony from Lisa Noller. The deadline by which Ms. Noller's deposition shall be completed is 6/15/2007. (Court Reporter Becky Ryder.) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (ses) (Entered: 05/31/2007)
76 REPLY to Response to Motion by Defendant Thorman & Wright Corp. re: 70 MOTION to Compel Discovery. (McCarthy, Andrea) (Entered: 05/29/2007)
77 CASE REFERRED to Magistrate Judge David J. Waxse. (ses) (Entered: 05/30/2007)
79 MEMORANDUM AND ORDER granting 63 Plaintiff's Motion to Compel. Any Defendant who did not respond to Plaintiff's March 28, 2007 discovery requests shall respond to these discovery requests on or before June 18, 2007. The parties shall meet and confer regarding a mutually convenient time within the next fourteen (14) days for Defendants Thorman Enterprises, Inc., and Eldon Thorman Family Limited Partnership No. 4 to produce a designee who is competently prepared to fully and responsibly address questions posed regarding the topics identified in Plaintiff's Notice to Take 30(b)(6) Deposition. Signed by Magistrate Judge David J. Waxse on 6/5/2007.(jm) (Entered: 06/05/2007)
80 MEMORANDUM AND ORDER granting in part and denying in part 70 Defendant's Motion to Compel. Defendant's Motion is denied with respect to Defendant's request to compel Plaintiffs to provide an executed release, signed by Plaintiff Sonntag, that authorizes Defendant to access Sonntag's employment records from Simplex Grinnell.

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06/15/2007 06/15/2007
06/18/2007 06/21/2007 07/10/2007 07/10/2007

Defendant's Motion is granted to the extent that Plaintiffs shall produce a copy of the severance agreement between Sonntag and Simplex Grinnell. Signed by Magistrate Judge David J. Waxse on 6/5/2008.(jm) (Entered: 06/05/2007)
81 MOTION for Summary Judgment by Defendants Red Coach Inns Ltd., The Eldon Thorman Family No. 1 Limited Partnership, The Eldon Thorman Family No. 2 Limited Partnership, The Eldon Thorman Family No. 3 Limited Partnership, The Eldon Thorman Family No. 4 Limited Partnership, The Eldon Thorman Family No. 5 Limited Partnership, Thorman Enterprises, Inc., Eldon Thorman & Associates, Inc. (McCarthy, Andrea) (Entered: 06/15/2007)
82 MEMORANDUM IN SUPPORT of 81 MOTION for Summary Judgment by Defendants Red Coach Inns Ltd., The Eldon Thorman Family No. 1 Limited Partnership, The Eldon Thorman Family No. 2 Limited Partnership, The Eldon Thorman Family No. 3 Limited Partnership, The Eldon Thorman Family No. 4 Limited Partnership, The Eldon Thorman Family No. 5 Limited Partnership, Thorman Enterprises, Inc., Eldon Thorman & Associates, Inc. (Attachments: # 1 Exhibit Index# 2 Exhibit A - Outline of Defendants and Hotels# 3 Exhibit B - Sonntag Deposition# 4 Exhibit C - 2003 Charge# 5 Exhibit D - 2005 Charge# 6 Exhibit E - Affidavit of Ron Wright# 7 Exhibit G - Limited Partnership No. 1 Tax Return# 8 Exhibit H - Limited Partnership No. 2 Tax Return# 9 Exhibit I - Kansas Secretary of State Business Information# 10 Exhibit J - Ron Wright Deposition# 11 Exhibit F - 30(b)(6) Deposition of Gary Edwards# 12 Exhibit K - Carol Crawford Deposition# 13 Exhibit L - Eldon Thorman Deposition# 14 Exhibit M - Sonntag Wage Claim Letter)(McCarthy, Andrea) (Entered: 06/15/2007)
83 CERTIFICATE OF SERVICE of Defendants Responses to Plaintiff EEOC's Second Document Requests by Red Coach Inns Ltd., The Eldon Thorman Family No. 2 Limited Partnership, The Eldon Thorman Family No. 3 Limited Partnership, The Eldon Thorman Family No. 4 Limited Partnership, The Eldon Thorman Family No. 5 Limited Partnership, Thorman & Wright Corp., Thorman Enterprises, Inc., Eldon Thorman & Associates, Inc. (McCarthy, Andrea) (Entered: 06/18/2007)
84 STIPULATION FOR THE PROTECTION AND EXCHANGE OF CONFIDENTIAL INFORMATION entered. Signed by Magistrate Judge David J. Waxse on 6/21/2007.(jm) (Entered: 06/21/2007)
85 Joint MOTION for Extension of Time to Response to Defendant's 81 MOTION for Summary Judgment by Plaintiff Equal Employment Opportunity Commission and Plaintiff-Intervenor Brooke Sonntag. (Baran, Andrea) (Motion title and filers modified on 07/11/07. (mg)) (Entered: 07/10/2007)
86 Joint MEMORANDUM in Opposition by Plaintiff Equal Employment Opportunity Commission and Plaintiff-Intervenor Brooke Sonntag re 81 MOTION for Summary Judgment.(Attachments: # 1 Exhibit 1 - 30(b)(6) Deposition Excerpts# 2 Exhibit 2 Wright Deposition Excerpts# 3 Exhibit 3 - Sonntag Declaration# 4 Exhibit 4 - Edwards Financials# 5 Exhibit 5 - Tax Returns# 6 Exhibit 6 - Edwards Deposition Excerpts# 7 Exhibit Thorman Deposition Excerpts# 8 Exhibit 8 - Sonntag Deposition Excerpts# 9 Exhibit 9 - Crawford Deposition Excerpts# 10 Exhibit 10 - Fax re Remco Technical Support# 11 Exhibit 11 - Noller Deposition Excerpts# 12 Exhibit 12 - Frost Declaration# 13 Exhibit 13 - Frost Deposition Excerpts# 14 Exhibit 14 - Hospitality House Payroll Log# 15 Exhibit 15 - Crawford Declaration# 16 Exhibit 16 - 6-11-03

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07/10/2007 08/02/2007
08/17/2007 08/17/2007

Letter# 17 Exhibit 17 - Suggested Motel Office Procedure# 18 Exhibit 18 - Financial Statements# 19 Exhibit 19 - Health Insurance Billing Notice# 20 Exhibit 20 - Wright Correspondence# 21 Exhibit 21 - 11-20-05 Notice of Charge# 22 Exhibit 22 - Letter of Determination# 23 Exhibit 23 - Warren Declaration# 24 Exhibit 24 - Conciliation Failure Letter# 25 Exhibit 25 - Corporations Flow Chart)(Baran, Andrea) (Modified on 7/11/2007. (mg)) (Entered: 07/10/2007)
87 ORDER granting 85 Motion for Extension of Time to File Response re 81 MOTION for Summary Judgment. Response deadline extended to 7/10/2007. Signed by Judge John W. Lungstrum on 7/10/2007.(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (ses) (Entered: 07/10/2007)
88 REPLY to Response to Motion by Defendants Red Coach Inns Ltd., The Eldon Thorman Family No. 1 Limited Partnership, The Eldon Thorman Family No. 2 Limited Partnership, The Eldon Thorman Family No. 3 Limited Partnership, The Eldon Thorman Family No. 4 Limited Partnership, The Eldon Thorman Family No. 5 Limited Partnership, Thorman Enterprises, Inc., Eldon Thorman & Associates, Inc. re: 81 MOTION for Summary Judgment. (Attachments: # 1 Exhibit N - Additional Excerpts from Carol Crawford Deposition# 2 Exhibit O - Additional Affidavit of Ron Wright# 3 Exhibit P - Excerpts from Gary Edwards Individual Deposition# 4 Exhibit Q - Excerpts from Ruth Frost Deposition)(McCarthy, Andrea) (Entered: 08/02/2007)
89 CONSENT DECREE. Signed by Judge John W. Lungstrum on 08/17/07.(mg) (Entered: 08/17/2007)
***Civil Case Terminated. See 89 Consent Decree. (mg) (Entered: 08/17/2007)

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